judgement:
Appeal No. 625 of 1986.
From the Judgment and Order dated 20.11.1985 of the Allahabad High Court in Sales Tax Revision No. 3 18 of 1985.
Shanti Bhushan, Prashant Bhushan and Madan Lokur for the Appellant.
Gopal Subramanium.
R.S. Rana and Ashok K. Srivastava for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question which arises for consideration in this appeal relates to the period of limi tation within which an application for rectification of an order of reassessment passed under section 21 of the Uttar Pradesh Sales Tax Act, 1948 (Uttar Pradesh Act No. XV of 1948) (hereinafter referred to as 'the Act ') can be pre ferred under section 22 of the Act.
The brief facts which are necessary for deciding this case are these.
The appellant firm is a dealer carrying on business in Mathura in the State of Uttar Pradesh.
An order of assessment was passed in respect of the turnover of the appellant for the year 1975 76 by the Sales Tax Officer, Sector 2, Mathura under the Act on 7.2.1979.
Thereafter on January 8, 1980 the Sales Tax Officer issued a notice to the appellant under section 21 of the Act proposing to make a reassessment in respect of the said assessment year, i.e., 1975 76 on the 144 ground that the mandi cases and arhat (commission) which should have been included in the turnover had escaped as sessment and directed the appellant to appear before him along with its account books on 18.1.
After looking into the books of accounts and hearing the advocate who appeared on behalf of the appellant, the Sales Tax Officer passed the order under section 21 of the Act on the same date holding that the appellant was not liable to pay any more tax under the Act.
The order passed by the Sales Tax Officer reads thus: "Office of the Sales Tax Officer Sector 2, Mathura S/Shri Kundan Lal Srikishan Lala Gan j, Mathu ra Year: 75 76 Section 21 ORDER UNDER SECTION 21 The original tax assessment order in respect of you was passed on 7.2.79.
The audit, however, had objected that the busi nessman 's arhat (commission) and mandi cess amount was left out from taxation.
On this basis the businessman was called by issuing him notice under the said section.
On the appointed day, his advocate appeared and submitted the accounts books.
On examination it was found that the businessman had already included the arhat and mandi cess amount in the taxable income and he had already been assessed.
Therefore, no tax is to be levied now and the businessman is declared as free from paying any more tax under section 21.
Sd/B. Lal Sales Tax Officer Sector 2, Mathura Dated: 18.1.80" In the year 1982, the appellant realised that it was not liable to pay sales tax on purchases made on behalf of Ex U.P. principals as such purchases had occasioned inter State movement of the commodities in question and were as such exempt from the purview of the Act.
The appellant, there fore, filed four applications under section 22 of 145 the Act for rectification of the mistakes in the assessment orders for assessment years 1975 76, 1976 77, 1977 78 and 1978 79 on the ground that the turnover in respect of pur chases made on behalf of Ex U.P. principles had been wrongly assessed to sales tax in the aforementioned four years.
The applications for rectification made in respect of assessment years 1976 77, 1977 78 and 1978 79 were all within three years of the assessment orders but the application made in respect of the assessment order in respect of the assessment year 1975 76 was beyond three years from the date of the original order of assessment which had been made on 7.2.
1979 but within three years from the date of the order passed by the Sales Tax Officer under section 21 of the Act.
All the four applications made by the appellant were reject ed by the Sales Tax Officer on merits on 3.1.
There upon the appellant preferred appeals against the orders rejecting the applications before the Appellate Authority.
The said Appellate Authority by its order dated 21.1.
1983 allowed the appeals relating to the assessment orders for the assessment years 1976 77, 1977 78 and 1978 79 on merits but dismissed the appellant 's appeal in respect of the assessment order for the assessment year 1975 76 on the ground that the appellant 's application for rectification filed under section 22 of the Act had been filed beyond three years from the date of the original order of assess ment and was thus barred by limitation.
Aggrieved by the order of the Appellate Authority dismissing the appellant 's appeal arising out of the application for rectification of the assessment order passed in respect of the assessment year 1975 76, the appellant preferred a second appeal before the Sales Tax Tribunal, Uttar Pradesh.
The Department also preferred second appeals against the orders of rectification passed by the Appellate Authority in respect of the orders of assessment for assessment years ' 1976 77, 1977 78 and 1978 79.
The Tribunal disposed of all the appeals by a common order dated 26.2.
1985 by which it allowed the appeal of the appellant and dismissed the appeals filed by the Department.
The Tribunal held that the appellant was enti tled to succeed on merits in each of the appeals and further held that the rectification application made in respect of the assessment order for the assessment year 1975 76 was within limitation as the original order dated 7.2.
1979 passed in respect of the said assessment year had ceased to exist on the re opening of the assessment by the notice issued under section 21 of the Act and the final order under that section had been passed on 18.1.
1980 within three years from the date of the application for rectification which had been filed on 4.11.
Aggrieved by the orders of the Tribunal the Department filed four revision applica tions before the High Court of Allahabad.
The High Court by its order dated 15.11.
1985 dismissed three of the 146 Department 's revision applications pertaining to the appel lant 's rectification applications in respect of the assess ment orders for the assessment years 1976 77, 1977 78 and 1978 79 on merits holding that the orders of the Tribunal were correct and no ground had been made out to interfere with them.
It, however, allowed the revision application filed by the Department in respect of the application for rectification of the assessment order for the assessment year 1975 76 on the ground that the application for rectifi cation had been filed beyond three years from the date of the original order dated 7.2. 1979 and that the order dated 18.1.1980 passed under section 21 of the Act had no effect on the question of limitation.
Aggrieved by the said order of the High Court the appellant has filed this appeal by special leave.
The material part of section 21 of the Act, which is relevant for the purposes of this case, reads thus: "21.
