Full Judgment Text
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CASE NO.:
Writ Petition (civil) 433 of 1998
PETITIONER:
A.I. Railway Parcel & Goods Porters Union
Versus
Union of India & Ors.
@
August 22, 2003.
#
S. Rajendra Babu, Dr. AR. Lakshmanan & G.P. Mathur.
&
J U D G M E N T
WITH
Writ Petition (Civil) Nos. 457 of 1998, 278 of 1999, 530 of 2000,
599 of 2000, 45 of 2001, 121 of 2000, 262 of 2002 and 19 of 2003,
Civil Appeal No. 57 of 2001 and
Civil Appeal No.________of 2003 @ Special Leave Petition (Civil) No.
6560 of 2001
Dr. AR. LAKSHMANAN, J.
Leave granted in Special Leave Petition No. 6560 of 2001.
This group of writ petitions and appeals raise common questions
of law relating to the abolition of contract system of labour. Writ Petition
No. 433 of 1998 was filed by the All India Railway Parcel and Goods
Porters Union praying for the following reliefs:
"a) Issue appropriate writ in the nature of mandamus or any
other writ, direction or order commanding the
respondents to treat the petitioners who are working as
Parcel Porters as permanent employees of the Northern
Railway as has been directed by this Hon’ble Court in
various petitions filed by the colleagues of the petitioners
and a further direction may be given to abolish contract
system in parcel handling work at different Railway
Stations in Northern Railway and all the Parcel Porters
working at different Railway Stations of Northern
Railway may be treated as regular employees of the
Railways;
b) Issue an appropriate writ, direction or order commanding
the respondents to treat the petitioners as employees of
Northern Railway and give them the same benefits
which have been given to other parcel porters working at
different Railway Stations of Northern Railway as regular
employees of Northern Railway;
c) Issue an appropriate writ, direction or order commanding
the respondents to stop treating the petitioners as
contract labour at Railway Stations of Northern Railway
for loading and unloading of parcels as this work done
by the petitioners is of permanent and perennial nature."
Similar prayers have been asked for by the petitioners union in
other writ petitions. Civil Appeal No. 57 of 2001 was filed by the Union
of India and Others questioning the correctness of the final judgment
and order dated 07.07.2000 passed by the High Court of Delhi in Writ
Petition No.5595 of 1998. In the said case, the Central Administrative
Tribunal allowed the claim of the respondents therein by following the
judgment of this Court in National Federation of Railway Porters,
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Vendors and Bearers vs. Union of India and Others reported in 1995
Supp (3) SCC 152. Since the issue raised in the said writ petition before
the Delhi High Court is pending consideration of this Court in Writ
Petition No. 433 of 1998 wherein this Court on 08.09.2000, passed the
following interim order.
"Pending disposal of these petitions, there shall be no
regularization of parcel porters working at different railway
stations notwithstanding any order of any Court, Tribunal or
other authorities. Call after six weeks."
Since the High Court dismissed the writ petition filed by the Union
of India holding that there is no legal infirmity in the order of the Tribunal,
the Union of India has preferred the above civil appeal.
Appeal @ Special Leave Petition No. 6560 of 2001 was filed by
one Radhey Shyam and Others against the Union of India and Others
questioning the correctness of the judgment and order dated 10.11.2000
passed by the High Court of Judicature at Allahabad in Writ Petition
No.1760 of 2000 dismissing the writ petition and affirming the order
passed by the Central Administrative Tribunal.
For the sake of convenience, we will first deal with the facts in
Writ Petition No. 433 of 1998 and the questions of law as they arise
therefrom. The petitioners in this writ petition is the Union. The writ
petition was filed seeking the same relief which has been granted by this
Court to the colleagues of the petitioners similarly situated and working
as Parcel Porters in Northern Railways at different railway stations for
the last 10-30 years onwards continuously. However, they have not
been treated as the permanent employees of the Railway so far, though
they are discharging the duties of permanent and perennial nature. A
list containing the names of Parcel Porters who have been engaged by
the Northern Railways as contract labour at different railway stations
along with their service details was also filed and marked as
Annexure-A.
