Gauhati High Court
Page No.# 1/23 vs The Deputy General Manager (Ir-L) And 4 ... on 12 June, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/23
GAHC010200312022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6478/2022
LAL BABU SAHANI AND 35 ORS
SON OF LATE GOWANAR SAHANI,
FOOD CORPORATION OF INDIA,
FOOD STORAGE DEPOT, TIHU,
NEAR RAILWAY STATION,
DISTRICT- NALBARI, PIN- 781371.
2: DEB NARAYAN SAHANI
SON OF LATE JEEBACH SAHANI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT- NALBARI
PIN- 781371.
3: RAMJATAN CHOUDHARY
SON OF RAMHIT CHOUDHARY
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371
4: SITA RAM CHOUDHARY
SON OF LATE VISWANATH CHOUDHARY
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
Page No.# 2/23
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371
5: SURESH CHOUDHARY
SON OF LATE DHANRAJ CHOUDHARY
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
6: RAM NATH SAHANI
SON OF LATE GANPAT SAHANI FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
7: KEDAR NATH MANDAL
SON OF LAXMI MANDAL
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
8: SAHIMUDDIN SHEKH
SON OF LATE OMED ALI SEKH FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
9: NARAYAN SAHANI
SON OF LATE RAMSARUP SAHANI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
10: SANKAR SAHANI
Page No.# 3/23
SON OF LATE SURAT SAHANI FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
11: DAULAT CHOUDHARY
SON OF LATE NARAYAN CHOUDHARY FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371
12: RAMPRIT CHOUDHARY
SON OF LATE DHANIK LAL CHOUDHARY FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
TIHU
PIN - -781371.
13: SAMBHU RAI
SON OF LATE BIPAT RAI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
14: BIRENDRA RAI
SON LATE JIWAN RAI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371
15: RAMNARESH MAHATO
SON OF LATE BHOLA MAHATO FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
Page No.# 4/23
16: UMASANKAR RAI
RAJESHAR RAI FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
17: DHARMENDAR RAI
SON OF LATE CHANDRESWAR RAI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
18: PREM LAL CHOUDHARY
SON OF LATE RAMCHANDRA CHOUDHARY
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
19: JIVASH RAI
SON OF LATE SHIWALT RAI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
20: ARABINDA MAHATO
SON OF LATE RAMBRIKSH MAHATO
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
21: DINESH CHOUDHARY
SON OF LATE RUDAL CHOUDHARY
Page No.# 5/23
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
22: RAJU KUMAR RAM
SON OF LATE BIJU RAM
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
23: RAMSEBAK CHOUDHARY
SON OF LATE JOGINHDAR CHOUDHARY
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
24: GULAB HASAN ANSARY
SON OF LATE ABDUL RAJAK
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
DISTRICT - - NALBARI
PIN - - 781371.
25: SAMSUL HAQUE
SON OF LATE SAHINULLA
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
26: KAILASH CHOUDHARY
SON OF LATE RAMCHANDRA CHOUDHARY
FOOD CORPORATION OF INDIA
Page No.# 6/23
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
27: JOGINDAR SAHANI
SON OF LATE PACHU SAHANI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
28: RADHESHYAM SAHANI
SON OF LATE BADRI SAHANI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
29: RAJINDAR SAHANI
SON OF LATE MISRI LAL SAHANI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
30: LAKHINDAR SAH
SON OF LATE RAMA SAH
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
31: RAJINDAR SAH
SON OF LATE JEBAN SAH
Page No.# 7/23
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
32: SURESH BHAGAT
SON OF JANAK BHAGAT
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
33: RAMNATH RAUT
SON OF JAGGA RAUT
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
34: SAMAT SAHANI
SON OF LATE BHADAI SAHANI
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
35: JAYPRAKSAH ROY
SON OF LATE DASHI ROY
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 781371.
