Full Judgment Text
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PETITIONER:
TRINATH HARICHANDAN & ORS.
Vs.
RESPONDENT:
CHAIRMAN, PARADEEP FORT TRUST& ORS.
DATE OF JUDGMENT: 05/02/1998
BENCH:
S.B. MAJMUDAR, M. JAGANNADHA RAO.
ACT:
HEADNOTE:
JUDGMENT:
THE 5TH DAY OF FEBRUARY, 1998.
Present:
Hon’ble Mr. Justice S.B. Majmudar
Hon’ble Mr. Justice M. Jagannadha Rao
G.Pai, Milan K. Banerjee, Sr. Advs., Debendra Mohanta,
Debasish Mohanty, K.N. Tripathy, Janaranjan Das, S.K. Padhi,
S.P. Sharma, S.B. Upadhyay, P.N. Misra, S.Misra, A.K.
Mohanty, A. Mohapatra, V.N. Koura, Paramjit Benival, Ms.
Aruna Mathur, A. Mariarputham, Manoj Goel and S.A. Syed,
Advs. with them for the appearing parties.
J U D G M E N T
The following Judgment of the Court was delivered:
S.B. Majmudar, J.
Leave granted in both the Special Leave Petitions.
With the consent of learned advocates appearing for the
contesting parties these appeals were taken up for final
hearing and after hearing them they are being disposed of by
this judgment.
The appellants in these appeals represent 332 workmen
who claim to be treated as regular workmen entitled to be
covered by the Paradeep Port Clearing, Forwarding and
Handling Workers (Regulation of Employment) Scheme, 1994
[hereinafter referred to as ‘CFH Scheme’]. It is their
contention that they are so entitled pursuant to the
recommendations of a High Power Committee called Khanne
Committee appointed by this Court by its judgment in
Paradeep Port Trust and another V. Paradeep Port and Dock
Mazdoor Union and others in Civil Appeal No. 1422 of 1990
reported in AIR 1990 SC 1125 and the subsequent order of
this Court approving the said report by its decision dated
31 st January, 1995 in Special Leave petition (Civil) No.
13490 of 1994. 170 of these appellants have felt aggrieved
by the judgment and order of the High Court of Orissa at
Cuttack in OJC No. 12149 of 1996 and the remaining
appellants out of the said 332 agitating workmen who are
petitioners in S.L.P.(c) No. 14312 of 1997 out of which the
companion appeal arises have felt aggrieved by the common
decision of the same High Court disposing of number of writ
petitions including OJC No 3308 of 1995 whereby the said
appellants’ Intervention Application was disposed of.
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In order to appreciate the grievance of the appellants which
is common to both these groups of appellants it will be
necessary to note a few facts leading to these proceedings.
Background Facts
Paradeep Port Trust is situated in the State of Orissa.
It is governed by the Major Port Trusts Act, 1963
[hereinafter referred to as ‘the Act’]. As per Section 42 of
the said Act a duty is cast on the major port governed by
the Act to undertake and perform services mentioned therein.
In the exercise of powers conferred by Section 42 of the Act
the Board of Trustees of paradeep Port which it duly
constituted under Section 3 of the Act framed a scheme in
connection with the handling of corgoes at the said port.
The said scheme was styled as the paradeep port Cargo
Handling Scheme of 1979. As per Clause 2 of the said Scheme
Paradeep Port Trust has to undertake the supply of cargo
handling workers to the licensed stevedores and to the trade
for all operations on the Board of vessels and for bagging,
stitching and sealing operations on berth respectively.
Clause 18 of the said scheme Prescribed composition of gangs
of workers to be entrusted with the said task. Sub-Clause
(iii) of the said Clause related to stevedoring gang and
sub-clause (iv) related to shore gang. The said 1979 scheme
came into force with effect from January 1980. Under the
said Scheme two lists of workmen were Prepared - (1) Main
List and (2) Subsidiary/Standby List. Under the said Scheme
of 1979 the Paradeep Port directly undertook the following
services to facilitate the movement of cargo, outward and
inward, at the said port. The said services comprised of the
following categories:
(a) Handling of all cargoes on shore (including Cargo in
bulk) in the course of landing or shipment;
(b) Intraport transportation; and
(c) Any other operations, directly connected with landing
and shipment of Cargo but not including bagging
stitching and sealing.
The categories of Cargo Handling workers to whom the said
1979 Scheme applies are mentioned in Schedule II to the
Scheme as under :
(a) Winchman
(b) Signalman
(c) Gang Leader
(d) Mazdoor
(e) Tally Clerk
(f) Supervisor
(g) Deck Foreman.
It appears that some disputes arose amongst the dock workers
in connection with the right to be employed for carrying out
all the aforesaid services at the Paradeep port. Different
trade unions of workmen raised diverse claims which
ultimately came to be considered by this Court in an appeal
against the decision of the High Court of Orissa in OJC No.
2539 of 1985. In the decision rendered by this Court in
Civil Appeal No 1422 of 1990 (supra) this Court observed
that the benefit of decasualisation of the workers should be
in conformity with the Paradeep Cargo Handling (Regulation
of Employment) Scheme, 1979. In order to work out the said
benefit in an appropriate manner this Court in the aforesaid
decision appointed a High Power Committee under the
chairmanship of a retired Judge of this Court Justice H.R.
Khanna who was to be associated with two experts in the
field. Justice Khanna Committee after due deliberation
spread over couple of years submitted its report, now know
as khanna Committee Report or High Power Committee Report.