Assessment of tax on the turnover not assessed during the year (1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemp tions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary assess or re assess the dealer or tax according to law . . " Section 22 of the Act provides that the assessing, appellate or revising authority or the Tribunal may, on its own motion or on the application of the dealer or any other interested person rectify any mistake in its order, apparent on the record within three years from the date of the order sought to be rectified.
The question for consideration is whether for purposes of limitation the date of the order of assessment for the year 1975 76 in the instant case should be the date of the original assessment order, i.e., 7.2.
1979 of whether it should be the date of the order passed under section 21 of the Act, i.e., 18.1.
On behalf of the appellant it is contended before us that on the issue of the notice under section 21 of the Act the original assessment ceased to be in force and that the only order of assessment in respect of assessment year 1975 76 which should be taken into consideration for 147 all purposes including the application for rectification of mistake is the order dated 18.1.1980.
In support of the above plea the appellant has relied upon the decision of this Court in Deputy Commissioner of Commercial Taxes vs
H.R. Sri Ramulu; , which was a case arising under the Mysore (Karnataka) Sale Tax Act, 1957.
In that case the original assessment order had been passed on March 21, 1963.
Thereafter there was an order of reassessment made under section 12A of the Mysore (Karnataka) Sales Tax Act, 1957 on June 8, 1966 because certain amounts had escaped assessment under the original assessment order.
Thereafter on June 28, 1967 the Deputy Commissioner of Commercial Taxes passed an order revising the order dated June 8, 1966 as a consequence of the decision of this Court in Shinde Brothers etc.
vs Deputy Commissioner, Raichur, A.I.R. 1967 S.C. 15 12.
Thereafter the assessee filed an application for recti fication of the order passed by the Deputy Commissioner of Commercial Taxes requesting him to set aside the order passed on revision under section 21 of that Act on the ground that the revision of assessment was barred by limita tion under section 21(3) of that Act and as such there was a mistake apparent on the record.
The Deputy Commissioner of Commercial Taxes rejected the said application.
The assessee questioned the order of the Deputy Commissioner of Commer cial Taxes before the Mysore (Karnataka) Sales Tax Appellate Tribunal.
The Tribunal too rejected that appeal.
The asses see thereafter filed a petition before the High Court under Article 226 of the Constitution of India.
The High Court allowed the appeal and quashed the order passed by the Deputy Commissioner of Commercial Taxes on June 28, 1967 on the ground that the said order had been passed without jurisdiction as the power of revision had been exercised beyond the prescribed period of four years from the date of the original assessment order dated March 21, 1963.
The Deputy Commissioner of Commercial Taxes filed an appeal against the order of the High Court before this Court.
Allowing the said appeal this Court observed thus at page 596: "The short question which arises for determi nation in these appeals is that in the event of an order having been made under section 12A of the Act, what is the starting point for computing the period of four years, mentioned in section 21(3), for the exercise of the powers under section 21(2).
Is it the initial assessment order or is it the order made under section 12A? In the context of the present case, the question to be answered is as to whether the period of four years,is to be calculated from March 21,1963 when the initial assessment oders were made, or from June 8, 1966 when 148 the orders under section 12A of the Act were made.
So far as this question is concerned, we are of the opinion that the period of four years should be calculated from June 8, 1966 i.e., the date on which orders under section 12A of the Act were made.
The reason for that is that once an assessment is reopened, the initial order for assessment ceases to be operative.
The effect of reopening the assess ment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment.
The initial order for reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order.
The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment.
As it is we find that in the present case the assessment orders made under section 12A were comprehensive orders and were not confined merely to matters which had escaped assessment earlier.
In the circumstances, the only orders which could be the subject matter of revision by the appel lant were the orders made under section 12A of the Act and not the initial assessment orders." In reaching the above conclusion the Court relied upon three decisions of this Court, namely, Commissioner of Income tax, Excess Profits Tax, Hyderabad, Andhra Pradesh
V. Jagan Mohan Rao & Others, ; Commis sioner of Sales Tax, Madhya Pradesh vs M/s. H.M. Esufali, H.M. Abdulali, Siyaganj, Indore, ; and International Cotton Corporation (P) Ltd. vs Commercial Tax Officer, HubIi & Ors., [1975] 2 S.C.R. 345.
The third of the above three cases, namely, International Cotton Corporation (P) Ltd. vs Commercial Tax Officer, Hubli & Ors., (supra) was a case arising out of rectification proceedings.
In that case this Court held that once an assessment order had been rectified and it was sought to make a further rectification of that order the period of limitation for making such further rectification would commence not from the date of the original assessment order but from the date of the earlier rectification order.
In Deputy Commissioner of Commercial Taxes vs H.R. Sri Ramulu (supra) this Court has clearly laid down that when once a notice is issued for purposes of making reassessment the assessment proceedings become re opened and the initial order of assessment 149 ceases to be operative.
The Court has further held that the effect of the re opening of the assessment is to vacate or set aside the initial order of assessment and to substitute in its place the order made on reassessment and that the result of re opening of the assessment is that a fresh order for reassessment would have to be made in respect of all matters including those matters in respect of which there is no allegation of the turnover escaping assessment.
The same principle should apply even tO a Case like the present one where an 'application for rectification is filed after the completion of the reassessment proceedings.
In order to overcome the observation made by this Court in Deputy Commissioner of Commercial Taxes vs
H.R. Sri Ramulu (supra) it was argued on behalf of the State Government that since no order of re assessment had actually been passed in the instant case on 18.1.
1980 but only an order discharging the notice issued under section 21 of the Act had been passed the original order of assessment passed on 7.2.1979 continue to remain in force.
It is true that after going through the books of accounts produced by the appellant and hearing the advocate who appeared on its behalf the Sales Tax Officer was of the view that the assessee had already included in its taxable turnover the arhat (commission) and mandi cess amounts and therefore, no extra tax was leviable under section 21 Of the Act.
Even so it has to be held that the order dated 18.1.1980 is an order of reassessment not withstanding the fact that a regular order of reassessment has not been passed.
