Union Of India, Sr. Divsnl ... vs The Gen. Secty., Parcel Porter ...
2021 Latest Caselaw 13970 Bom

                                1

                                                       lpa 304 of 2010 (J).odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           NAGPUR BENCH, NAGPUR



     LETTERS PATENT APPEAL NO.304 OF 2010
                      IN
         WRIT PETITION NO.4472 OF 2008
                         (Decided on 14.10.2009)




Union of India,
Senior Divisional Commercial Manager,
South East Central Railway,
Nagpur.                                                   ... Appellant/
                                                         Original Petitioner

      Versus

The General Secretary,
Parcel Porter Sanghatan,
S.E. Railway, Nagpur Division,
Motibag, Nagpur.                                          ... Respondent/
                                                       Original Respondent


Shri S.V. Purohit, Advocate for Appellant.
Shri N.W. Almelkar, Advocate for Respondent.



           CORAM : A.S. CHANDURKAR & G.A. SANAP, JJ.

           Date of Reserving the Judgment          : 27th August, 2021

           Date of Pronouncing the Judgment : 28th September, 2021


JUDGMENT (Per A.S. CHANDURKAR, J.) :

1. The challenge raised in this Letters Patent Appeal is to the

judgment of the learned Single Judge in Writ Petition No.4472 of

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2008 dated 14-10-2009. By that judgment, the learned Single

Judge was pleased to record a finding that the members of the

respondent-Union engaged as Parcel Porters were 'workmen'

within the meaning of Section 2(s) of the Industrial Disputes Act,

1947 (for short, 'the said Act'). Further directions were given

while remanding the proceedings to the Central Government

Industrial Tribunal to examine the entitlement of the members of

the Union to any relief consequent upon the aforesaid

adjudication.

2. The facts in brief are that on a dispute being made to the

Central Government by the respondent- Parcel Porter Sanghtana-

Union as regards the status of Parcel Porters engaged by the

Railways, the Central Government under the provisions of

Section 10(1)(d) and sub-section (2A) of the said Act made a

reference to the Central Government Industrial Tribunal to decide

the question as to whether the Parcel Porters engaged by the

Divisional Manager were 'workmen' under the provision of

Section 2(s) of the said Act, and if so, the relief to which they

were entitled. It may be stated that there were two reference

orders raising a similar question as made on 28-8-1998 and

16-8-1999. Both the proceedings were decided together. The

parties to the dispute led evidence and after considering the

same, the learned Presiding Officer by his award dated 28-3-2008

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was pleased to answer both the references by recording a finding

that the Parcel Porters engaged by the Railways were 'workmen'

and that they were entitled to regular pay and salary along with

increments from the date of their respective appointments. The

Senior Divisional Commercial Manager, South East Central

Railway, Nagpur, being aggrieved by the aforesaid adjudication,

preferred Writ Petition No.4472 of 2008. As stated above, the

learned Single Judge, after considering the pleadings of the

parties and the material on record, held that the Parcel Porters

engaged by the Railways were 'workmen'. However, as it was

found that the relevant documentary material had not been

appropriately brought on record by both the parties, the

proceedings were remanded to the Tribunal for a fresh

adjudication by observing that the question as to whether the

members of the Union were 'workmen' or not, would not be tried

by the Tribunal. This adjudication has given rise to the present

appeal.

3. Shri S.V. Purohit, learned counsel for the appellant,

submitted that the material on record was insufficient to record a

finding that the members of the Union, as named in the

Schedule, were 'workmen' under Section 2(s) of the said Act. The

documents placed on record by the Union had not been proved in

accordance with law. On finding that the documentary material

lpa 304 of 2010 (J).odt

was insufficient, the learned Single Judge ought to have allowed

the Writ Petition by setting aside the order of the Tribunal.

Instead the proceedings were remanded to the Tribunal which

gave an opportunity to the Union to fill in the lacuna, which was

not permissible. In that regard, the learned counsel referred to

the decisions of the Hon'ble Supreme Court in Hameed (Dead) By

LRs. and others Vs. Kummottummal Kunhi P.P. Amma (Dead) by LRs.

and others, reported in (2008) 15 SCC 155 and J. Balaji Singh Vs.

