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Tamil Nadu Airport Workers Union (Regd. No.43/KBM) Rep. By its General Secretary, Meenambakkam & Another v/s Government of India, Rep. By its Secretary, Ministry of Labour, Shrarm Shakti Bhavan, New Delhi & Others

    W.P.Nos. 6485, 15917, 34256 of 2015 & 21515 of 2013 & 40237 of 2016 & M.P.Nos. 1 & 3 of 2013 M.P.No. 2 of 2015 & W.M.P.No. 34259 of 2016

    Decided On, 11 June 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K. RAVICHANDRABAABU

    For the Appearing Parties: R. Vaigai, Senior Counsel for M/s. K.M. Ramesh, A. Veeramani, ASGI, Dr. Fr.A. Xavier Arulraj, Senior Counsel for M/s. A. Arul Mary, K. Gunasekar, SPCCG, R. Vaigai, Senior Counsel, K.M. Ramesh, Balan Haridas, R. Parthiban, S. Gunalan, T.K.S. Gandhi, M/s. A. Arul Mary, J. Madanagopal Rao, Sr.Central Govt.Standing Counsel, N. Palanisamy, K.M. Ramesh, Balan Haridas, Advocates, A. Murugan, CGC.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the second respondent to implement the notification issued by the first respondent in S.O.2824(E) dated 05.11.2014 published in the Gazette of India Extraordinary, Part II-Section 2 sub-section (II) dated 05.11.2014 by abolishing contract labour system in the job of Trolley Retrieval at Chennai Airports and consequently absorb the members of the petitioner Union in its regular service with all consequential and monetary benefits within a time frame.)

Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari to call for the records pertaining to the impugned notification dated 05.11.2014 in S.O.No.2824 (E) of the Ministry of Labour and Employment, Government of India, on the file of the first respondent and quash the same.)

Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus forbearing the 3rd and 4th respondents from altering the service conditions of the employees whose names are given in the Annexure to the affidavit filed in support of the writ petition in any manner including discontinuance of service or failing to provide employment in any manner without getting permission under Section 33 of the Industrial Disputes Act, 1947, in the Industrial Disputes raised by the petitioners in their capacity as Five Men Committee of employees regarding regularization and further direct the 2nd respondent to conciliate and effect settlement and if no settlement is forthcoming to submit failure report under Section 12(4) of the Industrial Disputes Act and in turn direct the 1st respondent to refer the dispute for adjudication before the competent Industrial Adjudicator.)

Writ Petition filed under Article 226 of the Constitution of India To issue a Writ of Certiorari to call for the records pertaining to the impugned proceeding dated 09.10.2015 in No.M/35/4/2015/E2/RP of the office of the Deputy Chief Labour Commissioner (Central), Ministry of Labour and Employment , Government of India, No.26, Haddows Road, Chennai- 600 006 on the file of the 4th respondent and quash the same.)

Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus to forbear the respondent Nos.3 to 5 from altering the service conditions of the members of the petitioner union whose names are given in the annexure to the writ petition in any manner including discontinuance of service or failing to provide employment in any manner without getting permission under section 33 of the Industrial Disputes Act, 1947, the Dispute dated 07/11/2016 raised by the petitioner Union regarding absorption of services of the employees, wages revision and other charter of demands which are pending conciliation before the 2nd respondent as dispute No.M.8/17/2016B3 and further direct the 2nd respondent to conciliate and effect settlement and if no settlement is forthcoming to submit failure report under section 12(4) of the Industrial Disputes Act and in turn direct the 1st respondent to refer the dispute for adjudication before the competent Industrial Adjudicator.)

Common Order:

W.P.No.6485 of 2015

The petitioner seeks for a mandamus directing the second respondent to implement the notification issued by the first respondent in S.O.2824(E) dated 05.11.2014 published in the Gazette of India Extraordinary, Part II-Section 2 sub-section (II) dated 05.11.2014 by abolishing contract labour system in the job of Trolley Retrieval at Chennai Airports and consequently absorb the members of the petitioner Union in its regular service with all consequential and monetary benefits within a time frame.

2. The case of the petitioner is as follows:

The petitioner is a registered Trade Union used to work in Chennai Airport as Trolley Retrievers. The members of the petitioner Union were employed in the Domestic and International Airports, Chennai as Trolley Retrievers. They used to work in three shifts, all the 24 hours of the day and on all the 365 days of the year. The petitioner Union were continuously employed for more than six years until 15.07.2004. When the second respondent terminated its earlier contract and gave the contract to another party, the petitioner's members were stopped from work at that time. For all purposes, the members of the petitioner Union are to be treated as workers only. The nature of work performed by the members of the petitioner is perennial in nature and the action of the second respondent in engaging them as contract workmen is illegal and contrary to the provisions of the Contract Labour (Regulation & Abolition) Act, 1970. Therefore, the second respondent is not justified in having the so-called contract system for handling the trolleys. In Mumbai, similar workers represented to the Central Government to abolish the contract labour system and for their absorption. The Mumbai High Court directed the Central Government itself to pass appropriate orders. Thereafter, on 02.03.1993, a notification was issued by the Government prohibiting contract labour in the job of Telephone Operators but not for Trolley Retrievers and some other operations. The said notification was challenged before the Mumbai High Court, which in turn found that the appropriate Government had taken irrelevant matters into consideration and thus, remitted the matter back to the Central Government to reconstitute the Central Advisory Board. The matter was taken up in appeal to the High Court which in turn, passed an order on 11.04.1997 reported in 1997(10) SCC 754, confirming the order of the High Court. Significantly, the Supreme Court also protected the service of the employees engaged as Trolley Retrievers and in certain other process. The Central Advisory Committee did not give a favourable report. The Government issued an order dated 16.11.1999, stating that it was not necessary to prohibit contract labour including that of the trolley retrievers. The petitioner was completely kept in dark about the abovesaid notification. The petitioner made representations on 20.01.2003 and 14.03.2003 to pay the members of the petitioner wages on par with the lowest category employee of the Airport Authority. The petitioner also filed W.P.No.12606 of 2003 before this Court to declare the notification dated 16.11.1999 as illegal and unconstitutional. On 23.04.2003, an interim order of status quo was granted with reference to the prayer for injunction against termination. On 22.09.2003, the interim order was made absolute. However, the said writ petition was disposed of on 28.06.2012 in view of the subsequent writ petition filed in W.P.No.13993 of 2007, praying for mandamus directing the Government of India and Central Advisory Contract Labour Board to issue a notification under Section 10(1) of the Contract Labour (Regulation and Abolition) Act 1970, to prohibit the contract labour system in the job of trolley retrievers with the subsequent prayer to absorb the members of the petitioner in regular service. On 09.10.2012, the said writ petition was disposed of with the following directions:

“6. In view of the above, without expressing any opinion regarding the rival stand taken by the parties before this Court, the writ petition is disposed of in the following terms:-

1. The 2nd respondent shall expedite the proceedings and submit a report as directed by the 1st respondent within a period of two months from the date of receipt of a copy of this order.

2. Before submitting a report, the 2nd respondent shall afford sufficient opportunity to the petitioner as well as to the 3rd respondent including opportunity to submit documents, if any, to make oral submission and also to be present at the time of inspection to be made by the Board.

3. The 3rd respondent is further directed to furnish the copies of the documents, which are going to be relied on by the 3rd respondent before the Board.

4. No costs. Consequently, connected MP is closed.”

3. Pursuant to the above order, the Central Advisory Contract Labour Board submitted a report dated 16.05.2014 to the Government of India, recommending abolition of contract labour system in respect of trolley retrieval in the establishment of Airport Authority of India, Chennai. The first respondent ultimately issued a notification under Section 10(1) of the said Act dated 05.11.2014, prohibiting employment of contract labour of trolley retrieval with effect from 04.11.2014, being the date of publication in the official gazette. After the said notification, the petitioner submitted representation on 07.12.2014 to the Airports Authority of India, requesting to absorb the members of the petitioner Union. Since the second respondent has not taken any action so far, the present writ petition is filed seeking for mandamus as stated supra.

