Calcutta High Court (Appellete Side)
Union Of India & Another vs Md. Noorul Haque on 11 October, 2023
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
W.P.C.T No. 47 of 2021
Union of India & Another
Vs.
Md. Noorul Haque
For the Petitioners : Mr. Kumar Jyoti Tewari, Adv.
Mr. Biswajit Maity, Adv.
Mr. Arijit Majumdar, Adv.
For the Respondent : Mr. Saptanshu Basu, Sr. Adv.
Mr. B. Chatterjee, Adv.
Mr. S. K. Datta, Adv.
Hearing Concluded on : October 05, 2023
Judgement on : October 11, 2023
DEBANGSU BASAK, J.:-
1. Union of India has assailed the order dated January
14, 2021 passed by the Central Administrative Tribunal,
Kolkata Bench in OA/350/768/2020.
2. By the impugned order, the Tribunal has allowed the
original application by directing the DRM, Eastern Railways to
issue orders of regularisation of the private respondent with
appropriate benefits at par with other Parcel Porters who had
been regularised, within a period of 4 weeks from the date of
receipt of the order.
3. Learned advocate appearing for the Union of India has
submitted that, Parcel Porters had initiated litigation for
regularisation in which, from time-to-time, various orders had
been passed including those by the Supreme Court. In such
context, he has drawn the attention of the Court to 2003
Volume 11 Supreme Court Cases 590 (AI Railway Parcel
and Good Porters Union versus Union of India and Others)
and 2018 Volume 18 Supreme Court Cases 168 (Ram
Bhajan Das and Others versus Union of India and
Others).
4. Learned advocate appearing for the Union of India has
submitted that, the private respondent is placed in the
seniority list which does not entitle him to regularisation.
Moreover, at present, there are no post vacant at which, the
private respondent can be regularised.
5. Learned advocate appearing for the Union of India has
submitted that, the private respondent was not in continuous
service for 240 days. Moreover, his services have been
terminated and that, there are proceedings pending before the
labour Tribunal with regard thereto.
6. Learned advocate appearing for the Union of India has
submitted that, the private respondent had been considered
with about 120 other candidates and that, the private
respondent did not clear the Screening Test. All other
candidates who had cleared the Screening Test had been
issued the appointment letters. He has referred to AI Railway
Parcel and Goods Porters Union (supra) in support of his
contention that, the private respondent must pass the
Screening Test.
7. Learned advocate appearing for the Union of India has
contended that, the Tribunal was guilty of non-application of
mind while passing the impugned order. The Tribunal did not
take into consideration the relevant facts and circumstances
of the case and proceeded to direct regularisation of the
private respondent when the private respondent was not
entitled thereto.
8. Learned advocate appearing for the Union of India has
pointed out that, the private respondent filed a number of
proceedings with regard to his claim for regularisation. Prior
to the impugned order being passed in the original application
of the private respondent, he had filed an original application
being OA 1269/2014 which was disposed of by an order dated
February 22, 2019. Such order of the Tribunal dated February
22, 2019 had required the DRM to give a personal hearing to
the private respondent, consider all the relevant documents
and issue appropriate order giving benefits on par with
identical circumstanced parcel porters. Pursuant to the order
dated February 22, 2019, the DRM had given the private
respondent personal hearing on May 8, 2019 and passed a
speaking order on December 12, 2019. He has pointed out
that, the Railways had already absorbed 47 candidates. He
has pointed out that, the private respondent was not a party
to the original proceedings which had received the
consideration of the Supreme Court in AI Railway Parcel
and Goods Porters Union (supra). He has pointed out that,
the DRM decided that, the private respondent should be again
screened and that such screening should be done in the
manner as was done for 47 candidates absorbed in
compliance with AI Railway Parcel and Goods Porters
Union (supra) and if found suitable to be included in the
seniority list amongst the various claimants as per the period
of working in compliance with the direction of the Supreme
Court and that, persons who worked for longer period as
contract labourer should be preferred to those who put in
shorter period of work.
9. Learned advocate appearing for the Union of India has
contended that, the private respondent never put in 240 days
of work as required under the Ministry of Personnel, Public
Grievances and Pensions (Department of Personnel and
Training, Casual Labourers (Grant of Temporary Status and
Regularisation) Scheme. In support of such contention, he has
drawn the attention of the Court to the documents annexed to
the supplementary affidavit filed on behalf of the Union of
India. Consequently, he has contended that, the private
respondent was not entitled to regularisation as directed by
the Tribunal in the impugned order.
