IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 WA.No. 2605 of 2009 ----------------------- AGAINST THE JUDGEMENT IN OP.9130/2000 DATED 3.3.2008 .................... APPELLANT/5TH PETITIONER: --------------------------------- A.C. VARGHESE, ALATHARA VEEDU, EZHUPUNNA SOUTH P.O., CHERTHALA TALUK. BY ADV. SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE GOVERNMENT OF INDIA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR AND REHABILITATION, SHRAM MANTHARALYA, NEW DELHI. 2. THE CHAIRMAN, CENTRAL ADVISORY LABOUR BOARD, LABOUR CL, R & A ACT, MINISTRY OF LABOUR, BHRAM BHAKTHI BHAVAN, RAFI MARG, NEW DELHI. 3. THE CHAIRMAN/MANAGING DIRECTOR, F.A.C.T., UDYOGAMANDAL, KOCHI. R1 & R2 BY ADV.SRI.RAJIT, CGC R3 BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR FOR R3 SRI.K.JOHN MATHAI FOR R3 SRI.P.BENNY THOMAS FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A.No.2605 of 2009 ------------------------------------------ Dated this the 6th day of September, 2010 JUDGMENT J.Chelameswar, C.J. Aggrieved by a judgment dated 3rd March,2008 in O.P.No.9130 of 2000, the 5th petitioner therein preferred the instant writ appeal. 2. The facts are as follows: The appellant herein along with certain others who were petitioners in the abovementioned writ petition were working as contract labour in the Fertilizers and Chemicals Travancore Limited (FACT), Cochin. The abovementioned writ petition was filed in substance seeking a direction to the effect that the petitioners in the abovementioned writ petition including the appellant herein are entitled for regularisation of their service with the said employer. W.A. No.2605 of 2009 - 2 - 3. By the judgment under appeal, a learned Judge of this Court dismissed the writ petition holding that such a declaration cannot be given as a matter of course and could be given only in cases where it is established on facts that the system of contract labour is a sham, and the employee in effect is employed by the employer. The learned Judge therefore held that such a conclusion requires examination of the evidence to establish the question of fact as to the exact nature of the relationship between the employer and the employee. In the said circumstance, the learned Judge dismissed the writ petition with an observation that it is open to the petitioners including the appellant herein to raise an industrial dispute for adjudication of the rights set up by the petitioners. The relevant portion of the order reads as follows: “For deciding that question, adducing of evidence is necessary, which can be done only in an industrial dispute raised by the petitioners through their union. Further there is no order abolishing contract labour in this case. On the other hand, the Central Government only refused to recommend abolition of contract labour. W.A. No.2605 of 2009 - 3 - In the above circumstances, without prejudice to the right of the petitioners to raise an industrial dispute seeking regularization or absorption of their service, these original petitions are dismissed.” 4. The only submission made by the learned counsel for the appellant is that though the learned Judge observed that it is open to the appellant to raise an industrial dispute, the observation is qualified by a further condition that such an industrial dispute could be raised only through a union which according to the learned counsel for the appellant is objectionable. The learned counsel submits that it is not necessary in such cases for the trade union to espouse the cause of the employees. 5. Heard Sri.T.V.Ajayakumar, the learned counsel for the appellant and Sri.E.K.Nandakumar, the learned standing counsel for the employer. In the circumstances, we deem it appropriate to dispose of the appeal at the admission stage modifying the judgment under appeal to the limited extent that it is open to the appellant to raise an industrial dispute either through a trade union W.A. No.2605 of 2009 - 4 - or otherwise in accordance with law. With the limited modification of the judgment under appeal referred to above, this writ appeal is disposed of at the admission stage. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns