TaxTMI 
TaxTMI 
TaxTMI 
2006 (9) TMI 544
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....Bhadravathi, justified in demanding absorption as regular permanent employees of Visveswaraya Iron & Steel Ltd. Bhadravathi? In the said proceedings, the workmen in their statements of claim filed on 26.02.1986 prayed for their absorption as permanent employees in the employment of Appellant. Inter alia, a jurisdictional question was raised by Appellant herein on the premise that the matter relating to the regulation and abolition of contract labour being governed by the Contract Labour (Regulation and Abolition) Act, 1970 (for short, 'the 1970 Act'), the reference made by the State Government was impermissible in law. It was contended that the State Government having not issued any notification prohibiting employment of contract labour in terms of Section 10 of the 1970 Act, the workmen did not have any legal right to claim absorption. Indisputably, during the pendency of the said dispute before the Labour Court, Appellant herein filed a writ petition, questioning the legality and/or validity of the said reference, which was marked as Writ Petition No.26874 of 1995. One of the questions which was raised therein was that the State Government had no jurisdiction to make a ....
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.... of India Ltd. and Others v. National Union Waterfront Workers and Others [(2001) 7 SCC 1]. It was further contended that the award of the Labour Court having been accepted by the workmen, the matter relating to abolition of contract labour could only be decided by the Appropriate Government in terms of Section 10 of the 1970 Act and not otherwise. By reason of the impugned judgment, the said appeals have been dismissed. It is not disputed before us that the matter relating to abolition of contract labour being governed by the provisions of the 1970 Act, the Industrial Court will have no jurisdiction in relation thereto. It is also not in dispute that the decision of the Constitution Bench of this Court in Steel Authority of India Ltd. (supra) governs the field. In the said decision, it was, inter alia, held : "(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. C....
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....rt passed in Writ Petition No.26874 of 1995. While determining the said question, the Labour Court framed seven issues by an order dated 31.12.1998, some of which are : "(i) Whether the 1st party proves that they were employed by the 2nd party Management in the job of permanent and perennial in nature. (ii) Whether the 2nd party Management proves that the 1st party workmen were employed under different contractors in the job of permanent and perennial in nature in various departments of the Management. (iii) Whether the 2nd party proves that system of contract labour in respect of the nature of the workers involved in this Reference was not abolished in the 2nd party Industry and that this Reference is not sustainable." The Labour Court opined : " The plain reading of the first point in dispute to be decided by this Court is that "are the contract workers employed in the nature of contract work, justified in demanding absorption as regular permanent employees of the management VISL, Bhadravathi (hereinafter called the Management). Therefore the point in dispute pre- supposes that the 1 party Union Employees are the contract workers employed in the nature of contract work under....
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....he Appropriate Government, which fell for consideration before the Labour Court, it declined to go into the said question, opining that it was not within its province to go into the question as to who the actual employer was as the same did not fall in the category of matters, which can be said to be incidental to the main dispute. It was opined : " Therefore, it is clear that the I party Union itself apprehended that the reference made to this Court was not in accordance with the law. The principle laid down by his lordship of our Hon'ble High Court in the case reported in ILR 1994 Karnataka page 2603, taken support of by Learned Representative for the I Party Union contending that jurisdiction point cannot be raised by the management at this belated stage, in my opinion again had no much substance the management in this case has challenged the jurisdiction of this court at earliest point of time at para 2 of its counter statement. Therefore, it cannot be said that the jurisdiction point was raised by the management at a belated state. Therefore, as contended for the management and as observed by his lordship of our Hon'ble High Court in the above said unreported judgment....
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.... was not apposite in this case." We may reiterate that neither the Labour Court nor the writ court could determine the question as to whether the contract labour should be abolished or not, the same being within the exclusive domain of the Appropriate Government. A decision in that behalf undoubtedly is required to be taken upon following the procedure laid down in sub-section (1) of Section 10 of the 1947 Act. A notification can be issued by an Appropriate Government prohibiting employment of contract labour if the factors enumerated in sub- section (2) of Section 10 of the 1970 Act are satisfied. When, however, a contention is raised that the contract entered into by and between the management and the contractor is a sham one, in view of the decision of this Court in Steel Authority of India Limited (supra), an industrial adjudicator would be entitled to determine the said issue. The industrial adjudicator would have jurisdiction to determine the said issue as in the event if it be held that the contract purportedly awarded by the management in favour of the contractor was really a camouflage or a sham one, the employees appointed by the contractor would, in effect and substan....
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....in terms of Section 18(3)(b) of the 1947 Act is binding on all workmen including those who may be employed in future. What assumes importance is the ultimate goal wherefor the 1947 Act was enacted, namely, industrial peace and harmony. Industrial peace and harmony is the ultimate pursuit of the said Act, having regard to the underlying philosophy involved therein. The issue before us is required to be determined keeping in view the purport and object of the 1947 Act. It is interesting to note that in Modi Spinning & Weaving Mills Company Ltd. & Another v. Ladha Ram & Co. [(1976) 4 SCC 320], this Court opined that when an admission has been made in the pleadings, even an amendment thereof would not be permitted. We are not oblivious of the decision of this Court in Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Another [AIR 1983 SC 462 = (1984) Supp. SCC 594], wherein it has been held that an admission made by a party can be withdrawn and/or explained away; but we may notice that subsequently a Division Bench of this Court distinguished the said decision in Heeralal v. Kalyan Mal and Others [(1998) 1 SCC 278]. The effect of an admission in the context of Section 58 of the Ind....
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....than in the latter case." While laying down the principle, this Court followed Modi Spinning & Weaving Mills Co. (supra) and distinguished Hira Lal (supra). It is, thus, evident that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of the reference made by the Appropriate Government as also in view of the fact that an industrial adjudicator derives his jurisdiction from the reference only. There is another aspect of the matter which should also not be lost sight of. For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may 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 i....