10. Learned senior advocate appearing for the private
respondent has contended that, the right of the private
respondent to regularisation stood crystallised on the date of
the order of AI Railway Parcel and Goods Porters Union
(supra). He has contended that, the private respondent is not
governed by the scheme of 1993 as the scheme specifically
provides that it will not be applicable to casual workers in
Railways.
11. Learned senior advocate appearing for the private
respondent has contended that, the private respondent is
entitled to the benefit of regularisation as directed by the
Supreme Court in AI Railway Parcel and Goods Porters
Union (supra) in view of the subsequent decisions passed by
the Tribunal and the High Court and in particular the order
dated February 22, 2019 passed in OA 1269 of 2014 by the
Tribunal and order of the High Court dated October 8, 2013
passed in WPCT 250 of 2010.
12. Learned senior advocate appearing for the private
respondent has relied upon 2006 Volume 2 Supreme Court
Cases 747 (State of Karnataka and Others versus C.
Lalitha) and contended that, the private respondent has been
discriminated against unlawfully. The private respondent was
entitled to parity in employment with regularisation being
granted as the private respondent is similarly situated and
should be similarly treated as other parcel porters who had
been regularised. He has also relied upon 1987 volume 4
Supreme Court Cases for 31 (KI Shepherd and Others
versus Union of India and Others) for the proposition that,
excluding some of the employees under a scheme was violative
of Article 14.
13. Eastern Railway had a policy of engaging Parcel
Porters through contractors. One of such contractors
appointed by Eastern Railway had been Shalimar Contract
Cooperative Society Ltd under which, the applicant had
worked as Howrah Parcel Handling Contract Porter for the
period from June 1, 2003 to July 31, 2007 and also from May
1, 2008 to July 31, 2008 and from October 1, 1997 till March
3, 2001.
14. Fate of persons working as parcel porters with the
Railways on temporary basis had been decided by the
Supreme Court in AI Railway Parcel and Goods Porters
Union (supra) where directions had been issued to the Union
of India and the Railway Administration for regularisation of
parcel porters.
15. The Railways had issued a Railway Board Circular
dated April 25, 2005 for the absorption of contract labourers
who had worked as parcel porters. The Railways did not
regularise the services of the private respondent despite the
private respondent having worked as Parcel Porter. The
private respondent made several representations to the
railway authorities for regularisation.
16. Since the Railways did not regularise the services of
the private respondent, he had applied before the Supreme
Court for extension of the same benefit to himself as well as
other members of the association. The Supreme Court by an
order dated October 29, 2007 had granted liberty to the
private respondent to seek appropriate remedy from the
appropriate forum.
17. Thereafter, various original applications had been filed
before the Tribunal challenging condition number (i) and (vii)
of the Railway Board Circular dated April 25, 2005 which was
disposed of by an order dated November 20, 2004. Such
decision of the Tribunal had been challenged by the Railways
before the High Court by way of WPCT No. 75 of 2009. The
Supreme Court had decided the same issue in another
proceeding and struck down the 2 conditions noted above, as
contained in the Railway Board Circular dated April 25, 2005.
18. By the letter dated May 21, 2010 the Railway
authorities had rejected the claim of the private respondent of
regularisation on the ground that, the private respondent did
not work more than 10 years.
19. It would appear from the writing dated August 18,
2010 that, Railways authorities had absorbed 259 contract
labourers and it would also appear from such writing that,
persons had been absorbed who had never worked as contract
labourers even for a single day.
20. The private respondent had approached the Tribunal
by way of OA 1674 of 2010 being aggrieved by non-
consideration of his case for absorption. The Tribunal, by an
order dated August 19, 2010, had dismissed such original
application. The private respondent had filed a writ petition
being WPCT to No. 250 of 2010 challenging the order dated
August 19, 2010 passed by the Tribunal. The High Court had
passed an interim order dated October 5, 2010 directing the
railway authorities to allow the private respondent to appear
before the screening committee. Railway authorities had called
the private respondent for screening test in terms of such
interim order, on April 20, 2011. High Court had disposed of
the writ petition being WPCT No. 250 of 2010 by directing the
Railways to take appropriate decision in respect of the private
respondent on the basis of the recommendation of the
screening committee and after taking specific note of the order
dated February 26, 2013 passed by the Hon'ble Supreme
Court in IA No. 1 of 2013 in Writ Petition (Civil) No. 390 of
2012.
21. By a writing dated November 29, 2013, Railways had
rejected the claim of the private respondent on the ground
that he was not a party to Writ Petition (Civil) No. 390 of 2012.