Mr. Dinesh Kumar Garg, learned counsel appearing for the writ
petitioners, submitted that this Court in the case of National Federation
of Railway Porters, Vendors and Bearers (supra) (vide its judgment
and order dated 09.05.1995) gave directions to absorb all Parcel Porters
as permanent employees of the Railway. He also invited our attention to
the judgment and order dated 15.04.1991 in Writ Petition No. 277 of
1988 in which this Court while directing to abolish the Contract Labour
system in Parcel work on different Railways, directed the Government of
India to treat 166 Parcel Porters working at Charbagh Railway Station at
Lucknow of Northern Railway to treat them as permanent employees of
Northern Railway (Annexure-B). It is further submitted that subsequently
this Court in Writ Petition Nos. 568 and 711 of 1995 vide judgment and
order dated 08.07.1996 again directed the Railways to absorb parcel
porters as permanent employees of the railway according to their
seniority (Annexure-D). Learned counsel has also invited our attention
to the order dated 19.09.1997 passed by this Court in Writ Petition No.
90 of 1997 directing the Assistant Commissioner (Labour), Central
Government to conduct an enquiry as to whether the Parcel Porters in
the aforesaid writ petition had been discharging the work of permanent
and perennial nature and if so the period for which they have been
engaged. The learned counsel also drew our attention to various similar
orders passed by this Court directing the Labour Commissioner to
conduct an enquiry regarding the working of the Parcel Porters.
Pursuant to the directions given by this Court in the instant case
on 30.11.1992, the Assistant Labour Commissioner (Central) Lucknow
conducted an elaborate enquiry and submitted a detailed report in which
he had recorded the findings that the work of parcel handling Northern
Railway is permanent and perennial in nature and sufficient to keep all
the Parcel Porters engaged continuously, and the requirements of
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Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970
had been satisfied and the petitioner parcel porters were working
continuously for long years without any break in service.
According to the learned counsel, in spite of the directions given
by this Court for the abolition of the Contract System in parcel handling
work and in spite of various orders passed by this Court and of the
commitment made by the Northern Railway, the contract system in
parcel handling work is neither been abolished nor the parcel porters
working in different railway stations have been treated as permanent
employees of the railway, though these parcel porters had been working
for the last 10-30 years continuously. He would further submit that
though the contractors are changed from time to time, the petitioners
have been working continuously as Parcel Porters under the direct
control of Railways which is the principal employer, therefore, he
submitted that the petitioners should be given the relief which has been
granted by this Court to their colleagues by absorbing them as
permanent employees and also to issue a further direction to abolish
contract system in parcel handling work at different railway stations in
Northern Railway The learned counsel has also invited our attention to
para 12 of the writ petition as to how the petitioners are discharging the
work of permanent and perennial nature and as to how it is very
essential for the railways to continue its activities as narrated in para 12
(a)â\200\223(k). It is also submitted that the conduct and duties of the petitioners
are being controlled by the Railway Authorities and if the Authorities are
displeased with any of the Parcel Porters, they are empowered to punish
such parcel porters and turn them out of the railway station and do not
issue entrance passes as well as badges to such parcel porters. It is
also contented that since the petitioners have to discharge their loading
and unloading and shifting duties under the strict supervision of the
Railway Authorities, they cannot be treated as contract labourers.
Counter affidavit was filed on behalf of respondent Nos. 1-7
contending that this Court has ordered for regularization of the required
number of persons to the extent of perennial number of posts
ascertained after conducting work study and not all the petitioners as
stated in the annexures. It is further submitted that most of the
petitioners of the petitions mentioned have already been regularized
against the perennial posts and on the basis of work study report in case
any additional post is found as perennial and permanent in nature, the
senior-most person(s) will be regularized after completing all other
formalities as per the Railway rules. It is also stated in the counter that it
is not possible to stop the contract labour system of handling work and
that the nature of job which is not perennial and permanent will have to
be completed by engaging contract labourers and for the work which has
been casual in nature are not permanent in nature it is not possible to
engage permanent parcel porters. It is further stated that parcel
handling works are awarded to the labour cooperative societies which
supply the labour as per the requirement of the Railways on a day to day
basis depending upon the volume of the work to be handled on a
particular day, and the payment is made to the cooperative societies and
not to the individual labourers on the basis of the total weight handled.
Another counter affidavit was filed on behalf of respondent Nos. 1,
3 and 8 stating that the muster rolls of the cooperative societies have no
sanctity and cannot be taken to show the names of the labour who have
been genuinely working and the length of time for which they have been
continuously working.
An additional affidavit was filed by respondent Nos. 1-7 through
their Deputy Chief Marketing Manager, Northern Railway stating that the
Railways do not have the records of the porters who have been working
with the contractors, and in the absence of any documentary proof, they
were not in a position to either accept or deny the claims of the
petitioners. A rejoinder affidavit was filed by the petitioners’ union
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denying the averments contained in the counter affidavit.