W.P.No.15917 of 2015:

4. Airports Authority of India is the petitioner. This writ petition is filed seeking for certiorari to call for the records pertaining to the impugned notification dated 05.11.2014 in S.O.No.2824 (E) of the Ministry of Labour and Employment, Government of India, on the file of the first respondent and quash the same.

5. The case of the petitioner is as follows:

The petitioner is a Public Sector Undertaking. It shall be the duty of the petitioner to provide air traffic service and air transport service at any airport and civil enclaves. The trolleys are provided at the airports, without charging the passengers and those trolleys have to be retrieved and kept again at the proper place. It is a very simple process involving unskilled labour. Therefore, it is not part of the essential and core services, for maintaining air traffic and air transport operations in the airports. In view of the same, the contract of the free supply of trolleys and process of retrieval of the same will be awarded to any agency on revenue sharing basis, in lieu of advertisement rights. All the persons, involved in the above said operation are directly employed by the contractor, who is licensed by the petitioner. It is the duty of the contractor to monitor and ensure smooth functioning of the retrieval of trolleys. At the time of expiry of the contract, the new contractor engages new set of workers. Therefore, the employees of the contractor remain so and they have no continuity, as the privity of contract is with the respective contractors. They have nothing to do with the petitioner authority. There is no employer-employee relationship between the petitioner and those worker. The notification dated 16.11.1999, not to prohibit the contract labour in certain areas including that of trolley retrieval, was challenged in W.P.No.12606 of 2002. It was dismissed as infructuous on 28.07.2012 due to subsequent developments. The very same notification was challenged by different labour Unions before the High Court of Delhi. By order dated 22.11.2001 made in W.P.No.6540 of 1999, the Delhi Court directed the parties to approach the Central Government for reconsideration, in view of the subsequent decision of the Supreme Court in Steel Authority of India Ltd case reported in (2001) 7 SCC 1. In the above said decision, the Apex Court clarified that genuine contracts can be regularized, while the sham and nominal contracts, as a camouflage, have to be abolished. There is no principle for automatic absorption of the employees, who are working at the time of prohibition of contract labour and each case has to be decided on its own merits. In the light of the above principle laid down by the Apex Court, another notification dated 26.07.2010 was issued abolishing the activity of the trolley at Indira Gandhi International Airport and domestic Airport, New Delhi. The said notification was challenge. Though the said notification was upheld by the Apex Court in its decision reported in 2011(12) SCC 449, it was held therein that there is no entitlement for labourers for automatic absorption. The Tamil Nadu Airport Workers Union in Chennai filed W.P.No.13993 of 2011 for a direction to issue notification under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, to prohibit contract labour system in the job of trolley retrieval at Chennai Airports and with a consequential direction to the Airports Authority of India and to absorb them as regular employees of AAI. By order dated 09.10.2012, the said writ petition was disposed of by the High Court with a direction to CACLB to expedite the proceeding and submit a report, by affording opportunity to the Union and AAI and to furnish the documents required. Another writ petition was filed in W.P.No.21515 of 2013 before this Court representing 65 workers with a prayer not to disengage them from service, claiming that they are directly employed by the AAI, pending conciliation under Section 3B(11)(a) of the ID Act, 1947, on the ground that the contract is sham and nominal. An order of interim injunction was granted by order of this Court dated 01.08.2013. The labourers covered by the contract in the said order are continued to work on the strength of the interim orders. After collecting some data and details through the CACLB, the notification has been issued by the first respondent in S.O.No.2824(E) dated 05.11.2014. The said notification has not considered the fact that there is no finding from any Industrial Tribunal or Labour Court that the contract is sham and nominal. The ID filed by the employees under Section 3B(11)(a) of the ID Act is still pending. No oral evidence was adduced by both the parties before the Competent Court or Tribunal. The relationship of employer and employee is a question to be verified and not to be assumed by the second respondent. No regular employee of the AAI has been involved or deputed in this work of retrieval of trolleys because it does not form the core function of the AAI in the air traffic/transport service. The contract in this case are fair and genuine and does not warrant prohibition. CACLB has not taken into account the fact that the trolley retrieval is undertaken by genuine revenue contract based on advertisement rights. The Advertiser manages the contract through his own workmen and the trolleys are under his control. The AAI has no control over the labourers, except issuing entry passes through the said contractors for the purpose security. It is not a full time work as observed by CACLB. The notification has not considered the nature of transition, undergone by the pending change of administration. The trolley retrieval work is neither assigned to regular employees nor considered as one of core functions of the Air traffic/air operations in international airports in Singapore or in other European countries. The notification under Section 10(2) of the Contract Labour Act, 1970 does not satisfy the ingredients warranting prohibition of contract labour in trolley retrieval. The proper records with AAI will prove that the contract for trolley retrieval is genuine and valid. There is no camouflage in the said contracts as they are transparent and there is no direct supervision by AAI. The salary paid to the employee by the contractor are in accordance with the Minimum Wages Act. The operation of trolley retrieval is part and parcel of the Ground Handling Services, governed by the AAI (Central Management Entry for Ground Handling Services) Regulations, 2007. Thus, the regulation provides for the third party to be permitted on the basis of the revenue with AAI. Thus, outsourcing of certain are permissible under law. This notification of regulation has not been considered by the respondents, while issuing the impugned notification dated 05.11.2014. The facility of providing trolleys to the passengers, is in no way a core function to be directly handled only by the petitioner authority and the Act provides for discharging these additional facilities through commercial or revenue contracts. As there is injunction order granted by this Court on 01.08.2013 in W.P.No.21515 of 2013, the labourers could not be disengaged by the contractor. The prohibition of contract labour, during transition of administration and during pendency of reference to Labour Court, will greatly prejudice the administration and the passengers.

W.P.No.21515 of 2013:

6. The petitioners seek for the following relief:

To issue a Writ of Mandamus, forbearing the 3rd and 4th respondents from altering the service conditions of the employees whose names are given in the Annexure to the affidavit filed in support of the writ petition in any manner including discontinuance of service or failing to provide employment in any manner without getting permission under section 33 of the Industrial Disputes Act, 1947, in the Industrial Disputes raised by the petitioners in their capacity as Five Men Committee of employees regarding regularization and further direct the 2nd respondent to conciliate and effect settlement and if no settlement is forthcoming to submit failure report under section 12(4) of the Industrial Dispute Act and in turn direct the 1st respondent to refer the dispute for adjudication before the competent Industrial Adjudicator.

7. The case of the petitioners is as follows:

The petitioners are Five Men Committee of employees representing the 65 employees working as Trolley Supervisor, Trolley Men and Security in the Chennai Airport. The Five Men Committee raised dispute regarding regularization of service of 65 employees in the service of the 3rd respondent. In both international flights terminal and domestic flights terminal, trolley service is provided by the 3rd respondent to the passengers and the trolleys belong to the 3rd respondent. The trolleys which are left by the passengers in the parking area and other places in the airport will have to be collected and brought inside the airport for the use of the passengers who alight from the aircraft. The employees will have to retrieve the trolleys and bring it back to the airport for the use of the passengers. The 3rd respondent engages the employees for the purpose of retrieving the trolleys through a contractor. The so called contractor merely collects the money from the 3rd respondent and pays wages to the employees. Apart from this, the contractor has no role to play. He does not come to the airport to manage the employees. All the employees are entitled to be regularised in services of the 3rd respondent in view of section 3 of the Tamil Nadu Industrial Establishment Conferment of Permanent Status to Workmen Act, 1981. Since the 3rd respondent has failed to regularize the services, the dispute has been raised before the 2nd respondent. When the dispute is pending before the 2nd respondent, the employees service cannot be stopped without taking prior permission under section 33 of the Industrial Disputes Act, 1947. The 3rd respondent, being the State within the meaning of Article 12 of the Constitution of India, cannot replace us with new set of employees. Hence, the above writ petition is filed with the relief as stated supra.

W.P.No.40237 of 2016:

8. The petitioner seeks for the following relief:

To issue a Writ of Mandamus, for bearing the respondents 3 to 5 from altering the service conditions of the members of the petitioner union whose names are given in the annexure to the writ petition in any manner including discontinuance of service or failure to provide employment in any manner without getting permission under section 33 of the Industrial Disputes Act, 1947, the Dispute dated 07.11.2016 raised by the petitioner union regarding absorption of services of the employees, wages revision and other charter of demands which are pending conciliation before the 2nd respondent as dispute No.M.8/17/2016-B3 and further direct the 2nd respondent to conciliate and effect settlement and if no settlement is forthcoming to submit failure report under section 12(4) of the Industrial Disputes Act and in turn direct the 1st respondent to refer the dispute for adjudication before the competent Industrial Adjudicator.

9. The case of the petitioner is as follows:

The petitioner is a trade union registered under the Trade Unions Act, 1926 and its registration number is 289/CPT. The writ petition concerns 19 employees employed in the work of Trolley Retrieval at Kamaraj Domestic Terminal and Anna International Terminal at Chennai Airport. In both terminals, trolleys are provided for the passengers to carry their baggage inside the airport and while coming out of the airport. The trolley service is provided by the 1st respondent to the passengers and the trolleys belong to the 1st respondent. The trolleys which are left by the passengers in the parking area and other places in the airport will have to be collected and brought inside the airport for the use of the passengers who alight from the aircraft. The employees will have to retrieve the trolleys and bring it back to the airport for the use of the employees. In similar manner trolleys will have to be provided for the passengers who enter the airport for boarding the flight. The 1st respondent, in order to duck the law, instead of engaging employees on its role to manage the trolley, has been engaging the employees through a sham contract with third parties. The so called contractor change quite often, but the employees continue to work. The contractor collects the money from the 1st respondent and pays wages to the employees. Apart from this, the contractor has no role to play. He does not come to the airport to manage the employees. The employees report to the Senior Airport Manager and sign the attendance sheet kept in his room and on his instructions and on the instructions of his subordinates, the employees discharge the work. Apart from them, 65 employees are also working. These employees work in shift and and each shift is for 8 hours. The A shift is from 7.a.m. to 3. p.m., B shift from 3. p.m. to 11 p.m. and C shift is from 11 p.m. to 7 a.m. The trolley men are paid Rs.318/- per day as wages and the same is paid on monthly basis. Deductions are made from the wages towards ESI and Provident Fund. The employees are working for the period ranging from 2 to 5 years continuously without any break. The work done by them is perennial in nature. They are termed to be contract labour and they are paid meager wages without any facilities for leave and other benefits. The very contract is sham and nominal. After several contractors who had lend name, the 4th respondent was termed to be the contractor till 23.10.2016 and from 24.10.2016, the 5th respondent is now termed to be the contractor. He has no role in the execution of the work. The employees concerned in the dispute, report to the Senior Airport Manager, who allocate the work directly or through his subordinates and they in turn, supervise the work so allocated. The very contract system has been abolished by the Central Government and thereby making it clear that the work of trolley retrieving is a permanent job. The 1st respondent, being an instrumentality of the State, within the meaning of Article 12 of the Constitution of India, instead of being a model employer, is terming the employees to be contract labour and denying the benefits which are extended to a permanent employee. All the employees concerned in this writ petition have worked for more than 480 days continuously within a period of 24 calendar months and they are entitled to be regularized/ confirmed in the services of the 1st respondent in view of section 3 of the Tamil Nadu Industrial Establishment Conferment of Permanent Status to Workmen Act, 1981. The Five Men Committee of workmen representing 65 employees had also raised dispute for regularization during the year 2013 and the same is also pending conciliation. They have approached this Court by filing writ petition in W.P.No.21515/2013 to protect their employment pending conciliation and the said writ petition is also pending. The 3rd respondent, coming to know about the dispute being raised and the conciliation proceedings being initiated, now wants to discontinue the 19 members of the Union, who are engaged in Trolley Retrieval and make the dispute otiose. All the 19 employees are discharging their work without any complaint . When the dispute is pending regarding regularization and other service condition, the 3rd and 5th respondents are all set to discontinue the services of the members of the petitioner Union without taking prior permission from the 2nd respondent as required under section 33 of the Industrial Dispute Act,1947.

W.P.No.34256 of 2015

10. The petitioner seeks for the following relief:

To issue a Writ of Certiorari to call for the records pertaining to the impugned proceeding dated 09.10.2015 in No.M/35/4/2015/E2/RP of the office of the Deputy Chief Labour Commissioner (Central), Ministry of Labour and Employment , Government of India, No.26, Haddows Road, Chennai- 600 006 on the file of the 4th respondent and quash the same.

11. The case of the petitioner is viz.,. the Airport Director of Chennai Airport is one and the same as that of the Airport Authority of India contended in W.P.No.15917 of 2015. It is further contended that the petitioner herein filed W.P.No.15917 of 2015 challenging the notification dated 05.11.2014 in S.O.No.2824(E) of the Ministry of Labour and Employment on the file of the first respondent as it is illegal under the ratio laid down in SAIL's case reported in (2001) 7 SCC 01 and the said writ petition is pending. The 4th respondent issued a show cause notice dated 09.10.2015 in No.M.35/4/2015/E2/RP to the 3rd respondent to show cause as to why legal action should not be taken under section 24 of the CL (R&A) Act, 1970, against the petitioner Airport Director and Deputy General Manager (Operations) AAI for the violation of Section 10(1) of the said Act, which is illegal. As per the SAIL case cited supra, the petitioner is neither be able to absorb the labourers working under the contract nor be able to disengage them due to the injunction granted in W.P.No.21515/2013. If the license is cancelled, the trolley service has to be stopped, prejudicing the passenger convenience. Hence, the impugned proceedings dated 09.10.2015 issued by the 4th respondent is illegal.

W.P.No.6485 of 2015:

a) A counter affidavit is filed by the first respondent/Government of India stating that as per the decision of the Bombay High Court and the Hon'ble Supreme Court, after consultation with the Central Advisory Contract Labur Board, the first respondent had prohibited the employment of contract labours in the job of trolley retrieval in The establishment of Airport Authority of India, Chennai vide notification dated 05.11.2014. It is further stated that since there is no provision for regularisation or absorption of contract workers in the Contract workers in the Contract Labour (Regulation & Abolition) Act, 1970, the first respondent has no comments to offer in the matter related to the absorption of the members of the petitioner union in its regular service.

b) A counter affidavit is filed by the second respondent/AAI as follows:

Airports Authority of India, is a Public Sector Undertaking. It will undertake the construction and operation of Airports and Civil enclaves and their effective administration and cohesive management as per the Airports Authority of India Act, 1994 (55 of 1994). Certain trolleys are provided in the terminals to facilitate the functions of baggage handling and movements for the convenience of the passengers. It have to be retrieved and kept again at proper place, which is a very simple process, involving unskilled labour. Therefore, it is not part of the essential and core services, for maintaining air traffic and air transport operations in the airports. It is further stated that the labourers of M/s.TDI International India Pvt. Ltd., formed a Union called 'Tamil Nadu Airport Workers Union' have challenged a notification dated 16.11.1999, not to prohibit the contract labour in certain areas including that of trolley retrieval in W.P.No.12606 of 2002. It was dismissed as infructuous by this Court on 28.07.2012 due to subsequent developments. The very same notification was challenged by different labour Unions before the High Court of Delhi. By order dated 22.11.2001 made in W.P.No.6540 of 1999, the Delhi Court directed the parties to approach the Central Government for reconsideration, in view of the subsequent decision of the Supreme Court in Steel Authority of India Ltd case reported in (2001) 7 SCC 1. In the above said decision, the Apex Court clarified that genuine contracts can be regularized, while the sham and nominal contracts, as a camouflage, have to be abolished. There is no possibility for automatic absorption of the employees, who are working at the time of prohibition of contract labour and each case has to be decided on its own merits. This law is binding on all parties.

