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TMI Blog1996 (11) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... ing dusting and watching of the building owned ad occupied by the appellant. The Contract Labour (Regulation and Abolition) Act, 1970 (for Short, the 'Act') regulates registration of the establishment of principal employer, the contractor engaging and supplying the contract labour in every establishment i which 20 or more workmen are employed o ay day of the preceding 12 months as contract labour. The appellant had obtained on September 20,1971 a certificate of registration form Regional Labour Commissioner (Central) under the Act. The Central Government, exercising the power under Section 10 of the Act, on the basis of recommendation and in consultation with the Central Advisory Board constituted under Section 10(1) of the Act, issued a notification on December 9,1976 prohibiting "employment of contract labour on and from December 9,1976 for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishment in respect of which the appropriate government under the said act is the Central Government". However, the said prohibition was not apply to "outside cleaning and other maintenance operations of multistoreyed building where such cleaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and the appellant respectively, contended that the term "appropriate Government" under section 2 (1)(a) of the Act, as on December 9, 1976, was the State Government. The appellant was not carrying on the business as an agent of the Central Government nor the Central Government was its principal. This Court, in Heavy Engineering Majdoor Union v. The State of Bihar & Ors. [ (1969) 3 SCR 995 (for short, the "Heavy Engineering case"], had interpreted the phrase "the appropriate Government" and held that the Central Government was not the appropriate Government under the ID Act. The ratio therein was followed in Hindustan Aeronautics Ltd. v. The Workmen & Ors. [(1975) 4 SCC 679] and Rashtriya Mill Mazdoor Sangh v. Model Mills Nagpur & Anr. [1984 Supp. SCC 443] and food Corp. of India Workers' Union v. Food Corp. Of India & Ors.[(1985) 2 SCC 294], It is thus firmly settled law that the appropriate Government until the Act was amended with effect from January 28,1986. Therefore, the view of the High Court that the appropriate Government is the Central Government is not correct in law. The learned Attorney General Further argued that the interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n industrial award under the ID Act by virtue of which the appellant would be entitled to satisfy the Industrial Court that there was no need to absorb all the contract labour but only smaller number is required as regular employees. On recording finding in that behalf, the industrial court would make his award which would be enforceable by the workmen. This court in Gujarat Electricity Board v. Hind Mazdoor Sabha & Ors. [(1995) 5 SCC 27] had pointed out the lacuna in the act and given directions of the manner in which the industrial action has to be take on abolition of the contract labour system. The High Court, therefore, was not right in its direction that the workmen require to be absorbed in the respective service of the establishment of the appellant. it is also contented that the appellant, though initially was a statutory Corporation under the IAAI Act, on its abolition and constitution as a company, is entitled to regulate its own affairs on business principal and the direction for absorption would lead to further losses in which it is being run. The learned Solicitor General has, therefore, submitted a scheme under which its subsidiary, namely, Air Cargo Corporation woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the Central Government, the appropriate Government is none other than the Central Government. In particular, after the development of law of "other authority" or "instrumentality of the State" under Article 12 of the Constitution, the ratio in Heavy Engineering case is no longer good law. In Hindustan Aeronautics Ltd. and Food Corp of India cases, this court had not independently, laid any legal preposition. Food Corporation of India case was considered with reference to the regional warehouses of the FCI situated in different States and in this functional perspective, this court came to the conclusion that the appropriate Government would be the State Government. This Court in Sukhdev Singh & Ors. v. Bhagatram Sardar Singh & Anr. [(1975) 3 SCR 619]; R.D. Shetty v. Airport Authority & Ors. [(1979) 3 SCR 1014]; Managing Director, U.P. Warehousing Corporation & Anr. v. V.N. Vajapayee [(1980) 2 SCR 733]; Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors. etc. [(1981) 2 SCR 79] - wealth of authorities - had held that settled legal position would lend aid to interpret the phrase "appropriate Government" in public law interpretation; under the Act the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If any action is needed to be taken thereafter against the employee, it should be only in accordance with either the statutory rules or the ID Act, if applicable. In either event, the right to absorption assures to the workmen the right to livelihood as economic empowerment, right to social justice and right to dignity of person which are the concomitants of social democracy. These facets of constitutional rights guaranteed to the workmen as their Fundamental Rights should be kept in view in interpreting the expression "appropriate Government enjoined under Section 10(1) of the Act and other regulatory provisions in relation to the employment of the workmen. Therefore, the view in Dena Nath's case is not correct is law and requires to be overruled. There is no hiatus in the operation of the Act on abolition of the contract labour system under Section 10. The object and purpose of the Act are twofold. As long as the work in an industry is not perennial, the Act regulates the conditions of the workmen employed through the contractor registered under the Act. The services of the workmen are channelised through the contractor. The principle employer is required to submit the num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D Act to seek any industrial adjudication. if any industrial adjudication is to be sought, it would be only by a recognised union in the establishment of the appellants who are unlikely to espouse their