36: SATYANARAYAN SAHANI
SON OF LATE KHIKU SAHANI
Page No.# 8/23
FOOD CORPORATION OF INDIA
FOOD STORAGE DEPOT
TIHU
NEAR RAILWAY STATION
DISTRICT - - NALBARI
PIN - - 78137
VERSUS
THE DEPUTY GENERAL MANAGER (IR-L) AND 4 ORS
FOOD CORPORATION OF INDIA,
ASSAM REGION, G.S. ROAD,
PALTAN BAZAR, GUWAHATI- 781008.
2:THE EXECUTIVE DIRECTOR (NEF ZONE)
FOOD CORPORATION OF INDIA
G.L. PUBLICATION BUILDING
ULUBARI
G.S. ROAD
GUWAHATI- 781007.
3:THE DEPUTY GENERAL MANAGER
FOOD CORPORATION OF INDIA
BARKHAMBA LANE
NEW DELHI- 110001.
4:THE GENERAL MANAGER
FOOD CORPORATION OF INDIA
G.S ROAD
PALTAN BAZAR
M.T. TOWER
GUWAHATI- 781007.
5:FOOD CORPORATION OF INDIA
REPRESENTED BY ITS MANAGING DIRECTOR
16-20 BARKHAMBA LANE
NEW DELHI-110001
Advocate for the Petitioner : MR. A D GUPTA, MS B DAS
Advocate for the Respondent : SC, F C I,
Page No.# 9/23
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
12.06.2025
Heard Mr. A Dasgupta, learned Senior Counsel assisted by Ms. B. Das,
learned counsel for the petitioners. Also heard Mr. BK Singh, learned Standing
Counsel, Food Corporation of India (FCI).
2. The petitioners before this Court are employed as Direct Payment System
(DPS) workers engaged on a day-to-day daily wage basis. The petitioners are
presently employed as handling workers in the Food Corporation of India (FCI)
at Food Storage Depot at Tihu, Nalbari. The petitioners are aggrieved by the
impugned transfer order dated 23.03.2022 issued by the Deputy General
Manager (IR-L), whereby the petitioners are sought to be transferred from their
present place of service to FSD, Chaulkhowa under District Office Dibrugarh.
The proposed transfer of the petitioners raised an industrial dispute before the
Deputy Chief Labour Commissioner (Central) Guwahati. Since the matter was
not resolved, the petitioners approached this Court and by order dated
28.09.2022 this Court on 28.09.2022 while issuing notice had granted an interim
order staying the impugned transfer order dated 23.03.2022. The interim order
was subsequently extended and is still in force.
Page No.# 10/23
3. The pleadings have been exchanged and as agreed to by both the learned
counsel for the parties, the matter is taken up for admission hearing.
4. The learned Senior Counsel for the petitioners submits that there are
different types of workers employed in the FCI, like, regular employees of Food
Corporation of India, Direct Payment System (DPS) Workers, Contract Laborers
and No Work, No Pay System Worker. The present petitioners are engaged as
Direct Payment System (DPS) Workers and are engaged on a daily wage basis.
It is submitted that in the Food Storage Depot at Tihu all handling workers are
Direct Payment System (DPS) Workers. It is submitted that as they are
employed as DPS workers and are paid on daily wage basis their wages are
dependent on the work assigned to them. The learned Senior Counsel submits
that the FCI had taken a decision to operate the Food Storage Depot at Tihu
through contract labourers and it is only for that reason all the handling workers
of Food Storage Depot including the petitioners are sought to be transferred to
Food Storage Depot at Chaulkhowa under the District Officer, Dibrugarh.