The order passed on 18.1, 1980 should be construed as a fresh order of assessment passed under section 21 of the Act and the initial order of assessment dated 7.2.1979 should be deemed to be the order passed again on 18.1.1980.
If the assessee is able to show any error apparent on the record from the order of assessment dated 7.2.1979 which as we have observed earlier should be deemed to have been passed again on 18.1.1980, the appellant is entitled to succeed in its application for rectification provided it is made within the prescribed time, i.e., three years from the date of the order passed under section 21 of the Act.
We do not find any merit in the submission made on behalf of the Department that the order passed on 18.1.1980 should be understood as an order discharging the notice issued under section 21 of the Act and not an order of reassessment as such.
This is obvious from the language of section 21, itself.
Section 21 authorises the assessing authority to.
make an order of assessment or reassessment.
It says that if the assessing authority has reason to be lieve that the whole or any part of the turnover of a deal er, for any assessment year or part 150 thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under the Act, or any deduc tions or exemptions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary assess or re assess the dealer or tax according to law.
The assessing authority gets jurisdiction to make the reassessment by issuing a notice to the dealer as provided by section 21 of the Act.
When once the notice is issued under that section the original order of assessment gets re opened and thereafter any order made under section 21 of the Act alone would be the order of assessment in respect of the period in question.
Section 21 of the Act does not require the assessing authority to pass an order deciding whether it is necessary to proceed with the inquiry under that section or not before passing an order of assessment or reassessment under that section.
The only order which the assessing authority is required to make under section 21 after a notice is issued to the dealer under that section is an order of assessment or reassessment.
It is not required to pass first an order whether it should proceed with the reassessment proceedings or not.
Such a preliminary order is not contemplated under section 21 of the Act.
Hence the order dated 18.1.1980 has to be treated as an order of assessment even though it is not in the form in which an order of assessment has to be passed and not as an order merely on the question whether the reasessment proceedings under section 21 of the Act should be proceeded with or not.
In other words it should be held that the assessing authori ty had adopted the earlier order as the order of assessment passed at the conclusion of the proceedings under section 21 of the Act.
The period of limitation for the application for rectification should, therefore, be calculated from the date of the order under section 21 of the Act.
We cannot, there fore, subscribe to the view of the High Court expressed in its observation that since no fresh order of assessment had been passed after examining the accounts of the assessee the 'original assessment order should be considered to remain intact a nothing is added or altered in pursuance of the order under section 21 of the Act '.
No other contention is urged before us.
In the result we set aside the judgment of the High Court and restore the decision of the Tribunal.
The appeal is accordingly allowed.
There shall, however, be no order as to Costs.
A.P J. Appeal allowed.

summary/full:
An assessment order was passed in respect of the turn over of the appellant firm for the year 1975 76 by the Sales Tax Officer on 7.2.1979.
Thereafter, the Sales Tax Officer issued a notice under s.21 of the Uttar Pradesh Sales Tax Act, 1948, proposing to make a reassessment on the ground that the mandi cess and arhat (commission) had escaped assessment and directed the appellant to appear along with its account books on 18.1.
The Sales Tax Officer passed the order under s.21 on the same date holding that the appellant was not liable to pay any more tax.
In the year 1982 the appellant filed four applications under s.22 for rectification of the mistakes in the assess ment orders for assessment years 1975 76, 1976 77, 1977 78 and 1978 79 on the ground that the turnover in respect of purchases made on behalf of Ex U.P. principals had been wrongly assessed to sales tax.
All the four applications were rejected by the Sales Tax Officer on merits.
The appellant preferred appeals and the Appellate Au thority allowed the appeals relating to the assessment orders for the assessment years 1976 77, 1977 78 and 1978 79 on merits but dismissed the appeal in respect of the assess ment order for the assessment year 1975 76 on the ground that the application for rectification had been filed beyond three years from the date of the original order of assess ment and was thus barred by limitation.
The appellant filed second appeal before the Sales Tax Tribunal in respect of the assessment year 1975 76.
The Department also preferred second appeals in respect of the orders of assessment for assessment years 1976 77, 1977 78 and 1978 79.
The Tribunal allowed the appeal 141 of the appellant holding that the rectification application made in respect of the assessment order for the assessment year 1975 76 was within limitation as the original order dated 7.2.1979 had ceased to exist on the re opening of the assessment and the final order had been passed on 18.1.
1980 within three years from the date of the application for rectification which had been filed on 4.11.1982.
However, the appeals of the Department were dismissed.
Out of the four revision applications filed by the Department, the High Court dismissed three applications and allowed the revision application in respect of the applica tion for rectification of the assessment order for the assessment year 1975 76 holding that the application for rectification had been filed beyond three years from the date of the original order dated 7.2.
1979 and that the order dated 18.
1. 1980 had no effect on the question of limitation.
In the appeal to this Court, on behalf of the appellant it was contended that on the issue of the notice under s.21 of the Act original assessment order ceased to be in force and that the only order of assessment in respect of assess ment year 1975 76 which should be taken into consideration for all purposes including the application for rectification of mistake is the order dated 18.1.
On behalf of the State it was contended that since no order of reassessment had actually been passed in the in stant case on 18.1.
1980 but only an order discharging the notice issued under s.21 of the Act had been passed the original order of assessment passed on 7.2.
1979 continued to remain in force.
Allowing the appeal, HELD: 1.
The judgment of the High Court is set aside and the decision of the Tribunal restored.
[150G] 2.
Section 21 of the Uttar Pradesh Sales Tax Act, 1948, authorises the assessing authority to make an order of assessment or reassessment.
It says that if the assessing authority has reason to believe that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under the Act, or any deduc tions or exemptions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider neces 142 sary assess or reassess the dealer or tax according to law.
[149G H;150A B] 3.
Section 21 of the Act does not require the assessing authority to pass an order deciding whether it is necessary to proceed with the inquiry under that section or not before passing an order of assessment or reassessment under that section.