The Said High Power Committee though identified and noticed
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increased workload in respect of paradeep Port, did not
recommend the cases of 332 workers who have been working in
the Port for few years on the ground that they cannot be
considered because they have not worked for sufficiently
long period. The said High Power Committee fixed the
criteria for enlisting appropriate number of workmen for the
work of clearing, forwarding and handling of cargo at the
Paradeep Port. The said Report was submitted by the High
Power Committee on 18th July 1993. As per the said Report
Paradeep Port Trust Management Committee, respondent no. 2
in these appeals framed another scheme 1994 called Paradeep
Port Clearing, Forwarding and Handling Workers (Regulation
of Employment) Scheme 1994, which., as noted earlier, is
known as CFH Scheme. Pursuant to the said Scheme apart from
1500 workers cleared by the High Power Committee by placing
them in the main list, a provisional list of 437 standby
workers was prepared by respondent no.2. As the High Power
Committee had not recommended the cases of 332 workmen, some
of them are the appellants before us in these appeals, they
came to this Court after having unsuccessfully approached
the Orissa High Court. In their S.L.P. (C) No. 13490 of 1994
this Court on 31st January 1995 while disposing of their
petition laid down as under :
"The respondents will give
preference in the vacancies that
may be available with them, to the
standby workers first. if there are
more vacancy or vacancies which are
not filled in by the standby
workers, the respondents will go
according to their record, and give
preference to the other workmen
found to have worked under them as
per their record, including the
petitioners and the members of the
other Unions. The job should be
given strictly according to
seniority. These proceedings stand
closed."
It therefore, becomes obvious that this Court while
upholding the High Power Committee Report and the CFH Scheme
accordingly framed by respondent no. 2-authority in the
light of the said Report clearly laid down that the
available vacancies must first be filled in by standby
workers and after exhausting their claim if any more
vacancies were loft then the respondent-authorities had to
go according to their record and give preference to the
other workmen found to have worked under them as per their
record, including the 332 appellants before the Supreme
Court and the jobs could be given strictly according to
seniority. This Court directed that the proceedings should
stand closed. Unfortunately the desire of this Court to
bring down the curtain on this simmering controversy and
dispute between the parties did not fructify, as will be
seen presently.
A spate of writ petitions came to be filed in the
Orissa High Court after this Court’s order dated 31st
January 1995. The appellants in appeal arising out of
S.L.P.(c) No. 9719 filed OJC No. 12149 of 1996 before the
High Court of Orissa. The prayer in that petition read as
under :
"Under the circumstances stated
above, the petitioners most
respectfully pray that this Hon’ble
Court may be graciously pleased to
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issue a writ or writs in the nature
of writ of mandamus directing the
opp. parties to declare the present
petitioners as listed 1994 Scheme
workers:...."
In short they contended before the High Court that even
if the High Power Committee might not have given them any
preference in the light of the decision of this Court in
S.L.P.(C) No. 13490 of 1994 decided on 31st January 1995
they were entitled to be considered for regular listing as
there were vacancies available after the claims of eligible
standby workers were considered and got exhausted. Their
main grievance in the petition was that pursuant to the CFH
Scheme most of the eligible standby workmen kept sitting on
the fence and as they were not inclined to put forward their
claims for being listed as workmen under the said CFH Scheme
and as they were all the while thinking that they were
entitled to the benefit under the statutory scheme of 1979,
they did not offer themselves for medical examination as
required under the Scheme of 1994. Not only that but even
after inclusion of 125 workmen in the standby list of 1994
Scheme, for the remaining vacancies respondent no. 2 gave
number of notices and opportunities to the remaining standby
workmen to put forward their claims under the Scheme for
being listed as regular workmen and get themselves medically
examined but they did not opt out for the same. Number of
opportunities were given for the medical tests to these
workmen. According to the appellants 14 such opportunities
were given ranging from 23rd march 1993 upto 20th May 1995,
but they did not come forward for getting the benefit of the
1994 Scheme. The appellants submitted that the Union
representing the standby list of workmen filed writ
application being OJC NO. 674 of 1996 praying therein to
give one more chance to them for their medical examination,
as intention of the standby workers to join 1994 Scheme was
not very clear, despite the High Court giving several
chances to their Union to file individual affidavits of the
standby workmen who wished to appear for medical test only
for affidavits of standby lists workmen were filled and the
rest did not do so. In the meantime according to the
appellants respondent no. 2 - authorities in the light of
the increasing workload at the port had to fill up the
vacancies which remained unfilled under the 1994 Scheme as
sufficient number of standby workmen who were given priority
by the High Power Committee Report did not come forward to
fill up these vacancies. Respondent no.2, therefore,
undertook that exercise and pending the aforesaid OJC No.
674 of 1996 before the High Court passed a resolution after
considering the seniority of 332 workmen 170 of whom are the
appellants before us, and decided to appoint them on ad hoc
basis as casual workmen awaiting the final result of the
aforesaid OJC. The said OJC was disposed of by the Orissa
High Court on 26th April 1996 in the following terms:
"Since only four persons have filed
affidavits standing by stand of
Utkal port and Dock workers union
inspite of directions given by this
Hon’ble Court that affidavits of
all the persons whose cause is
supposed to be espoused by the
petitioner union, we do not
entertain this application filed on
behalf of the petitioner. The writ
application is disposed of
accordingly."
