Calcutta High Court (Appellete Side)
The Hon'Ble Justice vs M. Velumani on 13 October, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice V. M. Velumani
&
The Hon'ble Justice Rai Chattopadhyay
MAT 989 of 2023
With
CAN 1 of 2023
Board of Trustees for Syama Prasad Mookherjee
Port & Anr.
Vs.
Union of India & Ors.
For the Appellants : Mr. Kishore Dutta,
: Mr. Ashok Kr. Jena.
For the Respondent Nos. 3-15 : Dr. Madhusudan Saha Roy,
: Mr. Moloy Dhar,
: Mr. P.K. Ghosh.
For the Respondent No. 16 : Mr. Puspal Chakraborty,
: M. A. Jena.
Hearing concluded on: 17/08/2023
Judgment on: 13/10/2023
Rai Chattopadhyay, J.
1. The unsuccessful writ petitioner, in WPA No. 10637 of 2020,
has filed this appeal to challenge the judgment of the Hon'ble
Single Judge dated 27.3.2023, in the said writ petition.
2. The issue relates to the long standing demand of the present
respondents No. 3 to 16, for their regularisation with the
appellant. The previous two rounds of bouts between the parties
before this Court were culminated vide this Court's order, into
consideration by the Central Industrial Tribunal, in an
industrial dispute raised before it for adjudication, of the issue
of regularisation of the said respondents. The Tribunal has
passed an award on 19.12.2019, directing the present appellant
to regularise the said respondents. Being aggrieved thereby, the
present appellant/writ petitioner had preferred the writ petition
as above, to challenge the said award. However being not
successful also in the said writ petition before the Hon'ble
Single Judge, who has eventually upheld the decision of the
Tribunal, the appellant has filed the instant appeal. In this
appeal the appellant has virtually challenged both the judgment
of the Hon'ble Single Judge as well as that of the Tribunal.
3. The respondents No. 3 to 16 have been employees in the
Kolkata Port Trust Officer's Club ['club' hereinafter], who were
appointed between the years 1989 and 1994. Since thereafter
they have been working continuously in the said 'club' and
guesthouse. Kolkata Port Trust, Haldia Dock Complex [KoPT] is
a statutory body under the Major Port Trusts Act, 1963. The
'club' was set up in the year 1987, to incorporate club as well as
the guesthouse. This was set up on the land of KoPT, having its
own structure with interiors and fixtures. The membership of
the 'club' and guesthouse would extend to the officers of the
KoPT including retired officers and other similarly ranked
persons from central or state government and public sector
undertakings. Such membership would not be coterminous
with the employment with KoPT. The sources of fund to run the
club would be generated through subscription of members and
also grants received from KoPT. Prolonged and continuous
service of the said respondents, in the said 'club' and guest
house has prompted them to raise demand for regularisation of
service with the appellant body corporate, to which the Tribunal
as well as the Hon'ble Single Bench in their judgments
respectively, have given a nod, through their respective
judgments.
4. Mr. Dutta Ld. Senior Counsel, who is representing the appellant
has firstly contended that the statutory body corporate which
he represents is required to function in due adherence with the
provisions of statute to which its origin is related and also
governed by the regulations thereof, that is, regulations of 1985.
He says that the governing regulations of the appellant, of 1985
include the Central government rules for regular appointments.
He informs the Court that appointments are being made in
terms of the said regulations by way of promotion, transfer of
employees or direct recruitment. Mr. Dutta says that excepting
the modes as above, the governing regulations of the appellant
does not provide any other mode of appointment. He says that
the appellant being the statutory body corporate is duty bound
to follow the prescribed regulations for the purpose of
appointment and is only powerless to provide the same in any
manner excepting that has been promulgated in the said
regulations. He further specifies that under the statute as well
as the regulations, the claim of the said respondents for
regularisation of their service with the appellant cannot be
maintained and also that pursuant to the same any such
regularisation would only be illegal. Mr. Dutta's first submission
is that in both of the judgements as assailed in this appeal,
gross error occurred due to non-consideration of this aspect,
which actually touches the very root of the matter.
