Holding

The Division Bench erred in interfering with the Central Government's notification under Section 10(1); the matter must be remitted to the High Court for fresh consideration.

Summary

The appellants, who were contract labourers employed by contractors of the Board of Trustees for the Port of Calcutta (CPT), sought a mandamus directing CPT to implement a Central Government notification that prohibited the use of contract labour for sleeper renewal, repair and laying of railway tracks within the port. The notification was issued under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 after the Central Advisory Contract Labour Board, under Section 5, had recommended prohibition based on the regular and perennial nature of the work. The Calcutta High Court Single Judge upheld the validity of the notification, but the Division Bench set aside that order and directed CPT to approach the Ministry of Labour through the Ministry of Shipping for a decision, without examining the merits of the government’s action. The Supreme Court held that the Division Bench gravely erred by interfering with the Central Government’s exercise of power under Section 10(1) after the required consultative process, and that such interference was beyond the permissible limits of judicial review. Consequently, the appeal was allowed and the matter was remitted to the High Court for fresh consideration.

Issues considered

The validity of the Central Government's notification prohibiting contract labour under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970.
Whether the Division Bench of the Calcutta High Court could set aside that notification by directing the Board of Trustees for the Port of Calcutta to approach the Ministry of Labour through the Ministry of Shipping without examining the merits.
The extent of judicial review permissible over administrative actions taken under Section 10 of the Act.

Legislation cited

Contract Labour (Regulation and Abolition) Act, 1970s. 10(1), s. 10(2), s. 5

Subjects

contract labourprohibitionSection 10judicial reviewmandamusCentral Government notificationHigh CourtBoard of Trustees for the Port of Calcuttaregular nature of work

Judgment

[2009] 15 (ADDL.) S.C.R. 702

A BALESHWAR RAJBASHI AND ORS.
v.
THE BOARD OF TRUSTEES FOR THE PORT OF
CALCUTTA AND ORS~
(Civil Appeal No. 7394 of 2009)
·"-
-
.

B NOVEMBER 6, 2009
[TARUN CHATTERJEE AND R.M. LODHA, JJ.]

Contract Labour (Regulation and Abolition) Act, 1970 -
ss.5 and 10 - Board of Trustees for Port of Calcutta (CPT) -
"
c ·Jobs/works of sleeper renewal railway tracks, repairing/
rEJstoratjon and laying/linking of tracks in establishment of CPT
- Central Government issued notification prohibiting
employment of contract Jabour in respect of said jobs/works - •
.Cross-writ petitions in High Court - While CPT challenged
validity of the notification, appellants sought issuance of
D mandamus to CPT to implement the notification .:... Single
Judge of High Court dismissed writ petition filed by CPT - CPT
filed appeal- Division Bench of High Court heard the appeal
.a/ongwith writ petition filed by appellants and directed the CPT
to approach the Ministry of Labour through Ministry of Shipping
E and both ministries were direct(!!d to discuss the issue at
appropriate level and take a formal decision in the matter- On
appeal, held: The Division Bench interfered with order of Single
Judge without going into merits of the controversy - It gravely
erred.in ignoring the fact that the Central Government had
already taken a decision in exercise of its power under s.10(1) t
F f;Jfter following the consultative process provided in s. 10(2) -
There Wf;JS no occasion much less justification to direct CPT
to approach the Ministry of Labour through Ministry of Shipping
- The Division Bench ought to have considered the matter dn
. its own merit within permissible limits ofjudicial review-Matter
G remitted to High Court for fresh consideration - Judicial
Review.
The appellants worked as contract labourers under
,.
different contractors engaged by the Board.of Trustees for
the Port of Calcutta (CPT) for maintenanGe of railway track
H 702
BALESHWAR RAJBASHI v. BOARD OF TRUSTEES 703
FOR THE PORT OF CALCUTTA
within its complex. A
The Central Advisory Contract Labour Board
constituted a Committee under Section 5 of the Contract
Labour (Regulation and Abolition) Act, 1970 to go into the
question of abolition of contract labour in job/work of
sleeper renewal railway tracks, repairing/restoration and B
laying/linking of tracks in the establishment of CPT. The
Committee opined that the said works/jobs were of regular
nature attracting Section 10(2) of the Act and, ~ccordingly,
)•
recommended for prohibition of contract labour in respect
of the said jobs. Despite the recommendation, the Central C
Government decided not to prohibit employment of
contract labour. Aggrieved, the appellants filed writ
petition. The High Court directed the Central Government
to reconsider the issue. The Central Government, in
exercise of powers conferred by Section 10(1) of the Act,
issued notification prohibiting employment of contract D
labour. The issuance of the notification led to a second
r_ound of litigation before the High Court. While CPT
challenged the validity of the notification, the appellants
sought issuance of mandamus to CPT to implement the
notification and not to engage contract labour in the matter E
of maintenance, laying and linking, changing of railway
tracks maintained by CPT.
A Single Judge of the High Court dismissed the writ
petition filed by CPT holding that there was no irregularity
or illegality in the notification. CPT challenged the order F
in intra-court appeal. The Division Bench of High Court
heard the appeal preferred by CPT alongwith the writ
petition filed by the appellants and directed the CPT to
approach the Ministry of Labour through Ministry of
Shipping and both ministries were directed to discuss the
issue at appropriate level and take a formal decision in the G
matter. Hence the present appeal.
Allowing the appeal, the Court
HELD: The Central Government had issued
notification under Section 10(1) of £he Contract Labour
(Regulation and Abolition) Act, 1970 prohibiting the H
704 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A employment of contract labour in the works of sleeper
renewai of railways tracks, repairing/restoration, laying
and linking of tracks in the establishment of CPT. The
Single Judge of the High Court did not find any infirmity
or illegality in the said notification. However, the Division
8 Bench without going into the merits of the controversy,
interfered with the order of the Single Judge by directing
the CPT to approach the Ministry of Labour through
Ministry of Shipping and both ministries were directed to ·
discuss the issue at the appropriate level and take a formal
decisiOn in the matter. It is difficult to countenance the
C approach of the Division Bench. The Division Bench
gravely erred in overlooking and ignoring the fact that the
Central Government had already taken a decision in
exercise of its power under Section 10(1) after following
.
~-

