9911796707
TMI Blog2006 (2) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation, seeking a direction for regularisation. That petition was disposed of by order 5.11.1991 with a direction to consider their cases in terms of the Circular dated 1.9.1988 and pass appropriate orders. The High Court did not examine the claim on merits. 3. To give effect to the said order, the Divisional Manager of the Adilabad Division of the Corporation sent a communication dated 14.7.1992 instructing the Depot Manager, Mancherial to verify the claims of the respondents (as they had claimed that they were working in the said Depot) and to send him the necessary information in the prescribed proforma. Alleging inaction thereafter, the respondents herein again approached the High Court in W.P. No.30220/1997 for a declaration that the Corporation's failure to take action in pursuance of the said letter dated 14.7.1992 was illegal and praying for a direction to the Corporation to absorb them into its service. 4. A learned Single Judge of the High Court by order dated 17.3.1998 disposed of Writ Petition No.30220/1997 at the stage of preliminary hearing, without examining the matter on merits, by directing the Corporation to consider the claim for absorption in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge was challenged by the Corporation in Writ Appeal No.1422 of 1999. The Corporation contended that the Learned Single Judge committed an error in quashing the order dated 21.4.1999. It was pointed out that the respondents were employed as contract labour and the Circular dated 1.9.1988 did not permit absorption of contract labour, but only permitted absorption of those directly employed by the Corporation on casual basis or for a contractual period, on daily wages or on consolidated salary or piece rate basis or under work changed establishment. The Division Bench dismissed the Corporation's appeal vide order dated 30.9.1999. It accepted the contention of the Corporation that respondents were employed as "contract labour". It also impliedly accepted the contention of the Corporation that the respondents were not entitled to absorption under the Circular dated 1.9.1988. It, however, held that the work for which the respondents were employed as contract labour, that is to clean the buses and to sweep the bus stand premises, was perennial in nature and not seasonal. Purporting to rely on the decisions of this Court in Air India Statutory Corporation v. United Labour Union [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant herein) was not genuine, but a mere camouflage (to deprive workers, of the benefits under various labour enactments) and therefore, the court can pierce the veil and visualize the direct relationship between the Board and the contract labour. Consequently, this Court upheld the relief of reinstatement granted to Safai Karamcharis by the High Court. 9. In Steel Authority of India Ltd. & Ors. v. National Union Waterfront Workers & Ors. [2001 (7) SCC 1], a Constitution Bench of this Court overruled the decision in Air India (supra) and held that where contract labour are engaged in connection with the work in an establishment and employment of such contract labour is prohibited by issue of a notification under Section 10(1) of the CLRA Act, there was no question of automatic absorption of the contract labour working in the establishment and the principal employer cannot be required to absorb the contract labour. This Court also held that on a contractor engaging contract labour in connection with the work entrusted to him by the principal employer, it does not culminate into a relationship of 'master and servant' between the principal employer and the contract labour. This Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review." [Emphasis supplied] 10. In this case, there was no notification under section 10(1) of CLRA Act, prohibiting contract labour. There was also neither a contention nor a finding that the contract with the contractor was sham and nominal and the contract labour working in the establishment were, in fact, employees of the principal employer himself. In view of the principles laid down in Steel Authority, the High Court could not have directed absorption of respondents who were held to be contract labour, by assuming that the contract labour system was only a camouflage and that there was a direct relationship of employer and employee between the corporation and the respondents. If respondents want the relief of absorption, they will have to approach the Industrial Tribunal/Court and establish that the contract labour system was only a ruse/camouflage to avoid labour law benefits to them. The High Court could not, in exercise of its jurisdiction under Article 226, direct absorption of respondents, on the ground that work for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner/s in the writ petitions. 13.1) Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/ irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to 'consider' and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision making process, rather than the decision itself. 13.2) The High Courts also direct authorities to 'consider', in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uous prayer to direct the authority to 'consider' and dispose of the representation. When the court disposes of the petition with a direction to 'consider', the authority grants the relief, taking shelter under the order of the court directing him to 'consider' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order 'to consider' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to 'consider', may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of court's direction to 'consider' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders 'to consider'. 14. Therefore, while di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the third respondent and passed a reasoned order dated 21.4.1999 rejecting the claim on the ground that the third respondent was not a direct employee, but was a contract labour, and was not therefore entitled to absorption under the Circular dated 1.9.1988. This led to the third round of litigation in W.P. No.17678/1999 wherein the prayer was for quashing the said order or rejection dated 21.4.1999 and for direction to absorb them into service in terms of the Circular dated 1.9.1988 Again, the High Court at the admission stage, disposed of the matter on an erroneous conclusion that the order dated 21.4.1999 was contrary to the decision in the second round (Order dated 17.3.1998 in W.P. No.30220/1997) and directed the Corporation to pass fresh orders on the representations made by the respondents. The learned Single Judge proceeded on the assumption, without basis, that the order dated 17.3.1998 in the earlier petition (WP No. 30220/1997) had held that Respondents were entitled to the benefit of the Circular dated 1.9.1988, when in fact there was no such finding or direction. Therefore, the direction of the learned Single Judge, as confirmed by the Division Bench, to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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