12. It is further stated that the petitioner herein filed W.P.No.13993 of 2011 for a direction to issue notification under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, to prohibit contract labour system in the job of trolley retrieval at Chennai Airports and with a consequential direction to the Airports Authority of India and to absorb them as regular employees of AAI. By order dated 09.10.2012, the said writ petition was disposed of by the High Court with a direction to CACLB to expedite the proceeding and submit a report, by affording opportunity to the Union and AAI and to furnish the documents required. Another writ petition was filed in W.P.No.21515 of 2013 before this Court representing 65 workers with a prayer not to disengage them from service, claiming that they are directly employed by the AAI, pending conciliation under Section 3B(11)(a) of the ID Act, 1947, on the ground that the contract is sham and nominal. An order of interim injunction was granted by order of this Court dated 01.08.2013. The said case is still pending. The labourers covered by the contract in the said order continue to work on the strength of the interim orders. It is further stated that in the 33rd meeting of the Central Advisory Contract Labour Board, held on 26.10.2013 at Delhi, it considered the question of abolition of contract labour regarding the trolley retrieval in the establishment of Airports Authority of India, Chennai and decided to keep the decision in abeyance till the disposal of the writ petitions in W.P.Nos.12606 of 2003 and W.P.No.13993 of 2007 filed by the Tamilnadu Airports Workers Union. Subsequently, the data regarding the number of workers involved in the job of trolley retrieval, conditions of service through the contractor, the wages paid, the benefits provided and the social security being provided by the contractors were all submitted before the CACLB. It is further submitted that ID filed by the employees under Section 3B(11)(a) of the ID Act is still pending. No oral evidence was adduced by both the parties before the Competent Court or Tribunal. The relationship of employer and employee is a question to be verified and not to be assumed by the second respondent. No regular employee of the AAI has been involved or deputed in this work of retrieval of trolleys because it does not form the core function of the AAI in the air traffic/transport service. The contract in this case are fair and genuine and does not warrant prohibition.

13. It is further stated that the first respondent has issued the notification in S.O.No.2824(E) dated 05.11.2014. The said notification has not considered the fact that there is no finding from any Industrial Tribunal or Labour Court that the contract is sham and nominal. It is further stated that the present writ petition is not maintainable in the light of the legal position settled by the Hon'ble Apex Court. The claim of the petitioner that 75 members of the petitioner used to work in Chennai Airport as Trolley Retrievers is a factual claim, which has to be established only before the Industrial Tribunal and not before this Court. It is further stated that there is no division in the Airports Authority of India in terms of International Airports and Domestic Reports, in respect of workmen or staff, as both have been merged together into one unit. It is also stated that there are four terminals T-1, T-2, T-3, T-4 in Chennai Airport for domestic and international flights and not two terminals as stated by the petitioner. The claim of the petitioner regarding the purchase of trolleys and employment of 100 workers is not correct, as no documents have been produced.

14. It is further stated that the contract of the free supply of trolleys and process of retrieval of the same is awarded to any agency on revenue sharing basis, in lieu of advertisement rights. All the persons, involved in the above said operation are directly employed by the contractor. It is the duty of the contractor to monitor and ensure smooth functioning of the retrieval of trolleys. At the time of expiry of the contract, the new contractor engages new set of workers. Therefore, the employees of the contractors have no continuity, as the privity of contract is with the respective contractors. They have nothing to do with the Airport Authority. There is no employer-employee relationship between the Airport Authority and those worker. The claim of the Union that their members were employed in three shifts on all 365 days of the year and continued for more than 6 years till 15.07.2014 and they have completed more than 240 days service in a calendar year, when they were terminated due to the entry of new contractors is not correct, since no one was employed by the Authority.

15. It is further stated that the designations of the workers is a problem of the Contractor and the Airport Manager does not involve directly in the supervision of trolley retrieval, as it is done by a specific contract. Further, the claim of the petitioner that the work of the trolley retrieval is perennial in nature and essential to discharge the duty of AAI is thoroughly baseless. The Airport Authority has no co-relation due to various factors including the usage of modern baggages with wheels, by passengers. The claim regarding that the workers are skilled labourers, who mostly belong to Scheduled castes and Tribes and paid daily wages ranging from Rs.67 to Rs.135 is misrepresentation of facts, as the trolley retrieval is a purely unskilled manual work. When the facts and circumstances of the Mumbai trolley workers' case are irrelevant and also the decision of the Supreme Court reported in 1997(10) SCC 754 does not order automatic absorption, the petitioner cannot be permitted to generalize. It is further stated that the averment made that the petitioner have been doing the trolley retrieval work over 10 years cannot be sustained and the absorption as regular workmen differs from case to case. Therefore, the application of notification will have to be considered under each circumstances. It is further stated that the CACLB has not taken into account the fact that the trolley retrieval service is undertaken by genuine contract for advertisement on revenue sharing basis. The trolleys are under the control of advertisers and AAI has no control over the labourers and also it is not fully time work as claimed by the petitioners because the work depends on the changing frequency of flights.

16. It is further stated that the trolley retrieval work is neither assigned to regular employees nor considered as one of core functions of the Air traffic/air operations in international airports in Singapore or in other European countries. The notification under Section 10(2) of the Contract Labour Act, 1970 does not satisfy the ingredients warranting prohibition of contract labour in trolley retrieval. The proper records with AAI will prove that the contract for trolley retrieval is genuine and valid. There is no camouflage in the said contracts as they are transparent and there is no direct supervision by AAI. The salary paid to the employee by the contractor are in accordance with the Minimum Wages Act. It has been presumed by the CACLB that the Contract Labour (Regulation and Abolition) Act, 1930 does not provide for regularization of valid contract. Except Section 10, all other provisions of the said Act provide for regularization of the contract. There is no automatic absorption of the contract labour, even if the contract labour is prohibited in a particular establishment.

17. It is further stated that the operation of trolley retrieval is part and parcel of the Ground Handling Services, governed by the AAI (Central Management Entry for Ground Handling Services) Regulations, 2007. Thus, the regulation provides for the third party to be permitted on the basis of the revenue sharing with AAI. Thus, outsourcing of certain services are permissible under law. This notification of regulation has not been considered by the respondents, while issuing the impugned notification dated 05.11.2014. Both notifications dated 05.11.2014 and Regulations 2007 regarding Ground Handling Services are conflict each other. Under Section 12 of the AAI Act, 1994, the petitioner is assigned certain functions, either aeronautical or non aeronautical in nature. The facility of providing trolleys to the passengers, is in no way a core function to be directly handled only by the Airport Authority and the Act provides for discharging these additional facilities through commercial or revenue contracts.

18. It is further stated that under the 'Types and operational Responsibilities' of Airport Economic Manual approved by International Civil Aviation Organization (ICAO), no where stipulates that the Airport Operator has to provide the trolley services to the passengers. These facility falls under the category of non-aeronautical services. Under IATA, which stipulates “Ground Operations” in its manual does not include the baggage handling as a primary function of the Airport Operator, but that of Airlines. Therefore, Trolley Retrieval Services, as a non-aeronautical and non-technical facility can be acted upon through commercial contracts or can be outsourced on revenue basis. It is further stated that as there is injunction order against disengaging the services of the contract labourers involved in the trolley retrieval operation by order dated 01.08.2013 made in W.P.No.21515 of 2013, the labourers could not be disengaged by the contractor. They are deployed in other works and currently have nothing to do with trolley retrieval. On the other hand, there is no contract or connection with AAI with these employees of the petitioner Union. Under these circumstances, there are no merits in the above writ petition and the same is liable to be dismissed in limine.