The Eastern Railway Administration filed an additional affidavit on
its behalf.
Mr. Raju Ramachandran, learned Additional Solicitor General,
took us through the statements and averments contained in various
affidavits filed by the Railways and submitted that the Railways is not
just a commercial concern, but also a public utility concern which carries
several essential commodities at a very concessional freights and also
gives a lot of concessions in passenger traffic to innumerable categories
of persons. This being so, if such economically non-viable acts like
regularization of the petitioners is forced upon the railways, public utility
and passenger amenity items are bound to suffer. He would further
submit that the work performed by the contract labour is of fluctuating
nature and the amount of work depends upon the parcels received in a
particular day and that no labour is required as the loading and
unloading is done by the party itself and in view of the fluctuations and
irregular and seasonal type of work, keeping permanent cadre for doing
this parcel handling work is not possible. He would further urge that the
Railways are facing a financial crisis due to decreasing budgetary
support and increasing cost of production and purchase of various items
and the Railway Administration is itself contemplating measures for
downsizing its present cadre, minimizing the staff cost and operating
ratio. This being the case, it will not be feasible for the railway
administration to absorb the petitioners in regular service. Moreover, if
the present petitioners unreasonable prayers are acceded to by this
Court, it would lead to several such requests for regularization from
many quarters even though the applicants may be working elsewhere
and may not have undergone the well laid down procedures for
recruitment and may not be fulfilling the eligibility criteria for appointment
for the post or may not be adequately trained. It is thus submitted that in
view of the huge number of petitioners, lack of any documentary proof of
their having worked continuously, and the meagre parcel handling
earnings, their regularization by the Railways is financially not viable. It
is further submitted that due to the government policy of downsizing the
staff cadre, the Railways is coming up with many schemes of awarding
contracts to private parties by leasing of SLRs and BOLT schemes etc.
to implement the Fifth Pay Commission recommendations. Thus, the
absorption of such a huge work force of Class IV employees without
adequate amount of work will result in a financial crunch. The learned
Additional Solicitor General drew our attention to the additional affidavit
of Respondent Nos. 1-7 and the statements made thereunder, to the
effect that as a result of the present loading/unloading operations being
totally uneconomical, a loss of approximately 900 crores is being
incurred by the Railways and, therefore, there is no option but to
rationalize the entire operation with regard to the parcel handling
business. The learned Additional Solicitor General would further
contend that in order to improve services, the Railways introduced the
concept of leasing the space in the luggage compartment of the front
luggage coach of some of the passengers carrying trains in November,
1991. However, a comprehensive policy was introduced in the year
1999 in order to attract parcel traffic through the leasing route and as per
the master circular issued on 16.11.1999, SLR space in the front SLR
was permitted for leasing for all types of trains and SLR space in over
200 trains is being leased out to provide operators, where the loading
and unloading is also done by them. The process of leasing was taken
one step further with the launch of the Parcel Express trains known as
"Millennium Parcel Express" trains in March, 2001, which envisages
running of high speed "time-tabled" parcel trains leased to cargo
consolidators on the basis of open tenders and two such weekly trains
are already being operated and more are likely to be introduced in
future. It is further submitted that the steps taken by the Indian Railways
to encourage handling of parcel by private parties through leasing of the
space in SLRs, VPs and parcel trains has helped in increasing the
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railway earnings and as a result thereof, the earning from parcel traffic
has increased from 294.24 crores in 1998 to Rs. 433.46 crores in 2001-
02 which according to the learned Additional Solicitor General is proof of
the fact that the senders and receivers of parcel prefer handling through
their own agency.
With a view to make the parcel services vibrant business along
with better service to its customers, the Government has accepted the
recommendation of the Parliamentary Standing Committee on Railways,
as contained in their 9th Report (2001) presented in Lok Sabha in April,
2001 to segregate parcel services from passenger services. He would
further state that the Government of India’s plan of "rightsizing" the
workforce has been acted upon by the Railways. Rightsizing
automatically involves rationalizing the operations, coming down to
redundant areas and outsourcing of "non-core" areas. As
loading/unloading of parcels is a non-core activity, the parcel leasing
schemes vest the leaseholder with the responsibility of handling the
parcel traffic.
Learned Additional Solicitor General further submitted that apart
from the losses in parcel business that the Railways are sustaining, they
have also to face the mounting wage bill of the employees. The average
annual wage bill of a Railway employee during 2000-01 was Rs.