Diwakar Cole and others, reported in (2017) 14 SCC 207. It was then

submitted that the members of the Union, who were claiming to

be working as Parcel Porters, had in fact been selected by the

Screening Committee as Licensed Porters. This selection was

pursuant to the notification dated 4-7-1994 and after the

proceedings of the Screening Committee were held on 19-7-1994,

about 186 Licensed Porters had been selected. Those selected

had executed agreements and the terms and conditions

mentioned therein were applicable to them. Merely on the basis

of the statement made by the members of the Union that they

were assisting the Railway Authorities on certain occasions in

lifting parcels, a finding had been recorded that they were in fact

Parcel Porters and hence 'workmen', as contended. The learned

counsel referred to the material on record in the form of

affidavits and the receipt issued showing payment of licence

fees. It was then contended that the members of the Union were

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not entitled to the relief of regularization and payment as per the

prescribed pay scales. The procedure for recruitment for Parcel

Porters was distinct and without undergoing that procedure, the

services of the members of the Union could not have been

considered for regularization. For said purpose, the learned

counsel referred to the decisions of this Court in

Pune Municipal Corporation and others Vs. Dhananjay Prabhakar

Gokhale, reported in 2006(4) Mh.L.J. 66; State of Maharashtra and

others Vs. Indira General Kamagar Sanghatana and others, reported in

2015(6) Mh.L.J. 658; and of Hon'ble Supreme Court in Oil and

Natural Gas Corporation Vs. Krishan Gopal and others, reported in

2020 (3) SCALE 272. On the basis of the aforesaid, it was

submitted that on a proper consideration of the entire material

on record, the judgment of the learned Single Judge was liable to

be set aside.

4. Shri N.W. Almelkar, learned counsel for the respondent-

Union, supported the judgment of the learned Single Judge. At

the outset, he submitted that pursuant to the judgment of the

learned Single Judge, the Central Government Industrial Tribunal

after remand had considered the matter and on 15-7-2010

passed further award in favour of the members of the Union.

That final award was subjected to challenge in another Writ

Petition, which was pending. It was his submission that though

lpa 304 of 2010 (J).odt

the present Letters Patent Appeal was filed on 6-4-2010, the

appellant did not take any steps to seek interim relief of staying

the proceedings before the Tribunal. As a consequence, the

Tribunal proceeded with the adjudication and passed award in

favour of the Union. He invited attention to the order

dated 3-8-2010 that was passed while admitting the Letters

Patent Appeal. According to him, as the proceedings have now

been decided after remand, the challenge raised in the present

Letters Patent Appeal had become infructuous. He sought

dismissal of the appeal on that count. It was then submitted that

the learned Single Judge was justified in recording a finding that

the Parcel Porters engaged by the Railways were 'workmen'

under Section 2(s) of the said Act. Inviting attention to the

statement of claim and the reply filed thereto, it was submitted

that there was substantial material on record to indicate that

initially the members of the Union had been engaged for a period

of four hours daily, which was thereafter increased to eight hours.

It was further submitted that the Railways had been paying

minimum wages to these Parcel Porters and identity cards in that

regard were also issued to them. The services of some of the

Parcel Porters were transferred to other stations and control was

exercised by the Railway Administration. According to him, when

the orders of reference were not challenged by the Railways, it

was not open for them now to contend that the said Parcel

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Porters were not 'workmen' under the said Act. Each member of

