IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETTION No.8608 OF 2001 Between: Shanagala Venkateshwarlu & 5 others ..... Petitioners And 1. The Secretary, Govt. of A.P., Social Welfare Dept., Secretariat, Hyderabad, A.P. & 4 others …Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETTION No.8608 OF 2001 ORDER: The Writ Petition is by persons claiming to be the contract labourers/scavengers/toilet cleaners working at KTPS V Stage O&M-1, Paloncha, Khammam District, contending the non-regularization of their services by the respondents to be in violation of the Board orders and to be illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India. They sought for a direction to the respondents to absorb them in the posts of JPA/Mazdoor or any other suitable posts with all attendant benefits. 2. The writ petitioners claimed that they were working since 1997 upto date through the 5th respondent contractor/Swamy Ambedkar Harijana Labour Contract Co-operative Society and their services are very much required to be continued. The writ petitioners contended that the society entered into a contract with the Chief Engineer and the writ petitioners were requesting through out to reserve some posts of JPA and other similar posts for them. They claimed number of such posts to be existing and vacant and they belong to scheduled castes and still their services are not being regularized. Though the High Court has directed the respondents to frame a scheme to cover all the contract labour, the same also was not complied with. 3. The respondents 2 to 4 contested the claim alleging that they are unaware as to whether the writ petitioners are the members of the 5th respondent society or not. They claim that reservation was strictly followed in respect of the posts of JPAS and Sub-Engineers and the alleged existence of vacancies is not correct. Some of the writ petitioners are reported to be working only from December, 1997, that too in different spells and not since earlier as claimed. The writ petitioners were in fact not in service in April, 2001, and after the termination of the contract with effect from 08.06.2001 with the 5th respondent, another contractor was entrusted with the work who engaged the writ petitioners from 08.06.2001. The clarification from the Government is pending in respect of Mazdoor and JPA posts and the posts of drivers and attenders are filled up only with scheduled tribes candidates in the scheduled area. The department is in fact requesting the contractors/agencies to continue the old contract labourers. 4. Heard Sri Palle Nageswara Rao, learned counsel for the writ petitioners and Sri C. Raghu, learned standing counsel for respondents 1 to 4. 5. The point for consideration is whether the writ petitioners are entitled to the directions they sought for? 6. The learned standing counsel for the respondents 1 to 4, Sri C. Raghu, relied on STEEL AUTHORITY OF INDIA LTD. AND OTHERS VS. NATIONAL UNION WATERFRONT WORKERS[1], wherein the Apex Court exhaustively considered the question of absorption of contract labour in the establishment of the principal employer with reference to the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. The Apex Court, after an exhaustive survey of the case law on this subject, concluded that the Act did not provide for automatic absorption of contract labour on issuance of the notification by the appropriate Government prohibiting employment of contract labour and on issuance of the prohibition notification, the industrial adjudicator will have to consider the question, in an Industrial Dispute brought before it by any contract labour in regard to conditions of service, whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with the various beneficial legislations so as to deprive the workers of the benefit thereunder. The Apex Court laid down that if the contract is found to be not genuine, but a mere camouflage, the so called contract labour has to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose. The Apex Court further laid down that if the contract is found to be genuine and a prohibition notification has been issued by the appropriate Government, the principal employer, if it intends to employ a regular workman, shall give preference to the erstwhile contract labour, if otherwise found suitable and if necessary, by relaxing the condition as to maximum age appropriately and also by relaxing the condition as to academic qualifications other than technical qualifications. The Apex Court further made it clear that the expression industrial adjudicator was used by design as determination of the questions aforementioned requires enquiry into disputed questions of fact which cannot be conveniently made by the High Courts in exercise of jurisdiction under Article 226 of the Constitution of India and in such cases, the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose jurisdiction will be amenable to judicial review. 7. The principles laid down by the Apex Court squarely apply to the facts of the present case where respondents 2 to 4 disputed the period from which the writ petitioners were working with the contractors and also disputed their being in service by the time of impugned orders of this Court. Respondents 2 to 4 are also disputing having any knowledge about the membership of the writ petitioners with the 5th respondent society and the request of the writ petitioners for a direction to the respondents for regularization with the principal employer in the specified posts squarely falls within the law laid down by the Apex Court in the above decision. It is for the Industrial Tribunal/Court to determine whether the writ petitioners have to be treated as employees of the principal employer who shall have to be directed to regularize their services in the establishment of the principal employer itself or who should have to be given preference in case of employment of regular workmen etc., and writ jurisdiction is not the appropriate jurisdiction to determine such questions. 8. While the writ petitioners, therefore, have to approach the Industrial Adjudicator, an interim direction to respondents 3 and 4 was given, while admitting the writ petition on 27.04.2001 to continue the writ petitioners in service, if they are already in service. On 24.09.2002, after respondents 2 to 4 filed their counter affidavit, this Court passed an order making the stay absolute in view of the continuance of the writ petitioners with the new contractor from 08.06.2001 onwards according to the counter affidavit. The said interim stay continued to be in force through out and, therefore, pending the industrial adjudication, the writ petitioners should be given the benefit of continuance of the said interim order in the interests of justice. 9. The learned counsel for the writ petitioners, Sri Palle Nageswara Rao, referred to the decision of this Court in K. RAVINDER AND OTHERS VS. A.P. GENERATION CORPORATION LTD., HYD. AND OTHERS[2], wherein this Court gave directions to the principal employer to consider weightage of marks in the process of selection for appointment to regular posts of the contract labour and wherein, the Court also directed that pending the process of selection, status quo shall be maintained regarding the contract labour. The question of applicability of the directions of this Court in the said decision to the writ petitioners can also be the subject of the industrial adjudication. 10. Accordingly, the writ petitioners are at liberty to approach the appropriate Industrial Tribunal/Court in accordance with law in respect of the reliefs they are seeking with reference to their engagement as contract labour by the contractors of A.P. Genco within two months from the date of issuance of a certified copy of this order to them and in the event of the writ petitioners so raising an industrial dispute, the interim directions given in W.P.M.P.No.10983 of 2001 and W.V.M.P.No.1967 of 2002, dated 24.09.2002, making the interim stay granted on 27.04.2001 absolute, shall continue to be in force since now till the adjudication of such industrial dispute. 11. The Writ Petition is ordered accordingly. No costs. _____________________ G. BHAVANI PRASAD, J Date: 2nd December, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETTION No.8608 OF 2001 December 02, 2010. KL [1] (2001) 7 Supreme Court Cases 1 [2] 2000 (6) ALD 56