1,21,281/-. As against this overall average for all staff, the annual wage
bill of a group D employee was as high as Rs. 84,576/-. The wage bill
has been increasing over the years and the average wage bill of group D
employee has increased from Rs. 37,344/- in 1994-95 to Rs. 84,576/- in
2000-01. The current wage bill can be estimated to be nearly around
Rs. 1 lakh per group D staff. Thus, with a workforce of over 9000
departmental parcel porters, the annual wage bill on this account is over
Rs. 90 crore. Thus, though the average number of group D staff has
reduced from Rs. 5.06 lakh in 1994-95 to Rs. 4.62 lakh in 2000-01, there
is a continuous and heavy increase in the wage bill of the Indian
Railways, which is difficult to bear.
It is also submitted in the instant batch of cases, the number of
petitioners are again more than 1500. If the judgment of this Court is in
favour of the petitioners, there will be spate of litigation with many more
parcel porters and other similarly placed workers approaching this Court
for similar relief. The financial implication for the Indian Railways in
regularization of the petitioners would be Rs. 1 crore for every 100 such
private parcel porters.
Concluding his argument, the learned Additional Solicitor General
submitted even for the parcel traffic handled departmentally by the
Railways by Mail/Express and Passenger trains, the loading/unloading
work is of a sporadic and intermittent nature. Even this work is confined
only to the time when the various trains originate/terminate/stop at the
stations for short duration. Thus, whichever worker is engaged by the
contractor, will generally be available on the Railway premises for the
purpose of loading/unloading only on the day and at the time of
arrival/departure of various trains and that the work of loading/unloading
is neither regular nor continuous in nature and, therefore, does not
require engagement of regular workers. Concluding his argument, the
learned Additional Solicitor General submitted that as the railways are
sustaining an annual loss of Rs. 900 crores and also have to face the
mounting wage bill, they have no option but to rationalize the parcel
business by leasing out to private cargo operators and will not be in a
position to absorb the contract labourers engaged in parcel handling.
Our attention was also drawn to the various circulars issued by the
Government of India, Ministry of Railways marked as Exhibit-R1, R2 and
R3.
The petitioners have not filed any reply or rejoinder to the
additional affidavit of respondent Nos. 1-7 filed on 16.01.03.
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Learned counsel for the other writ petitioners have adopted the
arguments advanced by learned counsel for the writ petitioner
Mr. Dinesh Kumar Garg.
Learned counsel for the writ petitioners drew our attention to the
order passed by this Court on 14.07.1999 in Writ Petition No. 433 of
1998 which reads thus:
"The Assistant Labour Commissioner (Central), Lucknow to
whom copies of all the previous orders passed in the case,
shall be sent, shall conduct an inquiry as to whether the
petitioners were working continuously and whether the job
which they perform is of a perennial nature. The inquiry may
be completed within three months from the date of receipt of
this order and a report submitted to this Court."
He also invited our attention to the report of the Assistant Labour
Commissioner (Central) Lucknow dated 18.01.2000 containing 85
pages. We have perused the same. The Assistant Labour
Commissioner framed two issues for enquiry which are as follows:-
1. Whether the petitioners were working continuously and
2. Whether the job which they perform is of a perennial
nature.
According to the Labour Commissioner, the railways have not produced
any records pertaining to the period of working of the parcel porters as
no records of the petitioners are maintained at the stations or any other
railway office. Railways have also contended that they have no
knowledge as to which of the petitioners were engaged by the
contractors and from what date. It is further stated in the report that only
six contractors appeared and dozens of them did not even respond to
his notice he had sent to them on their addresses which were supplied
to him by the petitioners and the railways. A number of registered letters
were returned undelivered with the postal department’s remarks that
either the contractors refused to accept the letters or they were not
available at those addresses. The contractors who appeared before the
Labour Commissioner did not also produce any records. Under such
circumstances, he heard the individual petitioners who appeared before
him and recorded their statements. The Labour Commissioner has
stated that in fact the contractor is suppressing the records to conceal
the fact of the petitioners working and, therefore, he accepted the
employment cards/service certificates submitted by the petitioners as
proof of their working for the period claimed by them. The findings on
issue Nos. 1 and 2 rendered by the Labour Commissioner runs thus:-
"Issue No.1:
The Railways and the contractors have verified the
period of working of the petitioner parcel porters in some cases.
The period of such verification is very short in many cases, the
reason being that the contractors have changed very frequently
and the records that might be in possession of earlier
contractors could not be obtained. The Railway and the
contractors have not produced the records of working of the
parcel porters who have claimed to have worked prior to the
period as verified by the contractors and the Railway. It
appears unjust that the petitioners’ interests should be harmed
due to non-production of records.
