HONOURABLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 1921 OF 1999 DATED 25TH FEBRUARY, 2010. BETWEEN D.Umamaheswararao ….Petitioner and Govt. of Andhra Pradesh, Rep. By its Principal Secretary, Labour, Employment, Training & Factories Department, Hyderabad and anr. … Respondents HONOURABLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 1921 OF 1999 ORDER: The relief sought for in this Writ Petition is for issuance of a Writ of Mandamus directing the ﬁrst respondent to give eﬀect to the recommendations of the Contract Labour Advisory Board duly abolishing the remaining 66 categories or in alternative direct the second respondent to discontinue the said engagement in the light of the judgment of the Supreme Court in ‘Gujarat Electricity Board Vs. Hind Mazdoor Sabha; AIR 1995 SC 1893”. The petitioner seeks a consequential direction to the respondents for absorption of the contract labour working in the remaining 66 categories as recommended by the Contract Labour Advisory Board. The petitioner is the Secretary of the Trade Union and an employee of the second respondent. It is his case that the second respondent has been engaging contract labour for various works for several years in view of the ban on general recruitment; the Contract Labour Advisory Board had recommended abolition of contract labour in 99 categories of work; and the Government, in G.O.Ms.No. 41, dated 23.9.1996, had abolished only 33 categories. The petitioner’s grievance is that, as the remaining 66 categories also attract the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 ( for short ‘the Act’); they should also have been abolished but the impugned notiﬁcation of the ﬁrst respondent, and the proceedings of the second respondent, did not provide for abolition of contract labour in these 66 categories. In the counter aﬃdavit ﬁled on behalf of the respondents it is stated that the Contract Labour Advisory Board, in its proceedings dated 6.4.1988, had recommended to the Government that the 99 categories of employees engaged in process, operation and other works of perennial nature and in the employment in generation, transmission, distribution, operation systems and allied operations in Electricity Board, should be abolished; the State Government, by G.O.Ms.No. 41, dated 23.9.1996, had issued orders prohibiting employment of contract labour only in 33 categories in the second respondent; under Section 10(2) of the Act the decision of the appropriate Government was ﬁnal and it was for the Government to decide whether employment of contract labour in any establishment should be abolished or not; and the Government was not bound to accept all the recommendations of the Contract Labour Advisory Board. It is also stated that the Government had considered all aspects and had then taken a decision for abolition of Contract Labour System in a particular sphere of activity; the recommendations of the Contract Labour Advisory Board were not binding on the Government; the Government could diﬀer with the recommendations of the Board either totally or partially in arriving at a decision; and, after careful examination of the recommendations of the Contract Labour Advisory Board and keeping in view the public interest, the ﬁrst respondent had issued the impugned G.O. prohibiting employment of contract labour in 33 categories. Dr.P.B.Vijay Kumar, Learned Counsel for the petitioner would contend that, as the Contract Labour Advisory Board had recommended abolition of these 66 categories also, the ﬁrst respondent was bound to consider the said recommendations and arrive at a decision whether or not these 66 categories also necessitated abolition; and failure on the part of the respondents to do so would necessitate issuance of a direction to the ﬁrst respondent to abolish contract labour in these 66 categories also. Learned Counsel would fairly state that, in view of the judgment of the Supreme Court in “Steel Authority of India Ltd Vs. National Union Water Front Workers; AIR 2001 SC 3527”, the second limb of the prayer i.e. for automatic absorption of contract labour engaged in 66 categories cannot be granted. I n Steel Authority of India Limited, the Supreme Court held that neither Section 10 of the Act nor any other provision in the Act, whether expressly or by necessary implication, provided for automatic absorption of contract labour on issuing a notiﬁcation by appropriate Government under sub-Section (1) of Section 10 of the Act, prohibiting employment of contract labour, in any process, operation or other work in any establishment; and consequently the principal employer cannot be required to order absorption of contract labour engaged in the concerned establishment. The only point which, therefore, arises for consideration is whether the notiﬁcation issued by the ﬁrst respondent abolishing the contract labour system in 33 categories alone, though the Contract Labour Advisory Board had recommended abolition of 99 categories, amounts to non application of mind. The notiﬁcation issued by the ﬁrst respondent is in exercise of the powers conferred under Section 10(1) of the Act. The notiﬁcation records that, after consulting the Andhra Pradesh State Advisory Contract Labour Board and having regard to the conditions of work and beneﬁts provided for the contract labour and other relevant factors, the Governor of Andhra Pradesh had prohibited employment of contract labour in 33 categories in the Andhra Pradesh State Electricity Board. The notiﬁcation details the 33 categories. While the recommendations of the Contract Labour Advisory Board may be entitled to great weigh it does not automatically bind the ﬁrst respondent who, for just and valid reasons, is entitled to take a view diﬀerent from what has been advised /recommended by the Board. Section 10 of the Act reads as follows: “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 Gazettee, 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 whol time workmen. Explanation: If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final”. It is evident from sub-Section (2) of Section 10 of the Act that before a notiﬁcation is issued under sub- Section (1), the State Government shall have regard to the conditions of work and beneﬁts provided for the contract labour in the establishment and certain other relevant factors such as those enumerated under Clauses (a) to (d) of