The only order which the assessing authority is required to make under s.21 after a notice is issued to the dealer under that section is an order of assessment or reassessment.
[150C D] 4.
Once a notice is issued for ,purposes of making reassessment the earlier proceedings become re opened and the initial order of assessment ceases to be operative.
The effect of the re opening of the assessment is to vacate or set aside the initial order of assessment and to substitute in its place the order mode on reassessment and that the result of the re opening of the assessment is that a fresh order for reassessment would have to he made in respect of all matters including those matters in respect of which there is no allegation of the turnover escaping assessment.
[148H;149A B] 5.
Once an assessment order hod been rectified and it was sought to make a further rectification of that order the period of limitation for making such further rectification would commence not from the date of the original assessment order but from the date of the earlier rectification order.
[148G H] Deputy Commissioner of Commercial Taxes vs
H.R. Sri Ramulu; , ; Shinde Brothers etc.
vs Deputy Commissioner, Raichur, A.I.R. 1967 S.C. 15 12; Commissioner of Income tax, Excess Profits Tax, Hyderabad, Andhra Pradesh
V. Jagan Mohan Rao & Others, ; Commis sioner of Sales Tax, Madhya Pradesh vs M/s. H.M. Esufali, H.M. Abdulali, Siyaganj, Indore, ; and International Cotton Corporation (P) Ltd. vs Commercial Tax Officer, HubIi & Ors., [1975] 2 S.C.R. 345, followed.
The order dated 18.1.
1980 is an order of reassess ment notwithstanding the fact that a regular order of reas sessment has not been passed.
The order passed on 18.1.
1980 should be construed as a fresh order of assessment passed under s.21 of the Act and the initial order of assessment dated 7.2.1979 should be deemed to be the order passed again on 18.1.1980.
[149E F] 7.
If the assessee is able to show any error apparent on the record from the order of assessment dated 7.2.
1979 the appellant is entitled to 143 succeed in its application for rectification provided it is made within the prescribed time, i.e., three years from the date of the order passed under s.21 of the Act.
[149E F] Deputy Commissioner of Commercial Taxes vs H.R. Sri Ramulu, ; , referred to.
It should be held that the assessing authority had adopted the earlier order dated 7.2.1979 as the order of assessment passed at the conclusion of the proceedings under s.21 of the Act.
The period of limitation for the applica tion for rectification should, therefore, be calculated from the date of the order under s.21 of the Act, i.e. 18.1.1980.
[150F]


judgement:
tition (C) Nos.
13748 84 of 1984.
With Writ Petition (c) Nos.
1580626 of 1984.
(Under Article 32 of the Constitution of India. ) 48 N.N. Keshwani and R.N. Keshwani for the Petitioners.
O.P. Sharma, Girish Chandra, C.V. Subba Rao and Miss section Relan for the Respondents.
The following Order of Court was delivered: It is not disputed that the Air conditioned Coach In chargesAttendants are being paid overtime allowances for extra duty hours exceeding 96 hours in two weeks in the Western Railway, Central Railway and Eastern Railway.
There is no justification for denying overtime allowances on the same basis to the Air conditioned Coach Incharges Attendants in the Northern Railway.
We accordingly direct the Union of India and the Railway Administration to pay with effect from July 1, 1984 the overtime allowance to the Air conditioned Coach Incharges Attendants working in the Northern Railway on the same basis on which the Air conditioned Coach In charges Attendants in the other three Railways, referred to above, are paid.
All arrears of such allowances upto date shall be paid as early as possible and in any event not later than four months from today.
The benefit of this order shall be extended to all such employees including those who have retired and those who have not joined as petitioners herein.
The Writ Petitions are allowed.
No costs.
P.S.S. Petitions allowed.

dataset_name: IN-Abs

summary/full:
The petitioners, Air Conditioned Coach Incharges At tendants in Northern Railway, contended in their writ peti tions that their counterparts in Western, Central and East ern Railways were being paid overtime allowance for extra duty hours exceeding 96 hours in two weeks, and sought a direction to the Union of India and Railway Administration to pay them the same allowance.
Allowing the writ petition, the Court, HELD: There was no justification for denying over time allowance to the petitioners working in the Northern Railway.
The Union of India and the Railway Administration to pay with effect from June 1, 1984 overtime allowance to the petitioners on the same basis on which their counter parts in the other three Railways are paid.
[48B C] The benefit of the order to be extended to all such employees including those who have retired and those who have not joined as petitioners.
[48D] All arrears of such allowances up to date to be paid within four months.


judgement:
No. 19 of 1986 etc.
(Under Article 32 of the Constitution of India).
R. Venkataramani, K.B. Rohtagi.
C.V. Subba Rao and Miss Sushma Relan for the appearing parties.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The petitioners describe themselves as 'catering cleaners of Southern Railways represented by V. China Thambi and M. Mohan of the Vegetarian Refreshment Room, Central Station, Madras '.
The petition is claimed to be filed in a representative capacity on behalf of about three hundred and odd catering cleaners working in the catering establishments in various railway junctions of the Southern Railway and in the pantry cars of long distance trains running under the control of the Southern Railway.
Since a long time they have been agitating for the abolition of the Contract system under which they are employed to do cleaning work in the catering establishments and the pantry cars and for their absorption as regular employees of the principal employer, namely, the Southern Railway.
They complain that they are not even paid minimum wages.
They are paid a pittance averaging from Rs. 2.00 to Rs.2.50 per day.
Although the contract system has been abolished in almost all the other Railways, the Southern Railway persists in employing contract labour for cleaning its catering estab lishments and pantry cars.
As the several representations made by them to the authorities concerned proved fruitless they have been forced to seek the intervention of this Court 167 under article 32 of the Constitution to direct the respondents to exercise their powers under Section 10(1) of the and to abolish the contract system in respect of catering cleaners in the Southern Railway and further to direct the respondents to regularise the services of the existing catering cleaners employed in the catering establishments at various junctions and in the pantry cars of long distance trains and to absorb them as employees of the catering establishments of the Southern Railway.