5. Thereafter, Ld. Senior Counsel turns to a verdict of the Hon'ble
Supreme Court, that is of Balwant Rai Saluja & Another vs AIR
India Limited & Others reported in (2014) 9 SCC 407, to say that
there are specific guidelines provided therein by the said Court,
to be followed, when a question of existence of employer-
employee relationship between the parties falls for consideration
of the Court. For the benefit of discussion, let the relevant
portion of the said judgment be extracted herein below :
"65. Thus, it can be concluded that the relevant factors to be
taken into consideration to establish an employer-employee
relationship would include, inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there exists
complete control and supervision.
As regards extent of control and supervision, we have already
taken note of the observations in Bengal Nagpur Cotton Mills
case, International Airport Authority of India case and Nalco
case."
6. He then refers to the relevant documents to submit that neither
of the said guidelines as provided in Saluja's case (supra) has
been fulfilled in the present case. According to him both the
Tribunal as well as the Hon'ble Single Judge has failed to
consider the same. He says that the same has rendered the
impugned judgment to be contrary to the law as it is settled
now. Mr. Dutta has elaborated that neither the present
respondents can be considered to be governed under the statute
or regulations applicable in case of employees in the rolls of the
present appellant, nor any other factor like the appellant
remitting additional grant to run the 'club' or an officer of the
appellant to administer and manage businesses of the 'club' in
his ex officio capacity, and as a mere informal constituent of
that body, could be the justifiable basis upon which the present
respondents could have been bestowed with the status of
employees of the appellant itself. According to Ld. Senior
Counsel, a concept of 'principal employer', in case of his client,
has been brought in only erroneously, insofar as in case of the
present respondents there is no intermediary functioning
namely, a contractor. This is an erroneous application of law,
he says. It has further been stated that the service conditions of
the present respondents would not have any statutory
enforceability as the same do not flow from any statute. The
'club' is only an informal body and cannot be equated with the
statutory body governed by specific regulations. That, the
appellant would have obligation towards its employees within
the scope of the statute itself and unless it had any such
statutory duty and obligation towards the present respondents,
which are not there, they cannot be legally obligated to extend
the benefit to the present respondents, as claimed.
7. The other judgement referred to by Mr. Dutta is Employers in
relation to the management of Reserve Bank of India vs. Workmen
reported in (1996) 3 SCC 267. There the Supreme Court was
dealing with the issue of regularisation or not of the non-
statutory canteen workers. One previous judgment of the Court
in MMR Khan vs. Union of India reported in 1990 Supp SCC
191), has been distinguished in this case. Mr. Dutta has shown
that the ratio of the decision has been that with limited role and
functioning with regard to the affairs of the committee, which
runs the canteen, the appellant therein was not held to have
any control on the employees engaged by the committee, by way
of managing their day to day affair or taking any disciplinary
action. The Court found the only role played by the appellant in
running the canteen was to nominate the three members to the
committee. The Court held that in absence of any obligation,
statutory or otherwise regarding running of a canteen, the
workers thereof would not be considered to be regularized in
service with the appellant therein.
8. S.C Chandra & Ors. vs. State of Jharkhand & Ors. reported in (2007)
8 SCC 279, is the other Supreme Court judgment which has
been relied on by the appellants here. The matter related to the
government recognized school started by the subsidiary
company of Hindustan Copper Limited (HCL). The school was
initiated getting financial assistance from the management of
HCL, though subsequently there was financial crunch. The
Court firstly held that though the management of HCL was
giving financial aid to the school and most of its employees,
were in the management committee of the school but by that it
could not be construed that the school was run by the
management of HCL. By referring to ratio of this decision of the
Supreme Court, Mr. Dutta has also argued that there is no
parity or identity of work which the present respondents as the
employees of the 'club' and the employees of the appellant
Board, are discharging. He says that in the said judgment the
Court has negated that there should be any equality in pay to
the persons who are not discharging equal or identical works.
9. He has referred to the judgment in National Aluminium Company
Limited & Ors. vs. Ananta Kishore Rout & Ors. reported in (2014) 6
SCC 756 also. School was set up by NALCO which also took care
of the financial deficits if any of the school. Officer of NALCO
were nominated to the management committee of the schools.
