IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1955 of 1994 to SPECIAL CIVIL APPLICATION No 1967 of 1994 with SPECIAL CIVIL APPLICATION No 1954 of 1994 and SPECIAL CIVIL APPLICATION No 9401 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- TATA CHEMICALS LTD Versus UNION OF INDIA -------------------------------------------------------------- Appearance: None present for Petitioners MR JD AJMERA for Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 01/12/97 C.A.V. JUDGEMENT 1. As in all these Special Civil Applications common grounds and identical issues have been raised, I consider it to be appropriate to take them together for hearing and decide the same under this common order. The facts of the case are being taken from Special Civil Application No.1955 of 1994: The petitioners by this Special Civil Application under Article 226 of the Constitution of India challenge the Notification No.U-23013/15/86-L.W.(Vol.II) dated 17th March 1993, annexure `A' to the petition, prohibiting under section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as `the Act'), with effect from the date of publication of the same, i.e. 3.4.83, the employment of contract labour in the Limestone & Dolomites Mines in the country for the following works: (i) Raising of minerals including breaking, sizing, sorting of lime stone/ domomite and (ii) Transportation of lime stones/ dolomites which includes loading into and unloading from trucks, dumpers, conveyance and transporting from mine site to factory. Further challenge has been made to the order of respondent No.4 dated 20.1.94, annexure `B' on the record, under which the licence granted to petitioner No.3 under the Act was revoked and cancelled with immediate effect. This licence was valid upto 4th May 1994. Under the aforesaid order, the petitioner No.3 as well as the petitioner-Company were ordered not to engage any contract labour in the prohibited category and revoked in respect of the said category certification of registration of the Company also. 2. The facts of the case in brief are that the petitioner No.1 is a Company limited by shares and is incorporated and registered under the provisions of the Companies Act, 1956. The second petitioner is one of the share holders of the Company, petitioner No.1. The petitioner No.3 provides contract labour to the Company in connection with works specified in the impugned notification in its Lime and Dolomite Mines. The petitioner No.1-Company is engaged in the business of manufacturing heavy chemicals, e.g. inorganic, photographic, insecticides, pesticides, and other miscellaneous chemicals including caustic soda and soda ash. The petitioner No.1 claims itself to be the biggest soda ash manufacturer in India. The Limestone is the basic raw material for manufacturing soda ash, as per the petitioners' case and that raw material it needs in large quantity. The petitioner No.1-Company holds on lease, Limestone mines centered in Junagadh and Jamnagar Districts. It also purchases Limestones from private lease holders of Limestone mines which engage contract labour for working in the mines. The petitioner No.1 made a grievance that the impugned notification has been published by respondent-Union of India without giving an opportunity of hearing to the petitioner-Company and without the consultation with the Central Advisory Contract Labour Board. The Company submitted to the second respondent, a representation dated 21st June 1993, and it further made an application dated 14th July 1993 for exemption under section 34 of the Act. The third respondent by its letter dated 20th July 1993 advised the Company to stop employment of contract labour for the work of Limestone, raising an excavation, including breaking sizing, etc. The Company vide its letter dated 4th August 1993, informed the third respondent that the Company had made application for exemption under section 34 of the Act, that the same was under consideration and that the third respondent should bear with the Company till the Company receives reply to the said application. The Company received from the section officer in the Ministry of Labour, Government of India, a letter dated 12th August 1993, informing the Company that the matter was under consideration of the Government. Since no response was received from respondents No.1, 2 and 3, the petitioners No.1 and 2 filed Special Civil Application No.940 of 1993 before this Court and this Court on 13/30 September 1993, issued notice pending admission returnable on 11.10.93. That petition is stated to be pending before this Court. On 24.1.94, the petitioners No.1 and 2 filed an application being Civil Application No.190 of 1994 for restraining the third respondent from instituting or proceeding with any prosecution against the Company for any violation of the impugned notification and for staying, qua, the Company, pending hearing and final disposal of the said petition, operation, implementation and execution of the said Notification and provisions contained therein and from enforcing and implementing the same against the Company. This Court, on 27.1.94, issued Notices of that application to the third respondent returnable on 4.2.94. On 29.1.94, the petitioner No.3 received a copy of the order dated 20.1.94 revoking the licence of the petitioner No.3 with immediate effect and advising the petitioner No.3 not to engage any contract labour in the prohibited categories under the impugned Notification. Alongwith copy of the letter dated 20.1.94 there is endorsement that the certificate of registration of the Company bearing No.ALC/ADPR/Regn:15/NCM/91 dated 19th July 1991, stands revoked in respect of the above stated categories with immediate effect. Further advice has been given to the petitioner No.1 not to engage contract labour in the said prohibited categories and to amend its certificate of registration accordingly. The petitioners No.1 and 2 and contractor M/s.Sharda Trading Company, made an application being Civil Application No.251 of 1994, in this Court for adding to Special Civil Application No.9401 of 1993, the said contractors as co-petitioners and the respondent No.4 herein as respondent No.4 to the said petition. The said Civil Application came to be decided by this Court under the order dated 1.2.94 and that application was rejected. Hence this petition by the petitioners. 