Case: Rashtriya Chem. &amp; Fertilizers Ltd.  Vs. General Employees Association

be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The state exercises administrative power both in relation to abolition of contract labour in terms of section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to labour court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the state must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court. We would, however, hasten to add that this judgment shall not come in the way of the appropriate government to apply its mind for the purpose of issuance of a notification under Section 10 of the 1970 Act." 8. The exception to the above is, when the Court finds that the appropriate government refuses to make a reference of a dispute is unjustified. In such circumstances, the court may direct the government to make a reference Sankari Cement Alai Thozhilalar Munnetra Sangam, Tamil Nadu v. Government of Tamil Nadu and Anr. (1983 (1) SCC 304 ), V. Veerarajan and Ors. v. Government of Tamil and Ors. (1987 (1) SCC 479 and TELCO Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar & Ors. (1989 (3) SCC 271 ). 9. The Circular dated 8.11.2000 of the Central Government which was the subject matter of challenge in the first matter is extracted below: "I am directed to invite your kind attention to the above cited subject and to say that the matter relating to the prohibition of employment of contract labour in the establishment of Rashtriya Chemicals and Fertilizers Ltd., in their plants at Chembur, Mumbai and Thal District Raigad, Maharashtra was discussed in the 44 Meeting of the Central Advisory Contract Labour Boardheld on 6-7th April, 2000 under the Chairmanship of Shri T.S. Shankaran. The Board made the following recommendations to the Government:"The Board observed that the Committee has examined in detail the issue with respect to the factors set out in Section 10 of the Act before coming too its conclusion. The Board, therefore, decided to accept the recommendations of the Committee and recommended to the Government accordingly"2. In pursuance of the recommendations of the Board, the matter has been considered in detail by the Central Government and it has been decided not to prohibit employment of contract labour in the following work/jobs in the establishment of Rashtriya Chemicals and Fertilizers Ltd., in their plants at Chembur, Mumbai and Thal District Raigad, Maharashtra for which the appropriate government, under the Contract Labour (Regulation and Abolition) Act, 1970 is the Central Government:1) Cleaning of Roads, Storm drains, Yards and Grass cutting.2) Dosing of Chemicals.3) Jobs in Canteen.4) Maintenance of Railway Track in the Plant.5) Material handling and6) Civil Engineering maintenance i.e., in the jobs of carpentry, masonry, repairs to electrical switchgear and equipment such as pumps, cutters, maintenance operators, maintenance helpers, Assistants in Civil work, operators and general workers.3. As the question of interpretation of the term "establishments" and applicability of the Act to township is pending before the Constitution Bench of the Supreme Court and their ruling is awaited, it has been decided not to prohibit the employment of contract labour in the job of Security Guards covered by the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, deployed in the colonies, at present.4. A notification prohibiting employment of contract labour in some other jobs/works in the establishment of Rashtriya Chemicals and Fertilizers Limited, in their plants at Chembur, Mumbai Priyadarshini Complex and Thal District Raigad, Maharashtra is being issued separately in consultation with the Ministry of Law, Justice and Company Affairs (Legislative Deportment).5. The employment of contract labour in the loading and unloading jobs being done by the Hathadi Workers are being referred back to the Board for their elucidation." 10. As rightly contended by learned counsel for the appellants once the respondent No.1-Association approached the High Court on the foundation that the Contract Labour (Regulation and Abolition) Act, 1970 (in short the Act) applied, it pre supposes existence of a valid contract. What the writ petitioner (respondent No.1 herein) wanted was quashment of Notification for reconsideration. In view of what has been stated in second SAIL case (supra) the High Court has to consider whether the stand taken in the writ petition was inconsistent. In the instant case the writ petitioner itself accepted that certain issues could not be decided in the writ petition. That being so, High Court giving directions in the nature done, do not appear to be appropriate. We are of the view that the High Court ought not to have given the directions in the manner done and should have left the respondent No.1-Association to avail remedy available in the I.D. Act.11. It is open to the respondent No.1-Association, if it is so advised, to move the appropriate State Government seeking reference of the purported dispute to the Tribunal. It is for the State Government to consider whether any reference is called for. We make it clear that we have not expressed any opinion on the desirability or otherwise of making reference.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. As rightly contended by learned counsel for the appellants once the respondentapproached the High Court on the foundation that the Contract Labour (Regulation and Abolition) Act, 1970 (in short the Act) applied, it pre supposes existence of a valid contract. What the writ petitioner (respondent No.1 herein) wanted was quashment of Notification for reconsideration. In view of what has been stated in second SAIL case (supra) the High Court has to consider whether the stand taken in the writ petition was inconsistent. In the instant case the writ petitioner itself accepted that certain issues could not be decided in the writ petition. That being so, High Court giving directions in the nature done, do not appear to be appropriate. We are of the view that the High Court ought not to have given the directions in the manner done and should have left the respondentto avail remedy available in the I.D. Act.11. It is open to the respondentif it is so advised, to move the appropriate State Government seeking reference of the purported dispute to the Tribunal. It is for the State Government to consider whether any reference is called for. We make it clear that we have not expressed any opinion on the desirability or otherwise of making reference.