19. Written submission filed by the petitioner in W.P.No.6485/2015 is as follows:

It is submitted that the trolley retrieval work is permanent and perennial nature and it has become imminent for the passengers to use Trolley for carrying their baggages. Hence, the petitioner Union demanded abolition of contract labour and for absorption of its members in the service of the 2nd respondent from the year 1995 onwards. On 06.11.1999, the 1st respondent issued a notification to prohibit contract labour in trolley retrieval work, against which the petitioner filed W.P.No.12606/2003 praying for a declaration declaring the said notification as illegal and unconstitutional and for consequent direction for absorption, in which interim order of status quo was granted on 23.04.2003 restraining the 2nd respondent from terminating the services of the members of the petitioner union and the same was also made absolute on 22.09.2003. The 1st respondent issued notification dated 26.07.2004 abolishing contract labour in trolley retrieval in Delhi Airport and the same was challenged by Union of India and by the 2nd respondent before the Delhi High Court. By order dated 28.11.2006, the Delhi High Court dismissed the Writ Petition and the intra-court appeals were dismissed by the Division Bench of Delhi High Court by order dated 18.12.2009 and the same was challenged before the Honourable Supreme Court by way of appeals. The Honourable Supreme Court in its judgment reported in 2011 (12) SCC 449, has clearly held that the claim of the contract workmen engaged in trolley retrieval is justified and the notification issued by the first respondent is binding on Delhi International Airport Private Limited(DIAL) and also directed payment of compensation to the erstwhile contract workers. He also relied on the decision reported in 2001 (7) SCC 1 in Steel Authority case in support of his case. W.P.No.12606/2003 filed by the petitioner was disposed of by order dated 28.06.2012 in view of the subsequent Writ Petition No.13993/2007. The petitioner filed W.P.No.13993 of 2007, praying for mandamus directing the Government of India and Central Advisory Contract Labour Board to issue a notification prohibiting the contract labour insofar as trolley workers is concerned in Chennai Airport. Notwithstanding the interim injunction granted in those writ petitions, the services of the members of the petitioner is dispensed with during the end of 2007. On 09.10.2012, W.P.No.13993/2007 was disposed of by this Court directing the contract labour board to examine the issue of abolition of contract labour in trolley retrieval work in Chennai Airport and to submit a report within two months. The Contract Labour Board submitted its report on 16.05.2014, recommending abolition of contract labour in trolley retrieval work in Chennai Airport. Accepting the same, the first respondent issued notification dated 05.11.2014, abolishing contract labour system in trolley retrieval work in Chennai Airport. Against which, the petitioner Union wrote to the 2nd respondent to implement the notification and to absorb them in its services. Since there was no response, the present writ petition is filed.

20. After notice was ordered in the above said writ petition, the 2nd respondent has filed W.P.Nos.15917/2015 and 34256/2015 praying for quashing the notification dated 05.11.2014 and proceedings of Chief Labour Commissioner dated 09.10.2015 respectively. This notification was issued following identical notification issued insofar as Delhi International Airport is concerned. As already stated the notification for Delhi Airport was upheld and the Supreme Court has held that the workers are entitled to be absorbed or compensated in 2001(12) SCC 449.

21. As far as W.P.No.34256/2015 filed by AAI is concerned, it is not open to them to challenge the notification issued by the Government and none of the grounds raised by the AAI, viz., the notification is bad in law in view of the decision of the Hon'ble Apex Court in SAIL case and that no industrial adjudication has found that there should be abolition of contract labour in trolley retrieval work and that no opportunity was given before issuing the notification and that at no point of time the work of trolley retrieval work was given to permanent workmen and that there is no illegality or camouflage in the existing contracts so as to declare the contracts and sham and nominal and that the impugned notification contravenes the position laid down by the norms of ICAO and IATA, are tenable in law or on facts.

22. The issue regarding genuineness of the contract is not required to be considered by the appropriate Government. The finding that the contract is sham and nominal has to be considered only by the Tribunal during the course of adjudication in I.D. and it is not within the purview of section 120 of CLRA Act and its consequences is for absorption of the erstwhile contract worker. The Industrial Dispute raised in W.P.No.21515/2013 is whether the contract is sham and nominal and the same is not the issue raised in this writ petition. IN W.P.No.21515/2013,10279 and 40237/2016, the Five Man committee have not prayed for any relief consequent to the notification issued by the Central Government. Whereas in this writ petition, the petitioner has specifically prayed for implementing the notification and for consequent absorption. The Supreme Court confirmed the view of the Delhi High Court that since the AAI Act mandates the AAI to provide passenger services, they have to employ trolley retrievers and give preference to the erstwhile contract workers in such employment. The Contract Labour Act is a special law and AAI Act is a general law insofar as it deal with the ground handling rules. The management of AAI cannot rely on the ground handling rules and contend that they can engage contract labour. The issue regarding special law and general law has been considered by the Hon'ble Supreme Court in Life Insurance Corporation of India vs. D.J.Bagadur reported in 1981(1) SCC 315. It is submitted that AAI Act is general law and the Contract Labour (Regulation and Abolition) Act 1970 is a special law. Hence, the notification issued by the central Government prohibiting contract labourers in trolley retrieval job will prevail over the regulations for ground handling work issued under AAI Act. Even when interim injunction was there in the earlier rounds of litigation, the services of the members of the petitioner Union were terminated and new contract labour was engaged in their place, being seniors their claim for absorption is fully justified. In view of the above, the grounds raised in the writ petitions filed by the Management of AAI has no merits and they are liable to be dismissed. Similarly, the Writ petitions filed by the Five Man Committee of workers have no merits and the same is also liable to be dismissed. The Industrial Dispute is said to be pending conciliation for the past several years. Therefore, in the event of abolishing contract labour in regard to trolley retrieving job the members of the petitioner Union should be given first preference while absorption takes place.

23. Written submission of the petitioner filed in W.P.No.21515/2013 is as follows:

The petitioners are working as trolley retrievers in Airport Authority of India who is the third respondent in the aforesaid writ petition. They are engaged through the so called contractors to deny them the benefits of regular employees. It is their case that the very engagement of contract labourers is sham and nominal and that even though the contractor changes they were continued in the employment. As on today, they have put in more than 10 years of service. They are entitled to regularisation as the so called contract is sham and nominal. The real employer is only the Airport Authority of India. The employees are working in shift basis. They have put in 480 days of continuous service in 24 calendar months. They are entitled to permanency and to be confirmed in services in view of Section 3 of the Tamilnadu Industrial Establishment Conferment of Permanent Status of Workmen Act, 1981. The petitioners raised Industrial Dispute raising their claim for regularisation of 65 employees who were working as trolley retrievers on 31.07.2013. Since the third respondent determined to discontinue the services of the trolley retrievers, the petitioners have filed the present writ petition. According to them, the dispute is entitled to be referred for adjudication before the Industrial Tribunal. This was based on the judgment of the Honourable Supreme Court reported on 2001(7) SCC 1 (Steel Authority of India Ltd. vs. National Union Water Front Workers). Even now these 65 employees are working in the Airport Authority of India. The conciliation proceedings in respect of the aforesiad industrial dispute is pending before the 2nd respondent. The petitioners' entire care is based on Section 33(1) of the Industrial Dispute Act, 1947. Similar Union filed another writ petition in W.P.No.40237 of 2016 with the same prayer for 19 Trolley Retrievers. The Hon'ble Court ordered notice in the aforesaid writ petition. Taking advantage of the same the 3rd respondent discontinued the services of 19 employees without taking prior permission in gross violation of Section 33(1)(a) of the Industrial Dispute Act, 1947.

24. When the Industrial dispute raised by them for regularisation is pending adjudication, the third respondent or anybody claiming through them cannot discontinued their services without taking prior permission under Section 33(1)(a) of the Industrial Disputes Act, 1947.

25. The Appropriate Government will have to refer the dispute for adjudication in view of the judgment of Supreme Court reported in 2001(7) SCC 1.