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The appellants, therefore, contend that at least 174
workmen who were found eligible to be offered ad hoc
appointments as casual workmen after the disposal of the
aforesaid writ petition of the Union of standby workmen are
required to be considered to have been regularly appointed
on the available 174 vacancies under the CFH Scheme as
regularly listed workmen just below the 125 standby workmen
who had already got the benefit of the said scheme. The
aforesaid contention of the 174 petitioners in OJC No. 12149
of 1996 was sought to be repelled by the other respondents
who had filed diverse writ petitions in the High Court for
getting the benefit of 1994 CFH Scheme. Amongst them were
also some of the standby workmen who had not opted out for
medical examination earlier but also individually filed writ
petitions in the High Court for getting one more chance for
being medically examined. The High Court by the impugned
common judgment thought it fit to give one more chance to
these standby workmen who had also been given appropriate
priority in the Report of the High Power Committee and
directed that after giving them one more chance for opting
out for the said Scheme after undertaking the medical tests,
they be considered for regular employment. It was then
observed by the High Court in the penultimate paragraph of
its common judgment to the following effect :
"...The vacancies remaining after
accommodating these writ
petitioners may be made available
for the interveners upon proper
consideration."
Having said so, in the last paragraph of the impugned
judgment it was observed that all the aforesaid writ
petitions were disposed of. Thus, not only the writ
petitions filed by left-out standby workmen were allowed by
giving them one more chance for getting themselves
medically examined for obtaining eligibility for regular
employment under the CFH Scheme, writ Petition being OJC No.
12149 of 1996 filed by the appellants-174 workmen who were
given ad hoc appointments by respondent no.2 also got
disposed of without any express consideration of their claim
in the said writ petition.
As noted earlier, out of the aforesaid 332 workmen
after excluding 174 workmen who had filed OJC No. 12149 of
1996 the remaining 121 workmen filed an Intervention
Application in OJC No. 3308 of 1995 which was filed by
another group of workmen who were also claiming seniority
amongst left-out workmen for being included in the residuary
category of workmen to whom the balance of vacancies could
be made available in the light of the High Power Committee
Report and also in the light of the further direction of
this Court dated 31st January 1995 in S.L.P.(C) No. 13490 of
1994. Thus, there were rival claims for getting residuary
vacancies after exhausting the claims of standby workmen.
They were put forward by the petitioners in OJC No. 3308 of
1995 on the one hand and the 121 workmen who through their
Union submitted their intervention application claiming the
same vacancies in the residuary category, on the other. In
addition to these two groups of rival claimants, one another
group of workmen claiming top seniority for allotment of
residuary vacancies filed another intervention application
in OJC No 3308 of 1995. Those intervention applications got
disposed of as the OJC No. 3308 of 1995 was itself disposed
of by the impugned common judgment. The High Court found
that petitioners in OJC No 3308 of 1995 were not entitled to
be considered for employment in residuary vacancies. Their
petition was dismissed on merits. We are informed that the
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S.L.P. filed by the petitioner’s arising out of OJC No 3308
of 1995 is already dismissed by another Bench of this Court.
Therefore, petitioners in OJC No. 3308 of 1995 before the
High Court are no longer in the field of controversy at this
stage. We may mention that their learned counsel tried to
submit an I.A. for intervention in the present appeals but
as the decision of the High Court against them has become
final upto this Court such intervention application
obviously could not be entertained and was, therefore, not
entertained. However, 158 workmen out of 332 who claim to be
listed in the residuary category under the CFH Scheme and
whose 170 colleagues have filed the companion civil appeal
arising out of S.L.P.(C) No. 9719 of 1997, made a grievance
before us that at least their claim may be considered. As
their intervention application in the High Court was filed
in OJC No 3308 of 1995 which no longer services for
consideration their intervention application obviously
cannot service by itself. Therefore, if they have any
independent claim for being considered for remaining
vacancies after the claims of eligible standby workmen are
satisfied then it will be for them to approach the High
Court of Orissa by filing a substantive application under
Article 226 of the Constitution for ventilating their
grievance. We, therefore, dispose of their civil appeal
arising out of intervention application in OJC No. 3308 of
1995, without expressing any opinion on merits of their
claim and reserving liberty to them to agitate their claim
and contentions in substantive writ petition before the
Orissa High Court if they so chose and think fit to state
their claim for being considered for regular employment
under the CFH Scheme. As and when such claim is put forward
it is obvious that the High Court will decide the same
strictly on its own merits in the light of the High Power
Committee Report which is accepted by this Court and also in
the light of the decision of this Court in S.L.P.(C) No.
13490 of 1994 dated 31st January 1995.
It is now time for us to consider the main contentions
canvassed by learned senior counsel Shri G.B. Pai in support
of the appeal on behalf of 170 workmen who were petitioners
before the High Court in OJC No. 12149 of 1996. In the said
appeal arising out of S.L.P.(C) No. 9719 of 1997 Shri Pai
submitted that these appellants were appointed by Paradeep
Port Trust authorities because it was found that available
vacancies were not filled in by eligible standby workmen who
did not come forward to stake their claims for the same and
hence the said vacancies should have been given to the
remaining workmen in the light of their seniority as
directed by this Court by its order dated 31st January 1995
in S.L.P.(C) No 13490 of 1994. It is true that by resolution
dated 09th February, 1990 of the Committee of management of
the Paradeep Port Trust, respondent no.2 herein, these 174
workmen were given ad hoc appointments as causal labourers
but that was done only because of the pendency of the
earlier writ petition being OJC No. 674 of 1996. But once
that petition was disposed of on 26th April 1996, they
should be treated to have continued as regular workmen. Shri
Pai next contended that their inter se seniority was
considered for such appointments by the Committed of
Management vis-a-vis those who were claiming to be included
in the residuary category of workmen entitled to be
considered against the available vacancies after the claims
of standby workmen were considered and got exhausted. It was
submitted by Shri Pai, that so far as 138 workmen who have
filed intervention application being I.A. No. 4 of 1997 in
the present proceedings through their Union are concerned, a
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sub-committee of the Paradeep Port Trust had considered the
relevant seniority of the claimants for residuary vacancies
and, therefore, the decision of the Committee of Management
dated 09th February 1996 was binding on them. Shri Pai also
tried to contend that the High Court was not justified in
giving a fresh opportunity to left-out standby workmen for
getting one more chance to be considered for regular
appointment under the CFH Scheme as 14 times in past they
were offered such opportunities but they did not avail of
the same. However, when it was pointed out to Shri Pai that
the decisions rendered in their favour in their writ
petitions which were also disposed of by the very same
common judgment by which the appeal in OJC No. 12149 of 1996
was disposed of, were not made subject matter of challenge
in the present appeals and the S.L.P.(C) No. 9719 of 1997
only challenged the decision of the High Court in OJC No.