Learned Senior Counsel for the petitioners submits that the FCI had taken a
decision and which was circulated by way of a Circular No.9/2016 dated
17.08.2016. In Circular No.9/2016 dated 17.08.2016 it was clearly mentioned
that the workers who are being shifted to other areas shall not be shifted
beyond 100 Kms unless in cases of extreme urgency or in a situation where the
Page No.# 11/23
workers inevitably have to be transferred out of the region. This Circular
according to the learned Senior Counsel for the petitioners is still in force and
between Tihu and Chaulkhowa the distance is well over 100 kilometers and
therefore, the respondent authorities cannot take a decision to transfer the
petitioners to the new place of posting, namely Food Storage Depot at
Chaulkhowa without justifying the administrative reasons or exigencies which
resulted in issuance of the impugned order dated 23.03.2022. A perusal of the
impugned order dated 23.03.2022 does not reveal any such extreme exigency
which required transfer of the petitioners to a place well over 100 kilometers
contrary to the policy taken by the FCI by the Circular No.9/2016 dated
17.08.2016. The learned Senior Counsel for the petitioners submits that the
respondents are duty bound to explain the extreme exigencies which require
transfer of the petitioners working as in the DPS system to a place well over 100
kilometers. The only reason discernible is that the Tihu Food Storage Depot is
required to be handled by contract labourers. No difficulties or instances have
been alleged by the respondents to show that the said Depot was not capable
of being handled or managed by the services rendered by the writ petitioners.
Learned Senior Counsel for the petitioners further submits that the Circular
No.9/2016 dated 17.08.2016 was issued by the Government pursuant to a
Division Bench judgment rendered by the Bombay High Court, Nagpur Bench in
Page No.# 12/23
PIL No. 84 of 2018 on 20.11. 2015.
5. The Division Bench of the Bombay High Court by the said judgment issued
certain directions and pursuant to that the impugned Circular No. 9 of 2016
dated 17.08.2016 came to be issued where the Department had taken a policy
decision not to transfer workers to far from places which are more than 100
kilometers from the place where they are currently employed except in cases of
extreme exigency.
6. Learned Standing Counsel, FCI, on the other hand, strongly disputes the
submissions made by learned counsel for the petitioners. He submits that the
petitioners are employed under the FCI and transfer being an incidence of
service they are required to be transferred as and when administrative
exigencies required. It is submitted that the Bombay High Court judgment had
clearly held that the employees may be transferred as per the administrative
exigencies of the FCI. He further submits that similar issues have been decided
by a Coordinate Bench by Judgment and Order dated 11.11.2020 passed in
WP(C) No.3314/2020 and 3381/2020. It is submitted that the issues raised in
the present writ petitions have been already dealt with by the Coordinate Bench
in the said judgment and therefore, these issues stand covered by the ratio laid
down in the judgment of the Coordinator. Learned Standing Counsel for the
Page No.# 13/23
respondents further submits that the Apex Court by the judgment and order
dated 20.07.1990 rendered in Food Corporation of India Workers Union vs. Food
Corporation of India and Others reported in 1990 (Supplement) SCC 296 had
directed for revision of wages of the workers employed in the Depots of FCI in
Bihar, Orissa, Uttar Pradesh and Delhi regions and same has been undertaken
by the FCI Department. The transfers of the petitioners undertaken by the FCI
are purely for administrative exigencies for rationalizing labour. Referring to the
judgment of the Coordinate Bench, learned Senior Counsel for the petitioners
submits that in the said matters also the petitioners therein had questioned the
transfer order. The Coordinate Bench referring to the law laid down by the Apex
Court in State of U.P. & Ors. vs. Gobardhan Lal reported in (2004) 11 SCC 402
had rejected the contentions of the petitioners therein and dismissed the writ
petition. It was held that transfer being an incidence of service unless malafide
exercise of power is shown or that the authority issuing the transfer order is not
the competent authority to issue the transfer order or that the transfer order will
have adverse consequence in respect of the service conditions of the service
holders, no interference is called for by Writ Court while exercising jurisdiction of
Article 226 of the Constitution of India.
7. In rejoinder, learned Senior Counsel for the petitioners submits that in the
judgment rendered by the Coordinate Bench the petitioners therein were
Page No.# 14/23
regular employees, whereas the petitioners before the present proceedings are
employed as under the DPS system and are paid on daily wage basis and are,
therefore, not regular employees.
8. Learned counsel for the parties have been heard. Pleadings available on
record have been carefully perused.