They also seek a direction to extend to them the service benefits presently available to other categories of employees in the catering establishments of the Railways.
We issued notice to the respondents on January 21, 1986.
After some considerable time the writ petition was listed before us on August 5, 1986.
We were informed at that time that in almost all the railways except the Southern Railway, the contract labour system had been abolished in regard to catering cleaners.
We wondered why the Southern Railway could not also fall in line and directed the Southern Rail way Administration to consider whether the contract labour system could not be abolished in the Southern Railway also and whether the services of the catering cleaners could not be suitably regularised.
The learned counsel for the workmen complained before us that the workmen were not even being paid the minimum wages.
As the Railway Administration was the principal employer, we directed the Railway Administra tion to take immediate steps to see that the minimum wages were paid to the catering cleaners.
As the interim order of the Court regarding payment of wages was not complied with, the petition was adjourned from time to time.
On April 19, 1986 we also made a further order that the Southern Railway Administration should not take any further action pursuant to the tenders invited by them for contract labour.
On December 4, 1986 the Additional Solicitor General who ap peared on behalf of the Railway Administration undertook to deposit the arrears due from August upto date with the Deputy Labour Commissioner, Madras.
We also directed the learned counsel for the employees to file a list of the employees entitled to be paid wages.
We directed that the amount should be paid after verification by the Deputy Chief Superintendent, Southern Railway.
We were told that there is some dispute about the names of the employees.
We now direct that the Deputy Labour Commissioner, Madras will enquire into the question as to who were working as catering clean ers in the Madras Central Station, and also to determine the wages due to them from August, 1986 upto date giving credit to any amount that may have been paid to them.
On such determination, the Railway 168 Administration shall deposit the amount with the Deputy Labour Commissioner who shall pay over the same to the employees.
The determination by the Deputy Labour Commis sioner is directed to be completed before February 28, 1987 and the deposit by the Administration is directed to be made before March 15, 1987.
This part of the order covers only the catering cleaners employed in the Central Station, Madras.
In answer to the writ petition the Railway Administra tion has adopted a somewhat unhelpful attitude.
According to the Administration it has not been found to be possible to abolish the contract labour system because the nature of the cleaning work in the catering units of the Southern Railway was fluctuating and intermittant.
The contract labour system is followed not only in the Southern Railway but also in the South Central Railway and the South Eastern Railway.
They claim that any departmental units not working profitably could be handed over to a private licensee and this was the alternative that was adopted by the Southern Railway in the case of catering cleaners.
Experience showed that it was difficult to extract work from catering cleaners if they were engaged on a regular basis by the railway and it was not possible to supervise their work effectively.
According to them, all pros and cons were examined before entrusting the cleaning work to private contractors.
The Southern Railway had a moral responsibility to the public to ensure satisfactory service and that was the reason why the work was entrusted to a private agency which was considered the most suitable method of doing the work.
We notice that the Railway Administration has not chosen to support its statements by any facts and figures but has contended itself by making vague and general statements.
No attempt has been made to explain why what has been done in most of the other railways cannot be and should not be done in the Southern Railway too.
It is not explained why clean ing work is considered to be intermitted and what difficulty exists in supervising the work.
The Railway Administration wants to suggest that the units are working at a loss with out expressly saying so.
The suggestion is implicit in the statement that departmental units not working profitably could always be handed over to private licensees.
We are afraid that everything that has been said by the Administra tion of the Southern Railway against abolishing the contract labour system and regularising the services of the catering cleaners has been contradicted by the Parliamentary Commit tee of Petitions under the Chairmanship of Shri K.P. Tewari who went into the question in some depth.
The Committee was submitting its report 169 on the complaint of Shri Samar Mukherji, a member of Parlia ment regarding the grievances of the railway catering work ers working under contractors in the Southern Railway.
The Committee first dealt with the grievances of the Bearers and Servers.
In paragraph 2.19 of their report the Committee noticed that the railway catering department was earning a profit of about Rs.50 lakhs per annum.
In paragraph 2.21 the Committee dealt with the grievances of the catering clean ers.
We think that it will be useful to extract here the whole of paragraph 2.21 of the report.
It is as follows: " It has been submitted in the representa tion that as the job of the cleaners is of permanent nature, these cleaners should be absorbed by the Railways on regular basis.
During their study visit, it was pointed out by the petitioners to the Committee that cleaners were not paid minimum wages statuto rily fixed by State Governments by the con tractors and there was no machinery set up by the Southern Railway to ensure that all labour laws regarding minimum wages, overtime allow ances, payment of compensation etc.
were implemented in their case.
In this connection, the Ministry of Railways (Railway Board) in their written note have stated that the work of cleaning is entrusted to contractors as per the recommendations of High Power Committee (Alagesan Committee) appointed by the Ministry of Railway in the year 1955 so that the estab lishment cost could be kept down.
If this work is entrusted to the regular railway employees the establishment cost would go up and this would prove to be an uneconomical proposition.
The Ministry have further stated that the cleaning contractors at Madras and Bangalore City have engaged 61 and 22 cleaners respec tively who are paid fair living wage of Rs.5.25 per head at Madras Central Railway Station and at Rs.8.06 per cleaner per day at Bangalore City Railway Station as fixed by the State Government of Tamil Nadu and Karnataka.
These payments are witnessed by the Railway 's representative.
The Committee, however, are of the opinion that the job of cleaning in Railway Catering Units is of a permanent nature.
Further if the work which is at present being done by a very small number of cleaners em ployed through the contractors by the Southern Railway is entrusted to the regular employees the establishment cost would increase 170 only marginally and it will not in any way affect the profits being earned by the Cater ing Department.
The Committee recommended that the Government should review the present practice of employment of cleaners through contractors and consider their employment directly by the Railways.