sub-Section (2) thereof. While the impugned notiﬁcation does record that the State Government had taken into consideration relevant factors, neither does the notiﬁcation spell out the basis for the State Government deciding not to abolish the contract labour system in 66 categories nor does the counter aﬃdavit makes any mention thereof. In Steel Authority of India Limited, among the questions which arose for consideration was the question whether the notiﬁcation under challenge was valid or not. The Supreme Court held that, before issuing a notiﬁcation under sub-Section (1) of Section 10 of the Act in respect of an establishment, the appropriate Government was enjoined to have regard to (i) conditions of work (ii) the beneﬁts provided for contract labour; and (iii) other relevant factors like those speciﬁed in clauses (a) to (d) of sub-Section (2). The Supreme Court held that it was open to the Government to also take into consideration other relevant factors enumerated under Section 10(2) of the Act before issuing a notiﬁcation. The notiﬁcation under challenge before the Supreme Court was held invalid on the ground that the Central Government had not adverted to the essential factors referred to in Section 10 except the requirement of consultation with the Contract Labour Advisory Board. Unlike the notiﬁcation in Steel Authority of India Limited, in the present case, the notiﬁcation does refer to the fact that the recommendations of the State Advisory Contract Labour Board had been considered under sub-Section (1)along with all the relevant factors, and after having regard to the conditions of work and beneﬁts provided for contract labour and other relevant factors, employment of contract labour in 33 categories in the A.P. State Electricity Board was prohibited. Neither the learned Government Pleader nor the ﬁrst respondent is present in the Court nor have records been produced for this Court’s perusal. In the absence of relevant records being placed before this Court, it is not known whether the consideration of the ﬁrst respondent, as referred to in the notiﬁcation, was with regard to the 33 categories of contract labour engaged in the A.P. State electricity Board or with regard to all the 99 categories. Since the impugned notiﬁcation ex facie refers only to the fact that relevant factors were considered and does not state whether the relevant factors with respect to all the 99 categories, whose abolition was recommended by the Contract Labour Advisory Board, was considered by the ﬁrst respondent, this Court must proceed on the premise that consideration of the relevant factors by the ﬁrst respondent related only to the 33 categories of contract labour whose work abolition was directed in impugned notiﬁcation. The ﬁrst respondent was required in law to consider the relevant factors enumerated in Section 10 of the Act and the recommendations of the State Advisory Contract Labour Board in deciding whether or not to abolish contract labour in all the 99 categories of the A.P. State Electricity Board. While this exercise may not have been done when the notiﬁcation in G.O.Ms.No. 41, dated 23.9.1996 was issued, the next question which arises for consideration is whether the petitioner is now entitled to the ﬁrst limb of prayer in the Writ Petition. By eﬄux of time the A.P. State Electricity Board has ceased to exist in its original form during the pendency of the Writ Petition, and the functions which it discharged earlier are now segregated and entrusted to A.P. GENCO, AP TRANSCO and other Power Generating Companies. Section 10 of the Act as it stood then also has been substituted by a State Amendment there to in A.P. Act No. 10 of 2003 which came into force with eﬀect from 22.8.2003. The said amendment was notiﬁed in the Gazette on 19.6.2003. Section 10, as amended by AP Act 10 of 2003, reads thus: “10. PROHIBITION OF EMPLOYMENT OF CONTRACT LABOUR: (1) Notwithstanding anything contained in this Act, employment of Contract Labour in Core Activities of any establishment is prohibited; Provided that the Principal employer may engage Contract Labour or a Contractor to any core activity, if— (a) The normal functioning of the establishments is such that the activity is ordinarily done through Contractors, or (b) The activities are such that they do not require full time workers for the major portion of the working hours in a day or for longer periods as the case may be (c) Any sudden increase of volume of work in the core activity which needs to be accomplished in a specified time; (2) Designated Authority:-- (a) The ‘Appropriate Government’ may by notiﬁcation in the oﬃcial gazette appoint a designated authority to advise them on the question whether any activity of a given establishment is a core activity or otherwise. (b) If a question arises as to whether any activity of an establishment is a core activity or otherwise the aggrieved party may make an application in such a form and manner as may be prescribed, to the appropriate Government for decision. (c) The appropriate Government may refer any question by itself or such application made to them by any aggrieved party as prescribed in clause (b), as the case may be, to the designated authority, which on the basis of relevant material in its possession, or after making such an enquiry as deemed ﬁt shall forward the report to the appropriate Government, within a prescribed period and thereafter the appropriate Government shall decide the question within the prescribed period. In the light of Section 10 as amended by AP Act 10 of 2003 no direction can now be issued to the ﬁrst respondent to consider abolition of contract labour in the 66 categories of employment in the erstwhile A.P. State Electricity Board. In the light of Section 10(2)(b), as substituted by AP Act 10 of 2003, it is open to the petitioner, as an aggrieved party, to make an application to the State Government that any of the activities of these 66 categories of contract labour constitutes a core activity, and, in case any such application is made, the ﬁrst respondent shall consider the same in accordance with Section 10 of the Act as substituted by AP Act 10 of 2003. The Writ Petition is disposed of accordingly. However, in the facts and circumstances, without costs. ------------------------------------------------------- JUSTICE RAMESH RANGANATHAN DATED 25T H FEBRUARY, 2010. Msnr