The Judgment of the Court was delivered by

Prabha Shanker Mishra, C.J:— The case history of judicial surgery of the issues involved in the appeal and the petition aforementioned to the extent relevant is as follows:

2. The appellant and petitioner Steel Authority of India, for brevity called SAIL, engaged contractors for work at its stockyards within the jurisdiction of this Court who, in their turn, engaged labourers. Initial controversy as to who the competent authority was urged before the Apex Court in Writ Petition No. 1439 of 1987 which was disposed of as follows:

“We have heard the learned counsel for the parties we find that this is eminently a fit case in which a direction should be issued” to the State of West Bengal which is the appropriate Government under the Contract Labour (Regulation and Abolition) Act, 1970, to consider the justice whether the contract labour should be prohibited, in the stockyards namely—

(i) Paharpur Home Sales Stockyards.

(ii) Paharpur Transport and Shipping Stockyards.

(iii) Durgapur I Siding Stockyard.

(iv) Durgapur II Siding Stockyard.

(v) 20, Coal Berth Stockyard.

(vi) ‘R’ Block Stockyard which are run by the Authority of India.

We accordingly issue a direction to West Bengal State Government to consider whether contract labour should be abolished in the said stockyards or not and also appropriate orders within four months from today.

If any arrears of wages are due to the petitioners they are at liberty to approach the payment of wages authority, it is stated that the petitioners have already moved a petition before the payment of wages authority in Calcutta. We direct the West Bengal Government to appoint a Presiding Officer of the payment of wages authority within one month from today, the payment of wages authority shall dispose of the petition within five months.

Status quo as on today shall be maintained with regard to the employment of workmen concerned for contractor.

The writ petition is disposed of.”

Thus maintaining status quo, the Supreme Court directed the Government of the State of West Bengal to decide the question whether contract labour should be abolished in the stockyards or not and to issue appropriate orders within four months. In compliance to the above order of the Supreme Court, the State Government proceeded as required under the Contract Labour (Regulation and Abolition) Act, 1970, described hereinafter as the Act, and the rules framed thereunder. A committee constituted by the Advisory Board as contemplated under Ss. 4 and 5 of the Act after necessary enquiries, recommended and the Government on 15 July, 1989 issued notification prohibiting employment of contract labour in any process, operation or other work in the above four stockyards of the Steel Authority of India, Ltd., at serial Nos. 1, 2, 3 and 4 in the said Schedule with effect from 1 September, 1989. SAIL, however, requested the State Government to review its order and recall the notification and sought its suspension until the review application seeking recall of the notification of abolition of contract labour was disposed of. The State Government, on 28 August, 1989, issued notification to the effect that the operation of the order contained in the notification, dated 15 July, 1998, be kept in abeyance till 31 March, 1990. The order in the notification, dated 28 August, 1989, was continued under various subsequent notifications and it appears the said process of keeping the implementation of the notification of the operation of contract labour in abeyance was continued until 1 September, 1994.

3. Workers' union representing the contract labours of the said four stockyards moved this Court under Art. 226 of the Constitution of India in C.R 10108 (W) of 1989 soon after the notification abolishing the contract labour was issued and before it was suspended by the orders by the subsequent notifications by the Government of the State and sought direction to the respondent to forthwith implement the notification and absorb the labourers in the regular establishment.

4. The respondents entered appearance and brought to me Court's notice the fact that according to them the conditions for abolition for contract labour were not fulfilled and that SAIL had approached the State Government for reconsideration of the matter. According to the respondents the principal employer has the right to organise the business in a manner most convenient and profitable and SAIL had almost to close down its stockyards in Calcutta and shift them to Dankuni as on account of the change in its import policy, there was substantial diminution in the quantity of the materials handled by SAIL's stockyards and there were many factors which suggested that for the convenience of manning the stockyards it was necessary to engage contractors for work.

5. Learned Single Judge after taking into account the relevant facts and also being informed of the orders passed by the State Government to keep the notification of operation of contract labour in abeyance has held as follows:

“I find that the contention raised by the petitioners' counsel that the very fact that the State Government issued a notification, proves that all the conditions precedent for issuing the notification were satisfied cannot be brushed aside. It was not open to the State Government to virtually nullify that notification by extending successfully the postponement for years on end. It is the very negation of the labour welfare which the legislation seeks to achieve. The postponement is an unprincipled and capricious act. The notification issued has to have its force. It is already too late and the need of the reversal of the process brooks no delay. I, therefore, allow the petition.

The rule is made absolute. The orders of the Government of West Bengal staying the operation of the order, dated 15 July, 1989, prohibiting the employment of the contract labour in the stockyards of the Steel Authority of India, Ltd., and all subsequent orders keeping the said order in abeyance are set aside.