Despite several notices having been issued to the
concerned respondent Railways and the contractors that in the
event of failure on their part to produce records the claim of the
petitioners would be accepted, till 14.1.2000 on which date I
finalised this report none of them produced records for the past
period to admit or deny the claim of petitioners. I am left with
no other option than to conclude that they must have worked.
a) The list of petitioners whose period of working has been
verified is enclosed as Annexure "A" to this report.
b) The list of petitioners who have claimed to have worked
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but whose working period could not be verified due to
non-production of records by the Railway and the
contractors is enclosed as Annexure "B" to this report.
Issue No.2
I have reached to the conclusion that the work of parcel
handling/loading/un-loading is an activity that is not separate
and detatched from the complex parcel handling job being done
by Railways. Parcel handling is an integral part of the whole
system and it has been going on for ages round the clock
during day and night for all the 365 days in a year without the
break of a single day. In fact the job of parcel handling which is
being performed by the petitioners is the foundation on which
the gigantic structure of parcel department stands. If the parcel
handling work is stopped then the whole work of parcel
transportation will come to stand still and all the regular staff
and officers whose number is very large will become idle.
The parcel handling work being performed by the
petitioners is of a perennial nature.
Submitted."
The Railways filed opposition to the report of the Labour
Commissioner. It is stated therein that the railways came to know about
the report only through the Central Agency Section on 08.05.2000 and
more surprisingly, the report dated 18.01.2000 appears to have been
submitted before this Court in the same week itself but neither the
answering respondent nor the railways was afforded any opportunity to
either lead evidence or cross-examine the witnesses appeared on behalf
of the respondents. According to the railways, from a bare reading of
the report it will be clear that the report is not based on any documentary
evidence and that the objections raised by the Railway Authorities have
either been not entertained and incorporated in the report or have been
dealt in most unfair manner and that the Labour Commissioner has not
taken pain to summon the contractors along with the relevant records
though complete addresses of such contractors were supplied by the
Railway Administration. It is, therefore, submitted that in the absence of
the documents regarding the particulars of the services rendered by the
Porters, the Railway Administration was obviously not in a position either
to admit or deny the claim of the petitioner. It is also stated in the
opposition that since the contract labour is abolished w.e.f. 30.10.1995
there is no question of any other labourers left to be regularized and,
therefore, the Assistant Labour Commissioner should be directed to
permit the Railway Administration to verify the contents of the
documents submitted by the petitioners and ex-contractors by cross-
examination; compel all the ex-contractors to be present at the hearing
and submit a fresh report based on the documents actually presented
before him.
Per contra, learned counsel for the petitioners submitted that the
Labour Commissioner gave repeated adjournments to enable the
Railways for finalizing objections or to cross-examine the petitioners and
contractors under whom the petitioners have been discharging their
duties at different railway stations. However, the officials refused to
cross-examine the petitioners or the contractors and, therefore, the
Labour Commissioner on the basis of the record available on the file of
the Assistant Labour Commissioner as well as with the officials of the
Railways have submitted his report. Thus, it is submitted that the
objections regarding the report of the Labour Commissioner had been
raised for no reason or basis.
It is seen from the report of the Labour Commissioner that the
contractors have refused to produce the records and cooperate with the
Labour Commissioner at the enquiry. Likewise, Railways also
complained that the Labour Commissioner has not afforded them
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sufficient opportunity to verify the veracity of the documents as well as
the period for which the petitioners have already worked as parcel
porters. Therefore, the report of the Assistant Labour Commissioner
cannot be taken as a full and complete report as to whether the
petitioners were working continuously and whether the job they perform
is of perennial nature.
As per the established principle of law, the petitioners in order to
succeed will have to substantiate their claim. Non-production of
evidence in opposition will not support the claim of the petitioners even
by legal fiction. The Assistant Labour Commissioner, in our opinion, has
failed to appreciate this proposition of law while recommending the claim
of the petitioners.
The burden of proving the claim of continuous working rests on
the claimants for which they are required to furnish concrete proof and
reliable documents. We are, therefore, of the view that an opportunity to
cross-examine the petitioners and to peruse the records produced by the
petitioners should be afforded to the railways. As already noticed, the
contractors did not produce the original records and the railways had no
opportunity to cross-examine the contractors also. The contractors are,
therefore, be directed to appear before the Labour Commissioner and to
produce the records for the relevant period in question and the claim of
the petitioners can again be verified and regularize the services of the
members of the petitioners association as employees of the Railway
Administration. We, therefore, direct the Labour Commissioner to again
afford an opportunity to the Railway Administration and the contractors
and the petitioners and verify the authenticity and genuineness of the
claim made by the petitioners with reference to the records that may be
produced by the Railway Administration and the contractors and submit
a report to the Railways within six months from the date of receipt of this
judgment which, in our opinion, would resolve the disputed claim of the
petitioners and the railways and on the basis of the report submitted, the
railway administration shall consider the claim of the individual
petitioners subject to the terms and conditions to be stated infra in this
judgment.