9. From the pleadings as well as upon perusal of the judgment rendered by
the Coordinate Bench in Naresh Sahani & Ors. vs. Food Corporation of India &
Others reported in 2020 (5) GLT 536, it is seen that there are different types of
workers employed by the FCI, namely, Departmental Labour System (DLS),
Contract Labour System (CLS), Direct Payment System (DPS) and No Work No
Pay System (NWNPS). There is no dispute that the present writ petitioners are
employed under the Direct Payment System (DPS). In the judgment rendered
by the Coordinate Bench it is seen that the writ petitioners were found to be
regular employees of the FCI. Whether the petitioners therein were also
employed in the Direct Payment System (DPS) is not discernible from the facts
narrated in the said judgment of the Coordinate Bench. In order to decide the
question raised before the Court, it is necessary to refer to the Circular No. 9 of
2016 dated 17.08.2016 :
Circular No.9/2016 Dated 17.08.2016.
Page No.# 15/23
Attention is invited to the Hqrs. letter No.IR(L)/31(12)/2004/Vol.X dated 12.07.2016
wherein guidelines on various acton points, after issue of exemption notification by
Government of India, were conveyed to the field officers.
2. During the course of subsequent interactions with some of the labour unions, it has
been gathered that some baseless and unfounded rumours are being floated in the field that
FCI's departmentalised workers under different labour systems are going to be rendered
jobless after FCI appoints contractors in some of the notified depots.
It is, therefore, necessary that such unfounded rumours/notions are dispelled by
issuing strong messages to the field functionaries that under no situation, the existing
departmentalised labourers shall be rendered jobless and they will continue to work as such
for FCI's handling operations.
3. The shifting / pooling exercise is to be undertaken as per the directions of Hon'ble
High Court of Bombay (Nagpur Bench) to make the operations more efficient and cost
effective. The directions of the Hon'ble High Court to the effect that the salary / wages and
other service conditions of the workers will not be disturbed while undertaking transfer of
these workers, must be meticulously complied with.
4. The Hon'ble Minister, CA,F&PD has observed that at certain places workers are
being shifted to far flung areas and it has been desired not to shift the workers beyond 100
KMs unless in cases of extreme exigency or in a situation where the workers inevitably have
to be transferred out of the Region.
5. Necessary advice in this regard to cause minimum possible dislocation to the
workers while undertaking the rationalisation exercise, was conveyed earlier also in the
guidelines referred above.
The above advisory should be taken note of while undertaking rationalisation exercise
in the Region/Zone."
10. It is also necessary to refer to a communication dated 12.07.2016 issued
by the Chief General Manager (IR-L) which reveals the guidelines for
implementation of exemption notification dated 06.07.2016 under Section 31 of
the Contract Labour (R&A) Act, 1970 issued by the Government of India. The
communication dated 12.07.2016 is extracted below:
No. IR(L)/31/(10)/2004/Vol-X Dated 12.07.2016
Page No.# 16/23
To,
General Manager (Region)
Food Corporation of India
Regional Office New Delhi/ Chandigarh/ Panchkula/ Shimla/ Jaipur/ Lucknow/ Dehradun/
Mumbai / Bhopal Ahmedabad Raipur/ Patna/ Bhubaneshwar/ Shillong/ Guwahati/
Dimapur/Chennai/ Thiruvanthapuram/ Bangalore/ Hyderabad/ Ranchi/ Kolkata/Itanagar.
Sub: Guidelines for implementation of exemption notification dated 06-07-2016 under section 31
of Contract Labour (R&A) Act 1970 issued by Ministry of Labour and Employment, Government
of India.
Sir,
Government of India issued modification dated 06-07-2016 in pursuance to the directions given
by Nagpur Bench of High Court of Bombay, Nagpur Bench dated 20-11-2015 in PIL. No. 84 of
2014. By the said notification Government had exempted Depots and Railheads of FCI from
applicability of all the earlier notifications specified in the notification dated 06-07-2016 (Copy
enclosed as Annexure-1) for a period of 2 years subject to compliance of the conditions specified
under sub-clause (a) of clause (v) of sub-rule (2) of rule 25 of the Contract Labour (Regulation and
Abolition) Central Rule, 1971.