26. Further, the judgment relied on by the employer reported in AIR 2016 SCC 551 will not apply to this case. In this case, the prayer was only for payment of wages in time as per the provision of Wages Act and not even a dispute was raised for regularisation. Since the petitioners herein are not seeking for any regularisation, the other judgments reported in 2000(3) SCT 803 and 2001(1) LLJ 1507, cited by the employer will not apply to the present case. The petitioner has filed a status report from which it is clear that the conciliation proceedings are still pending before the Conciliation Officer.

27. Learned counsel for the petitioners in support of his contention relied on the following decisions:

a) 2002(2) SCC 244, b) 1977(2) SCC 350, c) W.P.No.3987 of 2001 and 19263 of 2002, d) W.P.No.19138 of 2013 and 26553 of 2014, e) 2001(7) SCC 1, f) 2011 SCC online Madras 1694, g) W.P.37898 of 2015 and h) WA No.299 of 2010.

28. Written submission filed by the third respondent in W.P.No.21515/2013 is as follows:

The Writ Petition is not arising under the Contract Labour Act and it is only a Revenue Contract. The fourth respondent is a licensee and the Airport Authority is the licensor. All the petitioners in the writ petition have worked only under the fourth respondent as a licensee. The workman worked under the licensee cannot invoke I.D. Act. The said issue is decided by the Bombay High Court reported in 2017(3) LLJ 454. The prayer in the writ petition is not at all maintainable as per the decisions of the Honourable Supreme Court reported in 2007(5) SCC 273 and 2016 AIR SC 551, wherein it was specifically stated that the Hon'ble High Court cannot directly refer the dispute for adjudication and only Central Government alone has to consider whether the dispute should be referred or not. The very same prayer sought for in W.P.No.44769/2016 was negated by this Court and the same was affirmed by the Division Bench of this Court in a decision reported in 2009 (1) CTC 158. Hence, the prayer in the writ petition is liable to be rejected.

29. In support of his submission the learned counsel relied on the following decisions:

i) 2017(3) LLJ 454 (Workmen vs. AAI), ii) 2007(5) SCC 273 (Rahtriya Chem & Fertilizers vs. General Employees Association) iii) 2016 AIR SC 551 (Rahman Industries Pvt.Ltd. vs. State of U.P.) iv) 2019 (1) CTC 158 (Puthiya Jananayaga Vagana Ottunargal and Techniciankal Sangam vs. Government of Tamilnadu), and v) W.A.No.485/2017 dated 13.10.2017 (Puthiya Jananayaga Thozhilalar Munnani vs. Government of Taminadu).

30. Heard the learned Senior Counsels and other learned counsels appearing for the respective writ petitioners and the learned Senior Counsel and other learned counsels appearing for the respective respondents in all these writ petitions. I have perused the materials placed before this Court in all these writ petitions and considered the submissions made on behalf of the petitioners and respondents along with their written submissions as well.

W.P.Nos.6485 of 2015 and 15917 of 2015:

31. W.P.Nos.6485 of 2015 and 15917 of 2015 are taken up first for consideration, since the issue involved in both these cases are common.

32. In both these writ petitions, the common subject matter notification issued by the Union of India is dated 05.11.2014, wherein and whereby, the Ministry of Labour and Employment, Government of India, in exercise of the powers conferred by Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, prohibited the employment of contract labour in the job of trolley retrieval in establishment of the Airport Authority of India, Chennai, with effect from the date of publication of the said notice in the official gazette. The said notification referred that the same was issued after consultation with the Central Advisory Contract Labour Board and having regard to the working conditions and benefits provided to contract labour and other relevant factors enumerated in sub Section (2) of Section 10 of the said Act. While the Tamilnadu Airport Workers Union (Petitioner in W.P.No.6485 of 2015) has chosen to seek for mandamus to implement the said notification with consequential relief to absorb the members of the petitioner Union in regular service, the Airport Authority of India has chosen to challenge the said notification in W.P.No.15917 of 2015, by raising very many contentions. Therefore, the common issue involved in both these writ petitions is as to whether the said notification dated 05.11.2014, abolishing contract labour system in the job of trolley retrieval at Chennai Airport, can be sustained in law and if the answer to the said question is in affirmative, whether the members of the petitioner in W.P.No.6485 of 2015 are entitled for absorption into regular service.

33. Before answering the above question, few facts and circumstances are to be noted, which had resulted in issuing the said notification dated 05.11.2014, which are as follows:

Passengers coming into and going out of Airports and carrying luggages are provided with the trolleys without collecting any charges. This facility is provided by the Airport Authority at every Airport. It is for the benefit of the passengers to carry their luggages into and out of the Airport, while they travel. It is common knowledge that provision of such trolleys to the passengers forms part of the essential services rendered by Airports. Though it is not a service to be linked with maintaining air traffic and air transport operations in the Airports, while looking into the convenience of the passengers such service is undoubtedly one of the essential core and indispensable service to be rendered by the Airport Authorities. Certain services may be technical and certain services may be non technical in an establishment like the Airports. Merely because a particular service is non technical in nature, it cannot be brushed aside as if such service is not an essential one or non perennial in nature, especially when such service is an indispensable one for the smooth functioning of the Airport that too, when such service is very much essential and mandatory for the benefit and convenience of the passengers.

34. The trolleys used by the passengers are being retrieved by engaging persons only for such purpose. It is seen that all along at Chennai Airport, those trolley retrievers were engaged through a Contractor. In other words, the Airport Authority awarded the work of trolley retrieval at Chennai Airport through contract labour and not by regular employment and such practice was permitted by the Central Government till the notification dated 05.11.2014 was issued in abolishing contract labour system in trolley retrieval in Chennai Airport.

35. It is very relevant to note the events that took place, which had resulted in issuing the notification dated 05.11.2014. It is seen that though the Union of India originally issued a notification dated 16.11.1999, refusing to prohibit contract labour in trolley retrieval work in Chennai Airport. It is seen that the said notification was put to challenge before this Court in W.P.No.12606 of 2003 and when the said writ petition was pending, Union of India issued another notification dated 26.07.2004, abolishing contract labour in trolley retrieval in Delhi Airport. The said notification dated 26.07.2004 was put to challenge by the Airport Authority of India and it is seen that the Hon'ble Delhi High Court dismissed the said writ petition. Further challenge before the Apex Court also was not successful, as could be seen from the judgment reported in 2011(12) SCC 449, Delhi International Airport Pvt. Ltd. vs. Union of India (UOI). It is seen that the Apex Court in the above said decision found that the said notification dated 26.07.2004, abolishing contract labour in trolley retrieval in Delhi Airport is binding and applicable to Delhi Airport and that such of those contract labourers are liable to be regularised as regular employees at Delhi Airport. At paragraph Nos.87, 88 and 89, the Apex Court has observed as follows:

“87. We have no hesitation in coming to the conclusion that the Central Government notification dated 26th July, 2004 is clearly binding and applicable to DIAL. DIAL's obligation with regard to the contract labour in general is clear from the said notification. They are liable to be regularized as regular employees of DIAL. DIAL has replaced many of the workers with other trolley retrievers and it would be unrealistic to expect DIAL to regularize the employment of their current trolley retrievers and member of the workers' union alike and inequitable to leave the current workers jobless so as to make room for erstwhile workers of DIAL.

88. In view of the peculiar facts and circumstances of this case directing DIAL to regularize services of trolley retrievers who worked with DIAL till 2003 would be harsh, unrealistic and not a pragmatic approach, therefore, in the interest of justice, we deem it proper to direct DIAL to pay Rupees five lacs to each of the erstwhile 136 workers of DIAL who were working for them as trolley retrievers till 2003 and in case any worker has expired, then his or her legal heirs would be entitled to the said amount. This compensation is paid to the workers in lieu of their permanent absorption/reinstatement with DIAL and their claim of back wages. This is in full and final settlement of entire claims of erstwhile 136 workers of DIAL.