12149 of 1996, Shri Pai, learned senior counsel for the
appellants, fairly stated that in view of this technical
hurdle he does not challenge the said benefit made available
to 114 such standby workmen pursuant to the common order of
the High Court in their favour in their writ petitions being
OJC No. 10957 of 1996, 11618 of 1996, 11900 of 1996 and
12575 of 1996. Thus 114 standby workmen covered by the
decisions in the aforesaid writ petitions who have got the
benefit of the common judgment of the High Court and who,
after medical test have already been appointed as regular
workmen under CFH Scheme cannot in any way be affected by
any decision to be rendered in favour of the present
appellants. In other words, the claims of the present 170
appellants will have to be decided in connection with only
remaining vacancies after excluding vacancies with only
remaining vacancies after excluding vacancies filled in by
these 114 eligible standby workmen.
Shri Pai, however, contended that even leaving aside
these 114 standby workmen who have joined the group of their
brethren, namely, 125 standby workmen who had already been
treated as eligible workmen under the CFH Scheme the balance
of the vacancies filled up by 239 standby workmen should be
accommodated in these remaining vacancies as their higher
seniority and the other remaining workmen claiming to be
included in the residuary category is already recognised by
the Committee report as noted in the resolution of the
Management Committee meeting dated 09th February 1996. Shri
Pai submitted that these grievances of the appellants
squarely put forward before the High Court in OJC No. 12149
of 1996 were not at all considered by the High Court and
that save and except noting, their contentions in paragraphs
8 and 20 of the impugned judgment the High Court has not
come to the grips of the problem put forward by the
appellants in their writ petition being OJC No. 12149 of
1996 and has abruptly disposed it of along with other
matters in paragraph 48 of the common judgment, as noted
earlier, Shri Pai, learned senior counsel for the
appellants, in this connection submitted that under these
circumstances in normal course this writ petition would have
been required to be remanded to the High Court for decision
on merits. It is argued as these 170 appellants, writ-
petitioners before the High Court, have already been
filtered for appointment by the Committee of Management of
the Port Trust and they have been found to be sufficiently
senior for claiming vacancies available in the residuary
category their prayer in the writ petition deserves to be
granted straightaway and out of the remaining vacancies 170
vacancies may be made available to these appellants and the
balance of vacancies may be left open for consideration of
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the claims of the rival claimants raised in the remaining
writ petitions before the High Court and in any other writ
petition which this Court may deem it fit to permit to be
moved before the High Court in this connection.
Refuting the aforesaid contentions, learned senior
counsel Shri Milon K. Banerjee, for respondent no.2 and
learned counsel for the contesting rival claimants whose
intervention application was disposed of by the High Court
and who have filed a similar intervention application being
I.A. No. 4 of 1996 and also learned senior counsel for the
77 sardars of standby workers who have filed I.A. No., 3 in
these proceedings submitted that the Committee of Management
of the Port Trust by the resolution of 09th February 1996
had not undertaken the exercise of considering the seniority
of 170 workmen, appellants in the present case, vis-a-vis,
the seniority of other rival claimants and they were merely
given ad hoc appointments as ad hoc casual workmen and
consequently they cannot be permitted to steal a march over
other claimants without undertaking a comprehensive
exercise of finding out relevant seniority of these rival
claimants for being accommodated in the remaining available
vacancies in Paradeep port Trust as per the CFH Scheme of
1994.
Consideration of the rival contentions
We shall first deal with the claims put forward by
learned counsel for the intervenors in I.A. Nos.3 and 4
respectively. I.A. No. 3 is moved by 77 Sardars of standby
workmen who according to the learned counsel appearing for
them have been inadvertently left out by the High Power
Committee and they deserve consideration a Mazdoors and they
would be as good as standby workmen and if that is so they
will be covered by the sweep of the recommendations of the
High Power Committee in favour of standby workmen and would
naturally become eligible for getting regular employment
under CFH Scheme of 1994. Whether the 77 sardars of standby
workmen can be bracketed with the treated as Mazdoors
falling in the category of standby workmen is a question
which has first to be examined by the Orissa High Court.
These 77 applicants cannot straightaway file an I.A. before
this Court in the present appeal which represents only a
limited controversy raised by 170 workmen who though working
as casual workmen claim regular appointments under CFH
Scheme of 1994 and who allege that their seniority is
already recognised by the Committee of Management of the
Port Trust. These 77 workmen, therefore cannot be permitted
to seek intervention in the present proceedings without
there being any decision rendered in connection with their
claim, by the High Court. We, therefore, express no opinion
on the merits of their claim as put forward before us and
relegate these applicants to the remedy of filing a writ
petition, if so advised, under Article 226 of the
Constitution for consideration by the High court on its own
merits. The High Court obviously will consider the said writ
petition on merits as and when such occasion arises and that
decision only will have to be rendered in the light of the
High Power Committee Report which has stood accepted by this
Court and also in the light of the general directions issued
by this Court in S.L.P.(C) No. 13490 of 1994 decided on 31st
January 1995. It will be for the High Court to decide this
question in accordance with law after hearing the parties
concerned. We have nothing to say in this connection save
and except reserving the aforesaid liberty to these
applicants for filing a writ petition before the High Court
if so advised.