This would end the exploitation of cleaners which has also been alleged in the representation.
New Delhi K.P. Tewari Dated the 30th April, 1984 Chairman Vaisaka 10, 1906 (Saka) Committee of Petitions.
" The Report, we see, states that the railway catering department was earning a profit, that the work of the cater ing cleaners was of a perennial nature, that the cost of entrusting the work to regular employees would increase the establishment cost only marginally and that the laws relat ing to minimum wages, over time allowance etc.
and other labour laws were not being observed in regard to catering cleaners.
The recommendation of the Committee was that in order to prevent the exploitation of cleaners, it was neces sary that the Government should review the existing practice of employing them through contractors and consider their direct employment by the Railway Administration.
Strength ened by the report of the Committee, the catering cleaners submitted several memoranda to the authorities concerned but to no avail.
The practice of employing labour through contractors for doing work inside the premises of the primary employer, known to researchers of the International Labour Organisa tion and other such organisations as 'Labour only contract ing ' or 'inside contracting ' system, has been termed as an arobaic system and a relic of the early phase of capitalist production, which is now showing signs of revival in the more recent period.
Of late there has been a noticeable tendency on the part of big companies including public sector companies to get the work done through contractors rather than through their own departments.
As pointed out by a group of researchers in the Economic and Political Weekly, Review of Management, dated November 29, 1986, it is a matter of surprise that employment of contract labour is steadily on the increase in many organised sectors including the public sector, which one expects to function as a model employer.
More than a quarter of a century ago in the Stand ard Vacuum Refining Company of India Ltd. vs Its Workmen, ; this Court had 171 occasion to refer to some of the pernicious features of the contract labour system.
It is an important decision, unfor tunately not very much noticed in later cases.
The impor tance of the case lies in the fact that it was held to be competent for an Industrial Tribunal functioning under the Industrial Disputes Act to abolish the contract labour system in an industrial undertaking which happened to be a private enterprise in that case.
The facts are interesting.
A dispute was raised by the workmen of the company with respect to contract labour, employed by the company (the Standard Vacuum Refining Company of India Limited) for cleaning maintenance of the refinery (plant and premises), belonging to the company.
The system was that the work was entrusted to a contractor who engaged the labour.
The regu lar workmen of the Company made a demand for abolition of the contract system and for absorbing the workmen employed through the contractors into the regular service of the company.
The complaint of the workmen was that the contract labour had no security of service though they were doing the work of the company and that they were being paid much less than the wages paid by the company to its unskilled regular workmen.
They were also not entitled to other benefits and amenities such as provident fund, gratuity, bonus, privilege leave, medical facilities and subsidised food and housing to which the regular workmen of the company were entitled.
Their case was that though the work was of a permanent nature, the contract system had been introduced to deny them the rights and benefits which the company gave to its regu lar employees.
On behalf of the company, it was contended that the reference under Section 10 of the Industrial Dis putes Act was incompetent as there was no dispute between the Company and its workmen, that, it was a matter for the Company to decide what was the best method of carrying out its business, whether by employing a Contractor or otherwise and that the Industrial Tribunal could not interfere with that function of the management.
The dispute regarding wages and conditions of service was really one to be settled between the Contractor and his employees and had nothing to do with the Company.
The Tribunal by its award gave a direc tion to the company to discontinue the practice of getting the work done through contractors and to have it done through workmen engaged by itself.
The company was directed to engage regular workmen for this work and to give prefer ence to the workmen employed by the contractor.
There was an appeal to the Supreme Court by special leave under Article 136 of the Constitution.
The Supreme Court held that the Tribunal was justified in giving the direction for the abolition of the contract system, observing that it was relevant to bear in mind that industrial adjudication gener ally did not encourage the employment of contract labour in 172 modern times.
Quoting from the report of the Royal Commis sion on Labour, it was said that whatever merit there was in the system in primitive times, it was now desirable for the management to discharge completely the complex responsibili ty laid upon it.
The Court also referred to similar opinions expressed by several Labour Enquiry Committees appointed in different States.
Proceeding to consider the merit of the contract labour system in the case before them, Wanchoo J. speaking for the Court observed: "The contract in this case related to four matters.
But the reference is confined to one only, viz., cleaning maintenance work at the refinery including premises and plant and we shall deal with that only.
So far as this work is concerned, it is incidental to the manufac turing process and is necessary for it and of a perennial nature which must be done every day.
Such work is generally done by workmen in the regular employ of the employer and there should be no difficulty in having regular workmen for this kind of work.
The matter would be different if the work was of inter mittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose.
Under the cir cumstances the order of the tribunal appears to be just and there are no good reasons for interfering with it.
" The Court held that the contract in the case was a bona fide contract but that it did not affect the issue.
The award of the Tribunal was upheld.
The Supreme Court having pronounced on the 'primitive ' and baneful nature of the system of contract labour, there was a cry raised against the system by the Planning Commis sion and various other committees appointed by the Govern ment.
The Indian Labour Conference discussed the award of the Tribunal in 1959 and following its recommendation but after considerable delay, the Contract Labour (Abolition and Regulation) Act was passed in The Statement of Objects and Reasons was as follows: "The system of employment of contract labour lends itself to various abuses.
The question of its abolition has been under the considera tion of Government for a long time.
In the second Five Year Plan, the Planning Commission made certain recommendations, namely, under taking of studies 173 to ascertain the extent of the problem of contract labour, progressive abolition of system and improvement of service, conditions of contract labour where the abolition was not possible.
The matter was discussed at various meetings of Tripartite Committee at which the State Government were also represented and general consensus of opinion was that the system should be abolished wherever possible or practicable and that in cases where this system could not be abolished altogether, the working conditions of contract labour should be regulated so as to ensure payment of wages and provision of essential amenities.
The proposed Bill aims at abolition of con tract labour in respect of such categories as may be notified by appropriate Government in the light of certain criteria that have been laid down, and at regulating the service conditions of contract labour where abolition is not possible.