the consultative process provided in sub-Section (2) of
o Section 10 and the relevant aspects mentioned therein.
There was no occasion much less. justifi~ation to direct
CPT ~o approach the Ministry of Labour through Mi.nistry
of Shipping·. The Division Bench ought to have
considered the matter on its own merit within the
permissible limits of judicial review. If the impugned order
E of the Division Bench is allowed to stand, it would
tantamount to setting at naught the whole exercise
undertaken by the Central Government under section 1O
of the Act without the Division Bench having considered
whether the said notification suffersfrom any infirmity and
F illegality. On this short ground alone, the matter needs to
)
be remitted back to the High Court for fresh consideration.
[Paras 13) [711-A-F] '
CIVILAPPELLATEJURISDICTION: CivilAppeal No. 7394
of 2009.
G From the Judgment & Order dated 31.03.2008 of the High
Court of Calcutta in F.M.A. No. 430 of 2008.
Soumya Chakraborty, K. Bhattacharya, Dharam Bir Raj
Vohra, for the Appellants.
Parag P. Tripathi, A.S.G., Buddy Ranganathan, Kunal Bahri,
H Amey Nargolkar, AV. Rangam, Binu Tamta, Shreekant N. Terdal,
BALESHWAR RAJBASHI v. BOARD OF TRUSTEES 705
FOR THE PORT OF CALCUTTA
for the Respondents. A
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Delay condoned. Leave granted.
2. This appeal by special leave is directed against the
judgment and order dated March 31, 2008 passed by the
Division Bench of High Court of Calcutta whereby ttie Board of B
Trustees for the Port of Calcutta - Respondent No. 1 (for short,
'CPT') has been directed to approach the Ministry of Labour
through Ministry of Shipping for resolution of the dispute
concerning abolition of contract ·labour in the works of sleeper
renewal of railway tracks, repairing/restoration and laying and c
linking of tracks in the establishment of CPT.
3. The appellants are contract labour who claim to have
worked continuously from 1988 until 2006 under different
contractors engaged by CPT for maintenance of railway track
within their complex. Upon issue being raised by them, a D
Committee was constituted under Section 5 of the Contract
Labour (Regulation and Abolition) Act, 1970 (for short, 'Act') by ·
Central Advisory Contract Labour Board (for short, 'Central '
Board') to study the working of contract labour system in the jobs/
works of sleeper renewal railway tracks, repairing/restoration,
and laying and linking of tracks in the establishment of CPT and E
make suitable recommendation, whether or not the employment
of contract labour in the above jobs/works in the establishment
of CPT be prohibited under the Act. The Committee in its report.
opined that works/jobs of sleeper renewal of railway tracks in the
establishment of CPT were of regular nature attracting Section' F
10(2) of the Act, 1970 and, accordingly, recommended for
prohibition of contract labour in respect of the said jobs.
4. Despite recommendation of the Committee constituted
under Section 5 of the Act, the Central Government decided not
to prohibit employment of contract labour in the jobs/works of
sleeper renewal of railway tracks, repairing/restoration and G
laying and linking of tracks in the establishment of CPT which
led to the filing of writ petition by the present appellants before
the High Court at Calcutta. Vide Order dated July 22, 2004, the
High Court directed the Central Government to reconsider the
issue concerning abolition of contract labour in CPT and pass a H
706 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A fresh order after hearing all the parties concerned.
.:. ,'1~
5. In pursuance of the aforesaid order of the High Court, the
Central Government reconsidered the matter and issued a •
notification on July 7, 2005 in exercise of the powers conferred
by sub~Section( 1) of Section 10 of the Act, 1970 prohibiting the
employment of contract labour in the works of sle~per renewal ",-
B
of railway tracks, repairing/restoration and laying and linking of
tracks in the establishment of CPT with effect from the date of
. '
publication of.the notification.
6. Issuance and publication of the notification dated July 7, (