NALCO provided necessary infrastructure, staff quarters at
disposal at school and also accorded other benefits like
recreation 'club' facilities. On the other hand the management
committee recruited staff and used to take decision regarding
their service condition. The Court held that all these factors, as
mentioned above, could not make NALCO an employer of the
staff of the school. The Court held further that in order to
determine the existence of employer-employee relationship, the
correct approach would be to consider as whether there is
complete control and supervision of NALCO, over the school, or
not.
10. According to Mr. Dutta, only complete control and supervision
of the appellant would justify the claim of regularisation of the
respondent nos. 3 to 16 in service with the appellant. He says
that the materials available in this case through the evidence on
record placed before the Tribunal, would not show that any
parameter upon which the extent of control and supervision
should have been assessed, in terms of the settled law as
discussed in the cases, as mentioned above, have not been
fulfilled in the present case. According to him neither the day
to day affairs of the respondents are within the domain of the
appellant, nor the appellant as the regulatory or disciplinary
authority of the respondents and it only exercises 'remote
control' with respect to the affairs of the respondent nos. 3 to
16. Hence law would not allow them to be a part of appellant's
work force, whose entire service with the appellant is governed
under the provisions of Major Port Trusts Act, 1963. Lastly, Mr.
Dutta has urged that the appeal may be allowed by setting
aside the impugned judgment of the Hon'ble single bench dated
27.3.2023.
11. There has been strong objection on the part of the concerned
respondent's as to the submissions and prayer of the appellant.
The arguments made may be jotted down by saying that the
respondents are governed under the bylaws framed by the
appellant for the purpose. Posts were created by the appellant
to create manpower for running the 'club'. Accordingly the
arguments of the appellant that the respondents cannot legally
enforce their claim of regularisation is only unfounded. Again
that, the 'club' is run by the subscription of the members as
well as the additional grant paid by the appellant, which is a
permanent and regular feature unlike what has been submitted
on behalf of the appellant that the grant is extended only upon
requisition made by the 'club'. That, the salary of the
respondents are paid by the appellant through the accounts of
the 'club'. That, the management, policy-making and execution
of the policies including financial decisions are bestowed with
the appellant only to render the 'club' as a protuberance of the
appellant, directly controlled by it. It has been submitted that
all these aspects which are essentially the questions of fact has
been duly considered by the Tribunal, on the basis of the
evidence produced before it and has come to a finding which is
just fair and proper. It has been further submitted that, the
Hon'ble Single Bench has considered the award of the Tribunal,
in its right perspective and by a well reasoned judgment, upheld
the said award. Therefore, according to the respondents, there
would be no cogent ground for this appeal Court to interfere
into the said impugned judgment of the Hon'ble Single Judge.
12. Saluja's case (Supra) has also been referred by the respondents
too. There in unison with what has been submitted by the
appellant that the criteria as mentioned in paragraph 65 of
Saluja's judgment (Supra) (mentioned at page no. 4 of this
judgment), are the tests to ascertain existence of any
relationship of employer and employee between the two parties.
13. The respondents have also mentioned the case of Indian Overseas
Bank vs. I.O.B Staff Canteen Workers' Union & Anr. reported in (2000)
4 SCC 245. The same has been referred, to emphasise that "21.
........ if on the facts proved, the findings recorded by the
Tribunal are justified and could not be considered to be based
upon "no evidence", there is no justification for the High Court
in exercising writ jurisdiction to interfere with the same. The
promoters of the canteen being permanent employees in the
service of the Bank, were permitted to run the canteen, by
merely being in control of the day-to-day affairs of the canteen,
the Bank cannot be absolved of its liabilities when it was really
using the canteen management as its instrumentality and
agent. The cloak apart, the "voice definitely is that of Jacobs".
Consequently, we could neither find any error of law or other
vitiating circumstances in the judgment of the Division Bench
nor any infirmities in the process of reasoning or gross
unreasonableness and absurdities in the conclusions arrived at
to restore the award, so as to justify and warrant our
interference in the matter". Infrastructural facilities like
premises, furniture, utensils, electricity, cost of fuel and also
subsidy for using the canteen and the funds for running the
same were provided by the employer. Promoters of the co-
operative canteen were actually the servicing employees of the
bank. They only as promoters of the canteen employed staff of
the canteen. The Court decided on this facts in the manner as
mentioned above that the staff of the canteen should be treated
as the employees of the appellant bank. At the same time the
same as iterated the principle relating to the scope of judicial
review.