The Bill provides for the setting up of Advisory Boards of a tripartite character, representing various interests, to advise Central and State Governments in admin istering the legislation and registration of establishments and contractors.
Under the Scheme of the Bill, the provision and mainte nance of certain basic welfare amenities for contract labour, like drinking water and first aid facilities, and in certain cases rest rooms and canteens, have been made obli gatory.
Provisions have also been made to guard against details in the matter of wage payment.
" The long title of the Act describes it as "an Act to regu late the employment of contract labour in certain establish ments and to provide for its abolition in certain circum stances and for matters connected therewith".
1(4) makes the Act applicable to all establishments in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as contract labour and to every contractor who employs or who employed on any day of the preceding 12 months 20 or more workmen.
1(5) makes the Act inapplicable to establishments in which work only of an intermittent or casual nature is performed and further provides that the question whether work performed in an establishment is of an intermittent or casual nature, if raised, shall be decided by the appropriate Govt.
in consul tation with the Central Board or State Board as the case may be and that such decision final.
, (c), (e) and (g) define "Contract Labour", "Contractor", "Establishment" and "Principal Employer" in the following terms: "(b) a workman shall be deemed to be employed as "contract labour" in or in connec tion with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer;" "(c) "contractor", in relation to an estab lishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub contractor;" "(e) "establishment" means (i) any office or department of the Government or a local authority, or (ii) any place where any industry, trade, business, manufacture or occupation is carried on;" "(g) "principal employer" means (i) in relation to any office or department of the Government or a local au thority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf, (ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the , the person so named, (iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named, (iv) in any other establishment, any person responsible for the supervision and control of the establishment.
175 Explanation: For the purpose of sub clause (iii) of this clause, the expres sions "mine", "owners" and "agent" shall have the meanings respectively assigned to them in clause (j), clause (I) and clause (c) of sub section (1) of section 2 of the .
" Section 3 and 4 provide for the constitution of the Central and State advisory Boards.
Sec. 7 provides for the registration of establishments.
Sec. 8 provides for revoca tion of registration in certain cases and Sec.
9 prescribes the effect of non registration.
10 provides for the prohibition of employment of contract labour in certain processes, operations or other work in establishments by the appropriate Government after consulation with the Central or State Board as the case may be.
10 is as follows: "10.(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consulation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract Labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under sub sec.(1) in relation to an establish ment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as (a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the estab lishment; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; (c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto; (d) whether it is sufficient to employ consid erable number of whole time workmen.
176 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.
" Sec. 12 provides for licensing of contractors.
Sec. 13, 14 and 15 provide for the grant, revocation, suspension, and amendment of licensces and appeals.
Sections 16 to 21 make detailed provision for the Welfare & Health of contract labour.
16 deals with canteens, Sec. 17 with Rest rooms, Sec. 18 with facilities for drinking water, latrines, urinals and washing and Sec. 19 with first aid facilities.
20 provides that if any amenity required to be provided under Sec.
16 to 19 for the benefit of contract labour employed in an establishment is not provided by the contrac tor within the prescribed time such amenity shall be provid ed by the Principal Employer within such time as may be prescribed.
Sec. 21, while making the contractor responsible for payment of wages to each worker employed by him as contract labour, further provides that every Principal Employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by contractor to ensure and certify that wages are paid in the prescribed manner.
It is further provided that if the Con tractor fails to pay wages within the prescribed time or makes short payment, it shall be the liability of Principal Employer to make payment of wages in full.
22 to 27 provide for penalties and procedure.
28 provides for appointment of inspecting staff.
30 makes the provi sions of the Act effective notwithstanding anything incon sistent therewith contained in arms of any agreement or contract of service or any standing orders applicable to the establishment.
Any favourable benefits that the Contract labour may be entitled to under the agreement, contract of service or standing orders are however saved.
Sec. 31 pro vides for exemptions.
33 enables the Central Govt.
to give directions to any State as to the carrying into execu tion in the State the provisions of the Act.
35 pro vides for the making of rules for carrying out the purposes of the Act.
The Rules made by the Central Govt.
are required to be placed before the Parliament.
The Central Govt.
, in exercise of the powers conferred by Sec.
35 of the Act, has made the Contract Labour (Regula tion and Abolition) Central Rules, 1971.
Chapter II of the rules relates to matters pertaining to the Central Board, while Chapter III of the Rules deals with registration of establishments and licensing of contractors.
Rule 25 pre scribes the forms, terms & condition of licence and in particular Rule 25(ii)(iv) prescribes that it shall be the condition of every licence 177 that the rates of wages shall not be less than the rates prescribed under the .
Rule 25(ii)(iv) prescribes that it shall be the condition of every licence that the rates of wages shall not be less than the rates prescribed under the for such employment where applicable, and where the rates have been fixed by agreement, settlement or award, not less than the rates so fixed, Rule 25(ii)(v)(a) prescribes that it shall be the condition of every licence that, "In cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work: Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Chief Labour Commisioner (Central) whose decision shall be final." Similarly Rule 25(ii)(v)(b) provides that in other cases the wage rates, holidays, hours of work and conditions of serv ice of the workmen of the contractor shall be such as may be specified in this behalf by the Chief Labour Commissioner (Central).
While determining the wage rates, holidays, hours of work and other conditions of service under Rule 25(ii)(v)(b) the Chief Labour Commissioner is required to have regard to the wages rates, holidays, hours of work and other conditions of service obtaining in similar employ ments.
On the facts presented to us and on the report of the Parliamentary Committee of Petitions it appears to be clear that the work of cleaning catering establishments and pantry cars is necessary and incidental to the industry or business of the Southern Railway and so requirement (a) of section 10(2) is satisfied, that it is of a perennial nature and so re quirement (b) is satisfied, that the work is done through regular workmen in most Railways in the country and so requirement (c) is satisfied and that the work requires the employment of sufficient number of whole time workmen and so requirement (d) is also satisfied.
