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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2771 OF 2013  (ARISING OUT OF SLP (CIVIL) NO.3104 OF 2011)

BALESHWAR RAJBANSHI & ORS. … APPELLANTS

VERSUS

BD. OF TRUSTEES FOR PORT TRUST OF  CALCUTTA & ORS. …RESPONDENTS

J U D G M E N T

Aftab Alam, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated January  

29, 2010 passed by a division bench of the Calcutta High court in an intra-

court appeal against the judgment of a learned single Judge of that court. By  

the impugned judgment, the division bench has carved out an exception in  

favour of the respondent, Port Trust of Calcutta (hereinafter, “Port Trust”)  

from a notification issued by the Central Government under section 10(1) of  

the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter “the  

Act”)  and held that the notification “would not in any way affect the right of  

the Port Trust to assign the work of laying and linkage of railway tracks as  

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one  time  measure  of  (sic.  to)  RITES,  another  Central  Government  

Organization”.  

3. The controversy in this case centres around a notification dated July 7,  

2005 issued by the Central Government under section 10(1) of the Act. The  

notification  was  issued  after  due  consultation  with  the  Central  Advisory  

Central Labour Board with regard to the conditions of work and benefits  

provided for the contract  labour and other relevant factors enumerated in  

sub-section 2 of section 10 and it  prohibited the employment of  contract  

labour  “in  the  works  of  sleeper  renewal  of  railway  Tracks,  repairing,  

restoration and laying and linkage of tracks in the establishment of Kolkata  

Port  Trust,  Kolkata”  with  effect  from  the  date  of  publication  of  the  

notification in the official gazette.

4.  After the issuance of the notification, the appellants who claimed to  

be engaged for  the works covered by the notification for  more than two  

decades through different contractors approached the Calcutta High court in  

W.P. No.20171 (W) of 2005 seeking a direction from the High Court to the  

Port  Trust  to  abolish  the  system  of  giving  the  works  covered  by  the  

notification  to  the  contractors.   On  the  other  hand,  the  Port  Trust  also  

approached the High Court  in  W.P.  22545 (W) of  2005,  questioning the  

validity of the notification.  The two writ petitions were heard together by a  

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learned single Judge who decided to consider the writ petition filed by the  

Port Trust first, as the decision on the legality of the notification would have  

a direct bearing on the writ petition filed by the individual workmen.

5.   The learned single Judge upheld the validity of the notification and  

by judgment and order dated May 15, 2007 dismissed the writ petition filed  

by the Calcutta Port Trust.

6.  The Port Trust challenged the judgment, dated May 15, 2007 passed  

by the learned single Judge before a division bench of the High Court in  

intra-court  appeal.  The  division  bench  by  order  dated  March  31,  2008  

directed  the  Port  Trust  to  approach  the  Ministry  of  Labour  through  the  

Ministry of Shipping for resolving the issue.  

7. The  order  passed  by  the  division  bench  was  challenged  by  some  

individual workmen before this court in civil appeal No.7394/2009 (arising  

from SLP(C) No.22912/2008).  The appeal was allowed by judgment and  

order,  dated November 6,  2009 passed by this  Court1.   The order of  the  

division bench of the High Court dated March 31, 2008 was set aside and  

the  High  Court  was  asked  to  rehear  the  Port  Trust’s  appeal  against  the  

judgment of the single judge (MAT No.2363 of 2007 and FMA No. 430 of  

2008) and to dispose it of in accordance with law.

1 (2010) 1 SCC 116

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8.   After remand, the division bench of the High Court once again heard  

the appeal and disposed it of by a brief order, modifying the order of the  

learned single Judge and notwithstanding the notification under section 10 of  

the Act, allowing the Port Trust to assign the work of laying and linkage of  

railway tracks as one time measure to RITES, another Central Government  

organization.  