89. We direct DIAL to pay the amount to these 136 erstwhile workers of DIAL within three months after proper verification. In case the amount, as directed, is not paid within the prescribed period, then it would carry interest at the rate of 12% per month from that point till the amount is paid.”

36. From the above decision of the Apex Court, it is evident that a notification similar to one of present writ petition before this Court, which was put to challenge by the Airport Authority of India, has been upheld upto the Apex Court and therefore, the Airport Authority of India, who is bound by the said decision, is not entitled to challenge the present impugned notification dated 05.11.2014, similarly abolishing the contract labour system in the job of trolley retrieval at Chennai Airport as in the case of notification dated 26.07.2004 issued in respect of Delhi Airport.

37. In fact, it is further to be noted that in another writ petition filed in W.P.No.13993 of 2007, this Court directed the Contract Labour Board to examine the issue of abolition of contract labour in trolley retrieval and consequently, the Board by its report dated 16.05.2014 made to Union of India, recommended for abolition of contract labour in trolley retrieval at Chennai Airport. Based on such report, the Union of India issued the impugned notification dated 05.11.2014.

38. Learned Senior Counsel for the Airport Authority of India heavily relied on a decision of the Apex Court reported in 2001(7) SCC 1, to contend that sham and nominal contracts as a camouflage alone could be abolished, while the genuine contracts can be regularised. He further contended that there is no camouflage act involved in this case of engaging trolley retrievers and therefore, such contract is not a sham and nominal contract required to be abolished as per the impugned notification. It is his further contention that, even otherwise, abolishing the contract labour of trolley retrievers would not entitle them automatic absorption, as every case has to be considered on its own merits.

39. I do not think that the Airport Authority of India is justified in making the above contentions in these writ petitions, even after the decision was made by the Apex Court on the same issue in 2011(12) SCC 449, as discussed supra in respect of similar notification that too, in respect of the same work. All the points raised by the Airport Authority of India challenging the impugned notification in this case, have already been raised by parties and considered and decided by the Delhi High Court as stated supra and confirmed by the Apex Court. Therefore, I find that the present challenge by the Airport Authority of India against the notification dated 05.11.2014 is undoubtedly a futile exercise and thus cannot be sustained. In other words, the very same Airport Authority of India, who lost their contest in the case of Delhi Airport, is not entitled to question similar notification issued in respect of Chennai Airport raising similar objections. While the nature of work viz., trolley retrieval is one and the same at Delhi and Chennai Airports, the Airport Authority of India is not entitled to distinguish the said work merely because the Delhi Airport was privatised. Though the nature of administration may vary between the Delhi and Chennai Airports, it is pertinent to note that the nature of work extracted in the subject matter case viz., trolley retrieval, is one and the same and hence, it makes no difference whether the Airport is privatised or not.

40. Admittedly, the competency of the Union of India in issuing the impugned notification under Section 10 of the said Act is not questioned by the Airport Authority of India. Therefore, when the appropriate Government has issued the impugned notification after taking into consideration of the issues such as whether the process is incidental to the business and whether the work is of perennial in nature, this Court cannot sit on such subjective satisfaction arrived by the appropriate Government for abolishing contract labour in trolley retrieval and substitute its own view. Even otherwise, in common sense, no one can dispute that requirement of trolleys at the Airports is indispensable and consequently perennial in nature and therefore, those retrievers of trolleys can never be treated or considered as persons outside the technical or non technical service being rendered by the Airport Authority of India at the Airports.

41. Since I find that the issue involved in this case viz., challenge to the notification dated 05.11.2014 is directly covered by the Delhi Airport case reported in 2011 (12) SCC 449, the other decisions relied on by the learned Senior Counsel appearing for the Airport Authority of India touching upon various points cannot come to their rescue in any manner and therefore, I am not reiterating those contentions and case laws.

42. As I found that the impugned notification dated 05.11.2014 is valid and binding on the Airport Authority of India in respect of Chennai Airport is concerned, the Airport Authority of India cannot engage the trolley retrievers through the contract labour system as has been done all these years. In other words, the Airport Authority of India is bound to employ the trolley retrievers on regular basis by following the relevant Rules and procedures applicable to the regular employees of the Airport in respect of other works.

43. In view of the above said finding, the next question that arises for consideration is as to whether the members of the petitioner Association is entitled for absorption as permanent workers at the Chennai Airport as claimed by them. In other words, it is to be seen as to whether the persons, who were working as trolley retrievers as on 05.11.2014 at Chennai Airport, are entitled to be absorbed as permanent workers.

44. Learned Senior Counsel for the Airport Authority of India contended that in view of the findings rendered by the Apex Court in Steel Authority of India Limited case, more particularly, at paragraph No.125 of its judgment, there cannot be any automatic absorption of contract labour. In 2007 (1) SCC 1, Steel Authority of India Ltd. and Ors. vs. National Union Water Front Workers, the Apex Court observed at paragraph No.125 as follows:

“125. The upshot of the above discussion is outlined thus:

2(a) A Notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government:

(1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and

(2) having regard to

(i) conditions of work and benefits provided for the contract labour in the establishment in question; and

(ii) other relevant factors including those mentioned in Sub-section (2) of Section 10

(b) Inasmuch as the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passes or no action taken giving effect to the said Notification on or before the date of this judgment, shall be called in question in any Tribunal or Court including a High Court if it has otherwise attained finality and/or it has been implemented.

(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 appropriate Government under Sub-section (1) of S. 10 prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment.

(4) We overrule the judgment of this Court in Air India's case (supra) prospectively and declare that any direction issued by any industrial adjudicator/ any Court including High Court, for absorption of contact labour following the judgment in Air India's case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.

(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to conditions as may be specified by it for that purpose in the light of para 6 hereunder.

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.”

45. Perusal of the above said decision would show that the Apex Court has pointed out in clear and categorical terms that a contract, if found to be not genuine but mere camouflage, those contract labour will have to be treated as employees of the principal employer, who shall be directed to regularise the services of the contract labour in the establishment concerned. It is also found by the Apex Court that if the contract is found to be genuine and prohibition notification under Section 10(1) of the said Act has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work and when the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found to be suitable by relaxing the condition to maximum age approximately and also relaxing the academic qualification other than technical qualification.

46. No doubt, the above decision of the Apex Court would make it clear that the trolley retrievers have to be treated as employees of the principal employer viz., Airport Authority of India and entitled to get regularisation. But at the same time, the factual state of affairs in the case of writ petition in W.P.No.6485 of 2015 would show that the service of the members of the petitioner's association was dispensed with by Airport Authority of India as early as in the year 2007. Thereafter, several contractors have changed engaging several retrievers. Therefore, at this juncture, it may not be appropriate for this Court to issue a positive direction to absorve those persons who are out of service from 2007. However, their interest has to be protected in view of the notification issued on 05.11.2014 and also by considering the fact that these persons were agitating continuously by filing one writ petition after another as discussed supra.

47. Accordingly,

i) W.P.No.15917 of 2015 is dismissed.

ii) W.P.No.6485 of 2015 is disposed of in the following terms:

a) The Airport Authority of India at Chennai Airport is directed to employ regular workmen for trolley retrieval.

b) While making such employment, the Airport Authority of India shall give preference to the members of the petitioner Association, if otherwise they are found suitable.

c) The Airport Authority of India shall also consider to relax the condition as to maximum age appropriately if necessary, taking into consideration the age of the workers at the time of their initial employment as well as on the date of the impugned notification dated 05.11.2014.

d) In other words, the disposal of these writ petitions as above does not mean that the members of the petitioner Association are entitled to automatic absorption, as admittedly they are out of service from 2007 onwards and on the other hand, they are only entitled to be considered to get preference while making regular employment subject to fulfilling the suitability as fixed by the Airport Authority of India including with regard to the maximum age.

