Suresh Kumar Son Of Shri vs 90% And The
2021 Latest Caselaw 3828 HP

       IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                    ON THE 11th DAY OF AUGUST, 2021




                                                      .

                               BEFORE

                HON'BLE MR. JUSTICE AJAY MOHAN GOEL





                  CIVIL WRIT PETITION No. 2366 of 2016

    Between:-





    1. SURESH KUMAR SON OF SHRI
    DALJEET; R/O VILLAGE DHALPUT,
    TEHSIL KULLU, DISTRICT KULLU, H.P.

    2. BHUPINDER KUMAR SON OF SHRI

    DOLAT RAM; R/O HOUSE NO. 179,
    SHEKHOWAL KAMBALA, PO
    HEBOWAAL, TEHSIL GORHSANKAR,
    DISTRICT HOSHIARPUR, PUNJAB.



    3. BHIM MALAKAR SON OF SHRI
    MUNGESHWAR; R/O VILLAGE
    SUHATH, PO SAURA BAZAR SAHARSA,




    DISTRICT SHARSA (BIHAR),





    4. SURAJ KUMAR SON OF SHRI KANTA
    PRASAD; R/O VILLAGE GOGAVA
    RAKHEE LAKHSHEEPUR, PO RAISPUR,





    TEHSIL VARANASI, DISTRICT
    VARANASI, UP.

    5. JAGAT SON OF SHRI MANI RAM;
    RESIDENT OF VILLAGE MANOVA,
    VIKASHAND BASAAR, PO SHUKAL
    TEHSIL SUSAFIR KHANA, DISTRICT
    CHATARPATI SAHUJI MAHAJAR
    NAGAR, UP.




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    6. SUKHH DEV SON OF SHRI
    RAMDHAN, R/O HOUSE NO. 107,
    AZAMGARH, PO GOVIND NAGAR,




                                                  .
    TEHSIL GUHALA, DISTRICT KAINTHAL,





    HARYANA.

    7. JOGINDER SINGH SON OF SHRI BODH
    RAM; R/O VILLAGE NALHACH, PO





    BABELI, TEHSIL KULLU, DISTRICT
    KULLU, HP.

    8. KUNDAN LAL SON OF SHRI SOM





    NATH; R/O VILLAGE KARIMPUR
    DHIANI, PO SARAYA, DISTT. SBS
    NAGAR, PUNJAB.

    9. VIJAY KUMAR SON OF SHRI SOBHA

    RAM; R/O WARD NO. 9, PO DHALPUR,

    TEHSIL AND DISTT. KULLU, HP.

    10. LALTA PRASAD SON OF SHRI RAM
    LOTAN U/O VILLAGE KATHEHTI,


    RANIGANJ PARGANA, TEHSIL
    MUSAFIR KHANA, DISTT. CHATRAPATI
    SAHUJI MAHARAJ NAGAR, UP.




    11. ASHOK KUMAR SON OF SHRI SOM
    NATH; R/P VILLAGE KARIMPUR





    DHIANI, PO SARAYA, DISTT. SBS
    NAGAR, PUNJAN.
                                                        ....PETITIONERS





    (BY SH. RAJESH VERMA, ADVOCATE)
    AND

    1. FOOD CORPORATION OF INDIA,16-20 BARA-
    KHAMBA LANE, NEW DELHI THROUGH ITS
    MANAGING DIRECTOR/CHAIRMAN.

    2. GENERAL MANAGER, FOOD CORPORATION OF




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    INDIA KASUMPTI SHIMLA-9.

    3. DIVISIONAL MANAGER, FOOD CORPORATRION
    OF INDIA, MANDI, DISTT. MANDI, HP.




                                                              .

    4. MANAGER, FOOD CORPORARTION OF INDIAN,
    REGIONAL OFFICE KULLU, DISTT. KULLU, HP.
                                                                    ...RESPONDENTS





    (SH. B.C. NEGI, SENIOR ADVOCATE WITH M/S
    PEEYUSH VERMA AND NITIN THAKUR,
    ADVOCATES)
    Whether approved for reporting?No



    passed the following:
                 r             to
                 This petition coming on for orders this day, the Court

                              JUDGEMENT

The case of the petitioners is that they are working under

"no work no pay" system with the Food Corporation of India in its

storage Depot at Kullu. Some of the petitioners are serving as such

from the year 2004 onwards with the respondent-Corporation.

According to them, Ministry of Labour & Employment issued a

notification dated 23.04.2010, vide which, it notified the stores in

different parts of the country in which workers were deputed for

loading/unloading, sweeping and cleaning works etc. The Depot in

which the petitioners are working is notified at serial number 13 in the

gazette notification appended with the petition as Annexure P-2.

Though the petitioners were working to the full satisfaction of the

respondent-Corporation, but on 02.08.2016, the Corporation issued an

order for rationalization of labour on the basis of guidelines dated

.

12.07.2016 and exemption notification dated 06.07.2016. Allegedly,

on account of the shortage of labour at FSD, Una, and for the purpose

of capacity utilization at FSD, Kullu, to meet with the PDS

requirements under no work no pay system, it was ordered vide

notification that workers deployed at FSD, Kullu, under no work no

pay system, may be shifted to FSD Una and adhoc contract labour be

engaged at FSD Kullu. Copy of relevant notification is appended with

petition as Annexure P-3.

2. This was followed by communication dated 03.08.2016

(Annexure P-4), in terms whereof, Regional Manager, Mandi, of the

respondent-Corporation, directed the Manager of the Kullu Depot that

all workers, who were working under no work no pay system, be

shifted from Kullu to Una with immediate effect. In response,

Manager (D) FSD Kullu, issued communication dated 23.08.2016,

relieving all the petitioners without any prior notice to them.