9. The division bench simply noted the submission of the counsel for the  

Port Trust that laying and linking of the railway tracks did not come within  

the daily affairs of the Port Trust; that it was required for the purpose of easy  

movement of cargo; and further that such railway tracks were laid by the  

railway.  The railways were asked to replace the old tracks and the railways  

perhaps got the work were done through contracts.  That the Port Trust had  

asked  RITES,  a  Central  Government  undertaking  under  the  Ministry  of  

Railways to lay and link railway tracks as one time job and such work is  

nearing  completion  in  the  first  phase.  The  High  Court  also  noted  the  

submission of the counsel for the Port Trust that the laying and linkage of  

railway tracks cannot be termed as a work of perennial nature and, therefore,  

the assignment of the work of laying and linkage of railway tracks to RITES  

who  have  the  necessary  expertise  in  the  work  cannot  come  within  the  

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mischief of section 10 of the Contract Labour (Regulation and Abolition)  

Act.  

10. Accepting  the  submission  made on behalf  of  the  Board  Trust,  the  

division bench held and directed as under:-

“We  have  considered  the  rival  contentions.  We  have  perused the judgment and order of the learned Single Judge. We  are in full agreement when His Lordship deals with the issue of  maintenance  of  the  railway  tracks  by  way  of  repair  or  otherwise.  We are, however, of the opinion that laying and  linking  as  one  time  measure  could  not  be  said  to  be  a  perennial duty.  In any event, laying of railway tracks is no  part  of  the  duty  of  the  Port  Trust. The  duties  and  responsibilities of the Port Trust do not include lying of railway  tracks.  Railway tracks are laid only for the purpose of smooth  movement of  the cargo discharged through the Port.   In any  event, such laying can only be done by expert.  The Railways  have that expertise and RITES is one such Corporation under  the Ministry of railways.  Hence, we are of the view that the  Notification under challenge would not, in any way, affect  the right of the Port Trust to assign the work of laying and  linking of railway tracks as one time measure of  RITES,  another Central Government Organisation.”  

(emphasis added)

11. We are unable to appreciate or to even follow the view taken by the  

High Court.  The Contract Labour (Regulation and Abolition) Act, 1970, is a  

special Act that was framed to regulate the employment of contract labour in  

certain  establishments  and  to  provide  for  its  abolition  in  certain  

circumstances and for matters connected therewith.  

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12. Section 3 of  the Act  provides for  constitution of  Central  Advisory  

Board and it is as under:-

“Central Advisory Board. – (1) The Central Government shall,  as soon as may be, constitute a board to be called the Central  Advisory Contract Labour Board (hereinafter referred to as the  Central  Board)  to  advise  the  Central  Government  on  such  matters arising out of the administration of this Act as may be  referred  to  it  and to  carry  out  other  functions  assigned  to  it  under this Act.  

(2) The Central Board shall consist of –

(a) a chairman to be appointed by the Central Government;

(b) the Chief Labour Commissioner (Central), ex officio;

(c) such number of members, not exceeding seventeen but not  less than eleven, as the Central Government may nominate  to  represent  that  Government,  the  Railways,  the  coal  industry, the mining industry, the contractors, the workmen  and any other interests which, in the opinion of the Central  Government, ought to be represented on the Central Board.  

(3) The number of persons to be appointed as members from  each of the categories specified in sub-section(2), the term  of office and other conditions of service of, the procedure to  be followed in the discharge of their functions by, and the  manner  of  filling  vacancies  among,  the  members  of  the  Central Board shall be such as may be prescribed:

Provided  that  the  number  of  members  nominated  to  represent the workmen shall not be less than the number of  members  nominated  to  represent  the  principal  employers  and the contractors.  

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13. Section 4 provides for the constitution of the State Advisory  

Board.   

14.          Section 5 deals with the power of the Central Board or the State  

Board to constitute committees and it is as under:-

“Power to constitute committees. – (1)  The Central Board or  the  State  Board  as  the  case  may  be,  may  constitute  such  committees and for such purpose or purposes as it may think fit.  

(2) The committee constituted under sub-section (1) shall  meet at such times and places and shall observe such  rules  of  procedure  in  regard  to  the  transaction  of  business at its meetings as may be prescribed.  