Along with the writ petition, number of orders passed by this Court
on few earlier occasions have also been filed as Annexures. Annexure-
B is one such order in Writ Petition No. 277 of 1998 filed by one
Raghavendra Gaumastha, under Article 32 of the Constitution. The
petitioners claimed relief for issue of writ of mandamus directing the
Railway Administration to regularize the petitioners services and to pay
them the same salary which is paid to others carrying out the similar
duties and functions. This Court, by order dated 04.10.1989, referred
the matter to the Labour Commissioner to decide the question whether
the petitioners are contract labourers or they are the employees of
Railways and also the question as to whether they have been working
as labourers for a number of years. This Court, after extracting the
report of the Labour Commissioner, directed the railway administration
to treat the petitioners as regular parcel porters and to grant them the
same salary which is being paid to regular parcel porters in view of the
fact that most of the petitioners have been working since 1972 and some
of them since 1980 and few of them in 1985.
The order passed by this Court dated 15.04.1991 in writ petition
No. 277 of 1998 was followed by this Court in the case of National
Federation of Railway Porters, Vendors and Bearers (supra). This
Court, taking into consideration the nature of the prayer in the writ
petition, made an order directing the Labour Commissioner to enquire
and submit a report and after perusal of the said report issued certain
guidelines and directions to the Union of India and the Railway
Administration in regard to the absorption of the railway parcel porters
on permanent basis.
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Again this Court by order dated 08.07.1996 in Writ Petition
No.568 and 711 of 1995 filed by National Federation of Railway Porters
Union have issued directions for regularization of their services as
mentioned in the order if the petitioners are found to be eligible.
Yet another order can also be profitably looked into in this context
which has been passed by this Court in Writ Petition No. 90 of 1997
dated 19.09.1997 in which this Court directed the Assistant Labour
Commissioner, Calcutta to conduct an enquiry into the allegations
whether the petitioners who were working as parcel porters at various
railway stations had been working continuously at the concerned railway
stations and the work is of a perennial nature and requirements of
Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970
have been satisfied. Similar direction was issued by this Court on
27.04.1998 in Writ Petition No. 176 of 1995.
The learned counsel for the petitioners placed strong reliance on
the judgment of this Court in National Federation of Railway Porters,
Vendors and Bearers (supra) and the directions given by this Court in
absorbing the labourers under certain conditions. This Court in R.K.
Panda and Others vs. Steel Authority of India and Others reported in
JT 1994 (4) SC 151 issued directions that all labourers who had been
initially engaged through contractors but have been continuously
working with the respondent for the last 10 years on different jobs
assigned to them in respect of the replacement and change of the
contractors shall be absorbed by the respondent as regular employees
subject to being found medically fit and if they are below 58 years of age
being age of superannuation. The Court also gave further directions for
fixing inter se seniority, absorption of wages and terms and conditions of
service. The Court also directed that the respondent shall be at liberty to
retrench the workmen so absorbed in accordance with law.
In Gujarat Electricity Board, Thermal Power Station, Ukai vs.
Hind Mazdoor Sabha and Others AIR 1995 SC 1893, this Court held
that where the contract labour system is abolished the industrial
adjudicator can, depending upon the facts of the case, direct the
principal employer to absorb all or any of the workmen of the ex-
contractor and on such terms as he may determine. This Court after
pointing out the vital lacuna in the Act, namely, no provision as to the
fate of workman of ex-contractor after the abolition of contract labour
system however issued guidelines for such absorption that the workmen
of the ex-contractor, if found suitable can be absorbed by the principal
employer after the contract system is abolished. This Court has laid
down guidelines for the same in the said judgment.