W.P.No.34256 of 2015:

48. W.P.No.34256 of 2015 is filed challenging the proceedings of the Labour Enforcement Officer (Central), Chennai dated 09.10.2015, which is nothing but a show cause notice issued to the Airport Authority of India, Chennai Airport and its contractor engaged for trolley retrieval work. The said impugned show cause notice called upon the above persons to show cause as to why legal action under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 should not be taken against them for engaging any contract labours in the work of trolley retrieval process even after the prohibition of the same through the notification dated 05.11.2014.

49. It is seen that the said show cause notice was issued in pursuant to an inspection made by the Labour Enforcement Officer on 08.10.2015 at Chennai Airport. Since the Airport Authority of India has chosen to challenge the very notification dated 05.11.2014, before this Court in W.P.No.15917 of 2015, the subsequent show cause notice issued by the Labour Enforcement Officer as stated supra under the circumstances referred to in the show cause notice is also put to challenge in this writ petition.

50. First of all, it is to be noted that the challenge made in this writ petition is only against a show cause notice that too, issued by a competent Authority. Therefore, the writ petition itself is not maintainable against the said show cause notice. Even otherwise, on merits, since this Court today in this common order has upheld the said notification dated 05.11.2014 in W.P.No.15917 of 2015, the present writ petition is also liable to be rejected. However, since this Court has made certain observations and directions in the connected writ petition seeking for implementation of notification dated 05.11.2014 in W.P.No.6485 of 2015, which is also disposed of in this common order, no further action need to be taken by the competent Authorities against the notices in pursuant to the impugned show cause notice. Acc

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ordingly, this writ petition is disposed of accordingly. W.P.Nos.21515 of 2013 and 40237 of 2016: 51. In both these writ petitions, the respective writ petitioners seek for mandamus to forbear the Airport Authority of India, Chennai Airport and the respective contractor from altering the service conditions of the petitioners including discontinuance of service or failing to provide employment in any manner without permission under Section 33 of the Industrial Disputes Act, 1947, in the industrial disputes raised by the respective petitioners before the Assistant Labour Commissioner (Central). They also seek for direction to the Assistant Labour Commissioner to conciliate and effect settlement and if no settlement is forthcoming, to submit a failure report under Section 12(4) of the Industrial Disputes Act and in turn, to direct the Government of India to refer the dispute for adjudication before the competent Industrial Adjudicator. 52. The petitioners in these cases are claiming to be working as Trolley Supervisor, Trolley Retrievers and Securities in the Chennai Airport. It is not in dispute that these petitioners were not directly employed by the Airport Authority of India, Chennai Airport, as its employees and on the other hand, they are employed by a private party viz., the fourth respondent in both these writ petitions, who in turn, was given a contract by the Airport Authority to execute the work. These petitioners, on an apprehension that they will be discontinued from their respective services, approached the concerned Authority under the Industrial Disputes Act and raised industrial dispute claiming absorption of their service and regularisation of the same with wage, revision, etc., Pending conciliation proceedings, these petitioners filed these writ petitions and sought for mandamus as stated supra to prevent the Airport Authority of India, Chennai Airport and their Contractor from altering their service conditions and also discontinuing their service without getting permission under Section 33 of the Industrial Disputes Act, 1947. 53. According to the petitioners, the contract between the Airport Authority of India and the Contractor is sham and nominal and they are to be treated as direct employees of the Airport Authority of India. 54. On the other hand, it is the contention of the Airport Authority of India, that there is no master and servent relationship between the workmen and the Airport Authority of India and on the other hand, the workmen are engaged by the licensee viz., the fourth respondent and therefore, the workmen, who have worked under the licensee, cannot invoke the Industrial Disputes Act and consequently, seek for the relief as stated above in these writ petitions. 55. Both sides have made an elaborate argument and relied on various case laws in support of their respective contentions. First of all, it is to be noted that this Court in this common order made in respect of W.P.Nos.6485, 15917 of 2015 has upheld the notification dated 05.11.2014 abolishing the contract of labour of trolley retrievers at Chennai Airport. While disposing those writ petitions, certain observations and directions are also issued as supra. With the above background in mind, if I consider these writ petitions, I am of the view that this Court, at this stage, need not venture to look into those contentions and give its own findings for the following reasons and circumstances:- a) These writ petitions are admittedly filed only to prevent the respondents 3 and 4 from acting against these petitioners during the pendency of the conciliation proceedings before the concerned Labour Officer. There is no dispute to the fact that these petitioners have raised the industrial dispute before the concerned Labour Officer and the same is said to be pending. This Court, at this stage, is not inclined to go into maintainability of those proceedings before the concerned Labour Officer, as disputed by the Airport Authority of India, since those proceedings before the Labour Officers were not put to challenge by the Airport Authority of India before this Court in any manner. On the other hand, only these writ petitioners have come forward with these writ petitions with the relief as stated supra. Therefore, this Court, at this stage, refrains from expressing any view on the merits of the maintainability issue raised by the Airport Authority in respect of proceeding pending before the concerned Labour Officer, as it is always open to the Airport Authority of India to raise all the contentions before the Authority concerned and seek for adjudication of the issue raised in accordance with law. b) The Regional Labour Commissioner (Central) filed a status report dated 11.04.2019 in respect of the proceeding pending before him, wherein it is stated at paragraphs 3 and 6 as follows: “3. W.P.No.21515/2013: a. The Conciliation Officer had closed the Industrial Dispute raised by the Fivemen Committee of Employees representing 65 Trolley Workers on the File No.8(120)/2013-B3 on 30.3.2017. The dispute relates to espouse the same demands as covered in File No.8(17)/2016-B3. Therefore the Industrial Dispute was closed by the Conciliation Officer as “Report on Conciliation”. As per the guidelines in vogue, the same file was already weeded out by the Conciliation Officer on 18.6.2018. ..6. W.P.No.40237/2016 Conciliation in respect of Industrial Dispute raised by the Tamilnadu General Workers Union against the management of 1.Airports Authority of India & others is in progress on regular basis vide File No.8(17)/2016-B3 of the Conciliation Officer. The Joint Discussions were attended by the parties to the dispute. The last Joint Discussion was held on 16.10.2018.” c) Perusal of the above said report would show that the Conciliation Officer had closed the industrial dispute raised by the petitioner in W.P.No.21515 of 2013 and that the conciliation dispute raised by the petitioner in W.P.No.40237 of 2016 is still pending. It is further seen that the Conciliation Officer had closed the industrial dispute raised by the petitioners in W.P.No.21515 of 2013, only by observing that the said dispute espouse the same demand as covered in the dispute raised by the petitioners in W.P.No.40237 of 2016. Since it is admitted by the Regional Labour Commissioner that the dispute raised in both the cases is in respect of the same issue/demand and as it is admitted that one such conciliation proceedings (in the case of W.P.No.40237 of 2016) is still pending, these writ petitions are disposed of as follows, without expressing any view on the merits of the contentions raised by both parties: a) the second respondent viz., the Assistant Labour Commissioner is directed to complete the conciliation proceedings and file a report as required under law before the appropriate Government viz., Union of India, so as to enable the respective parties to work out their further course of action in accordance with law in pursuant to such report. b) The Assistant Labour Commissioner is further directed to reopen the conciliation proceedings in the case of the petitioners in W.P.No.21515 of 2013 and tag it along with the conciliation proceedings raised in the case of the petitioners in W.P.No.40237 of 2016 and complete the entire conciliation proceedings and file a report as directed supra, within a period of three months from the date of receipt of a copy of this order. c) Since this Court has not gone into the merits of the matter in view of the fact that the conciliation proceedings are pending before the concerned Authority, the case laws cited in these writ petitions on behalf of both parties are not discussed for the present. d) Pending disposal of the conciliation proceedings before the Assistant Commissioner of Labour, the status quo as on today shall be maintained by the respondents 3 and 4 in respect of the petitioners, who are actually working as on today, in pursuant to the interim order granted by this Court in W.P.No.21515 of 2013. No costs. The connected miscellaneous petitions are closed.
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