the Union claiming relief was examined and the Tribunal

thereafter reached to the conclusion that the said members were

in fact Parcel Porters. The order of remand was only for the

purposes of determining the relief to which the members were

entitled after it was found that they were 'workmen'. In support

of his submissions, the learned counsel placed reliance on the

decisions of the Hon'ble Supreme Court in The Delhi Cloth and

General Mills Co. Ltd. Vs. The Workmen and others, reported in

AIR 1967 SC 469; Calcutta Port Sharmik Union Vs. Calcutta River

Transport Association and others, reported in 1989 I CLR 71; National

Federation of Railway Porters, Vendors and Bearers Vs. Union of india

and others, reported in (1995)3 Supp (SCC) 152; Karuna Bhattacharjee

Vs. State of West Bengal and others, reported in 2007 II LLJ 424; and

of this Court in Chandrashekhar Chintaman Vaidya Vs. National

Organic Chemical Industries Ltd., Akola, reported in

2010(3) Mh.L.J. 434. It was thus submitted that there was no

reason to interfere with the judgment of the learned Single Judge.

5. We have heard the learned counsel for the parties at

length and we have perused the material placed on record before

the Tribunal. The learned Single Judge after considering the

aforesaid material found on the basis of the statement of claim

and the reply filed by the Railways that the members of the

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Union were performing activities that were otherwise being

discharged by Parcel Porters and hence on the basis of said

material, the question as to whether the members of the Union

were 'workmen' or not could be answered. After noticing the

nature of activities undertaken by the Railways and the fact that

even according to the Railways itself the services of the Licensed

Porters were utilized to perform the work of Parcel Porters initially

for a period of four hours and thereafter for eight hours under the

directions of the Railway Authorities, it was held that the

members of the Union were 'workmen'. After perusing the

statement of claim and the reply as filed along with the material

in the form of affidavits, we do not find any reason for taking a

different view that the members of the Union were discharging

work as Parcel Porters and hence were 'workmen' under the

provision of Section 2(s) of the said Act.

6. On a perusal of the statement of claim as filed and

especially the contents of Paragraphs 17 to 20, it can be seen

that it was the specific case of the members of the Union that

they were appointed by the Railway Administration and they

were working under the administrative control of the Railway

Authorities. They were initially given work for four hours daily,

which was subsequently increased to eight hours. On that basis,

they were initially paid minimum wages as prescribed by the

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State Government and subsequently they were paid minimum

wages at the rates fixed by the Central Government. In the

written statement filed by the Railways, it was admitted while

replying to Paragraphs 20 and 21 that the members of the Union

were initially given work assigned to Parcel Porters for four hours

daily, which was subsequently increased to eight hours. It was

also admitted that the wages were being paid to these Licensed

Porters as per the notification issued by the Ministry of Labour.

The record indicates that the members of the Union were

examined in support of the statement of claim and this material

has been taken into consideration by the learned Single Judge.

A perusal of the deposition of the Assistant Commercial Manager

engaged by the Railways indicates that he was not in a position

to point out as to which Licensed Porters out of 186 candidates

selected had been issued licences. On the contrary, in his

cross-examination, it was admitted that a policy decision was

taken in 1994 with a view to give more work to Licensed Porters

for shifting of parcels. The said witness could not identify the

names of the persons who had paid licence fees. He also

admitted that the work of coolies while carrying the luggage of

the passengers was not supervised by the Railways, but the

Railways used to supervise the work of the said Licensed Porters

while moving the parcels. The names of the members of the

Union were appearing in the muster roll and some of them had

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been transferred from one station to another. The said witness

also admitted that the members of the Union had filed

proceedings under the Minimum Wages Act, 1948 and the

Railways had been directed to pay such wages to the members of

the Union, which order was maintained by the High Court.

The Railways also examined the Assistant Personnel

Officer, who was member of the Screening Committee. He

admitted that while no muster roll had been maintained for

Licensed Porters, the names of the Parcel Porters were recorded

in the muster roll. The Parcel Porters were paid by the Railways

as per the provisions of the Minimum Wages Act, 1948.