That takes us to the consideration of I.A. No. 4 of
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1997. These applicants were intervenors in Writ Petition
3308 of 1995. They are 138 applicants who also staked their
claim for being appointed as regular workmen under the CFH
Scheme of 1994. Their intervention application was disposed
of by the High Court while disposing of writ Petition No.
3308 of 1995 by observing, as noted earlier, that vacancies
remaining after accommodating the standby workmen whose writ
Petitions were allowed as aforesaid by the High Court may be
made available for intervenors upon appropriate
consideration. Once the main Writ Petition No 3308 of 1995
in which they wanted to intervene has stood disposed of upto
this Court, as seen earlier, this intervention application
also must fall through on a parity of reasoning by which we
have disposed of the claim of the appellants in appeal
arising out of S.L.P.(C) No. 14312 of 1997 moved on behalf
of 112 workmen out of 332 workmen and whose intervention
application in the same Writ Petition No 3308 of 1995 was
disposed of by the High Court in the aforesaid terms. I.A.
No. 4 of 1997 is also, therefore, disposed of reserving
liberty to the applicants to file substantive writ petition
for ventilating their grievance before the High Court if
they deem it fit. We express no opinion on the merits of the
controversy raised in this I.A. by the applicants. Their
grievances will have to be decided if properly raised before
the High Court in the substantive writ petition and the same
will have to be resolved by the High Court after hearing the
parties in the light of the High Power Committee Report
accepted by this Court as well as in the light of the
decision of this Court in S.L.P.(C) No. 13490 of 1994
decided on 31st January 1995.
After having disposed of these I.As. now remains the
consideration of the main contentions canvassed by learned
senior counsel Shri Pai in support of the appeal on behalf
of 170 workmen. It is of course true, as submitted by Shri
Pai, that despite 14 opportunities given to the remaining
standby workmen to get themselves medically examined and
despite further opportunity given to them by the High Court
in their Union’s Writ Petition being OJC No. 674 of 1996
only 4 workmen filed affidavits for availing the further
opportunity of getting themselves medically examined for
being eligible for appointment as regular workmen. It is
also true that pending the said writ petition the committee
of Management by its resolution dated 09th February 1996
decided to fill up the available vacancies on ad hoc basis
by appointing the present 170 appellants and they are so
working. However, the short question is whether their claim
for regular employment under the CFH Scheme was considered
in the light of appropriate seniority of claimants for these
residuary vacancies after the claims of standby workmen were
fully considered. Shri Pai submitted that the claims were so
considered and the seniority question is no longer res
integra, while learned senior counsel for the respondents on
the other hand submitted that it is not so and that question
was kept open and it was only the limited inter se seniority
of the group on 332 workers which was considered from the
limited point of view of appointing them as casual workmen
on available 174 vacancies for filling up 174 vacancies from
that group of 332 worker. Our attention was invited to the
proceedings of the meeting of the Committee of Management
held on 09th February 1996 and Resolution No. 43/96 which
was passed therein. Clause (iv) of the said Resolution
deserves to be noted in this connection :
"(iv) VERIFICATION OF LIST OF 332
GROUP WORKERS - On a question
raised by Sri A. Ranahandol,
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member, it was clarified that the
Sub-Committee constituted for the
purpose shall submit their report
towards end of this month. The
question of booking of 41 workers
of Steel Gang and 125 group of
standby workers for unloading of
coal wagons was discussed, Sri
Ranahandol, member insisted that
booking for additional workers
should be taken up together with
verified workers of 332 group. In
the above context, the committee
was informed of the writ petition
filed by some of the standby
workers in the High Court of Orissa
for their medical examination and
inclusion in the CFH Scheme. Since
the matter is subjudice and no
orders has been passed as yet, the
committee decided that the verified
workers of 332 group can only be
booked on casual basis for the time
being. It was decided to convene an
extra-ordinary meeting of the
management Committee after receipt
of the report of the Sub-Committee.
A mere look at the aforesaid Clause (iv) of the
Resolution shows that the claim of only the group 332
workers was considered and that too for being appointed to
standby workmen through their Union as aforesaid. The said
Clause (iv) nowhere provides that the seniority of 332
workers, vis-a-vis, other contesting claimants seeking for
regular employment in the residuary vacancies was at all
considered by the committee of Management. Not only that but
as pointed out by Shri Banerjee, learned senior counsel for
respondent no.2, by a latter resolution, Annexure P-2 dated
07th March 1996 of the management Committee produced in the
High Court in OJC no 3308 of 1995 and which is noted by the
High Court in paragraph 16 of the impugned common judgment,
booking of 145 workers and other workers as may be
recommended by the said Committee had to be done purely on
casual basis with a view to carry on day to day work and
that no worker shall have any right or claim on the basis of
present casual engagement in future. It, therefore, become
clear that no appropriate exercise for deciding the
seniority of rival claimants for the residuary vacancies as
contemplated by the order of this Court in S.L.P.(C) No.
13490 of 1994 decided on 31st January 1995 was at all
undertaken by the Management Committee at any stage and
these rival claims remained to be adjudicated upon in the
pending writ petitions in the Orissa High Court. It is also
not disputed by learned senior counsel for the appellants
that all these 170 workmen are working only as casual
workmen on ad hoc basis. Under these circumstances it is not
possible to agree with his contention that their seniority
is finally decided vis-a-vis all other claimants who have
staked their claims for being considered for regular
employment in the residuary vacancies after fully meeting
the claims of standby workmen. As that comprehensive
exercise has not been undertaken by the management Committee
the ad hoc appointments given to 174 workmen as casual
workmen and the work that is being carried on by them at the
paradeep Port cannot by themselves give them an edge or
priority over other claimants till their seniority, vis-a-
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vis these other claimants is finally decided. As that
exercise is not undertaken by respondent no.2-Management
Committee nor such an exercise is undertaken even by the
Orissa High Court in pending writ petition in which the
rival claims will have to be adjudicated upon on merits in
the light of the High Power Committee Report and the
decision of this Court in S.L.P.(C) No. 13490 of 1994
decided on 31st January 1995, on direction can be issued to
straightaway appoint them as regular workmen. It will,
therefore, be premature to direct at this stage that all
these 174 workmen should be appointed as regular workmen
under the CFH Scheme.
Similarly, the contention of learned senior counsel
Shri Pai against the merits of the claim of 138 workmen who
have moved I.A.No. 4 of 1997, before us cannot be considered
at this stage as we have already relegated the said workmen
to the remedy of filing a writ petition before the High
Court. As and when such writ petition is filed naturally the
appellants who have a rival claim will be entitled to be
heard on merits and it will be open to them to point out all
their objections regarding the locus standi of these 138
workmen.
However, one contention of Shri Pal requires closer
scrutiny. He submitted that the 174 petitioners’ contention
in OJC No. 12149 of 1996 which was already noted by the High
Court in the impugned common judgment at paragraphs 8 and 20
have not at all been considered by the High Court while
disposing of the appellants’ writ petition along with others
writ petitions by the same common judgment. To that extent
Shri pai is right. Consequently, even though we are not
inclined to go into the merits of the case of appellants in
this appeal arising out of the decision of the High Court
in OJC No. 12149 of 1996, it will be in the interest of
justice to allow this appeal by quashing the order of the
High Court disposing of OJC No. 12149 of 1996, to the extent
that the claims of these 174 persons were not considered. It
will have to be remanded to the High Court of Orissa for a
fresh decision on merits in accordance with law after
hearing the parties concerned in the light of the High Power
Committee Report which was approved by this Court and which
culminated into Paradeep Port Trust Scheme of 1994 and also
in the light of the direction of this Court in S.L.P.(C) No.
13490 of 1994 decided on 31st January 1995.
It is now time for us to take stock of the situation.
Pursuant to our present order liberty is being reserved to
applicants of I.A. Nos. 3 and 4 as well as the appellants in
the companion civil appeal arising out of S.L.P.(C) No.
14312 of 1997 to move, if so advised, three separate writ
petitions for putting forward their grievances for
consideration of the High Court. In addition to these three
writ petitions, if they are filed, the fourth additional
writ petition will also have to be considered by the High
Court as we are, by our present order, remanding OJC No.
12149 of 1996 for fresh consideration of the High Court on
merits, allowing the appeal arising out of S.L.P.(C) No.
9719 of 1997 to the aforesaid limited extent, In addition to
these four writ petitions, we are informed that number of
other writ petitions are pending in the High Court which are
moved by left-out standby workmen and also other claimants.
All such writ petitions which are at present pending in the
Orissa High Court in connection with the claims of workmen
concerned for being included in the CFH Scheme of 1994 shall
be decided by the High Court conjointly with the aforesaid
four writ petitions covered by this order so that the High
Court can have a a comprehensive idea about the claims of
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the rival claimant-workmen for being included in the
residuary category as listed workmen under the said Scheme
in vacancies left after accommodating all eligible standby
workmen, of course in the light of their inter se seniority
which may be ascertained by the High Court. We, however,
note that these claims are in a melting pot since 1979 and
despite the High Power Committee’s efforts spread over more
than three years and despite the Report of the said
Committee being accepted by this court and despite this
Court’s pious wish reflected by the order dated 31st January
1995 in S.L.P.(C) No. 13490 of 1994 that the proceedings may
be close, the simmering discontent continues in connection
with the CFH Scheme. it is, therefore, in the fitness of
things to direct in exercise of our powers under Article 142
of the Constitution of India that all writ petitions pending
in the High Court pertaining to the claims of rival
claimants , to be included in the CFH Scheme of 1994 for
getting regular employment under the said Scheme for working
at Paradeep Port as clearing, forwarding and handling
workers, shall be decided by the High Court along with the
aforesaid four writ petitions only pursuant to the present
order. But the High Court shall not entertain any more writ
petitions pertaining to the said Scheme and the date of our
present order shall be taken as a cut-off date beyond which
no new writ petitions in this connection shall be
entertained by the High Court. Only those writ petitioners
who have approached the High Court prior to this cut-off
date will be entitled to get their claims decided by the
High Court on merits along with the four writ petitions
which will be considered by the High Court pursuant to our
present order wherein three writ petitions would be fresh
writ petitions permitted by us and one writ petition being
OJC No. 12149 of 1996 which is restored to the file of the
High Court pursuant to the present order for being decided
afresh on merits.
We have clarified about this cut-off dare so that no
fresh spate of litigation in connection with the CFH Scheme
of 1994 would be filed in the High Court and the claims of
rival claimants that will be on the anvil of the High Court
for scrutiny as per the said cut-off date will get
crystalized and frozen. The next question which remains for
consideration is as to vis-a-vis which number of vacancies
the High Court should consider the rival claims of these
claimants left in the arena of contest. This exercise in
necessary for us to shorten litigation before the High Court
so that the High Court will be able to effectively being
down the curtain on this dispute in a comprehensive manner.
The claims of the aforesaid rival claimants shall be
examined in the light of their inter se seniority for being
considered for getting accommodated in available vacancies.
These vacancies as on date are computed by us as under.