dispute. Therefore, the methodology suggested in Gujarat Electricity Board's case, by another bench of two Judges, apart from being unworkable and incongruous, is not correct in law. On abolition of the contract labour, the principle employer is left with no right but duty to enforce the notification, absorb the workmen working in the establishment on contract basis transposing them as its regular employee with all consequential rights and duties attached to a post on which the workmen working directly under the appellant was entitled or liable. The Act gave no option to pick and choose the employees at the whim of the principal employer. The view of the High Court, therefore, is correct to the extent that the notification should be enforced with effect from date of abolition, namely, December 9,1976. The subsequent amendment with effect from January 28,1986 is only a recognition of ad superimposition of preexisting legal responsibility of the Central Government as the appropriate G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cantonment Board, Major port, mine or oil-field, or (iii) any establishment of a banking or insurance company, the Central Government, (2) in relation to any other establishment the Government of the State in which that other establishment is situate." Section 2(a)(i) of the ID Act defines "appropriate Government" thus :"... Unless there is anything repugnant in the subject or context, "appropriate Government" means, in relation to any Industrial Disputes concerning any industry carried on by or under the authority of the Central Government or by a railway company for concerning any such controlled industry as may be specified in this behalf by the Central Government..." and India Airlines and Air India Corporation established under Section 3 of the Air Corporation Act 1953 are enumerated industries under Amendment Act 46 of 1982 which came into force with effect from 21.8.1984. In Heavy Engineering case (supra), industrial dispute was referred under Section 10 of the ID Act by the State Government of Bihar to the Industrial Tribunal for its adjudication. The competency of the State Government was questioned by the Mazdoor Union contending tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried on by or under the authority of any department of the Central Government", was examined and it was held that the industrial undertaking retains its identity, personality and status unchanged though in its management, the Central Government exercised the power to give a direction under section 16 and the management is subjected to regulatory control. It is seen that the above decision was reached in the context in which the payment of bonus was to be determined and paid to the employees by the department. In Food Corporation of India's case (supra), a Bench of two Judges was to consider whether regional office of the Food Corporation of India and the warehouses etc. were an "establishment" within the meaning of Section 2(i)(e) of the Act and whether FCI is an industry carried on by or under the authority of the Central Government. Following the aforesaid three decisions, it was held that a bare reading of the definition under the Act means inter alia any place, any industry, trade, business, manufacture, warehouse, godown or the place set up by the corporation where its business is carried on. Though for the purpose of industrial disputes the Central Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general interest of the community of workmen as opposed to the particular interest of the individual enterpreneur. It seeks to achieve a public purpose, i.e., regulated conditions of contract labour and to abolish it when it is found to be of perennial nature etc. The individual interest can, therefore, no longer stem the forward flowing tide and must, of necessity, give way to the broader public purpose of establishing social and economic democracy in which every workmen realises socioeconomic justice assured in the preamble, Articles 14,15 and 21 and the Directive Principles of the Constitution. The founding fathers of the Constitution, cognizant of the reality of life wisely engrafted the Fundamental Rights and Directive Principles in Chapters III and IV for a democratic way of life to every one in Bharat Republic, the State under Article 38 is enjoined strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life and to minimise the inequalities in income and endeavour to eliminate the inequalities in status, facilities and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unction of a Court, therefore, in interpreting the Constitution and the provisions of the Act, requires to build up continuity of socio-economic empowerment to the poor to sustain equality of opportunity and status and the law should constantly meet the needs and aspiration of the society in establishing the egalitarian of the society in establishing the egalitarian social order. Therefore, the concepts engrafted in the statute require interpretation from that perspectives, without doing violence to the language. Such an interpretation would elongate the spirit and purpose of the Constitution and make the aforesaid rights to the workmen a reality lest establishment of an egalitarian social order would be frustrated and Constitutional goal defeated. Keeping this broad spectrum in view, let us consider whether the interpretation given in Heavy Engineering case is consistent with the scheme and spirit of the Constitution. In Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors. [(1967) 3 SCR 377, a Constitution Bench, composing the learned judges who formed the Bench in Heavy Engineering case, considered the issue interpretation and Bhargava, J. speaking on behalf of the major ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foot forward march under public law interpretation. Mathew, J. had held that the concept of State had undergone drastic change. It cannot be conceived of simply as a cohesive machinery yielding the thunderbolt of authority. The State is a service Corporation. It acts only thorough its instrumentalities or agencies of natural and juridical person. There is a distinction between State action and private action. There is nothing strange in the notion of the State acting through a Corporation and making it an agency or instrumentality of the State with an advent of the welfare State. The framework of the civil service administration became