2005 led to second round of litigation between the appellants
c and CPT. While 9PT challenged the legality and validity of the
. notification dated July 7, 2005 on diverse grounds, the present
appellants approached the High Court for issuance of
mandamus :to CPT to implement the notification dated July 7,
2005 and not to engage contract labour in the matter of d
.•
D maintenance, laying and linking, changing of railway tracks
maintained by CPT.
L
7. By his order dated May 15, 2007, Single Judge
dismissed the writ petition filed by CPT and held that there was "l
. j
no irregula"rity or illegality in the notification dated July 7, 2005.
Insofar as the writ petition filed by the present appellants was
E
concerned, its he~ring was deferred.
8. CPT challenged the order dated May 15, 2007 passed
by the Single Judge before the Division Bench of the High Court·
· ·in intra court appeal. The Division Bench heard the appeal
preferred by CPT and also the writ petition preferred by the
F present appellants together and vide order dated .March 31, -r
2008 directed CPT to approach the Ministry of Labour through '
Ministry of Shipping. This is what the Division Bench directed:
"The Port Trust is thus directed to approach the
Ministry of Labour through Ministry of Shipping. Both the
G Ministries should discuss the issue at the appropriate level
and take a. formal decision in the matter. The said two
departments would be free to take a decision irrespective
of the observations made by the learned Single Judge in
the judgment and order impugned.
H--- - Mr'. Sengupta has· drawn our attention to the latest
BALESHWAR RAJBASHI v. BOARD OF TRUSTEES 707
FOR THE PORT OF CALCUTTA [R.M. LODHA, J_.].
decision in the case of City and Industrial Development A
>- Corporation, Maharashtra Ltd., & Ors. (supra) to show that
the issue to be resolved by High Power Committee to be
... appointed by the Central Government. We feel that the issue
should be left to the Central Government for formation of
High Power Committee if they so desire. If the High Power B
Committee is formed regard may be had to the case of City
and Industrial Development Corporation, Meharashtra
Ltd., & Ors. (supra).
So long a decision at the appropriate level is not taken
~
in the matter status quo as of date should be maintained by
the parties. Mr. Sengupta contends that RITES is now c
maintaining the railway track. Let them continue till the final
decision comes from the appropricite level." ·
...,,. 9. Section 5 of the Act provides for constitution of
committees by the Central Board or the State Board for such
purpose as may be thought fit. It reads thus : · D
...I
"5. 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 E
meet at such time and places and shcill observe such ru_les
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 . F
prescribed :
Provided that no fees shall be payable to a memb~r who is
an officer of government or of any corporation established
by any law for the time being in force."
10. The provision pertaining to prohibition of employment
G
of contract labour is contained in Section 10 of the Act which
empowers the appropriate Government to prohibit employment
of contract labour in any process, operation or other work in any
establishment. Section 10 reads thus:
"10. PROHIBITION OF EMPLOYMENT OF CONTRACT
LABOUR. - (1) Notwithstanding anything contained in this H
708 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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 i_n any establishment ·-
B (2) Before issuing any notification under sub-section (1) in
relation to an establishment, t~e 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 -

c (a) whether the process, operation or ottJer work is incidental
'4
.
t.