Respondent no.2 by way of additional affidavit has made the
following pertinent observations in paragraphs D(a) to D(g)
as under :
"(a) Optimum requirement of workers for CFH operations as
assessed by High Power Committee vide para: 15,14 :
Mazdoor Supervisors Total
------- ---------- -----
(i) Workers handling 1182 49 1231
coal and other bulk
cargo.
(ii) Truck unloading or iron
ore and Chrome ore 128 6 134
(iii Bag and Bale
workers 362 15 377
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(iv) Iron and steel
workers 54 4 58
-------- ------- --------
1726 74 1800
-------- ------ -------
(b) Presently Iron & Steel cargoes are not available for
handling by C&F workers and therefore, there is no
requirement of iron and steel workers. The Iron and Steel
workers have been accommodated in thermal coal unloading.
Therefore, the requirement of Mazdoors and Supervisors will
stand reduced as under :
Mazdoors..................... 1672
Supervisors.................. 70
----------
1742
-----------
(c) No. of Mazdoors presently available and the vacancies to
be kept for mazdoors of various groups is as under :
Group Mazdoors
i) thermal coal and other
bulk cargo handling 673
ii) Truck unloading of iron
ore and chrome ore 46
iii) bag and Bale cargo 396
iv) Iron & Steel 49
v) Standby group of workers who
have joined the scheme on 14.3.96 125
vi) No. of standby workers who have
joined the CFH Scheme as per High
Court order dated 26.2.97 114
vii) No. of cases pending for medical
and Judicial clearance 15
viii) Vacancies to be kept for
accommodation of surplus Sardars 129
----------------
1574
----------------
The requirement of Supervisors as per recommendations
of High Power Committee for above is 70. Therefore, the
total workforce available can be taken as 1617 as against
1742.
(d) As per recommendation of the HPC in Para : 15.18 129
Sardars who are declared surplus may give their willingness
to join as mazdoors and 395 standby workers can be absorbed
in the remaining vacancies. Out of 395 standby workers, 125
standby workers had joined w.e.f. 14.03.1996.
(e) As per the direction of Hon’ble Orissa High Court, 115
standby workers had attended medical examination and 114
have joined the Scheme w.e.f. 11.09.1997.
(f) The remaining vacancies are 155.
(g) Out of 155 vacancies, 54 vacancies are to accommodate
the 54 mazdoors of the Steel group as there is no work of
steel handling for the present and there is no likelihood of
any work for them for the coming two years."
<sle>
It, therefore, becomes clear that the existing vacancies are
155 after accommodating 114 standby workers who have joined
the CFH Scheme as per the High Court’s common order dated
26th February 1997. Respondent No.2 has also added 15 cases
of standby workmen who have claimed medical and judicial
clearance and whose writ petitions are pending in the High
Court as on date and which will also have to be examined by
the High Court as indicated in the present order. It is,
therefore, obvious that if the High Court of Orissa in the
writ petitions of 15 standby workmen decides in their favour
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the vacancies would remain 155 as for these 15 persons there
is already a provision made by respondent no.2 in the
aforesaid affidavit and their vacancies are already treated
as being allotted to them subject to the result of the writ
petition. Thus claim of these 15 standby workmen is taken
care of while computing these 155 vacancies. it is obvious
that if the claim of these 15 standby workmen for being
included in CFH Scheme gets rejected by the High Court then
the remaining vacancies would naturally increase to 170 (155
+ 15).
Now remains the question whether any additional
vacancies can be made available for being filled up by the
residuary category of workmen after exhausting the
requirements of standby workmen and who may be found
eligible according to their inter se seniority for filling
up these vacancies . In this connection, we may usefully
refer to the affidavit of shri Antaryami patnaik, Secretary
of the Paradeep Port Clearing, Forwarding and Handling
Agents’ Association which is styled as Preliminary
Affidavit on behalf of paradeep Port Clearing, Forwarding &
Handling Agents’ Association and who are the employers of
these CFH workmen. para 3(c), (d) and (e) of the said
affidavit read as under :
"3(c). That consequent to
submission of the Report of the
High Power Committee several steps
were taken by the C.F.H. Agents to
go in for higher productivity and
the Pradip Port and Dock Mazdoor
Union and agreed to undertake
unloading of two 8-wheeler wagons
per gang and consequent to
introduction of unloading of two
wagons, requests were made by them
to consider a change in the manning
scale. Having realised and
experiencing the Practical
difficulties, the C.F.H. Agents had
discussed the matter with the Union
representatives and it was agreed
that one Supervisor per Gang be
deployed either as supervisor Gr -
I of as Supervisor Gr - II by
redesignating the Sardars as
Supervisor Gr - II without,
however, any change in the pay
scales. This was necessary to take
care of the shortage of Supervisors
for all the gangs. Accordingly, a
proposal was submitted Committee
and presently this deployment
Pattern has been introduced on an
experimental basis. This matter was
also discussed with other groups of
workers represented by paradip Port
Workers Union but, they have so far
not come forward with any of their
suggestion. If this is agreed to,
all the gangs will be booked for
work with 9 persons as against the
recommendation of High Power
Committee for 8.33 persons. In this
connection, it may be further
clarified that prior to the
recommendation of High Power
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Committee, all the gangs were
booked with the composition of 8
mazdoors + Sardar + 1 Supervisor
(total 10 per gang). The High Power
Committee recommended in (para -
14.45 Annexure - XIV) that a gang
should consist of 8 Mazdoors and
one supervisor for three gangs -
8.33 persons per gang. This
recommendation could not be carried
out as the same was not workable
and consequently discussions were
held with the Union to go in for a
more suitable and workable
composition of gang and it was
agreed with one of the Unions
handling bulk cargoes that the
present composition should be 8
Mazdoors + one Supervisor (total 9)
with a provision that all Sardars
would be redesignated as
Supervisors Gr. II. Although this
would mean that some number of
Supervisors will be appointed i
excess of the recommendation of the
report of High Power Committee the
employers feel that this would be
beneficial to all concerned. This
could not be made applicable to all
groups of workers in view of the
fact that all other union handling
bag and bale cargoes has not given
consent to the proposal.