increasingly insufficient for handling new tasks which were often of a specialised and highly technical character. Development of policy of public administration, through separate Corporations which would operate largely according to business principles and separately accountable though under the Memorandum of Association or Articles of Association become the arm of the Government. Though their employees are not civil servants, it being a public authority and State Corporation, therefore, is subject to control of the Government. The public corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a distinction perhaps would mock at the Constitution and the people; some element of public employment is all that is necessary to take the employee beyond the reach of rule which denies him the protection of Articles 14 and 16. Independence and integrity of the employees in the public sector should be secured as much as the independence and integrity of the Civil servants. it was, therefore, held that a writ would lie against the warehousing corporation. In Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors. etc. [(1961) 2 SCR 79], a Constitution Bench was to consider whether a Society registered under the J & K Societies Registration Act would be a State under Article 12 of the Constitution amenable to the reach of the writ jurisdiction. The Constitution Bench laid the following tests to determine whether the entity is an instrumentality or agency of the State : (1) if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency or Government ; (2) where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation being impregnated wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government is "other authority" under Article 12 of the Constitution. It was, therefore, held that the termination of the service without enquiry was without jurisdiction. Dismissal from service without enquiry was declared illegal under Article 226. In P.K. Ramachandra Iyer & Ors. v. Union of India & Ors. [(1984) 2 SCC 141], ICAR, a Society registered under the Societies Registration Act, was held an adjunct of the Government of India. Its budged was voted as part of the budget of the Ministry of Agriculture. It was held that it was the State under Article 12 and was amenable to jurisdiction under Article 32 of the Constitution. The Project and Equipment Corporation of India which is subsidiary owned by State Trading Corporation was held by this Court in A.L. Kalra v. Project and Equipment Corpn. of India Ltd. [(1984) 3 SCR 316], to be an agency of the Government within the meaning of Article 12 of the Constitution of India. In Central Inland Water Transport Corpn. Ltd. & Anr. v. Brojonath Ganguly & Anr. [(1986) 3 SCR 156], a Government Company incorporated under Companies Act was held to be an instrumentality or agency. In this case, this court construed the Fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Authority is amenable to the regulation of Consumer Protection Act. It was held in paragraph 5 and 6 that a Government or a semi- Government body or local authority are amenable to the Act as much as any other private body rendering similar service. This is a service to the society and they are amenable to public accountability for health and growth of society, housing construction or building activities, by private or statutory body rendering service within the meaning of Section 2(0) of the said Act. In Star Enterprises & Ors. v. C.I.D.C. of Maharashtra Ltd. [(1990) 3 SCR 280], it was held that the State or its instrumentality entering into commercial field must act in consonance with the rule of law. In paragraph 10, it was held the judicial review of administrative action has become expansive and its scope is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded, State activity too is becoming fast perversive as the State has descended into the commercial field and joint public sector undertaking has grown up. The State action must be justified by judicial review, by opening up of the public law inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , para 20] the private law principle of fraud and collusion in section 17 of the Contract Act was applied to public law remedy and it was held "that fraud in public law is not the same as fraud in private law. Nor can the ingredient, which has established fraud and commercial transaction be of assistance in determining fraud in administrative law. It has been aptly observed in Khwaja vs. Secretary of State for the Home Department & Ors. [(1983) 1 All. E.R. 765] that it is dangerous to introduce maxims of common law as to the effect of fraud while determining fraud in relation to the statutory law". In Khwaja's case (supra), it was held "despite the wealth of authority on the subject, there is nowhere to be found in the relevant judgments (perhaps because none was thought necessary) a definitive exposition of the reasons why a person who has obtained leave to enter by fraud is an illegal entrant. To say that the fraud 'vitiates' the leave or that the leave is not 'in accordance with the Act' is, with respect, to state a conclusion without explaining the steps by which it is reached. Since we are here concerned with purely statutory law, I think there are dangers in in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate Government under the Act. [2] If it is a statutory Corporation, it is an instrumentality or agency of the State. If it is a company owned wholly or partially by a share capital, floated from public exchequer, it gives indicia that it is controlled by or under the authority of the appropriate Government. [3] In commercial activities carried on by a Corporation established by or under the control of the appropriate Government having protection under Articles 14 and 19 [2], it is an instrumentality or agency of the State. [4] The State is a service Corporation. It acts through its instrumentalities, agencies or persons natural or juridical. [5] The governing power, wherever located, must be subject to the fundamental constitutional limitations and abide by the principles laid in the Directive Principles. [6] The framework of service regulations made in the appropriate rules or regulations should be consistent with and subject to the same public law principles and limitations. [7] Though the instrumentality, agency or person conducts commercial activities according to business principles and are