3. This petition has been contested by respondents and a detailed reply to the same has been filed. In the reply, the respondents have come up with the case that vide subsequent Notification dated 4th July 1996, Entry No.2 in the impugned Notification has been substituted by the new Entry. It has further been stated that the Entry No.2 has been amended by the Central Government as various representations were received against the Notification dated 17th March 1993. Another contention has been raised that the petition filed by petitioners in a form in view of the subsequent Notification dated 4th July 1996, does not survive and is liable to be dismissed. On merits it has been contended that the Notification dated 17th March 1993 has been issued after consultation with the Central Advisory Contract Labour Board. That Notification subsequently on representations filed by the affected persons has been modified to the extent where it was found necessary. The power of the Central Government under section 10 of the Act is there for prohibiting of contract labour in the particular categories of employment and when the Central Government has exercised that power, in such matters, the petitioners may not have any much say. 4. In the Special Civil Application, the petitioners made reference to the Special Civil Application No.9401 of 1993, but what ultimately has happened in that petition has not been stated by either of the parties to these petitions. The petitioners in these Special Civil Applications have also made a reference to certain petitions filed in the Delhi High Court, but what ultimately has been decided in those petitions also has not been brought on record by either of the parties. 5. In the reply to the Special Civil Applications, the respondents have stated only that much of the fact that the Court has not granted interim relief in favour of the petitioners. 6. In the petition, the petitioners raised the contentions, which in brief, are as follows: (a) Before issuing the impugned notification, the Central Government has not given any notice or opportunity of hearing to the affected persons. (b) The general prohibition of the employment of Contract Labour in the scheduled works in the Limestone & Dolomite mines in the country is not contemplated under sec.10(1) of the Act, 1970. (c) Without prejudice to the aforesaid submissions, the petitioners urged that the impugned notification prohibits the employment of Contract Labour in the scheduled works in the Limestone & Dolomite mines in the country in general, is in violation of Article 14 of the Constitution of India, and is void. (d) The list annexure `D' of Limestone and Dolomite mines in India shows that there are hundreds of Limestone & Dolomite mines in India located in the States of Gujarat, Orissa, Andhra Pradesh, Haryana, Bihar, Maharashtra, Himachal Pradesh, Madhya Pradesh, Rajasthan, Tamilnadu, Karnataka, West Bengal, Union Territory of Delhi, Kerala etc. and they produce different grades of Limestone/Dolomite eg. chemical grade, flux grade, cement grade and low grade which would be suitable for use in different industries and for different purposes. The conditions of work and the benefits provided for Contract Labours are different in different Limestone and Dolomite mines in the country, but the Central Government has treated all Limestone & Dolomite mines in the country uniformly in the matter of employment of Contract Labour in the scheduled works which is violative of Article 14 of the Constitution. (e) Before issuing the impugned notification there has been no effective consultation by the Central Government with the Central Advisory Contract Labour Board. The grievance is made that the Central Government refuses to part with any information with respect to the alleged consultation and what report, if any, submitted by the Central Board to the Central government. (f) Before issuing the impugned notification, the Central Government did not have any regard to the factors mentioned in section 10(2) of the Act, 1970 with respect to Limestone & Dolomite mines in the country in general, much less with respect to each particular establishment. (g) Before issuing the impugned notification, the Central Government did not have any regard to the conditions of work and benefits provided for the Contract Labour in the Limestone and Dolomite mines in general or in any particular Limestone. (h) Before issuing the impugned notification, the Central Government did not have any regard to the following questions: (a) whether the scheduled processes, operations or works are incidental or necessary for the industry, trade, business, manufacture or occupation that is carried on in the concerned establishment: (b) whether scheduled processes, operations and works are of perennial nature for all establishments operating the Limestone and Dolomite mines in the country: (c) whether the schedule works are carried out in the Limestone and Dolomite mines in general or in a given Limestone and Dolomite mines in a particular ordinarily through Contract Labour. (i) Before issuing the impugned notification, the Central Government did not have regard to the fact that it would not be sufficient to employe considerable number of whole time workmen in the scheduled operations in any of the Limestone and Dolomite mines in the country. (j) The Central Government did not have regard to the conditions of work and benefits provided for the Contract Labours in the establishment of the company. (k) The abolition of Contract Labour system could result in unemployment in the remote and rural areas as under the present law, the principal employer cannot be forced to take all the Contract Labour under its employment. (l) The contention has further been raised that the action of the respondent of revoking and cancelling the licence of petitioner No.3 as well as the revocation of the certificate of registration of the petitioners pending hearing and final disposal of the petition aforesaid as well as the civil application No.190/94, is highly arbitrary and unjustified. 