(d) That as per the recommendations
of the High Power Committee, all
the surplus Sardars (127) working
in the Clearing, Forwarding
operations were required to
exercise option to work as Mazdoors
but in view of practical
difficulties explained above, the
Sardars may be redesignated as
Supervisor Gr II. If this is agreed
to, calling for options from
Sardars to work as Mazdoors shall
not necessary. This respondent
prays that the report of the High
Power committee be amended suitably
modified to this extent. keeping in
view the present exigency and in
the interest of smooth operation of
work. This suggestion is acceptable
to most of the workers and would be
generally beneficial to them as it
would create additional requirement
of work force.
(e) Once the proposal for
redesignation of the Sardars as
Supervisor - II is agreed to, the
net vacancy for mazdoors will work
out to 155 + 127 = 282."
It is of course true that the proposal put forward in
the said preliminary affidavit by the employer of these CFH
workmen would require an extension of the coverage permitted
by High Power Committee whose report is accepted by this
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Court. In this connection we must observe that as the report
of the High Power Committee which has taken great pains
spread over more than three years in trying to resolve the
conflict and in deciding the rival claims so that the
working in the Paradeep Port Trust could go on more
peacefully and efficiently and as the said Report is
accepted by this Court it has to be accepted as
comprehensive and fully binding on all concerned and cannot
be tinkered with in connection with its basic
recommendation. However, so far as the limited question of
increase of vacancies it concerned, necessary modification
regarding re-designation of workmen concerned can be made by
consent of all the contesting parties. if this is done by
consent of all the rival claimants for employment in CFH
Scheme, the basis of the scheme will not get adversely
affected. We are happy to know that all the learned counsel
representing different groups of workmen claiming to be
included in the CFH Scheme and who are the rival claimants
in the writ petitions which are now to be decided by the
High Court pursuant to the present order have agreed that a
limited exercise for increasing the balance of available
vacancies which would obviously be beneficial to all rival
claimants may be undertaken by their consent. All the
contesting onion of workmen were agreeable to the said
exercise as submitted by their respective counsel before
us. Learned senior counsel Shri Banerjee appearing for the
management Committee, respondent no.2 herein, fairly left
that question to us. His only rider was that the Report of
the High Power Committee as accepted by this Court and which
is a product of immense pain and efforts put forward by
learned Judge Shri H.R. Khanna and his colleagues should not
be in any way adversely affected. We entirely agree with him
and make it clear that we are seeking to extend the coverage
of the said Report for the benefit of all workmen concerned
by their consent. We also make it clear that our present
exercise is confined only to the question of ascertaining
available vacancies as on date and nothing more and nothing
less. We have already seen earlier that as per the
Additional Affidavit of respondent no.2 the remaining
vacancies are 155. As per the aforesaid preliminary
affidavit of the employer of these CFH workmen if the gang
is to consist of 8 Mazdoor plus one Supervisor, total 9
instead of 8 Mazdoors plus one supervisor for three gangs,
that is, 8.33 persons per gang as recommended by the High
Power Committee and as earlier accepted by this Court more
Mazdoors will get accommodated. Hence 127 Sardars of standby
workmen will now be treated as re-designated Supervisors
Grade - II with the result that they will release 127
vacancies in the Mazdoors quota and these many more
vacancies will be added to the vacancies of Mazdoors. They
will, therefore, work out to 155 + 127 vacancies, in all
282. We grant this much modification in the report of High
Power Committee and consequently in CFH Scheme by consent of
all the parties and direct re-designation of 127 Sardars as
Supervisors Grade - II. Thus the coverage of High Power
Committee Report will stand extended keeping in tact the
said Report in all other aspects and will remain binding and
perative at the Paradeep Port Trust while it works out the
CFH Scheme of 1994. It is also made clear as agreed to
between the contesting parties that 127 re-designated
Sardars as Supervisors Grade - II will be continued to be
employed on the same terms and conditions and on same wages
by the employer, namely, the Paradeep Port Clearing,
Forwarding and Handling Agents’ Association as agreed to by
them in their affidavit. The net result in that the
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available vacancies of mazdoors for being covered under CFH
Scheme of 1994 will be 155 + 127 = 282 as on date. These
available vacancies will, of course, further get enlarged by
15 vacancies more if ultimately the writ petitions filled by
the 15 left-out standby workmen get rejected by the High
Court. In that eventuality the available vacancies as on
date will be treated as 282 + = 297 and if the writ
petitions of these 15 standby workmen are granted by the
High Court then obviously the cake of the residuary
vacancies for distribution amongst the eligible claimants
will be confined to 282. It is for these ascertained
vacancies as existing on date that the High Court will
undertake the exercise of finding out the eligible claimants
whose writ petitions will be examined by the High Court as
per the present order and in the light of their vis-a-vis
inter se seniority their claim for being appointed as
regular employees under the CFH Scheme will be worked out
qua these available vacancies. In short, once these
available vacancies are ascertained and if the High Court
is not apprised of any further increase or decrease in the
vacancies by the parties concerned due to any future
contingencies then on the basis of these 282 available
vacancies as on date, the rival claims of the contesting
claimants in the pending writ petitions and in the writ
petitions that will be placed before the High Court for
consideration pursuant to the present order, will have to be
examined and decided by the High Court. The appeal is
allowed as aforesaid with no order as to costs.