(3) The members of a committee shall be paid such fees  and allowances for attending its meetings as may be  prescribed:

Provided that no fees shall be payable to a member who is  an officer of Government or of any corporation established  by any law for the time being in force.”

15.      Section 10 deals with prohibition of employment of contract labour  

and it is as under:-

“10. Prohibition  of  employment  of  contract  labour.  –  (1)  Notwithstanding  anything  contained  in  this  Act,  the  appropriate  Government  may,  after  consultation  with  the  Central Board or, as the case may be, a State Board prohibit,  by  notification  in  the  Official  Gazette,  employment  of  contract labour in any process, operation or other work in  any establishment.  

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(2) Before issuing any notification under sub-section  (1)  in  relation  to  an  establishment,  the  appropriate  Government shall have regard to the conditions of work and  benefits  provided  for  the  contract  labour  in  that  establishment and other relevant factors, such as-  

(a) whether  the  process,  operation  or  other  work  is  incidental to, or necessary for the industry, trade, business,  manufacture  or  occupation  that  is  carried  on  in  the  establishment;

(b) whether it is of perennial nature, that is to say, it is  of sufficient duration having regard to the nature of industry,  trade, business, manufacture or occupation carried on in that  establishment;  

(c) whether  it  is  done  ordinarily  through  regular  workmen in that establishment or an establishment similar  thereto;  

(d) whether  it  is  sufficient  to  employ  considerable  number of whole time workmen.  

Explanation.- If a question arises whether any process or  operation or other work is of perennial nature, the decision  of the appropriate Government thereon shall be final.”

In this case, the Central Board first constituted a Committee under section 5  

of  the Act  to  go  into the question  of  abolition of  contract  labour  in  the  

establishment of Calcutta Port Trust.  The Committee examined the matter  

in detail and made its recommendations as follows:-

          "From the above elaboration of work, the job in  question  needs  to  be  examined  in  the  contract  (sic.  context?) of provisions of section 10(2) of the Contract  Labour (R&A) Act, 1970.

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          1.   Whether the work is incidental to or necessary  for the industry of Calcutta Port Trust the Committee is  of the opinion that works of CPT involved loading and  unloading of  cargo from or  on  the  vessels  as  also  the  stores  of  cargo.  The  railway  track  in  Calcutta  Dock  System has been laid to facilitate the movement of rail  bound caused to and from CPT so the work is very much  incidental to the main operation of CPT.

     2.   The question whether work is of the provisional  nature  and  is  of  sufficient  duration,  the  Committee  observes that renewal/cancellation of tracks and sleepers  have been going on almost continuously may be in some  or other part of the railway tracks and contract workers  are working for full 8 hours so the job deemed to be a  perennial nature.

     3.    The question whether it  is also done by the  regular workmen, it has already been explained the total  71 of regular employees are also involved on day- to- day  track  maintenance  job  which  includes  the  repairing  of  tracks after derailment and in routine gauging, lubrication  of point and crossing, cleaning of check rail, dusking, etc.  which are  also  done by the  contract  workers  after  the  replacement, renewal of sleepers and tracks and also in  laying or linking of new railway lines.

The  Committee  also  feels  that  it  will  be  relevant  to  mention about Notification No. U-23013/21/98 LW dated  20th  June  2000  issued  by  the  Ministry  of  Labour,  Government  of  India,  by  which  the  employment  of  contract labour has been prohibited on the job of regular  track  maintenance  such  as  through  packing,  casual  renewal and maintenance work required for day-to-day  maintenance in the establishment of Eastern Railway.

     In the context of the above facts and observation, the  Committee  is  of  the  opinion that  work/jobs  of  sleeper  renewal of railway tracks repairing/restoration laying and  

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linking of  tracks  in  the  establishment  of  Calcutta  Port  Trust  seem  to  be  of  regular  nature  and  attracts  the  provisions  of  Section  10(2)  of  the  Contract  Labour  (Regulation  and  Abolition)  Act,  1970.  Hence  the  Committee  recommended  for  prohibition  of  contract  labour on the above mentioned job."