3. As per the petitioners, they were appointed under a

contract with an individual person/contractor Som Nath till October,

2011. After the issuance of the notification dated 23.04.2010

(Annexure P-2), respondent-Corporation engaged them under no work

no pay system. They have worked to the full satisfaction of the

corporation and there is no complaint etc. against them. The

.

petitioners are working for a meager amount being paid to them,

which is `246/- per day and this amount too is paid, in case, they do

the work for an entire day in the Depot. If the work is not available,

then, the person is neither marked present nor any remuneration for

that day is paid to him. The families of the petitioners are residing

with them and their children are school going. It is not possible for

them to shift from Kullu to Una as the same entails expenses.

Respondent-Corporation has issued guidelines Annexure P-7 in terms

whereof respondent-Corporation has come up with a policy for

regularization of the service conditions of the workers brought under

no work no pay system, but neither the petitioners have been

promoted nor their salaries have been increased, yet, they stand

shifted to a far flung area without following the principles of natural

justice. On the basis of said pleadings, the petitioners have prayed for

quashing of impugned orders dated 03.08.2016 (Annexure P-4) and

23.08.2016 (Annexure P-5).

4. The petition is resisted by the respondent-Corporation

inter alia on the ground that transfers being an incidence of service,

the transfer of the petitioners from Kullu to Una have been effected by

the respondent-Corporation in terms of the policy guidelines framed

by the respondent-Corporation on 12.07.2016, pursuant to notification

.

dated 06.07.2016 issued by the Ministry of Labour and Employment,

Union of India, whereby the Godowns, Depots and Railheads of the

replying corporation other than the ones mentioned in the notification

stand exempted from the applicability of the earlier notifications of

the Union of India, whereby the employment of contract labour stands

prohibited. Notification dated 06.07.2016 has been passed by the

Union of India in exercise of powers conferred by Section 31 of the

Contract Labour (Regulation and Abolition) Act, 1970, in compliance

to the directions passed by Hon'ble Bombay High Court (Nagpur

Bench) in PIL No. 84 of 2014, titled as Court on its own motion vs.

Union of India & others, decided on 20.11.2015. As per the directions,

the Corporation is entitled to transfer the services of departmental

labour from one Depot to another subject to protection of salary of the

labour and other work conditions and the decision to transfer the

services of the petitioners was guided by the fact that labour at Kullu

and Una Depots was deficient and the capacity utilization of FSD,

Kullu, between April 2016 to August, 2016 remains on an average of

50-60%. The decision for transfer was also prompted by the fact that

the capacity utilization of the Kullu Depot was the lowest as

compared to other Depots, where the same was in the range of 75-

90% and the respondent-Corporation, being under obligation to

.

maintain at least three months' stock to meet the requirements of the

National Food Security Act, and it was on this ground that the Area

Manager, Mandi, decided to shift the labour from Kullu Depot to Una

Depot and it was in lieu thereof that the transfer of the petitioners

were ordered and they stood relieved. It is further the stand of the

respondents that allotment of the work shall be undertaken in Kullu

Depot by engaging the labour on contract basis.

5. By way of rejoinder, the petitioners have reiterated the

contentions raised in the petition and denied the averments made in

the reply.

6. I have heard learned Counsel for the parties and also

gone through the pleadings as well as documents appended with the

petition.

7. The petitioners have been engaged by the respondent-

Corporation under no work no pay scheme. This means that as and

when work was available at the Kullu Depot of the respondent-

Corporation, the petitioners were engaged and they were thereafter

paid for the work performed by them. The grievance of the petitioners

is with regard to their transfer from FSD, Kullu to FSD, Una. During

the course of arguments, learned Counsel for the petitioners could not

deny the fact that the respondent-Corporation was well within its

.

domain and authority to order the transfer of the petitioners from one

Depot to another. The contention of learned Counsel was with regard

to impracticability of the transfer keeping in view the emoluments

which the petitioners were actually getting from the respondent-

Corporation, which as per the petitioners was meager. But the

petitioners do not have any indefeasible right vested in them to

continue to be engaged by the respondent-Corporation under the no

work no pay system at Kullu Depot forever. The decision of the

respondent-Corporation of doing away with present system of

engaging labour under no work no pay system is well within its

authority in terms of the judgment passed by Hon'ble High Court of

Bombay in case supra. If the respondent-Corporation intends to shift

to some other mode of procurement of labour, keeping in view the

practicability of its function of the Kullu Depot, then, the Court

cannot stop it from doing so. The petitioners could not demonstrate

during the course of arguments that the reason and the rationale

spelled out in the reply by the respondent-Corporation for transferring

the services of the petitioners from Kullu to Una Depot was not

bonafide but driven by some ulterior motive or was an act of colorable

exercise of power. That being the case, the Court is of the considered

view that there is no merit in the contention of the petitioners that the

.

respondents should be directed to continue to engage the petitioners at

Kullu Depot under no work no pay system, after quashing the

impugned communications. Whether or not the petitioners are willing

to join at Una is their own prerogative, which cannot be forced upon

them by the Court keeping in view the relationship between them and

the respondent-Corporation, but the Court cannot restrain the

respondent-Corporation from transferring the petitioners from its

Kullu Depot to Una Depot.

8. Accordingly, in view of the discussion made herein

above, as this Court does not finds any merit in the present petition,

the same is dismissed. Interim order(s), if any, stand vacated. Pending

miscellaneous application(s), if any, also stand disposed of

accordingly.

                                            (Ajay Mohan Goel)





    August 11, 2021                                Judge
         (narender)