IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 11th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION No. 2366 of 2016
Between:-
1. SURESH KUMAR SON OF SHRI
DALJEET; R/O VILLAGE DHALPUT,
TEHSIL KULLU, DISTRICT KULLU, H.P.
2. BHUPINDER KUMAR SON OF SHRI
DOLAT RAM; R/O HOUSE NO. 179,
SHEKHOWAL KAMBALA, PO
HEBOWAAL, TEHSIL GORHSANKAR,
DISTRICT HOSHIARPUR, PUNJAB.
3. BHIM MALAKAR SON OF SHRI
MUNGESHWAR; R/O VILLAGE
SUHATH, PO SAURA BAZAR SAHARSA,
DISTRICT SHARSA (BIHAR),
4. SURAJ KUMAR SON OF SHRI KANTA
PRASAD; R/O VILLAGE GOGAVA
RAKHEE LAKHSHEEPUR, PO RAISPUR,
TEHSIL VARANASI, DISTRICT
VARANASI, UP.
5. JAGAT SON OF SHRI MANI RAM;
RESIDENT OF VILLAGE MANOVA,
VIKASHAND BASAAR, PO SHUKAL
TEHSIL SUSAFIR KHANA, DISTRICT
CHATARPATI SAHUJI MAHAJAR
NAGAR, UP.
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6. SUKHH DEV SON OF SHRI
RAMDHAN, R/O HOUSE NO. 107,
AZAMGARH, PO GOVIND NAGAR,
.
TEHSIL GUHALA, DISTRICT KAINTHAL,
HARYANA.
7. JOGINDER SINGH SON OF SHRI BODH
RAM; R/O VILLAGE NALHACH, PO
BABELI, TEHSIL KULLU, DISTRICT
KULLU, HP.
8. KUNDAN LAL SON OF SHRI SOM
NATH; R/O VILLAGE KARIMPUR
DHIANI, PO SARAYA, DISTT. SBS
NAGAR, PUNJAB.
9. VIJAY KUMAR SON OF SHRI SOBHA
RAM; R/O WARD NO. 9, PO DHALPUR,
TEHSIL AND DISTT. KULLU, HP.
10. LALTA PRASAD SON OF SHRI RAM
LOTAN U/O VILLAGE KATHEHTI,
RANIGANJ PARGANA, TEHSIL
MUSAFIR KHANA, DISTT. CHATRAPATI
SAHUJI MAHARAJ NAGAR, UP.
11. ASHOK KUMAR SON OF SHRI SOM
NATH; R/P VILLAGE KARIMPUR
DHIANI, PO SARAYA, DISTT. SBS
NAGAR, PUNJAN.
....PETITIONERS
(BY SH. RAJESH VERMA, ADVOCATE)
AND
1. FOOD CORPORATION OF INDIA,16-20 BARA-
KHAMBA LANE, NEW DELHI THROUGH ITS
MANAGING DIRECTOR/CHAIRMAN.
2. GENERAL MANAGER, FOOD CORPORATION OF
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3
INDIA KASUMPTI SHIMLA-9.
3. DIVISIONAL MANAGER, FOOD CORPORATRION
OF INDIA, MANDI, DISTT. MANDI, HP.
.
4. MANAGER, FOOD CORPORARTION OF INDIAN,
REGIONAL OFFICE KULLU, DISTT. KULLU, HP.
...RESPONDENTS
(SH. B.C. NEGI, SENIOR ADVOCATE WITH M/S
PEEYUSH VERMA AND NITIN THAKUR,
ADVOCATES)
Whether approved for reporting?No
passed the following:
r to
This petition coming on for orders this day, the Court
JUDGEMENT
The case of the petitioners is that they are working under "no work no pay" system with the Food Corporation of India in its storage Depot at Kullu. Some of the petitioners are serving as such from the year 2004 onwards with the respondent-Corporation.
According to them, Ministry of Labour & Employment issued a notification dated 23.04.2010, vide which, it notified the stores in different parts of the country in which workers were deputed for loading/unloading, sweeping and cleaning works etc. The Depot in which the petitioners are working is notified at serial number 13 in the gazette notification appended with the petition as Annexure P-2.
Though the petitioners were working to the full satisfaction of the ::: Downloaded on - 31/01/2022 22:51:47 :::CIS 4 respondent-Corporation, but on 02.08.2016, the Corporation issued an order for rationalization of labour on the basis of guidelines dated .
12.07.2016 and exemption notification dated 06.07.2016. Allegedly, on account of the shortage of labour at FSD, Una, and for the purpose of capacity utilization at FSD, Kullu, to meet with the PDS requirements under no work no pay system, it was ordered vide notification that workers deployed at FSD, Kullu, under no work no pay system, may be shifted to FSD Una and adhoc contract labour be engaged at FSD Kullu. Copy of relevant notification is appended with petition as Annexure P-3.
2. This was followed by communication dated 03.08.2016 (Annexure P-4), in terms whereof, Regional Manager, Mandi, of the respondent-Corporation, directed the Manager of the Kullu Depot that all workers, who were working under no work no pay system, be shifted from Kullu to Una with immediate effect. In response, Manager (D) FSD Kullu, issued communication dated 23.08.2016, relieving all the petitioners without any prior notice to them.
3. As per the petitioners, they were appointed under a contract with an individual person/contractor Som Nath till October, 2011. After the issuance of the notification dated 23.04.2010 (Annexure P-2), respondent-Corporation engaged them under no work ::: Downloaded on - 31/01/2022 22:51:47 :::CIS 5 no pay system. They have worked to the full satisfaction of the corporation and there is no complaint etc. against them. The .
petitioners are working for a meager amount being paid to them, which is `246/- per day and this amount too is paid, in case, they do the work for an entire day in the Depot. If the work is not available, then, the person is neither marked present nor any remuneration for that day is paid to him. The families of the petitioners are residing with them and their children are school going. It is not possible for them to shift from Kullu to Una as the same entails expenses.
Respondent-Corporation has issued guidelines Annexure P-7 in terms whereof respondent-Corporation has come up with a policy for regularization of the service conditions of the workers brought under no work no pay system, but neither the petitioners have been promoted nor their salaries have been increased, yet, they stand shifted to a far flung area without following the principles of natural justice. On the basis of said pleadings, the petitioners have prayed for quashing of impugned orders dated 03.08.2016 (Annexure P-4) and 23.08.2016 (Annexure P-5).
4. The petition is resisted by the respondent-Corporation inter alia on the ground that transfers being an incidence of service, the transfer of the petitioners from Kullu to Una have been effected by ::: Downloaded on - 31/01/2022 22:51:47 :::CIS 6 the respondent-Corporation in terms of the policy guidelines framed by the respondent-Corporation on 12.07.2016, pursuant to notification .
dated 06.07.2016 issued by the Ministry of Labour and Employment, Union of India, whereby the Godowns, Depots and Railheads of the replying corporation other than the ones mentioned in the notification stand exempted from the applicability of the earlier notifications of the Union of India, whereby the employment of contract labour stands prohibited. Notification dated 06.07.2016 has been passed by the Union of India in exercise of powers conferred by Section 31 of the Contract Labour (Regulation and Abolition) Act, 1970, in compliance to the directions passed by Hon'ble Bombay High Court (Nagpur Bench) in PIL No. 84 of 2014, titled as Court on its own motion vs. Union of India & others, decided on 20.11.2015. As per the directions, the Corporation is entitled to transfer the services of departmental labour from one Depot to another subject to protection of salary of the labour and other work conditions and the decision to transfer the services of the petitioners was guided by the fact that labour at Kullu and Una Depots was deficient and the capacity utilization of FSD, Kullu, between April 2016 to August, 2016 remains on an average of 50-60%. The decision for transfer was also prompted by the fact that the capacity utilization of the Kullu Depot was the lowest as ::: Downloaded on - 31/01/2022 22:51:47 :::CIS 7 compared to other Depots, where the same was in the range of 75-
90% and the respondent-Corporation, being under obligation to .
maintain at least three months' stock to meet the requirements of the National Food Security Act, and it was on this ground that the Area Manager, Mandi, decided to shift the labour from Kullu Depot to Una Depot and it was in lieu thereof that the transfer of the petitioners were ordered and they stood relieved. It is further the stand of the respondents that allotment of the work shall be undertaken in Kullu Depot by engaging the labour on contract basis.
5. By way of rejoinder, the petitioners have reiterated the contentions raised in the petition and denied the averments made in the reply.
6. I have heard learned Counsel for the parties and also gone through the pleadings as well as documents appended with the petition.
7. The petitioners have been engaged by the respondent-
Corporation under no work no pay scheme. This means that as and when work was available at the Kullu Depot of the respondent-
Corporation, the petitioners were engaged and they were thereafter paid for the work performed by them. The grievance of the petitioners is with regard to their transfer from FSD, Kullu to FSD, Una. During ::: Downloaded on - 31/01/2022 22:51:47 :::CIS 8 the course of arguments, learned Counsel for the petitioners could not deny the fact that the respondent-Corporation was well within its .
domain and authority to order the transfer of the petitioners from one Depot to another. The contention of learned Counsel was with regard to impracticability of the transfer keeping in view the emoluments which the petitioners were actually getting from the respondent-
Corporation, which as per the petitioners was meager. But the petitioners do not have any indefeasible right vested in them to continue to be engaged by the respondent-Corporation under the no work no pay system at Kullu Depot forever. The decision of the respondent-Corporation of doing away with present system of engaging labour under no work no pay system is well within its authority in terms of the judgment passed by Hon'ble High Court of Bombay in case supra. If the respondent-Corporation intends to shift to some other mode of procurement of labour, keeping in view the practicability of its function of the Kullu Depot, then, the Court cannot stop it from doing so. The petitioners could not demonstrate during the course of arguments that the reason and the rationale spelled out in the reply by the respondent-Corporation for transferring the services of the petitioners from Kullu to Una Depot was not bonafide but driven by some ulterior motive or was an act of colorable ::: Downloaded on - 31/01/2022 22:51:47 :::CIS 9 exercise of power. That being the case, the Court is of the considered view that there is no merit in the contention of the petitioners that the .
respondents should be directed to continue to engage the petitioners at Kullu Depot under no work no pay system, after quashing the impugned communications. Whether or not the petitioners are willing to join at Una is their own prerogative, which cannot be forced upon them by the Court keeping in view the relationship between them and the respondent-Corporation, but the Court cannot restrain the respondent-Corporation from transferring the petitioners from its Kullu Depot to Una Depot.
8. Accordingly, in view of the discussion made herein above, as this Court does not finds any merit in the present petition, the same is dismissed. Interim order(s), if any, stand vacated. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel)
August 11, 2021 Judge
(narender)
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