The matter was then considered by the Central Board and it recommended to  

the Central Government for prohibition of employment of contract labour in  

the jobs of sleeper renewal for railway contracts repairing/restoration, laying  

and  linking  of  tracks  in  the  establishment  of  Calcutta  Port  Trust.   The  

Advisory Board in its recommendation stated as under:-

 "......The  Committee  had  recommended  prohibition  of  employment of Contract Labour on the ground that the work  seems to be of  regular  nature and since 1988 contracts  have  been engaged for renewal/construction of tracks and sleepers in  some or other part of the railways tracks belonging to KOPT.  Secondly,  the  job  performed by  the  regular  employees  were  almost identical to that of job performed by contract workers  and  both  types  of  maintenance  jobs,  i.e.  day-to-day  maintenance  and  periodical maintenance are required to be  done on regular basis.  The Committee has also observed that  since  February 2000,  miscellaneous work in connection with  strengthening of  KOPT railway track,  as  and when required,  including supply of materials have been given on contract. This  is  at  variance  with  the  statement  of  KOPT that  there  is  no  contract in the said jobs since 1998.

    The   management,    on   enquiry    by   the    Board,   categorically  stated  that  no  contract  labour  system  exists  now in  the  jobs  under  consideration  and  they  would  not  be  adversely  affected  even  if  the  contract  labour  system  is  abolished.   The   management   was   also   not   able   to  satisfactorily convince the Board, on the query whether      the  

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renewal  of  track/sleepers  would be done only once in  10-12  years at one go and not in parts on continuous basis. This gives  rise  to  an  inference  that  the  jobs  under  consideration  are  of  perennial  type  and  are  required  to  be  done  by  regular  employees. In view of the recommendations of the Committee  and  categorical  statement  of  KOPT,  and  the  fact  that  the  requirements under Section 10(2) of the Act are satisfied, the  Board  recommends  to  the  Government  prohibition  of  employment of contract labour in the jobs of sleeper renewal  of     railways      tracks,      repairing/restoration, laying and  linking of tracks in the establishment of KOPT, Kolkata."

Based upon the aforesaid recommendations, the Central Government issued  

the notification under section 10(1) of the Act which inter alia covers laying  

and linking of tracks in the establishment of Calcutta Port Trust.

16. From  the  provisions  of  the  Contract  Labour  (Regulation  and  

Abolition) Act, as are noted above, it is quite clear that the notification is  

issued  after  following  a  statutory  scheme  and  it  is  based  on  a  detailed  

investigation of issues of facts followed by two tiers of recommendations,  

first by the committee constituted under section 5 of the Act and the second  

by the Advisory Board constituted under section 3 of the Act.     

17. Whether the work of laying and linking of tracks is of perennial nature  

and whether workers engaged through contractors are employed by the Port  

trust for that work are pure questions of fact that were investigated by the  

statutory committee constituted under section 5 of the Act and are covered  

by the recommendations made both by the Committee and by the Advisory  

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Board.  It  was,  therefore,  quite wrong for  the division bench of  the High  

Court to completely nullify that part of the notification in a highly casual  

and off- hand manner and simply on the ipse dixit of the respondent;  more  

so  as  the  division  bench  did  not  otherwise  find  any  illegality  in  the  

notification in question.        

18. In light of the discussion made above, we see no justification for the  

division  bench  of  the  High  Court  to  carve  out  the  exception  and  to  

rationalize the assignment of the contract to RITES merely on the ground  

that it is another Central Government organization. The High Court clearly  

exceeded its jurisdiction in passing the impugned order.  

19. We are, therefore, unable to sustain the impugned order passed by the  

division bench.  The order of the division bench of the High Court is set  

aside and the order of the learned single Judge is restored.  

20. The appeal is allowed but with no order as to costs.  

……………………….J. (Aftab Alam)

……………………….J. (Ranjana Prakash Desai)

New Delhi; April 2, 2013.  

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