14. The further case referred to on behalf of the said respondents is
of Chennai Port Trust Vs. Chennai Port Trust Industrial Employees
Canteen Workers Welfare Association reported in AIR 2018 SC 2272.
The port trust exercises the administrative control over the
canteen. The Court held that the workmen of canteen were the
workman of management of port trust and thus entitled to
regularisation with all benefits as that of employees of port
trust.
15. Another judgment of State of Karnataka & Anr. vs. N. Gangaraj
reported in AIR 2020 SC 1878, has been referred to by the said
respondents to highlight the point that once the evidence has
been accepted by the fact finding authority that the
departmental authority or Tribunal, the High Court in exercise
of power of judicial review cannot interfere with the finding of
facts recorded by re-appreciating evidence as if it was an
appellate authority. Unless the orders passed by the fact
finding authorities suffer from patent illegality, those are not
liable to set aside only for the reason that an alternative view
can also be taken on the similar set of facts.
16. We would like to refer our finding starting from the point of
scope of judicial review. The scope for this appeal Court to
traverse the evidence on record would be very limited and only
would be contingent and subjected to a finding that the process
of appreciation of the same has suffered gross error or
perversity leading to error in judgment. Necessary guidance in
this regard may be sought for from the decision of the Hon'ble
Supreme Court in case of N. Gangaraj (supra). The Supreme
Court has observed that judicial review is review of the process
of decision making, it's manner. Judicial review is not an appeal
in disguise. Therefore, not at every drop of a hat the Court
would interfere while exercising power of judicial review unless
any gross illegality and perversity is apparent, emanating from
violation of principles of natural justice or statutory non-
compliance, absolute arbitrariness on the part of the decision-
making authority to come to any particular conclusion or if
vitiable due to consideration of irrelevant factors not on record.
The law now being settled in the manner as above, this appeal
court will proceed with circumspection in order to adjudicate if
at all any interference to the judgment of the Hon'ble Single
Judge is warranted.
17. Reference may also be made to another judgment of Muzaffar
Husain vs. State of U.P. reported in 2022 SCC Online SC 567, of the
Hon'ble Apex Court where the Apex Court in connection with
the finding of an enquiry officer in a disciplinary proceeding,
has been pleased to hold as follows:-
"8. It is trite to say that the power of judicial review
conferred on the constitutional Court is not that of an appellate
authority but is confined only to the decision-making process.
Interference with the decision of departmental authorities is
permissible only if the proceedings were conducted in violation
of the principles of natural justice or in contravention of
statutory regulations regulating such proceedings or if the
decision on the face of it is found to be arbitrary or capricious.
The Courts would and should not act as an appellate Court and
reassess the evidence led in the domestic enquiry, nor should
interfere on the ground that another view is possible on the
material on record. If the inquiry has been fairly and properly
conducted, and the findings are based on evidence, the
adequacy of the evidence or reliability of evidence would not be
a ground to interfere with the findings recorded in the
departmental enquiries."
The Hon'ble Apex Court was dealing with a matter of
misconduct of a judicial officer. While deciding the matter the
Apex Court has referred to the other two judgments of the
Hon'ble Apex court on the point, in the manner as follows:
"9. In the High Court Of Judicature At Bombay v. Shashikant
S. Patil, this Court held:--
"The Division Bench of the High Court seems to have
approached the case as though it was an appeal against the
order of the administrative/disciplinary authority of the High
Court. Interference with the decision of departmental
authorities can be permitted, while exercising jurisdiction
under Article 226 of the Constitution if such authority had held
proceedings in violation of the principles of natural justice or in
violation of statutory regulations prescribing the mode of such
inquiry or if the decision of the authority is vitiated by
considerations extraneous to the evidence and merits of the
case, or if the conclusion made by the authority, on the very
face of it, is wholly arbitrary or capricious that no reasonable
person could have arrived at such a conclusion, or grounds very
similar to the above. But we cannot overlook that the
departmental authority (in this case the Disciplinary Committee
of the High Court) is the sole judge of the facts, if the inquiry
has been properly conducted. The settled legal position is that
if there is some legal evidence on which the findings can be
based, then adequacy or even reliability of that evidence is not
a matter for canvassing before the High Court in a writ petition
filed under Article 226 of the Constitution."
