IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 OP.No. 9130 of 2000(J) ------------------------------- PETITIONERS: ------------------- 1. S.N. SANKARANKUTTY, S/O. NANUKUTTAN, AGED 45 YRS, RESIDING AT SHALAYIL HOUSE, ERAMALLOOR P.O., ALLEPPEY. 2. V.I. VARGHESE, AGED 39 YRS, S/O. ENASY, RESIDING AT VADEKEDATH HOUSE, PUTHUVYPPU, KOCHI TALUK. 3. V. KUNJUMON, S/O. VELUMBAN, RESIDING AT OMANASSERY HOUSE, PADANILAM P.O., NEDUVILAMURI, NOORANADU, ALAPPUZHA DIST. 4. B. SANTHOSH KUMAR, S/O.BALAN, AGED 31 YRS, RESIDING AT KANADY HOUSE, NADAPLATHURUTH, 5. A.C. VARGHESE, S/O. CHACKO, AGED 60 YRS, RESIDING AT ALATHARA HOUSE, EZHUPUNNA SOUTH P.O. 6. V.K. SOMAN, AGED 38 YRS, S/O. KARUNAKARAN V.T., RESIDING AT VALIYATHARA VEEDU, MALIPPURAM P.O., KOCHI-1. 7. P.A. GEORGE, S/O. OUSEPUKUTTY, KOODATHIL VEEDU, MALIPPURAM P.O., VALAPPU WEST, KOCHI. 8. C.C. KUNJAPPAN, S/O. CHOTHU, RESIDING AT KADEPARAMBIL HOUSE, PERUMBALAM P.O., CHERTHALA. BY ADV. SRI.A.X.VARGHESE SRI.T.RAJASEKHARAN NAIR OP NO. 9130/2000 RESPONDENTS: ---------------------- 1. THE GOVT. OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF LABOUR AND REHABILITATION, NEWDELHI. 2. THE CHAIRMAN, CENTRAL ADVISORY CONTRACT LABOUR BOARD, UNDER CL(R&A) ACT, MINISTRY OF LABOUR, SHRAM SHAKTI BHAVAN, RAFI MARG, NEW DELHI- 110 001. 3. THE CHAIRMAN/MANAGING DIRECTOR, FACT, UDYOGAMANDAL, KOCHI. ADV. SRI.K.PRAVEEN KUMAR FOR R1 R3 BY ADV. SRI. E.K. NANDAKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/03/2008, ALONG WITH OP NO. 15060 OF 2000,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 15230/2000 IN OP NO. 9130/2000 J. DISMISSED 03/03/2008. SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE ORDER DT. 31/1/96 BY THE GOVT. OF KERALA. EXT.P2. COPY OF THE COMMUNICATION DT. 11/11/98 BY THE SECRETARY OF THE STATE ADVISORY LABOUR BOARD. EXT.P3. COPY OF THE RESOLUTION PASSED AND PUBLISHED IN THE OFFICIAL GAZETTEE OF INDIA AS EXTRA ORDINARY PART 1, SECTION-1 DT. 26TH MAY, 1999. EXT.P4. COPY OF THE WRITTEN STATEMENT BY THE PETITIONERS BEFORE THE SUB COMMITTEE OF THE R2. EXT.P5. COPY OF THE COUNTER STATEMENT BY THE R3 BEFORE THE SUB COMMITTEE OF THE R2. EXT.P6. COPY OF THE REPORT ALONG WITH A PHOTOGRAPH REGARDING FUNCTION OF REVEICING PROFIT DEVIDENT BY THE CENTRAL GOVT. MINISTRY PUBLISHED IN THE MALAYALA MANORAMA DAILY ON MAY 6TH 1999. EXT.P7. COPY OF THE COMMUNICATION DT. 14/1/00 BY THE R2. RESPONDENT'S EXHIBITS EXT.R1. COPY OF THE REPORT OF THE COMMITTEE CONSTITUTED BY THE CENTAL ADVISORY CONTRACT LABOUR BOARD DT. 26/5/99. EXT.R2. COPY OF THE RELEVANT EXTRACT OF THE 42ND MEETING OF THE CENTRAL ADVISORY CONTRACT LABOUR BOARD DT. 7/12/99. True copy tga S. SIRI JAGAN, J. -------------------------------------- O.P.Nos.9130 & 15060 OF 2000 ---------------------------------------- Dated this the 3rd day of March, 2008 JUDGMENT The petitioners in these two original petitions are contract labourers employed by the Fertilizers and Chemicals Travancore Ltd.(FACT), Kochi. The officers of which are respondents 4 to 6 in O.P.No.15060/2000. The petitioners in O.P.No.15060/2000 seek the following reliefs. “i) Declare that the petitioners are entitled for regularisation as Contract Labours in the 5 th and 6 th respondents establishment in accordance with the spirit and substance of the Contract Labour (Regulation and Abolition) Act 1970. ii) Issue a writ of mandamus or any other appropriate writ order or direction directing the 1 st and 2 nd respondents to abolish the Contract Labour of the petitioners in the 5 th and 6 th respondents establishment in accordance with the spirit and substance of the contract Labour (Regulation and Abolition) Act 1970 within a reasonable time frame. iii) issue a writ of certiorari or any other appropriate writs or order to call for the entire records leading to the issuance of Ext.P8 and quash the same. iv) issue a writ of mandamus or any other appropriate writ order or direction directing the 1 st and 2 nd respondents to conduct an enquiry against O.P.Nos.9130 & 15060 of 2000 2 the 4 th respondents illegal acts and suppression of material facts from the 1 st and 2 nd respondents notice for reaching a just and reasonable decision in respect of the petitioners issue. The petitioners in O.P.No.9130/2000 seek the following reliefs: “i) call for the records relating to Ext.P7 order issued by the 2 nd respondent and quash the same by issuing a writ of certiorari and other appropriate writ order or direction. ii) issue a writ of mandamus or other appropriate writ order or direction directing the 3 rd respondent to absorb these petitioners in to regular service with retrospective effect immediately. iii) issue a writ of mandamus or other appropriate writ order or direction directing, the 2 nd respondent to consider a fresh and pass a speaking order in the case of these petitioners within a time bound manner.” The petitioners mainly rely on the decision of the Supreme Court in AIR INDIA STATUTORY CORPN. V. UNITED LABOUR UNION [1997(9) SCC 377] in support of their contentions in the original petitions. 2. The petitioners are not entitled to succeed in the original petitions for several reasons. First is that the decision in Corporation’s case was over ruled by a larger bench of the Supreme Court in STEEL AUTHORITY OF INDIA LTD. AND OTHERS V. NATIONAL UNION WATERFRONT WORKERS AND O.P.Nos.9130 & 15060 of 2000 3 OTHERS [(2001) 7 SCC 1]. Further as held by the Supreme Court in Steel Authority's case, simply because contract labour is abolished in an industry that does not entitle the workmen employed as contract labour for regularization or absorption. As a matter of right they would be so entitled to only if they prove that the contract itself is a sham contract and in fact the contract labourers are directly employed by the principal employer. 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. In the above circumstances, without prejudice to the right of the petitioner to raise an industrial dispute seeking regularization or absorption of their service, these original petitions are dismissed. S. SIRI JAGAN, JUDGE Acd O.P.Nos.9130 & 15060 of 2000 4