separately accountable under their appropriate bye-laws or Memorandum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol's R.D. Shetty's and Food Corporation of India cases the ratio of Heavy Engineering case formed the foundation. In Hindustan Machine Tool's case, there was no independent consideration except repetition and approval of the ratio in Heavy Engineering case. It is to reiterate that Heavy Engineering case is based on concession. In R.B. Shetty's case, the need to dwelve indepth into this aspect did not arise but reference was make to the premise of private law interpretation which was relegated to and had given place to constitutional perspectives of Article 14 which is consistent with the view we have stated above. In Food Corporation of India's case, the Bench proceeded primarily on the within the jurisdiction of different State Governments which led it to conclude that the appropriate Government would be the State Government. In the light of the above principles and discussions, we have no hesitation to hold that the appropriate Government is the Central Government from the inception of the Act. The notification published under Section 10 on December 9,1976, therefore, was in exercise of its power as appropriate Government. So it is valid in law. The learned Solicitor General is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishment. The Government before notifying prohibition of contract labour work which is carried on in the establishment, will consider whether the work is of a perennial nature in that establishment or work is done ordinarily through regular workmen in that establishment. The words "work of an establishment" which are used in defining workmen as contract labour being employed in connected with the work of an establishment indicate that the work of the establishment there is the same as word in the establishment contemplated by Section 10 of the Act. The contractor under takes to produce a given result for the establishment through contract labour. He supplies contract labour for any work of the establishment. The entire site is the establishment and belongs to the principal employer who has a right of supervision and control; he is the owner of the premises and the end product and from whom the contract labour receives its payment either directly or through a contractor. It is the place where the establishment intends to carry on its business, trade, industry, manufacture, occupation after the construction is complete. Accordingly, the constutionality of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the work of any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person categorised in clauses (a) to (e) which are not relevant for the purpose of this case. Every principal employer of an establishment under the Act is enjoined under Section 7 to apply for registration and have it registered thereunder. The registration is subject to the revocation under Section 8 on fulfilment of certain conditions enumerated therein. The effect of nonregistration is enumerated in Section 9 in the mandatory language that no principal employer shall employ contract labour in the establishment af ter the specified period. Section 12 enjoins similar obligations on the contractor for registration, with mandatory language, that from the appropriate date, no contractor to whom the Act applies, hall undertake or execute any work through contract labour except under and in accordance with the licence issued in that behalf by the licensing officer. Licence is grated under Section 13 and revocation, suspension and amendment thereof have been pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. For the prosecution of non-cognisable offences, complaint is to be laid with previous sanction of the Inspector in writing. Section 27 prescribes limitation for laying prosecution. Rules have been prescribed in that behalf for effective enforcement of the Act. Forms and terms and conditions of licence have been prescribed in Rules 21 to 25. Chapter V of the Central Rules deals with welfare and health of the contract labour. Chapter VI deals with payment of wages to the workmen and the manner of payment has also been provided therein. Form III referred to in Rule 18 (3) envisages, among others, name and address of the contractor, nature of work in which contract labour is to be employed on any day, maximum number of contract labour to be employed on any date, probable duration of employment of contract labour etc. The licence issued in Form IV under Rule 21(1) indicates the particulars envisaged in Forms III. Form XIII under Rule 75 requires information as to the list of workmen employed by the contractor and also to be specified, the name and surname of the workmen, Sl. No., age and sex, father's/husband's name, nature of employment, designation, permanent home address of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that Preamble of the Constitution is the basic feature. Either prior to 42nd Constitution (Amendmet) Act, or thereafter, though the word "socialist" was not expressly brought out separately in the main parts of the Constitution, i.e., in the Chapters on Fundamental Rights or the Directive Principles, its seedbeds are right to participation in public offices, right to seek consideration for appointment to an office or post; right to life and right to equality which would amplify the roots of socialism in democratic form of Government; right to equality of status and of opportunity, right to equal access to public places and right to freedoms, protective discrimination, abolition of untouchability, its practice in any form an constitutional offence, as guaranteed in Part III & IV i.e., Fundamental Rights and Directive Principles which to every citizen are Fundamental Rights. In Minerva Mills Ltd. & Ors. vs. Union of India & Ors. [(1981 (1) SCR 206 = AIR 1980 SC 1789], the Constitution Bench had held that the Fundamental Rights and the Directive Principles are two wheels of the chariot in establishing the egalitarian social order. Right to life enshrined in Article 21 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constantly to rise t higher levels. Dr. Ambedkar, in his closing speech in the Constituent Assembly on November 25, 1949, had lucidly elucidated the meaning of social and political democracy. He stated that it means a way of life which recognised liberty, equality and franternity as the principles