The petitioners will be entitled to absorption and regularisation from 15 July, 1989 when the contract labour was abolished. The respondents are directed to absorb and regularise the petitioners in any establishment under their control and they should be absorbed according to their suitability and experience for the particular job.

If it is not possible to regularise and absorb all the petitioners at a time, they should be absorbed phase by phase according to their seniority. But the process shall be completed within a period of six months from the date of communication of this order.”

6. SAIL has preferred appeal under Cl. 15 of the Letters Patent against the above order of the learned Single Judge and it appears on being advised also filed an application (Matter No. 1733 of 1994) invoking this Court's jurisdiction under Art. 226 of the Constitution to quash the notification of abolition of contract labour.

7. Two striking facts which give rise to two serious contentions on behalf of the workers' union and others in the entire episode are:

(1) The notification abolishing contract labour which has been issued by the State Government on 15 July, 1989 is challenged before this Court in August 1994; and

(2) SAIL, however, questioning the said notification in accordance with law moved the State Government for review of the matter and recall of the order of abolition of contract labour by making application to the said effect before the State Government.

8. The matter in respect of which the Supreme Court unequivocally observed that it was eminently a fit case in which a direction should be issued to the State of West Bengal which is the appropriate Government to consider the question whether the contract labour should be prohibited in me stockyards and fixed limit of four months for the said purpose on 14 November, 1988 and in which after going through the process of determination whether conditions under S. 10 of the Act were fulfilled, the State Government decided to abolish the contract labour and accordingly issued notification on 15 July, 1989, SAIL conveniently got interference by way of orders to keep the notification in abeyance from the Government of the State. Materials on record reveal that SAIL represented to the Chief Minister of the State against the notification of abolition and Minister for Labour granted to its General Manager and others courtesy of personal meetings after which the order of suspension of the notification for abolition of contract labour was issued.

9. In the letter, dated 18 August, 1989, to the Minister for Labour on the subject the General Manager of SAIL acknowledged as follows:

“We thank you for the courtesy extended to my colleague and myself when we met you personally today and explained to you the reasons and circumstances under which it will be impossible for us the continue operations in our stockyards at Calcutta from 1 September, 1989 if the above notification is not withdrawn or kept in abeyance.”

The acknowledgement of courtesy is accompanied by the threat that the operation in the stockyards at Calcutta would be stopped if the notification was not withdrawn or kept in abeyance.

10. One of the settled principles of law is that a person, who delays the action in Court and instead adopts other means to avoid obedience to an order of the competent authority, disentitles himself of any relief in the Court. Delay and laches are grounds to throw out a petition for exercise of the Court's discretion which discretion the Court exercises as of duty only when it is in respect of enforcement of fundamental right otherwise ex debito justitiae only.

11. Learned counsel for SAIL, however has contended that the notification abolishing contract labour by the Government of West Bengal is without jurisdiction as SAIL is a body created by a Central Government enactment for which the appropriate Government is the Central Government only. He has placed reliance upon the judgment of the Supreme Court in Air India Statutory Corporation v. United Labour Union reported in 1997 (1) L.L.N 75. The Supreme Court in the above judgment has opined as follow, in Para. 26, at pages 95 and 95:

“From the above discussion, the following principles would emerge:

(1) The constitution of the Corporation or instrumentality or agency or Corporation aggregate or Corporation sole is not of sole material relevance to decide whether it is by or under the control of the appropriate Government under the Act.

(2) If it is a statutory corporation, it is an instrumentality or agency of the State. If it is a company owned wholly or partially by a share capital, floated from public exchequer, it gives indicia that it is controlled by or under the authority of the appropriate Government.

(3) In commercial activities carried on by a Corporation established by or under the control of the appropriate Government having protection under Arts. 14 and 19(2), it is an instrumentality or agency of the State.

(4) The State is a service Corporation. It acts through its instrumentalities, agencies or persons — natural or judicial.

(5) The governing power, wherever located, must be subject to the fundamental constitutional limitations and abide by the principles laid in the directive principles.

(6) The framework of service regulations made in the appropriate rules or regulations should be consistent with the subject to the same public law principles and limitations.

(7) Though, the instrumentality, agency or person conducts commercial activities according to business principles and are separately accountable under their appropriate bye-laws or memorandum of association, they become the arm of the Government.

(8) The existence of deep and pervasive State control depends upon the facts and circumstances in a given situation and in the altered situation. It is not me sole criterion to decide whether the agency or instrumentality or persons is by or under the control of the appropriate Government.

(9) Functions of an instrumentality, agency or person are of public importance following public interest element.