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

D
sufficient duration having regard to the nature of industry,
· trade, bu~iness, manufacture or occupation carried on in
""'"
. that establishm~nt;
...
(c) whether it is done ordinarily through regular workmen in
that establishment or an establ.ishment similar thereto;
(d) whether it is sufficient to employ considerable number
E 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." ·
11. As noticed above, the Central Board constituted a
F Committee under Section 5 of the Act to go into the question of
abolition of contract labour in the establishment of CPT. The
Committee examined the diverse aspects of the matter and
made its recommendations as follows :
"RECOMMENDATIONS"
G "From the above elaboration of work, the job in
question needs to be examined in the contract of provisions
·· of section 10(2) of the Contract Labour (R&A) Act, 1970. ~

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
H
BALESHWAR RAJBASHI v. BOARD OF TRUSTEES 709
FOR THE PORT OF CALCUTTA [R.M. LODHA, J.]
in landing of Cargo from or on the vassals of also the A
.. ,;-
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 B
nature and is of sufficient duration, the committee
A
observes that if 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 w~~ers are working for full 8 hours so
job deemed to be a perennial nature.
c
,. 3. The question whether it is also done by the regular
workmen, it has already been explained the total 71
-+ of regular employee are also involved on day to day
track maintenance job which includes the repairing
to tracks after derailment and in routine gauging D
.J, 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. E
The Committee also feels that it will be relevaht to mention
about the 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 F
such as through packing casual renewal and maintenance
work required for day to day maintenance in the
-I
.. ; establishment of Eastern Railway .
In the contract above facts and observation, the
committee is of opinion at work jobs of sleepers renewal of
G
Railway tracks repairing/restoration laying and 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." H
7'10 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 12. The matter was reconsidered by Central Board in the
light of the order of Calcutta High Court passed on July 22, 2004
and it recommended to the Central Government for prohibition
of employment of contract labour in the jobs of sleeper renewal
of railway tracks, repairing/restoration, laying · and linking of
B tracRs in the establishment of CPT. This is what Advisory Board
said in its recommendation:
"...... The Committee had recommended prohibition of
employment of Contract Labour on the ground that the work
seem to be of regular nature and since 1988 contracts have
been engaged for renewal/construction of tracks and
c 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 l
1
performed by contract workers and both type of
maintenance job, i.e. day to day maintenance and periodical
D 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 rio contract in the
E
said jobs since 1998.
The management, on enquiry b.y the Board,
categorically stated that no contract labour system exists
now in the jobs under consideration and theywould no{be
adversely affected even if the contract labour system is
F ab.olished. The management was also not able to
satisfactorily convince the Board, on the query whether the
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
G consideration is of perennial type and are reai •'.:~d 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
H
BALESHWAR RAJBASHI v. BOARD OF TRUSTEES 711
FOR THE PORT OF CALCUTTA [R.M. LODHA, J.]
of contract labour in the jobs of sleeper renewal of railways A
"- tracks, repairing/restoration, laying and linking of tracks in
the establishment of KOPT, Kolkata."
13. It is in the light of the aforesaid backdrop that the Central
Government issued notification under Section 10(1) of the.Act,
1970 prohibiting the employment of contract labour in the works B
1 of sleeper renewal of railways tracks, repairing/restoration, laying
t and linking of tracks in the establishment of CPT. The Single
Judge did not find any infirmity or illegality in the said notification.
However, Division Bench without going into the merits of the
controversy, interfered with the order of the Single Judge by
directing CPT to approach the Ministry of Labour through Ministry c
of Shipping and both ministries were directed to discuss the
issue at the appropriate level and take a formal decision in the
matter. We find it difficult to countenance the approach of the
Division Bench. The Division Bench gravely erred in overlooking
and ignoring the fact that the Central Government had already
__.. D
f taken a decision in exercise of its power under Section 10( 1)
...
after following the consultative process provided in sub-Section
(2) of Section 10 and the relevant aspects mentioned therein.
There was no occasion much less justification to direct CPT to
approach the Ministry of Labour through Ministry of Shipping. The
Division Bench ought to have considered the matter on its own E
merit within the permissible limits of judicial review. If the
i impugned order is allowed to stand, it would tantamount to setting
at naught the whole exercise undertaken by the Central
Government under section 10 of the Act without the Division
Bench having considered whether the notification dated July 7,
2005 suffers from any infirmity and illegality. On this short ground F
alone, we are satisfied that matter needs to be remitted back to
the High Court for fresh consideration.
14. Appeal is, accordingly, allowed to the aforesaid extent.
M.A.T. No. 2363 of 2007 and F.M.A. No. 430 of 2008 are
restored to the file of the High Court at Calcutta for fresh hearing G
and disposal in accordance with the law. We request the High
Court to dispose of the aforesaid matters.as expeditiously as
may be possible. No orders as to costs.
8.8.8. Appeal allowed.
H