We have carefully examined the report of the Assistant Labour
Commissioner, the findings recorded therein and the counter affidavits,
reply affidavits and rejoinder filed by the respective parties. The facts
disclosed in the report and the findings recorded in regard to the
perennial nature of work cannot be overruled. Though we have heard at
length both the parties, the learned Additional Solicitor General
appearing for the Railway Administration was not able to point out to us
any valid reason as to why the present writ petitions should not be
allowed in terms of the order dated 15.04.1991 made by this Court in
similar Writ Petition No. 277 of 1988 particularly when in the matter of
absorption of contract labour by a public undertaking on a permanent
regular basis. We feel, therefore, it is just and appropriate to issue the
following directions to the respondent Union of India and the Railway
Administration Units:
1. The Assistant Labour Commissioner, Lucknow is directed to
again scrutinize all the records already placed by the petitioners
and also the records to be placed by the respective contractors
and the railway administration and discuss and deliberate with all
parties and ultimately arrive at a conclusion in regard to the
genuineness and authenticity of each and every claimant for
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regularization. This exercise shall be done within six months from
the date of receipt of this judgment.
2. Subject to the outcome of the fresh enquiry and the report to be
submitted by the Assistant Labour Commissioner, the Railway
Administration should absorb them permanently and regularize
their services. The persons to be so appointed being limited to
the quantum of work which may become available to them on a
perennial basis. The employees so appointed on permanent
basis shall be entitled to get from the dates of their absorption, the
minimum scale of pay or wages and other service benefits which
the regularly appointed railway parcel porters are already getting.
3. The Units of Railway Administration may absorb on permanent
basis only such of those Railway Parcel Porters (petitioners in this
batch) working in the respective railway stations concerned on
contract labour who have not completed the age of
superannuation.
4. The Units of Railway Administration are not required to absorb on
permanent basis such of the contract labour Railway Parcel
Porters who are not found medically fit/unsuitable for such
employment.
5. The absorption of the eligible petitioners in the writ petitions on a
regular and permanent basis by the Railway Administration as
Railway Parcel Porters does not disable the Railway
Administration from utilizing their services for any other manual
work of the Railways depending upon its needs.
6. In the matter of absorption of Railway Parcel Porters on contract
labour as permanent and regular Railway Parcel Porters, the
persons who have worked for longer periods as contract labour
shall be preferred to those who have put in shorter period of work.
7. The report to be submitted by the Assistant Labour Commissioner
should be made the basis in deciding the period of contract labour
work done by them in the railway stations. The report shall be
finalized and submitted after discussions and deliberations with
the railway administration and the contractors and all the
representatives of the writ petitioners or writ petitioners
themselves.
8. While absorbing them as regular employees their inter se
seniority shall be determined department/job-wise on the basis of
their continuous employment.
9. After absorption, the contract labourers will be governed
exclusively by the terms and conditions prescribed by the railway
administration for its own employees irrespective of any existing
contract or agreement between the respondent and the
contractors. No claim shall be made by the contractors against
the railway administration for premature termination of their
contracts in respect of the contract labourers.
10. The railway administration shall be at liberty to retrench the
workmen so absorbed in accordance with law. This order shall
not be pleaded as a bar to such retrenchment.
11. This judgment does not relate to the persons who have already
been absorbed.
Several I.As were filed to modify the order dated 08.09.2000
passed by this Court in Writ Petition No. 433 of 1998 and 457 of 1998.
Few I.As were filed seeking certain prayers pending writ petition. Few
I.As were filed to implead the proposed parties as parties to the writ
petition. Some I.As were filed for intervention.
In view of the disposal of the main matters, no separate direction
is necessary in these I.As.
In the result, the writ petitions and the civil appeals including the
I.As filed in different writ petitions shall stand disposed of accordingly.
However, there will be no order as to costs.
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+
9 436 2003
5 8444 2002
!
VINOD KUMAR
RESPONDENT:
Vs.
PREM LATA
DATE OF JUDGMENT: 19/08/2003
BENCH:
R.C. LAHOTI, SHIVARAJ V. PATIL & BRIJESH KUMAR.
JUDGMENT:
JUDGMENT
R.C. LAHOTI, J.
Proceedings for eviction were initiated under clause (i) of sub-section
(2) of Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973
(hereinafter referred to as the ‘Haryana Act’ for short) and culminated in
favour of the landlord, directing the tenant to be evicted from the premises in
his occupation, on the finding that he had not paid or tendered the rent due
from him in respect of the rented premises. The tenant preferred Appeal by
Special Leave. By judgment dated 16.12.2002 this Court allowed the
tenant’s appeal, set aside the judgments of the High Court and the
authorities below and directed the case to be sent back to the Controller for
hearing and decision afresh in accordance with the law laid down by this
Court in Rakesh Wadhawan & Ors. Vs. Jagdamba Industrial Corporation &
Ors. (2002) 5 SCC 440. This petition for review of the judgment dated
16.12.2002 seeks to question the correctness of the law laid down by this
Court in Rakesh Wadhawan’s case.