of life. They form an integral union. One cannot divorce from the other; otherwise it would defeat the very purpose of democracy. Without equality, liberty would produce supremacy of the few over the many equality without liberty would kill the initiative to improve the individual's excellence, political equality without socio-economic equality would run the rusk of democratic institutions to suffer a set back. Therefore, for establishment of just social order in which social and economic democracy would be a way of life inequalities in income should be removed and every endeavour be made to eliminate inequalities in status through the rule of law. "Socialism" brought into the preamble and its sweep elaborately was considered by this Court in several judgments. It was held that the meaning of the word "socialism" in the Preamble of the Constitution was expressly broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationalisation of the contract carriages, had held that the aim of socialism is the distribution of the material resources of the community in such a way as to subserve the commonhood. The principle embodied in Article 39(b) of the Constitution is one of the essential directives to bring about the distribution of the material resources. It would give full play to the distributive justice. It fulfills the basic purpose of restructuring the economic order. Article 39(b), therefore, has a social mission. it embraces the entire material resources of the community. Its task is to distribute such resources. Its goal is to undertake distribution as best to subserve the common good. In Sanjeev Coke Manufacturing Co. v. Bharat Cooking Coal Ltd. & Anr. [(1983) 1 SCR 1000], another Constitution Bench interpreted the word "socialism" and Article 39(b) of the Constitution and had held that the broad egalitarian principle of economic justice was implicit in every Directive Principle. The law was designed to promote broader egalitarian social goals to do economic justice for all. The object of nationalisation of mining was to distribute nation's resources. In State of Tamil Nadu etc. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignity. Jurisprudence is the eye of law giving an insight into the environment of which it is the expression. It relates the law to the spirit of the time and kames it richer. Law is the ultimate aim of every civilised society, as a key system in a given era, to meet the needs and demands of its time. Justice, according to law, comprehends social urge and commitment. The Constitution commands justice, liberty, equality and fraternity as supreme values to usher the egalitarian social, economic and political democracy. Social justice, equality and dignity of persons are cornerstones of social democracy. The concept of "social justice" which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. "Social justice" is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies or private persons or industry are bound by the directives contained in Part IV and the Fundamental Rights in Part III and the Preamble of the Constitution. The right to carry on trade is subject to the directives contained in the Constitution, the Universal Declaration of Human Rights, European Convention of Social, Economic and Cultural Rights and the Convention on Right to Development for Social Economic Justice. Social security is a facet of socio-economic justice to the people and a means to livelihood. In Murlidhar Dayandeo Kesekar V. Vishwanath Pandu Barde & Anr.[1995 supp (2) SCC 549] (to which two of us, K. Ramasway, and B.L. Hansaria JJ., were members), the question arose; whether the alienation of the lands assigned to Scheduled Tribes was valid in law ? In that context considering the Preamble, the Directive Principles and the Fundamental Rights including the right to life, this court had held that economic empowerment and social justice are Fundamental Rights to the tribes. The basic aim to the welfare State is the attainment of substantial degree of social, economic and political equalities and to achieve self-expression in his work as a citizen, leisure and socia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd directive principles - the trinity - are the conscience of the Constitution. Political democracy has to be stable. Socio-economic democracy must take strong roots and should become a way of life. The State, therefore, is enjoined to provide adequate means of livelihood to the poor, weaker sections of the society, the Dalits and Tribes and to distribute material resources of the community to them for common welfare etc". It was accordingly held that right to economic empowerment is a fundamental right. The alienation of assigned land without permission of competent authority was held void. In R. Chandevarappa and Ors. v. State of Karnataka and Ors. [(1995) 6 SCC 309] (to which two of us, K. Ramaswamy and B.L. Hansaria, JJ., were members) this Court was to consider whether the alienation of Government lands allotted to the Scheduled Castes was in violation of the Constitutional objectives under Article 39(b) and 46. It was held that economic empowerment to the Dalits, Tribes and the poor as a part of distributive justice is a Fundamental Right; assignment of the land to them under Article 39(b) was to provide socio-economic justice to the Scheduled Castes. The alienation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... political economy must include interpretation for the public good which is based on justice that would guide the people when questions of economic and social policy are under consideration. In Peerless General Finance and Investment Co. Ltd. & Anr. v. Reserve Bank of India [(1992) 2 SCC 343 at 389 para 55], this court had held that stability of the political democracy hinges upon socioeconomic democracy. Right to development is one of the important facets of basic human rights. Right to selfinterest is inherent in right to life. Mahatma Gandhiji, the Father of Nation said that "every human being has a right to live and, therefore, to find the wherewithal to feed himself and where necessary to clothe and house himself". In D.K. Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC 259], the question was whether the workman for absence in service for 7 days can be removed without an enquiry. In that context a bench of three judges had held thus: "Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious contents of dignity of person would be reduced to animal existence. When right to life is interpreted in the light of the colo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llence. The principal end of society is to protect the enjoyment of the rights of the individuals subject to social order, wellbeing and morality. Establishment of priorities of liberties is a political judgment. Law is the foundation on which the potential of the society stands. Law is an instrument for society stands. Law is an instrument for social change as also defender for social change. Social justice is the comprehensive form to remove social imbalances by law harmonising the rival claims or the interests of different groups and/or sections in the social structure or individuals by means of which alone it would be possible to build up a welfare State. The idea of economic justice is to make equality of status meaningful and the life worth living at its best removing inequality of opportunity and of status - social, economic and political. Law is the ultimate aim of every civilised society, as a key system in a given era, to meet the needs and demands of its time. Justice, according to law, comprehends social urge and commitment. Justice, liberty, equality and fraternity are supreme constitutional values to establish the egalitarian social, economic and political democracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law a social engineer to provide flesh and blood to the dry bones of law. The Directives would serve the Court as a beacon light to interpretation. Fundamental Rights are rightful means to the end, viz., Social and economic justices provided in the Directives and the Preamble. The Fundamental Rights and the Directives establish the trinity of equality, liberty and fraternity in an egalitarian social order and prevent exploitation. Social justice, therefore, forms the basis of progressive stability in the society and human progress. Economic justice means abolishing such economic conditions which remove the inequality of economic value between man and man, concentration of wealth and means of production in the hands of a few and are detrimental to the vast. Law, therefore, must seek to serve as a flexible instrument of socioeconomic adjustment to bring about peaceful socio-economic revolution under rule of law. The Constitution, the fundamental supreme lex distributes the sovereign power between the Executive, the Legislature and the Judiciary. The Court, therefore, must strive to give harmonious interpretation to propel forward march and progress towards establishing an egalitaria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to economic constraints, though right to work was not declared as a fundamental right, right to work of workman, lower class, middle class and poor people is means to development and source to earn livelihood. thought, right to employment cannot, as a right, be claimed but after the appointment to a post or an office, be it under the State, its agency instrumentality, jurisdic person or private interpreneur it is required to be dealt with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and all other concomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful. The democracy offers to everyone as doer, an exerter and developer and enjoyer of his human capacities, as stated by Justice K.K. Mathew, in his "The Right to Equality and Property under the Indian Constitution" at page 47-48. These exercises of human capacity require access to the material resources and also continuous and sufficient intake of material means to maintain human energy. Lack of access to the material resources is an impediment to the development of human personality. This impediment, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our in the broader sense, Social progress receives set back without equality of status, fraternity would not be maximised. Edward Kent in his "Property, Power and Authority", Prof. Herald Laski in his "Congress Socialist" dated April 11, 1936, had stated that "those who know the normal life of the poor will realise enough that without economic security, liberty is not worth living". Brooklyn Law Review page 541 at 547 has stated that "In modern translation, public officers and others who promulgate polices designed to increase unemployment or to deny or diminish benefits to the poor are accountable for the consequences to free human personality." It would, thus, be clear that in a socialist democracy governed by the rule of law, private property, right of the citizen for development and his right to employment and his entitlement for employment to the labour, would all harmoneously be blended to serve larger social interest and public purpose. Mahatma Gandhiji, the Father of the Nation, in his book "Socialism of my concept", has said thus: "To a people famishing and idle, the only acceptable form in which God can dare appear i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ninety four hundred million people must have equal right to opportunities and blessings that freedom of India has to offer. To bring freedom in a comprehensive sense to the common man, material resources and opportunity for appointment be made available to secure socio-economic empowerment which would ensure justice and fullness of life to workmen, i.e., every man and woman. In "Beyond Justice" by Agnes Heller at page 80, the distribution of material goods, he had stated on distributive justice thus: "The distribution of material goods had always been of concern in images and theories of justice, but, even when the issue was given the highest importances, it was subjected to and understood within a general theory of justice, and addressed within the framework of a complete socio-political concept of justice. As we have seen, in the prophetic concept of justice the misery of the poor called for dividne retribution, since alleviating misery was believed to be a matter not of optional charity but of moral duty, To neglect this duty was to sin, to breach the divine laws. Plato proposed the abolition of private property for the caste of guardians in order to make the Repu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the 'suspension of justice' ) although the term 'equity' can remain relevant in these other contexts). Humane, an extremely sincere man, did not shirk from facing proposal alien to his own. He stated, nature is so liberal to mankind, that. were all her presents equally divided among the species, and improved by art and industry, every individual would enjoy all the necessaries, and even most of the comforts of life. It must also be confessed, that, wherever we depart from this equality, we rob the poor of more satisfaction than we add to the rich." Justice K.K. Mathew in his "Democracy Equality and Freedom" at page 55 has, therefore, stated that the singlemost important problem in constitutional law for years to come in this court will be how to implement the Directive Principles and at the same time give full play to the Fundamental Right. It is only by implementing the Directive Principle that distributive justice will be achieved in the society. Justice, as Aristotle said, "is the bond of men in society" and "States without justice" are, as St. Augustine said, "robber-bands". In Keshvanand Bharti's case, Jaganmohan Reddy, J. ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the private property is affected with a public interest, it ceases to be "juris privati" only and it becomes clothed with a public interest when used in a manner to make it of public consequence and affect the community at large; and so using it, the owner grants to the public an interest in that use, and must submit to be controlled by the public for common good". This Statement was quoted with approval by the Supreme court of United States of America in 1876 in leading judgment, munn vs the people of Illinois [94 US 115]. Justice whaite dealing with question whether the legislature can fix the rates for storage of grains in private warehouses by a statue of 1871 when its interpretation had come up for consideration of right to property and its enjoyment and of the public interest, it was held that "under such circumstances it is difficult to see why, if the common carrier or the miller, or the ferrymen or the innkeeper or the wharfinger or the baker, or the cartmen, or the chakney-coachman, pursues a public employment and exercise "a sort of public office," these plaintiffs in error do not. They stand, to use again the language of their counsel, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates of America deciding the right to pass and repass and the right of freedom of expression and equality under 14th amendment, had held by majority that the corporate's right to control the inhabitants of the colony is subject to regulation but the ownership does not always mean absolute denomination. The more an owner, for his advantage, opens up his property in use by public in general, the more do his right become circumscribed by statutory and constitutional rights of those who use it. The conviction was in violation of Ist and 14th Amendment. In Republic Aviation Corporation vs. National Labour Relations Board [324 US 793 = 89 L.Ed. 1372], the owner of privately held bridges, ferries, turnpikes and railroads etc. may operate them as freely as a farmer does his farm, but when it operated privately to benefit the public, their operation is essentially a public function. It was subject to State regulation. The Supreme court, therefore, had held that when the rights of the private owners and the constitutional rights requires interpretation, the balance has to be struck and the court would, mindful of the Fact that the right to exercise liberties safeguarded by the Constitution l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;matters connection therewith". The phrase "matters connected therewith" gives clue to the intention of the Act. WE have already examined in detain the operation of the provisions of the Act obviating the need to reiterate the same once over. The enforcement of the provisions to establish canteen in every establishment under Section 16 is to supply food to the workmen at the subsidised rates as it is a right to food, a basic human right. Similarly, the provision in Section 17 to provide rest rooms to the workmen is a right to leisure enshrined in Article 43 of the Constitution. Supply of wholesome drinking water, establishment of latrine and urinals as enjoined under Section 18 are part of basic human right to health assured under Article 39 and right to just and human conditions of work assured under Article 42. All of them are fundamental human rights to the workmen and are facets of right to life guaranteed under Article 21. When the principal employer is enjoined to ensure those rights and payment of wages while the contract labour system is under regulation, the question arises whether after abolition of the contract labour system that workmen should be left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish the consequence of abolition of contract labour. In this behalf, the Gujarat Electricity Board case, attempted, by interpretation, to fill in the gap but it also fell shout of full play and got beset with insurmountable difficulties in its working which were not brought to the attention of the Bench. With due respect, such scheme is not within the spirit of the Act. As seen, the object is to regulate the contract labour so long as the contract labour is not perennial. The labour is required to be paid the prescribed wages and are provided with other welfare benefits envisaged under the Act under direct supervision of the principal employer. The violation visits with penal consequences. Similarly, when the appropriate Government finds that the employment is of perennial nature etc, contract system stand abolished, thereby, it intended that if the workmen were performing the duties of the post which were found to be of perennial nature on par with regular service, they also require to be regularised. The Act did not intend to denude them of their sources of livelihood and means of development, throwing them out from employment. as held earlier, it is a socio-economic welfare legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation in Dena Nath's case is given acceptance, it would be an open field for the principal employer to freely flout the provisions of the Act and engage workmen in defiance of the Act and adopt the principle of hire and fire making it possible to exploit the appalling conditions in which the workmen are placed. The object of the Act, thereby gets rudely shattered and the object of the Act easily defeated. Statutory obligations of holding valid licence by the principal employer under Section 7 and by the contract under