The private respondent had challenged the writing dated
November 29, 2013 by way of OA No. 134 of 2014 before the
Tribunal. By an order dated February 6, 2014, the Tribunal
had quashed the writing dated November 29, 2013 and
directed consideration of the case of the private respondent for
regularisation. No appeal had been preferred against such
order.
22. Railways had passed an order dated April 25, 2014
rejecting the claim of the private respondent and claiming the
same to have been passed in terms of the order dated
February 6, 2014 of the Tribunal.
23. The order of the Railways dated April 25, 2014 was
challenged by the private respondent in OA No. 1269 of 2014.
The Tribunal had passed an interim order directing the
railway authorities to keep one post vacant till the disposal of
OA No. 1269 of 2014. Tribunal had disposed of OA No. 1269
of 2014 by an order dated February 22, 2019 by quashing the
order of the Railways dated April 25, 2014. The Railways had
filed a review petition which was dismissed on July 23, 2019.
24. The Railways had issued instructions regarding
absorption of Parcel Porters in terms of the order of the
Supreme Court, on August 14, 2019 which does not specify
completion of 240 days, as has been sought to be contended
on behalf of the Railways herein.
25. By a writing dated December 12, 2019, the DRM has
decided that the private respondent should be screened again
so as to find out as to whether, the services of the private
respondent can be regularised or not. Railways had called the
private respondent for a screening test by a writing dated
December 30, 2020.
26. The private respondent had applied under the Right to
Information Act whereupon, the Railways stated that, they did
not have any attendance register and wage sheet.
27. Whether the private respondent is entitled to
regularisation having worked as Parcel Porter is the issue
which has fallen for consideration.
28. The request for regularisation by the private
respondent has been turned down on the pleas that, the
private respondent did not work for 240 days in terms of the
relevant scheme, there were no vacancies available, persons
senior to the private respondent are yet to be regularised and
that, the private respondent was not a party to AI Railway
Parcel and Goods Porters Union (supra) and therefore, the
same facility cannot be extended to the private respondent.
29. AI Railway Parcel and Goods Porters Union (supra)
has directed the Union of India and railway administration
units as contained in paragraph 34 thereof which is as
follows: -
"34. We have carefully examined the report of the
Assistant Labour Commissioner, the findings
recorded therein and the counter-affidavits, reply
affidavits and rejoinder filed by the respective
parties. The facts disclosed in the report and the
findings recorded in regard to the perennial nature of
work cannot be overruled. Though we have heard at
length both the parties, the learned Additional
Solicitor General appearing for Railway
Administration was not able to point out to us any
valid reason as to why the present writ petitions
should not be allowed in terms of the order dated 15-
4-1991 made by this Court in similar Writ Petition No.
277 of 1988 [Raghavendra Gumashta v. Union of
India, (Reproduced in 1995 Supp (3) SCC 152 at p.
153, para 1)] , particularly in the matter of absorption
of contract labour by a public undertaking on a
permanent regular basis. We feel, therefore, it is just
and appropriate to issue the following directions to
the respondent Union of India and Railway
Administration units:
1. The Assistant Labour Commissioner, Lucknow
is directed to again scrutinize all the records already
placed by the petitioners and also the records to be
placed by the respective contractors and Railway
Adminis-tration and discuss and deliberate with all
parties and ultimately arrive at a conclusion in
regard to the genuineness and authenticity of each
and every claimant for regularization. This exercise
shall be done within six months from the date of
receipt of this judgment.
2. Subject to the outcome of the fresh enquiry and
the report to be submitted by the Assistant Labour
Commissioner, Railway Adminis-tration should
absorb them permanently and regularize their
services, the persons to be so appointed being limited
to the quantum of work which may become available
to them on a perennial basis. The employees so
appointed on permanent basis shall be entitled to get
from the dates of their absorption, the minimum scale
of pay or wages and other service benefits which the
regularly appointed railway parcel porters are
already getting.
3. The units of Railway Administration may
absorb on permanent basis only such of those
railway parcel porters (petitioners in this batch)
working in the respective railway stations concerned
on contract labour who have not completed the age of
superannuation.
4. The units of Railway Administration are not
required to absorb on permanent basis such of the
contract labour railway parcel porters who are found
medically unfit/unsuitable for such employment.
5. The absorption of the eligible petitioners in the
writ petitions on a regular and permanent basis by
Railway Administration as railway parcel porters
does not disable Railway Administration from
utilizing their services for any other manual work for
the Railways depending upon its needs.
6. In the matter of absorption of railway parcel
porters on contract labour as permanent and regular
railway parcel porters, the persons who have worked
for longer periods as contract labour shall be
preferred to those who have put in shorter periods of
work.