(10) The instrumentality, agency or person must have an element of authority or ability to effect the relations with its employees or public by virtue of power vested in it by law, memorandum of association or bye-laws or articles of association.

(11) The instrumentality, agency or person renders an element of public service and is accountable to health and strength of the workers, men and women, adequate means of livelihood, the security for payment of living wages, reasonable conditions of work, decent standard of life and opportunity to enjoy full leisure and social and cultural activities to the workmen.

(12) Every action of the public authority, agency or instrumentality or the person acting in public interest or any act that gives rise to public element should be guided by public interest in exercise of public power or action hedged with public element and is open to challenge. It must meet the test of reasonableness, fairness and justness.

(13) If the exercise of the power is arbitrary, unjust and unfair, the public authority, instrumentality, agency or the person acting in public interest, though in the field of private law, is not free to prescribe any unconstitutional conditions or limitations in their actions.”

On the basis of the above, it is urged as has been held in the said case in respect of Air India Authority Corporation that it being an instrumentality of the Central Government, the appropriate Government is the Central Government, in the case of SAIL, the State Government of West Bengal is not the competent Government, it is the Central Government which is the competent Government.

12. This argument, however, has no legs to stand It is stated before us by the learned counsel for SAIL that before the judgment of the Supreme Court in Air India Statutory Corporation [1997 (1) L.L.N 75] (vide supra), being the instrumentality or agency of a State of Centre was not the criteria to decide as to whether the Central Government was the appropriate Government or the Government of the State, within whose jurisdiction labour is engaged, is the appropriate one. Until the judgment of the Supreme Court in Air India Statutory Corporation (vide supra), the principle applied was that the appropriate Government was the Government of the State within whose jurisdiction industrial activities were carried out and labour was engaged. In the case in hand, however, there is no scope for any doubt as to the competence of the State Government. The Supreme Court in W.P No. 1439 of 1987 aforementioned has held, that the State of West Bengal is the appropriate Government.

13. Thus, on principle that a subsequent change in law of a pronouncement of the Court will not render any act done by a person or authority who at the relevant time was competent to make the instrument or issue the order invalid as well as for the reason that the Supreme Court has left no manner of doubt that the appropriate Government is the Government of West Bengal, the contention that the Central Government is the appropriate Government and thus the notification of abolition of contract labour by the State Government is invalid has to fail.

14. Learned counsel for the SAIL has contended that it (SAIL) committed no mistake in moving the State Government for a review and recall of the notification of abolition of contract labour as the same was within the domain of the State Government and the notification, in effect, was an administrative act of the State Government. According to him, since it was an administrative act of the State, S. 22 of the Bengal General Clauses Act, 1899 (S. 21 of the Central General Clauses Act) is attracted and the authority which issued the notification/instrument was competent to review the same or stay or suspend the same. He has placed reliance upon certain judgments of the Supreme Court for the said proposition.

15. The said argument, however, if accepted, shall almost be conceding to the Government of the State power to review, rescind, suspend or otherwise modify the notification under S. 10 of the Act. Having held in Air India Statutory Corporation [1997 (1) L.L.N 75] (vide supra), that the Central Government was the competent authority the Supreme Court has observed, in Para. 29, at page 95:

“In the light of the above principles and discussions, we have no hesitation to hold that the appropriate Government is the Central Government from the inception of the Act. The notification published under S. 10 on December 9, 1976, therefore, was in exercise of its power as appropriate Government. So it is valid in law. The learned Solicitor-General is not right in contending that the relevant factors for abolition of contract labour system in the establishment of the appellant was not before the Central Advisory Board… Having abolished it, the Central Government was denuded of its power under S. 10(1) to again appoint in so far as the above services of the Mohile Committee to go once over into the self-same question and the recommendations of the latter not to abolish the contract labour system in the above services and the acceptance thereof by the Central Government are without any legal basis and, therefore, non est.”

Once, thus, the notification under S. 10 was issued by the Government of West Bengal it denuded itself of its power under S. 10(1) of the Act to again go into the question and decide whether the notification was valid or not.

16. The above, in our view, is also in accord with the principle when a certain action depends upon consideration of certain material facts and is in the nature of determination of issues for conclusions on the basis of which alone the action can be taken, partakes the character of a quasi-judicial action. Notification, though statutory in nature, in substance, is the result of a determination by the appropriate Government after being informed of the extents of relevant facts and after taking into consideration the relevant factors as enumerated in Sub-sec. (2) of S. 10 as well as other factors. Unless expressly provided a quasi-judicial authority cannot require its order.