2. In all 289 depots / railheads were notified vide 13 notifications as per details given in Annexure-
II. The proposal for exemption / denotification of 226 notified depot/railhead was submitted to
Ministry of labour and Employment through Ministry of CA, F& PD as these depots were operative
(existing) on the date of submission of proposal. Now the operational notified depots have been
further reduced to 209, consequent upon dehiring of 17 notified depots as per details givenunder.
Labour strength as on 31.03.2016.
No of Depots (Operative Under Departmenalized Labour)
Labour Notified Non-Notified Total of Depots No of
system
Owned Hired Total Owned Hired Total Owned Hired Total Work-ers
Depart- 89 6 95 47 3 50 136 9 145 15203
mental
DPS 32 6 38 153 15 168 185 21 206 25283
NWNP 70 6 76 10 8 18 80 14 94 7426
Total 191 18 209 210 26 236 401 44 445 47912
3. All the 226 Notified Depots/Railhead are covered by the Notification dated 06.07.2016 and FCI is,
therefore, now free to reorganize and rationalize the deployment of existing Departmental/DPS/NWNP
Page No.# 17/23
System workers for their gainful utilization by pooling them into a fewer depots as per operational
requirements so that optimum number of workers are deployed for carrying out FCI Operations in the
most efficient manner.
4. Following steps may be taken to rationalize the existing manpower.
i) The pooling of the departmentalized labourers in fewer depots may be done by making inter-dept,
inter-district, inter-region and inter Zone (in exceptional Cases) transfers from one depot to the other
depots operative under the same labour system. The authorities competent to permit such transfers are
indicates as under
Area of Transfer Competent Authority to make transfer
Inter- depot transfer within district Area Manager
Inter-District Transfer GM (Region)
Inter-Region ED (Zone)
Inter-Zone FCI, Hqrs
(ii) The requirement of labour in the heavily operated depots may be calculated on current average
work load of proceeding three financial years by the formula given below:
No of Handling Labour required = Average Annual work load of three preceding Financial
year/135*240.
No of Ancillary Labour Required = 4 Ancillary Labour against the storage capacity of 5000 M.T.
After calculating the requirement of the heavily operated depots by applying the above formula
labourers from the depot having scanty handling operation may be shifted to nearby depots so that there
is least disturbance to the workers. In case of the departmental labour pooling should be made taking
into consideration zero incentive on datum i.e. the labour is sufficient enough to manage the work
within the norms and there are minimum occasions for payment of incentive on number of bags
handled in a day.
(iii) The depots are to be prioritized in descending order on the basis of requirement for distributing the
workers, in the pooling exercise. Pooling should be in maximum work load depots first so that idle
wage are also minimized in case of departmental and DPS workers.
(iv) Deployment of labourers in the main depots may be done in such a manner that the workers can be
deployed to undertake loading/unloading operation in nearby depots on need basis, when there is no
availability of work load in main depot. Mechanism should be developed in such a manner that workers
are required to travel minimum distance and deployment on tour is manageable from their place of
posting with least disturbance.
(v) The objective of rationalization of the labour strength is to curtail the cost of incentive wages,
therefore the pooling should be done in such a manner that output per day of a handling labour will
remain ordinarily between 135-150 bags on the peak day of loading/unloading of rakes.
(vi) All the FCI workers currently working in CWC & SWC godowns/hired depots / Railheads need to
be pooled into FCI's own depots and contract labour be deployed in their place in case godown are to
be retained.
(vi) As per existing instructions, workers under Departmental and DPS category on their transfer by
Page No.# 18/23
FCI, in the interest of administration, are entitled to get weightage of seniority at the new place. It has
been decided that till further order, Seniority position of group of the workers of the gang transferred
from one depot to other, will not be disturbed and separate identity of such workers will be maintained
in the incoming depot so that it does not jeopardize promotional avenues of the workers already
working in such depots.