7. The report to be submitted by the Assistant
Labour Commissioner should be made the basis in
deciding the period of contract labour work done by
them in the railway stations. The report shall be
finalized and submitted after discussions and
deliberations with Railway Adminis-tration and the
contractors and all the representatives of the writ
petitioners or writ petitioners themselves.
8. While absorbing them as regular employees
their inter se seniority shall be determined
department/jobwise on the basis of their continuous
employment.
9. After absorption, the contract labourers will be
governed exclusively by the terms and conditions
prescribed by Railway Administration for its own
employees irrespective of any existing contract or
agreement between the respondent and the
contractors. No claim shall be made by the
contractors against Railway Administration for
premature termination of their contracts in respect of
the contract labourers.
10. Railway Administration shall be at liberty to
retrench the workmen so absorbed in accordance
with law. This order shall not be pleaded as a bar to
such retrenchment.
11. This judgment does not relate to the persons
who have already been absorbed."
30. AI Railway Parcel and Goods Porters Union (supra)
has therefore required the Union of India and the Railway
administration to absorb Parcel Porters. Railways
administration has issued Railway Board circular dated April
25, 2005 for absorption of Parcel Porters in terms of AI
Railway Parcel and Goods Porters Union (supra).
Condition No. (i) and (vii) of such circular had been struck
down by the Supreme Court. Such circular does not require
240 day work.
31. The private respondent is not covered by the Casual
Labourers (Grant of Temporary Status and Regularisation)
Scheme of Government of India, 1993 since clause 3 of such
scheme has provided that, the same shall not be applicable to
casual workers in Railways, Department of
Telecommunication and Department of Posts who already
have their own schemes.
32. As has been noted above, so far as the private
respondent is concerned, a number of proceedings took place.
In particular, the decision of Railways dated November 29,
2013 rejecting the claim of regularisation on the plea that the
private respondent was not a party to AI Railways Parcel
and Goods Porters Union (supra) and therefore not entitled
to the benefits thereunder was struck down by the Tribunal
by an order dated February 6, 2014 passed in OA No. 134 of
2014. No appeal had been carried therefrom. By an order
dated October 18, 2013 passed in WPCT 250 of 2010, the
High Court had directed the Railway authorities to take
appropriate decision in respect of the private respondent on
the basis of the recommendation of the Screening Committee
and also taking specific note of the order dated February 26,
2013 passed by the Hon'ble Supreme Court in AI Railways
Parcel and Goods Porters Union (supra). Subsequent to the
orders passed from time to time and the conduct of the
railway administration, it cannot now be gainsaid that, the
private respondent is not covered by the decision of AI
Railway Parcel and Goods Porters Union (supra) or is not
entitled to regularisation in service.
33. Our attention has been drawn to the persons who had
been regularised by the railway administration and we find
from such chart, which is not disputed that, persons who did
not even work for a single day were regularised. Moreover,
nothing has been shown to us that there is a prescription of
240 days as erroneously contended on behalf of Union of
India.
34. The contention that, no vacancies are available or that,
there are persons who are senior to the private respondent
has no foundational basis. A post had been directed to be kept
vacant in one of the rounds of litigations, by the Tribunal.
Nothing has been placed before us to suggest, let alone
establish that, there are persons who are senior to the private
respondent awaiting regularisation.
35. Ram Bhajan Das and Others (supra) has directed
consideration of names of the petitioners therein, in case they
were otherwise eligible, ignoring objection on qualification, for
appointment. Such directions had been issued under Article
142 of the Constitution. Therefore, it should not be considered
as an authority for the proposition as has been sought to be
contended on behalf of the Union of India.
36. K I Shepherd and others (supra) has considered the
fate of excluded employees from the service in the transferee
bank under a scheme for amalgamation under the provisions
of the Banking Regulation Act, 1949.
37. C. Lalitha (supra) has held that, all persons similarly
situated should be treated similarly irrespective of the fact
that only one person has approached the Court.
38. We therefore hold that the private respondent is
entitled to regularisation. The issue framed is answered in the
affirmative and in favour of the private respondent.
39. In view of the discussions above, we find no merit in
the present writ petition. We affirm the impugned order of the
Tribunal. The time to comply with the impugned order is
extended for a period of 4 weeks from date.
40. W.P.C.T No. 47 of 2021 is dismissed without any order
as to costs.
[DEBANGSU BASAK, J.]
41. I agree.
[MD. SHABBAR RASHIDI, J.]
Later :-
Prayer for stay of operation of the judgement and order
prayed for is considered and rejected.
[DEBANGSU BASAK, J.]
I agree.
[MD. SHABBAR RASHIDI, J.]