17. Alternatively, to the above contention, learned counsel for the SAIL has urged before us that there are sufficient materials to show that the Government reached to its conclusions by not fully acquainting itself with all the relevant facts and without taking into consideration whether the work is one which is done ordinarily through regular workmen, in other establishments of SAIL or establishments of similar nature as well as whether the work is sufficient to employ considerable number of whole time workmen. According to the learned counsel for the SAIL the notification is vitiated and fit to be quashed on the ground that the process of satisfaction of the State Government in respect of existence of conditions for abolition of contract labour was dificient and incomplete. Except some ipse dixit in the appellant-petitioner's petitions and affidavit and representations in which such assertions on behalf of SAIL are made, there is nothing substantial on the record from which it can be inferred that due care has not been bestowed to all relevant factors in the decision making process before the notification of abolition of contract labour has been issued.

18. At one stage, learned counsel for the SAIL attempted to suggest that the Advisory Board constituted by the State Government was not valid but when could not show anything substantial gave up the said argument to confine to the contention that relevant considerations have not been made and left the Court to scan through the voluminous papers to find some bits here and some bits there for the view that there has been non-consideration of any of the relevant factors. Judicial review of an administrative order, more so, when it is a quasi-judicial order, is not the same as sitting in appeal over the order of a subordinate Court or authority. Coming thus over and again into the facts to find out whether the State Government took into consideration all relevant factors in exercise of the Court's judicial review power may, for compelling reasons be justifiable but not in a case like one in hand in which such review is sought for after a lapse of about five years. Laches in respect of which we have made some reference earlier, are more significant in this respect. The State Government has chosen to keep away from the proceedings before this Court. Its appearance before the Court in the instant proceeding is formal and almost stoic.

19. According to the learned counsel for respondents this attitude of the State Government is understandable, for it, did yield at several occasions to the unlawful demands of SAIL and put the order of abolition of contract labour in abeyance almost indefinitely by extending the same from time to time.

20. Although there are indications that everything has not been fair with the respondent-Government of West Bengal when it entertained the application of SAIL for recalling the order of abolition of contract labour, since in our view, the State Government acted wholly without jurisdiction in suspending the notification of abolition of contract labour and all such notification/orders suspending the notification of abolition of contract labour are non est. It is only reasonable to hold either the State Government acted deliberately and violated law or acted in ignorance of law altogether and issued several in valid notifications to suspend the notification of abolition of contract labour.

21. Ancillary to the above, the learned counsel for the SAIL has contended that no adequate opportunity of being heard was afforded to SAIL before the notification of abolition of contract labour was issued. This contention is totally bereft of contents for there are several materials on the record which show after the direction issued by the Supreme Court in W.P No. 1439 of 1987 when the matter was taken up by the State Government, Committee of the Advisory Board held local inspection, received representation from the management, contractor and the labourers as required by law and notification has been issued only after the Board has advised for abolition of contract labour.

22. There can be no manner of doubt that in case the relevant factors as contemplated under S. 10 of the Act are not taken into consideration or when opportunity of being heard, is not afforded, the affected, party may have a genuine cause and grievance against the instrument, notification or action of a State or instrumentality of a State. In case, however, of opportunity of being heard it is to be remembered that all infirmities in the procedure are not taken as rendering the action invalid While the case of no opportunity given can be taken to have rendered the instrument, order, notification or action void if opportunity of being heard is afforded but there are some errors or deviations in the procedure the final order/instrument/order/notification is not always void. In such a case the Court is required to consider whether the opportunity was adequate and if opportunity given is adequate, the instrument, order, notification or action cannot and need not be invalidated

23. It is difficult, on the facts of the case, to say that the Government of the State of West Bengal had not given adequate opportunity of being heard It is not possible to hold that the case of SAIL is prejudiced for want of opportunity of being heard.

24. Courts exercise discretion in the interest of justice and to promote the cause of justice. The Courts do not interfere, as a matter of rule, in exercise of their power under Art. 226 of the Constitution in all matters where some infraction of law is shown. If equity or public interest demands, the Courts ignore such legal infirmities provided the impugned action is not unjust and unfair. In the instant case, we have reasons to hold that SAIL's action, on the one hand is not in accordance with law in moving the State Government for the recall of notification of abolition of contract labour and on the other hand actuated by lapse and inordinate delay in moving this Court.

25. We have given our anxious consideration to all aspects of the matter. We have no hesitation in upholding the impugned judgment in the instant appeal being No. F.M.A.T 1460 of 1994 and holding that the Writ Petition No. 1773 of 1994 has no merit.

26. Both the appeal and the writ petition stated above are dismissed.

27. On the facts and in the circumstances of the case, there will, however, be no order as to costs.

Order accordingly.