Thus all the relevant factors mentioned in S.10(2) appear to be satisfactorily accounted for.
In addition we have the 178 factor of profitability of the catering establishments.
On these facts the petitioners straight away invite us to issue a mandamus directing the Central Government to abolish the contract labour system under which cleaners in catering establishments and pantry cars are at present employed in the Southern Railway.
But, we refrain from doing so because under Section 10, Parliament has vested in the appropriate Government the power to prohibit the employment of contract labour in any process, operation or other work in any estab lishment.
The appropriate Government is required to consult the Central Board or the State Board as the case may be before arriving at its decision.
The decision, of course, will be subject to judicial review.
But we do not think that we will be justified in issuing the mandamus prayed for unless and until the Government fails or refuses to exercise the power vested in it under section 10.
In the circumstances the appropriate order to make in the present case is to direct the Central Government to take appropriate action under section 10 of the Contract Labour (Abolition and Regulation) Act in the matter of prohibiting the employment of contract labour in the work of cleaning catering establishments and pantry cars in the Southern Railway.
This must be done within six months from today.
Without waiting for the decision of the Central Government the administration of the Southern Rail way will be free, of its own motion to abolish the Contract labour system and to regularise the services of the employed in the work of cleaning catering establishments and pantry cars in the Southern Railway.
In any case, the administra tion of the Southern Railway will refrain, until the deci sion of the Central Government under section 10, from employing Contract labour.
The work of cleaning catering establish ments and pantry cars will be done departmentally by employ ing those workmen who were previously employed by the Con tractor on the same wages and conditions of work as are applicable to those engaged in similar work by the Western Railway.
If there is any dispute whether an individual workman was or was not employed by the Contractor such dispute shall be decided by the Deputy Labour Commissioner, Madras.
Any further directions may be sought, if necessary, from the Madras High Court.
If the Central Government does not finally decide the question within six months from today, the Southern Railway administration will within three months thereafter absorb the workmen into their service and regularise their services.
S.R. Petition disposed of.

summary/full:
More than a quarter of a century ago, in the Standard Vacuum Refining Company vs Its Workmen, ; the Supreme Court affirmed the direction of the Industrial Tribunal for the abolition of the contract system of labour.
As a result thereof, the Contract Labour (Abolition and Regulation) Act came to be passed, "to regulate the employ ment of contract labour in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith".
The Central Government, in exercise of its powers conferred by section 35 of the Act, has made the Contract Labour (Abolition and Regulation) Central Rules, 1971 Section 10 of the Act empowers the appropriate Government to prohibit by notification in the Official Gazette, employment of contract labour in any process, Operation or other work in any establishment sub ject to the fulfilment of the conditions in sub section (2) thereof and after consulting the Central Board or the State Board as the case may be.
Rule 25 prescribes the forms, terms and condition of licence including the payment of minimum wages under the holiday, hours of work etc.
The Writ Petitioners, alleged that in spite of the Report of the Parliamentary Committee of Petitions under the Chairmanship of Shri K.P. Tiwari dated 30.4.
1984 and their representations the Southern Railway persisted in employing contract labour for cleaning its catering establishments and pantry cars by paying a pittance averaging Rs.2.00 to Rs.2.50 per day.
Most of the other Railways had abolished the 165 system of employing labour through a contractor.
Therefore, they sought relief for the abolition of the Contract Labour system by the issuance of a writ of mandamus under Article 32 of the Constitution and for a direction to treat them as regular employees.
Issuing an appropriate writ in the nature of a direc tion, the Court, HELD: 1.1 It is clear that, on the facts presented and on the report of the Parliamentary Committee of Petitions, the work of cleaning catering establishments and pantry cars is necessary and incidental to the industry or business of the Southern Railway and so requirement (a) of S.10(2) is satisfied, that it is of a perennial nature and so require ment (b) is satisfied, that the work is done through regular workmen in most Railways in the country and so requirement (c) is satisfied and that the work requires the employment of sufficient number of whole time workmen and so require ment (d) is also satisfied.
Thus all the relevant factors mentioned in section 10(2) of the Contract Labour (Abolition and Regulation) Act are satisfactorily accounted for.
In addi tion there is the factor of profitability of the catering establishments.
[177F H; 178A] Despite this, the Supreme Court will not issue of writ of mandamus to the Railway unless and until the Government of India fails or refuses to exercise the power vested in it under section 10 of the Act.
Under section 10 Parliament has vested in the appropriate Government the power to prohibit the employment of Contract Labour in any process operation or other work in any establishment.
The appropriate Govern ment is required to consult the Central Board or the State Board as the case may be before arriving at its decision.
The decision, of course, will be subject to judicial review.
In the circumstances the appropriate order to make in the present case is to direct the Central Government to take appropriate action under section 10 of the Contract Labour (Abolition and Regulation) Act in the matter of prohibiting the employment of contract labour in the work of cleaning catering establishments and pantry cars in the Southern Railway within a period of six months.
[178B D] (The Court further directed that (i) without waiting for the decision of the Central Government the administration of the Southern Railway will be free, of its own motion to abolish the Contract labour system and to regularise the services of those employed in the work of cleaning catering establishments and pantry cars in the Southern 166 Railway.
In any case, the administration of the Southern Railway will refrain, until the decision of the Central Government under section 10, from employing Contract labour; (ii) The work of cleaning catering establishments and pantry cars will be done departmentally by employing those workmen who were previously employed by the Contractor on the same wages and conditions of work as are applicable to those engaged in similar work by the Western Railway.
If there is any dispute whether an individual workman was or was not employed by the Contractor such dispute shall be decided by the Deputy Labour Commissioner, Madras; (iii) Any further directions may be sought, if necessary from the Madras High Court; (iv) If the Central Government does not finally decide the ques tion within six months the Southern Railway administration will within three months thereafter absorb the workmen into their service and regularise their services.
[178D G]