7. We find from the record that the Divisional Operational

Manager, who was Incharge at the relevant time, was examined

by issuing a witness summons at the behest of the Union. In his

deposition, he stated that about 200 persons were selected and

recruited as Parcel Porters. They were recruited for handling the

parcels of the Railways and not of the passengers. Initially, such

work was got done through a Contractor and after the expiry of

the term of that contract, the Divisional Railway Manager decided

to engage Parcel Porters on a large basis. It is on the

consideration of the aforesaid material that the learned Single

Judge was pleased to observe that the same was sufficient to

record a finding that the members of the Union though selected

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as Licensed Porters were engaged for discharging duties as

Parcel Porters and hence were 'workmen', as defined by

Section 2(s) of the said Act. We find that the aforesaid

conclusion is based on the material available on record and there

is no reason whatsoever to take a different view of the matter.

8. Coming to the aspect of the necessity for remanding the

proceedings in view of the fact that certain documents on record

had not been duly proved in accordance with law, we find that

this exercise was necessitated as the documentary material

sought to be relied upon by the parties had not been duly proved

as required. Initially, the Railways did not file any documentary

material on record and as the proceedings progressed, such

material was sought to be placed on record. Even before the

learned Single Judge, additional documents that were not before

the Tribunal, were sought to be relied upon. It is found that such

exercise of re-considering the relevant documents having a

bearing on the proceedings is necessary for determining the

nature of relief to which the members of the Union would be

entitled, if found necessary. It cannot be said that there was an

attempt to fill in the lacuna, as sought to be urged by the learned

counsel for the appellant. It has been found that both the parties

were responsible for there being insufficient documentary

material on record and in that backdrop it was found necessary

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to remand the proceedings. In the aforesaid background, the

decisions relied upon by the learned counsel for the appellant

and the ratio thereof cannot be applied to the case in hand.

9. While considering the challenge to the order of remand,

we cannot lose sight of the fact that pursuant to the judgment of

the learned Single Judge dated 14-10-2009, the parties contested

the reference proceedings before the Tribunal. The Union

examined about 152 members in support of its stand. In the

meanwhile, the proceedings under Section 17B of the said Act

were initiated by the members of the Union in view of the interim

orders passed and the said proceedings travelled up to the

Hon'ble Supreme Court. The present Letters Patent Appeal was

filed on 6-4-2010 and the record does not indicate that any

attempt was made to make a prayer for staying the proceedings

before the Tribunal after remand. As a consequence on

15-7-2010, the Tribunal decided the reference proceedings and

passed an award in favour of the members of the Union. This

fact was noted by this Court on 3-8-2010 while admitting the

Letters Patent Appeal. The events that have occurred after

passing of the judgment by the learned Single Judge will

therefore have to be kept in mind while considering the challenge

to the order of remand. At the same time, the contention raised

on behalf of the Union that since the final order was passed after

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the proceedings were remanded, the challenge raised in the

present Letters Patent Appeal had become infructuous, cannot be

accepted. The Railways were within their rights of challenging

the findings recorded by the learned Single Judge that the

members of the Union working as Parcel Porters were 'workmen'

and merely because the proceedings were subsequently

remanded, would not make the challenge to that part of the

order infructuous. Reference in that regard can be made to the

decisions of the Hon'ble Supreme Court in Union of India and others

Vs. Narender Singh, reported in (2005) 6 SCC 106; and Union of India

and others Vs. Ram Kumar Thakur, reported in (2009) 1 SCC 122. The

challenge therefore has been adjudicated by us on merits.

10. As regards the contention raised that the members of the

Union were not entitled to the relief of regularization or that

granting the same would result in a backdoor entry in service, we

refrain from examining that contention, since the only issue that

was required to be adjudicated was whether the members of the

Union who were discharging duties as Parcel Porters were

workmen or not. The aspect as regards relief to which the

members of the Union are entitled therefore is open for being

urged at the appropriate stage. We have therefore not

considered the decisions relied upon by the learned counsel in

that regard.

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11. In the light of the aforesaid discussion, we are satisfied

that there is no ground made out to interfere with the judgment

of the learned Single Judge. Consequently, the Letters

Patent Appeal fails. It is accordingly dismissed,

leaving the parties to bear their own costs.

                     (G.A. Sanap, J.)                              (A.S. Chandurkar, J.)

Lanjewar