(viii) The surplus workers of one Region can be adjusted in the depots of other regions of the zone.
(ix) In case option is given by the surplus workers of a Region for transfer to the other Regions within
the Zone, the same should be carefully considered by Zone and shifting them to shortfall depots may be
adhered under intimation to IR-L division of FCI Hqrs.
(x) Individual depot should have single labour system and in no case labour of more than one system be
engaged in one depot.
(xi) Subsequent to pooling of labourers, handling contractors be deployed in vacant depots following
due process.
It is, therefore, requested that the process for implementation of exemption notification dated
06-07-2016 issued by the Ministry of Labour and Employment, Government of India, may kindly be
initiated immediately in all 226 depots as per list enclosed (Annexure-III). Action Taken Report in this
regard may kindly be furnished to this office within 15 days. Further suggestion with regard to above
guidelines for smooth implementation of the aforesaid notification at field level if any, may please also
be sent to Hqrs immediately alongwith proper reasoning.
11. The judgment of the Bombay High Court rendered in PIL No. 84 of 2018 is
carefully perused. In the said PIL the Bombay High Court examined the
rationalization of the wage/ the payment system to the various labourers
employed under the FCI. The Bombay High Court, upon examination of the
matter in its entirety, issued the following directions:
30. In that view of the matter, we of the dispose Public Interest Litigation by passing
the following order.
(i) The Government of India is directed to decide the representation made by the
Food Corporation of India for grant of exemption under the provisions of Section 31 of
the said Act within a period of one month from today, in the light of observations made
by us hereinabove within a period of one month from today.
(ii) The Government of India shall decide the issue regarding de-notification of the
depots of the Food Corporation of India, in respect of which notification is issued
u/s.10 of the said Act, within a period of six months from today, in the light of
Page No.# 19/23
observations made by us hereinabove and the report of M/s. Deloitt Consultancy and
the report of High Level Committee appointed by the Government of India itself.
(iii) We clarify that the respondent/Food Corporation of India would be entitled to
transfer the services of departmental labourers from one depot to another subject to
protecting their salary and service conditions.
(iv) We also clarify that the respondent/Corporation would be at liberty to
implement its policy of change in the Scheme of incentives.
(v) The Government of India of India shall also take a decision regarding abolition of
system of departmental labourers in a phased manner or absorbing their services in
other establishments as recommended by the High Level Committee.
12. Pursuant to this order it is submitted at the Bar that Circular No. 9 of 2016
dated 17.08.2016 was issued which clearly reveals that the Department's policy
decision, inter alia, that where workers are being shifted to far flung places, it
has been decided not to shift such workers beyond 100 kilometers unless in
cases of extreme exigency or in a situation where the workers inevitably have to
be transferred out of the region. This circular has not been shown to be
recalled, modified or withdrawn. On the other hand, this is found to be referred
to in the communications issued by the Department including the
communication issued to the Deputy Chief Labour Commissioner (Central),
Guwahati dated 05.09.2022 with regard to the industrial dispute raised by the
FCI Handling Workers Union, New Delhi, regarding transfer of all DPS workers
working in FCI FSD Gosaigon and Tihu to FCI FSD Chaulkhowa Dibrugarh. In
the said communication also the reference to the Circular No. 9 of 2016 is made
and that apart, reference to circular No. 11 of 2022 dated 17.08.2022 is also
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made, wherein the policy that workers should not be shifted beyond 100
kilometers unless in cases of extreme exigency was reiterated and directed to
be strictly complied with. The only ground which the Respondents have raised
justifying the transfer of the petitioners is that the policy decision reflected in
circular No.9 of 2016 not to transfer workers to places beyond 100 kilometers
do not apply in cases of extreme exigencies. Although a detailed affidavit has
been filed, the respondents have not been able to justify the extreme exigency
that required transfer of the workers from Tihu to Chaulkhuwa which admittedly
is beyond 100 kilometers. No decision has been placed before this Court to
support the contention of the respondents that a situation which can be termed
to be 'extreme exigency' which justified the issuance of the impugned transfer
order dated 23.03.2022 other than mere references that this transfer order is in
administrative exigencies and/or extreme exigencies. The respondents have not
been able to justify the same with any supporting reasons. The only other
ground urged is that the transfer is made for rationalization of the labours as
the Tihu Depot is now sought to be handled through contract labourer and
therefore, the workers employed under the Direct Payment System are required
to be transferred elsewhere. Whether such ground for transfer will amount to
extreme exigencies which will justify transfer of the DPS workers to a place
more than 100 kilometers cannot be interpreted in the absence of cogent
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materials in support of such claims being produced before the Court by the
respondents.