10. Again, in the State Bank of Bikaner & Jaipur v. Nemi
Chand Nalwaya, it was observed in para 7 as under:
"7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the domestic
enquiry, nor interfere on the ground that another view is
possible on the material on record. If the enquiry has been
fairly and properly held and the findings are based on evidence,
the question of adequacy of the evidence or the reliable nature
of the evidence will not be grounds for interfering with the
findings in departmental enquiries. Therefore, courts will not
interfere with findings of fact recorded in departmental
enquiries, except where such findings are based on no evidence
or where they are clearly perverse. The test to find out
perversity is to see whether a tribunal acting reasonably could
have arrived at such conclusion or finding, on the material on
record. Courts will however interfere with the findings in
disciplinary matters, if principles of natural justice or statutory
regulations have been violated or if the order is found to be
arbitrary, capricious, mala fide or based on extraneous
considerations."
18. Therefore this Court is conscious enough to follow the settled
law that while reviewing judicially, not the decision by itself but
the process of making decision should be the concern and
subject matter of the Court, unless palpable illegality or gross
perversity is apparent in the decision itself. As a matter of fact,
in the present case the Tribunal being the fact finding authority
has applied its mind to the evidence and other materials on
record. By doing so, it has come to a define finding. It is a trite
law that even if in anybodies opinion the decision of the
Tribunal is wrong, the same may not be interfered into, unless
based on either no evidence or so palpable in defying the
evidence on record or contrary to the settled law, that it could
be termed as a perversity. If not so, the Court of equity would
not unsettled the decision of the fact finding authority.
19. It is exactly where the case of the appellant rests. The appellant
says that the fact finding process has been erroneous and not
in terms of the settled law. It has also stated of the fact finding
authority to have acted in closed mind by not applying adequate
attention to the 'relevant' facts of the case, which would have
shown as to how the present respondents nos. 3 to 16 are
working in a concern (i.e, 'club'), which is absolutely
disassociated with the appellant. They also say that appellant's
involvement as to the 'club' where the respondents are working,
cannot be termed as the direct and absolute control by them
over there, which could have rendered the respondent's rights
to claim dissertation from the 'club' management, to the rolls of
the appellant board.
20. So far as the fact that the respondents have been engaged in
the club during the period from 1989 to 1994 and they have
been working uninterruptedly since then, are concerned, those
are undisputed in this appeal. It is not a case of the appellant
that the respondents have been discharging for all these years a
service, which is not permanent in nature. The appellant also
does not dispute that the 'club' has no separate entity as an
organisation, but has been controlled in terms of the bylaws
created for its operation, by the appellant itself.
21. Though this Court is of the opinion, on the basis of the
discussions as above, that there is very minimal scope for it to
go into the merits of the case, as in this case the decision of the
fact finding authority is not appearing as perverse or based on
no evidence. The Court, still, for the ends of justice would
discuss as herein below. The moot question appears to be as to
whether the 'club' is distinct and separable as an entity, from
the appellant or those should be considered as inseparable
systems, of which the present respondents are also a part.
22. According to the appellant, those are different entities and the
appellants are obliged for enforcement of rights of its employees
only, amongst whom the present respondents would not come.
Appellant has relied on a sufficient number of judicial
pronouncements to fortify its argument that it cannot be said to
have an employer-employee relationship with the present
respondents. That, unless respondent's rights are flowing from
the statute or regulations governing the appellant, they cannot
insist for enforcement of any of their rights including that of
regularisation, against the appellant.
23. As early as in 2013, the Supreme Court has addressed this
issue in the case of Balwant Rai Saluja (supra), by setting up
guidelines to deal with the question of employer-employee
relationship. Therefore it would not be a blanket prerogative of
the employer to create organisations within the organisation
and take a veil of separating them from the principal employer
in order to keep them away from the usual applicable service
benefits. This would be in contravention of the policies of a
welfare state. Hence in judicial review, the Hon'ble Supreme
Court has provided for keeping pace with the formulated
guidelines to remove the said veil, if any. The adjudicating
bodies are in turn obligated to weigh each and every case
against the touchstone of the said guidelines to come to a just
and proper finding.