7. This special civil application has been filed in the Court on 7th February 1994 and on 14th February, 1994, notice has been issued returnable on 18th February, 1994. After 18th February, 1994, I do not find anything on record of this special civil application that the petitioners have press the same for early hearing of the matter for admission. After 14th February, 1994, the next order sheet is of date 4th February, 1997 on which date, the matter has been adjourned to 21st February, 1997. On 21st February, 1997, the matter has been adjourned to 18th March, 1997 on which date, the Court has admitted the petition and it was directed to be heard finally in the month of June, 1997 with special civil applications No.9401/93 and 1954/94. The matter has come up before this Court on 20th June, 1997 and on which date, the matter was called out for hearing in three rounds but none put appearance for the petitioners and it has been adjourned to 27th June, 1997. On 27th June, 1997 again though the matter was called out for hearing in three rounds but none put appearance for the petitioners and the matter has been adjourned to 7th July, 1997 to give one more opportunity to the petitioners. On 8th July, 1997, the matter was taken up and in the first round when the matter has been called out for hearing Shri A.M. Kapadia counsel appeared for Shri S.B. Vakil and made a request for passing of the matter as Shri Vakil was reported to be busy in another Court. The matter was ordered to be passed over. In the second round when the matter was taken up none was present. In the third round again Shri Kapadia requested that Shri Vakil is busy in another Court and matter may be adjourned. This request has been accepted and the mater has been adjourned to 11th July, 1997. On 11th July, 1997, the counsel for the petitioners was present but the matter has been adjourned on the request of the counsel for the respondent for 12th August, 1997. On 12th August, 1997, the matter has been adjourned to 26th August, 1997. On 26th August, 1997, the matter has been adjourned to 9th September, 1997 on which date the matter has been adjourned to 19th September, 1997. On 19th September, 1997, the matter was called out for hearing in the first round and Shri Kapadia counsel who appeared for Shri Vakil prayed for passing over the matter as Shri Vakil was stated to be busy in another Court. Thereafter the matter has been called out in the second round and third round but none put appearance for the petitioners and the arguments of the counsel for the respondents were heard and after perusing the special civil application the order was kept reserved. I stated all these facts to show how these matters are being taken up by the petitioners in this Court. 8. A detailed reply to the special civil application has been filed by the respondents, copy of which has been given to the counsel for the petitioners on 21st August, 1997. The rejoinder to the reply has not been filed, and as such, whatever averments made in the reply affidavit stand uncontroverted. It is really a sorry state of affairs that the respondent-Union of India has also acted in a most careless manner. In reply, reference has been made to the notification dated 4th July, 1996 and it has been stated therein that the copy of the same is annexed to the reply as annexure `R-1' but this document has not been filed on the record. However, the contents of the document have been reproduced in para-3 of the reply and those contents have not been disputed by the petitioners. 9. So the fact is that the entry No.2 of the notification dated 17th March, 1993 has been substituted by another entry, on which there is not dispute between the parties. The prohibited categories of employment are loading and unloading of Limestone and Dolomite into and from trucks, dumpers, conveyers and transportation within the mine sites only. As per the substituted entry, the prohibition is only in the employment of Contract Labour of raising of minerals including breaking, sizing, sorting of Limestone/Dolomite and loading and unloading of Limestone and Dolomite into and from trucks, dumpers, conveyers and transportation within the mine sites. The transportation of limestone and Dolomite which includes the loading into and unloading from the trucks, dumpers, conveyors and transportation from mine site to factory is now not a prohibited category in the schedule employment. However, I do not agree with the contention raised by the learned counsel for the respondent that in view of this subsequent notification these writ petitions do not survive. At the most, it can be said that the part of the grievance of the petitioners would have been redressed but it cannot be said that these writ petitions have become infructuous. 