13. The law laid down by the Apex Court and followed by this Court in several
judgments with regard to the parameters of transfers are not in dispute. The
ratio laid down in Govardhan Lal (supra) is well accepted and this Court
respectfully accepts the parameters laid down therein. The transfer order issued
by an authority is not to be interfered with in judicial review unless it is issued in
malafide exercise of power or any malice has been alleged and substantially
proved against any such authority or the order is issued violating of any
statutory provision or that the authority who issued the order is otherwise not
competent to issue the order. However, the fact remains that the policy decision
taken by the Government of India and having accepted by the FCI, the
respondent authorities are required to function within the parameters set forth
by such policy decision adopted. The said policy decision itself provides for an
exception where workers can be shifted to places beyond 100 kilometers,
namely, in case of 'extreme exigency'. This policy decision having been accepted
by the FCI and this condition being reiterated in subsequent circulars, but he
respondent authorities having accepted the said policy decision are required to
justify the grounds which required the transfer order to be issued for
transfer/shifting of the workers to a place beyond 100 kilometers. A mere
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reference to the transfer order being issued on the ground of 'extreme exigency'
cannot, by itself, be accepted as sufficient to establish that the case indeed
involves 'extreme exigency'. Since the policy decision have been accepted and
implemented by the FCI, the respondent authorities are duty-bound to justify
the transfer of the petitioners with cogent materials and disclose the rationale
behind transferring them to a place admittedly more than 100 km away from
their present place of posting, particularly when such transfer is in contravention
of the policy adopted and circulated under Circular No. 9/2016. The Coordinate
Bench Judgment on the facts of the present case will not be applicable as the
petitioners before the Coordinate Bench were found to be regular workers. As
discussed before the Co-ordinate Bench, the petitioners therein were regular
workers, it is also not urged before this Court that the petitioners herein who
are the DPS workers are also to be treated as regular workers. Therefore, the
judgment in Naresh Sahani (supra) rendered by the Co-ordinate Bench will not
be applicable to the facts of the case. There is another reason why this ratio laid
down in Naresh Sahani (supra) will not be applicable in the present facts of the
case as the question of 'extreme exigency' as described under Circular
No.9/2016 was not an issue decided by the Coordinate Bench as no such
question appears to have been raised before the Coordinate Bench that the
transfer order of those regular employees in Naresh Sahani (supra) were also in
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violation of the condition prescribed in Circular No.9/2016.
14. In view of the above discussions, the judgments rendered by the
Coordinate Bench must be distinguished from the facts in the present
proceedings and therefore, the ratio laid down in Naresh Sahani (supra) cannot
be made applicable as the question raised in the present proceedings was not
raised in the proceedings before the Coordinate Bench in Naresh Sahani (supra)
and was, therefore, never answered.
15. In that view of the matter, the claim of the petitioners will have to be
answered in affirmative. However, since the transfer and shifting of the
petitioners is an administrative action by the respondents, this Court considers it
appropriate to interfere with the impugned order of transfer dated 23.03.2022
and remit the matter back to the respondent authorities to examine the matter
in the light of the various circulars issued by the FCI itself, more particularly,
Circular No. 9 of 2016 dated 17.08.2016 and thereafter, the authorities may pass
appropriate orders thereon.
16. The writ petition, therefore, stands disposed of in terms of the above. The
interim order dated 28.09.2022 stands merged.
JUDGE
Comparing Assistant
