Raju Mishra & Ors vs Union Of India & Ors
2022 Latest Caselaw 7852 Cal

Form No. J(2).
Item No.14

            IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE


                           HEARD ON: 28.11.2022

                        DELIVERED ON: 28.11.2022

                             CORAM:
             THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM
                               AND
        THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA

                           F.M.A. 339 of 2020

                            Raju Mishra & Ors.
                                 VERSUS
                           Union of India & Ors.



Appearance:-
Mr. Soumya Majumdar
Mr. Victor Chatterjee                  ....for the appellants

Mr. Arunabha Ghosh
Mr. Ashok Kr. Jena             ......for the Kolkata Port Trust


                               JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

1. This intra-Court appeal by the writ petitioners is

directed against the order passed by the learned Single Bench

in W.P. No. 20171(W) of 2005 dated 23rd June, 2015. The writ

petition was filed by the appellants for issuance of a writ of

mandamus to direct the respondents and in particular the

Kolkata Port Trust to appoint the appellants on regular basis

for the purpose of maintenance, laying, linking, changing etc.

of railway tracks stretching for 78 kilometres within the Port

Trust area.

2. The case of the appellants is that they have been

employed by the Port Trust for the purpose of carrying on the

maintenance, laying, changing etc. of railway tracks and they

have been continuing in employment for several years and the

work is perennial in nature and he contention of the Port

Trust that they are not direct employees of the Port Trust but

are the employees of a contractor is a stand, which is not

acceptable and cannot be taken.

3. Further, the appellants had pointed out that the

appropriate authority under the provisions of the Contract

Labour (Regulation and Abolition) Act, 1970 (for short, 'said

Act') exercised its powers under section 10(1) of the said Act

and have prohibited the employment of contract labour in the

work of sleeper renewal of railway tracks, repairing,

restoration and railway tracks establishments in the Kolkata

Port Trust. Therefore, it was contended that they are entitled

for regular absorption.

4. The learned single Bench had dismissed the writ petition

by referring to the decision of the Hon'ble Supreme Court in

Steel Authority of India Ltd. & Ors. vs. National Union

Waterfront Workers & Ors. reported at (2001) 7 SCC 1. It is

the endeavour of Mr. Majumdar to convince us by referring to

paragraph 125 of the Judgment in Steel Authority of India Ltd.

(supra), more particularly sub-paragraphs 5 and 6. It is

submitted that in terms of the decision of the Hon'ble Supreme

Court on issuance of prohibition notification under section

10(1) of the said Act prohibiting employment of contract

labour or otherwise, in an industrial dispute brought before

it by any contract labour in regard to conditions of service,

the industrial adjudicator will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result for

the establishment or for supply of contract labour for work of

the establishment under a genuine contract or is a mere

ruse/camouflage to evade compliance with various beneficial

legislations so as to deprive the workers of the benefit

thereunder. If the contract is found to be not genuine but a

mere camouflage, the so-called contract labour will have to be

treated as employee of the principal employer, who shall be

directed to regularise the services of the contract labour in

the establishment concerned subject to the conditions as may

be specified by it for that purpose. Sub-para 6 of paragraph

125 was also referred to support the argument that if the

notification issued under section 10(1) of the Act prohibiting

employment of contract labour has been held to be valid, then

the contract labour would be entitled for being given

preference by the employer.

5. In our considered view, all these issues are academic in

the present appeal as the appellants had approached the

learned writ Court under Article 226 of the Constitution

praying for issuance of a writ of mandamus to regularise the

services of the appellants.

6. It is well-settled legal position that a writ of mandamus

cannot be issued directing regularisation of an employee. That

apart, merely because the notification issued under section

10(1) of the said Act is held to be genuine, then it does not

mean that the contract labourers would automatically get a

vested right to be absorbed as regular employees of an

establishment. Therefore, the appellants were before the wrong

forum qua the prayers sought for in the writ petition.

Therefore, we are of the view that the learned writ Court

rightly declined to grant the relief sought for.

7. In the result, the appeal fails and is dismissed.

8. There shall be no order as to costs.

9. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

                                           (T.S. SIVAGNANAM, J.)




I agree,                           (HIRANMAY BHATTACHARYYA, J.)



RAJA/Pallab, AR(Ct.)