24. The guidelines in Saluja's case (supra) would be considered as
fulfilled through the material facts as would be transpiring in
the evidence before the trial Court. For this the appellant has
taken this court to the various parts of evidence including
documents produced. It has been an endeavour on part of the
appellant to show that on the basis of the records the relevant
questions would only be answered to negate the claim of the
present respondents for regularisation under the appellant.
25. A concept of 'remote control' vis-à-vis 'direct control' has been
flagged of, in the judgment in National Aluminium Company
Limited's case (supra). Similarly the concept of 'lifting the veil'
has been discussed in Saluja's case (supra).
As envisaged by the Hon'ble Supreme Court from time to
time, through various judicial pronouncements, there are
certain determining factors, upon determination of which the
corporate veil will be lifted and the control of one over the other
would become cognizable. A logical factual contrivance should
be of 'direct control' being exercised by the dominant object.
The Hon'ble Supreme Court has narrated the relevant factors at
'para 65' in the Saluja's case (supra), though says that the list is
not exhaustive. The parameters of day to day management and
control would be the mode and manner of management of the
dominant object, its status as a separate legal entity, extant of
control exercised by the management or the dominant object in
regular affairs like appointment, transfer, promotion,
attendance, initiation of disciplinary action, imposition of
penalty, source of fund to run the dormant and many more
others like these, depending on facts of each case. Continuous
total service period, leave policy, salary policy may also be
considered as determinants to judge the extent of control
exercised.
26. Appellant's case is not based on the foundation of availability of
'no evidence' but on the erroneous appreciation of evidence.
Practically the appellant has offered an alternative view, on the
basis of the available materials, than what has been decided by
the Tribunal. On perusal of the judgment of the Hon'ble Single
Judge, it appears that each of the factors have been
distingtively discussed therein, which has led to the finding of
the Hon'ble Single Judge of the just fair and proper policy under
taken by the fact finding Tribunal, while making the decision.
Hence, the decision of the fact finding authority have been
found not be unsettled by any unwarranted interference.
27. This court has been mindful so far as the documents relied on
in this appeal. This court has also made itself familiar with the
award delivered by the Tribunal as well as the judgment of the
Hon'ble Single Judge, as impugned in this appeal. However, on
consideration of the answers regarding the questions of fact in
this case, arrived at by the Tribunal and adjudicated upon by
the Hon'ble Single Judge, this Court hardly finds any
impropriety or error in the manner in which those have been
considered. In the process of making decision, the evidence on
record has been considered in its right perspective. Hence that
would warrant no reconsideration or fresh adjudication. It is
not a case of the appellant that it has been denied its right of
hearing or that the fact-finding authority has proceeded
arbitrarily or exercised jurisdiction not in accordance to what
has been vested to it by law. It is also not the appellant's case
that the decision of the fact-finding authority is unreasoned or
perverse in any way. That being so, such finding would not be
liable to be interfered with.
28. We have already discussed the Apex Court's verdict in N.
Gangaraj's (Supra) case and there are ample numbers of other
cases too, which have been decided on the point in the similar
way. Therefore finding the decision of the Tribunal as well as
the Hon'ble Single Judge not being in absolute hostility with the
reasonableness and due consideration of the material and
evidence on record and also the settled law, there is no cogent
ground found by this Court to interfere into the impugned
judgment in any way. That prompts this Court to find that the
present appeal should fail.
29. By following the ratio of the judicial pronouncements, as
mentioned above, this Court is constrained to hold that being
devoid of any merit, this appeal should fail.
30. MAT 989 of 2023 along with CAN 1 of 2023 is dismissed.
Judgment of the Hon'ble Single Judge in WPA No. 10637 of
2020 dated 27.3.2023 is affirmed. However there would be no
order as to cost. This appeal is disposed of.
31. Urgent photostat certified copy of this judgment, if applied for,
be given to the parties, upon compliance of requisite formalities.
I agree,
(Rai Chattopadhyay, J.) (V.M Velumani, J.)