10. The learned counsel for the respondent contended that the power of judicial review of this Court in the matter of the orders passed by the Central Government under section 10 of the Act, 1970 are very very limited. The learned counsel for the respondent submitted that the impugned notification has been issued by the Central Government in consultation with the Central Advisory Contract Labour Board. In the Central Advisory Contract Labour Board, five persons were there representing the employers and seven persons were on Board representing the employees. On the composition of committee, the employers were represented by the National Mineral Development Corporation Limited and Federation of Indian Mineral Industries. So the learned counsel for the respondent urged that major industries like steel, cement which consume about 90% of the Limestone and Dolomite produce in the country as well as the Federation of Indian Mineral Industries, a body corporate, which represents the mineral industries as a whole, were represented on the committee as well as the Central Advisory Contract Labour Board. Normally three member tripartite committee from amongst the members of the Central Advisory Contract Labour Board is constituted but in the present case having in mind the vital interest and vast number of Limestone and Dolomite mines in the public and private, both captive and non-captive, spread all over the country and a number of user industries, a seven member committee was constituted to go into the question of working of Contract Labour system in the Limestone and Dolomite mines in the country. The seven member committee after making in depth study of the Contract Labour system in the Limestone and Dolomite mines and the validity and availability of essential amenities like drinking water, first aid, shelters, urinals, latrines, washing facilities, canteen, creches etc. submitted report recommending prohibition of Contract Labour in the Limestone and Dolomite mines in the country. The report submitted by the Committee was placed before the Central Advisory Contract Labour Board under the Act and after consultation with the said Board and following the process of law and keeping in view the guidelines laid down in clauses (a) to (d) of sub-section (2) of section 10 of the Act, 1970, the impugned notification has been issued by the Central Government to which no exception can be taken. In the reply, details of how the report has been prepared by the Committee has been given out. 11. It has next been contended that in the matter of prohibition of the Contract Labour employment in specified works, the principles of natural justice are not required to be followed. The Central Government under section 10 of the Act, 1970, exercises quasi-legislative functions and the principles of natural justice cannot be invoked in such matters. In support of this contention, the counsel for the respondent placed reliance on the decision of this Court in the case of South Gujarat Textile Processors' Association vs. State of Gujarat reported in 1994 (1) GLH 94. 12. The other contentions raised in the petition have also been controverted. It is contended that the orders annexure `B' as well as annexure `C' are the consequential orders of the notification dated 17th March, 1993. When the Central Government has prohibited the employment of Contract Labour in the categories of the employments in the scheduled works in the said notification then the licence of the petitioner No.3 as well as the certificate of registration of the petitioner No.1 have rightly been revoked. 13. I have given my thoughtful consideration to the contentions raised by the petitioners in the special civil application and the submissions made by the learned counsel for the respondents. 14. Before dealing with the contentions raised by the petitioners aforesaid and the counsel for the respondents, I consider it to be appropriate to have a glance at the relevant provisions of the Act, 1970. 15. Section 3 of the Act, 1970 makes a provision for constitution of the Central Advisory Board to advise the Central Government on such matters arising out of the administration of the Act as may be referred to it and to carry out other functions assigned to it under the Act. 16. Sub-section (2) of section 3 of the Act, 1970 relates to the constitution of the Board. 17. Section 5 of the Act, 1970 lays down that the Central Board or the State Board, as the case may be, may constitute such committees and for such purpose or purposes as it may think fit. 18. Section 7 provides that every principal employer of an establishment to which this Act applies shall, within such period as the Government may, by notification in the Official Gazette, fix in this behalf with respect to the establishments generally or with respect to any class of them, has to make an application to the registering officer in the prescribed manner for the registration of the establishment. 19. Section 8 empowers the registering officer to revoke the registration of an establishment on the ground as mentioned therein and after hearing the establishment and with the previous approval of the appropriate Government. 20. Section 9 of the Act, 1970 provides for the effect of the revocation of the registration. 21. Section 10 of the Act, 1970 is a material provision for the present case and I consider it to be appropriate to reproduce the same, which reads as under: 10. Prohibition of employment of contract labour: (1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. (2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as -- (a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment ; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment ; (c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto : (d) whether it is sufficient to employ considerable number of wholetime workmen. 22. Section 12 of the Act, 1970 relates to the licensing of contractors and section 13 contains a provision for grant of licences. 23. Section 14 of the Act, 1970 empowers the licensing authority for cancellation and for revocation