Section 12 is to ensure compliance of the law. Dena Nath's ratio falls foul of the constitutional goals of the trinity; they are free launchers to exploit the workmen. The contractor is an intermediary between the workmen and the principal employer. The moment the contract labour system stands prohibited under Section 10(1), the embargo to continue as a contract labour is put an end to and direct relationship has been provided between the workmen and the principal employer. Thereby, the principal employer directly becomes responsible for taking the services of the workmen hitherto regulated through the contractor. The object of the penal provisions was to pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reasons when the management of the shareholders buy resolution reached the decision. This court equally pointed out in other cases that when the State's power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitation as held in M.C. Mehta & Ors. v. Union of India & Ors.[(1987) 1 SCC 395]. The legal right of an individual may be founded upon a contract or a statue or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the action of the authority need to fall in the realm of public law-be it a legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question requires to be determined in each case. However, it may not be possible to generalise the nature of the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined on its facts and circumstances to find out the nature and scope of the controversy. The distinction between public law and private law remedy has now become thin and practically obliterated. In write petitions filed under Article 32 of the Constitution of India, the petitioners, in R.K. Panda vs. Steel Authority of India & Ors. [(1994) 5 SCC 304], contended that they had been working in Rourkela plant of the Steel authority of India for period ranging between 10 and 20 years as contract labour. The employment was of perennial nature. The non-regularisation defeated their right to a job. The change of contractors under the terms of the agreement will not have any effect o their continuing as a contract labour of the predecessor contractors. The respondent contended that due to modernisation of the industry, the contract labour are likely to be retrenched. The were prepared to allow the contract labour to retire on voluntary basis or to be absorbed for local employment. A Bench of three judges of this court had held that the contract labour were continuing the employment of the respondent for last 10 years, in spite of change of contractors, and hence they were directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should to be interfered with. In other words, this court upheld the jurisdiction of Tribunal after deciding the dispute as an industrial dispute and gage direction to abolish the contract labour. The Power of the Court is not fettered by the absence of any statutory prohibition. In Security Guards Board for Greater Bombay and Thane District vs. Security & Personnel Service Pvt. Ltd. & Ors. [(1987) 3 SCC 413], the question as regards absorption of security guards employed in any factory or establishment etc. under Maharashtra Private Security Guards (Regulation of Employment and welfare) Act, 1981 had come up for consideration. It was held that the exemption under Section 23 is in regard to the security guards employed in the factory or establishment or in any class or classes of fabricating factory's establishment. The co-relationship of the security guards of classes of security guards who may be exempted for the operation of the Act is with the factory or establishment sin which they work and not with agency or agent through and by whom they were employed. In other words., the ratio of that case is that it is not material as to through which contractor the employee came to be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. On receipt of the report, the Court could mould the relief in an appropriate manner to meet the given situation. In Praga Tools case, this Court held that mandamus may be issued to enforce duties and positive obligation of a public nature even though the persons or the authorities are not public officials or authorities. The same view was laid in Anadi Mukta v. V.R. Rudani [(1989) 2 SCC 691] and Unni Krishna v. State of A.P. [(1993) 1 SCC 645]. In Comptroller & Auditor General of India v. K.S. Jagannathan [(1986) 2 SCC 679], this court held that a mandamus would be issued to implement Directive Principles when Government have adopted them. They are under public obligations to give preferential treatment implementing the rule of reservation under Articles 14 and 16 (1) and (4) of the Constitution. In L.I.C. case, directions were issued to frame policies accessible to common man. Thus, we hold that though there is no express provision in the Act for absorption of the employees whose contract labour system stood abolished by publication of the notification under section 10 (1) of the Act, in a proper case, the court as sentinal in the qui vive is required to direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruities and obstacles in the way of the contract labour for immediate absorption. Since, the contract labour gets into the service of the principal employer, the Union of the existing employees may not espouse their cause for reference under section 10 of the ID Act. The workmen, who no abolition of contract labour system have no right to seek reference under section of 10 of ID Act. Moreover, the workmen immediately are kept out of job to endlessly keep waiting for award and thereafter resulting in further litigation and delay in enforcement. The management would always keep them at by for absorption. it would be difficult for them to work out their right. Moreover, it is a trade and time-consuming process and years would role by. Without wages, they cannot keep fighting the litigation endlessly. The right and remedy would be a teasing illusion and would be rendered otiose and practically compelling the workman at the mercy of the principal employer. Considered from this pragmatic perspective, with due respect to the learned judges, the remedy valuable assistance given by all the learned counsel in the appeals. The appeals are accordingly dismissed, but in the circumstances, with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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