We have heard the learned counsel for both the parties. The principal
submission, rather the only one, made by the learned senior counsel for the
Review-petitioner is that two earlier decisions of this Court, namely, M/s.
Rubber House Vs. M/s. Excelsior Needle Industries Pvt. Ltd. (1989) 2 SCC
413 and Rajinder Kumar Joshi Vs. Veena Rani (1990) 4 SCC 526, were not
brought to the notice of this Court while deciding Rakesh Wadhawan’s case
and, therefore, Rakesh Wadhawan’s case does not lay down the correct law.
All the three decisions, namely, the decisions in Rakesh Wadhawan’s case
(supra), M/s. Rubber House’s case (supra) and Rajinder Kumar Joshi’s case
(supra), are two-Judges Bench decisions and, therefore, the matter has been
placed for consideration by a three-Judges Bench.
In Rakesh Wadhawan’s case, the decree for eviction was passed
under Section 13(2)(i) of the East Punjab Urban Rent & Restriction Act, 1949
(hereinafter referred to as ‘the Punjab Act’ for short). It is, therefore,
necessary to consider the relevant provisions of the two Acts. The same are
extracted and re-produced hereunder:
PUNJAB ACT
HARYANA ACT
S.13. Eviction of tenants.-
(1) A tenant in possession of a
building or rented land shall not be
evicted therefrom in execution of a
decree passed before or after the
commencement of this Act or
otherwise and whether before or
after the termination of the tenancy,
except in accordance with the
provisions of this section, or in
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pursuance of an order made under
section 13 of the Punjab Urban Rent
Restriction Act, 1949 as subsequently
amended.
(2) A landlord who seeks to evict his
tenant shall apply to the Controller
for a direction in that behalf. If the
Controller, after giving the tenant a
reasonable opportunity of showing
cause against the applicant, is
satisfied â\200\223
(i) that the tenant has not paid or
tendered the rent due by him in
respect of the building or rented land
within fifteen days after the expiry of
the time fixed in the agreement of
tenancy with his landlord or in the
absence of any such agreement, by
the last day of the month next
following that for which the rent is
payable:
Provided that if the tenant on the
first hearing of the applications for
ejectment after due service pays or
tenders the arrears of rent and
interest at 6% per annum on such
arrears together with the cost of
application assessed by the
Controller, the tenant shall be
deemed to have duly paid or
tendered the rent within the time
aforesaid;
X X X
the Controller may make an order
directing the tenant to put the
landlord in possession of the building
or rented land and if the Controller is
not so satisfied he shall make an
order rejecting the application:
Provided that the Controller may
given the tenant a reasonable time
for putting the landlord in possession
of the building or rented land and
may extend such time so as not to
exceed three months in the
aggregate."
S.13. EVICTION OF TENANTS.-
1. A tenant in possession of a
building or a rented land shall not be
evicted there-from except in
accordance with the provisions of this
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Section.
2. A landlord who seeks to evict his
tenant shall apply to the Controller,
for a direction in that behalf. If the
Controller, after giving the tenant a
reasonable opportunity of showing
cause against the application, is
satisfied -
(i) that the tenant has not paid or
tendered the rent due from him in
respect of the building or rented land
within fifteen days after the expiry of
the time fixed in the agreement of
tenancy with his landlord or in the
absence of any such agreement, by
the last day of the month next
following that for which the rent is
payable:
Provided that if the tenant, within a
period of fifteen days of the first
hearing of the application for
ejectment after due service, pays or
tenders the arrears of rent and
interest, to be calculated by the
Controller, at eight percentum per
annum on such arrears together with
such costs of the application, if any
as may be allowed by the controller,
the tenant shall be deemed to have
duly paid or tendered the rent within
the time aforesaid:
Provided further that the landlord
shall not be entitled to claim arrears
of rent for a period exceeding three
years immediately preceding the date
of application under the provision of
this Act.
the Controller may make an order
directing the tenant to put the
landlord in possession of the building
or rented land and if the Controller is
not so satisfied he shall make an
order rejecting the application:
Provided that the Controller may give
the tenant a reasonable time for
putting the landlord in possession of
the building or rented land and may
extend such time so as not to exceed
three months in the aggregate."
The learned senior counsel for the Review-petitioner tried to draw a
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distinction between the provisions of the Punjab Act and the Haryana Act,
submitting that the phraseology employed in the two Acts is different, and,
therefore, the decision in Rakesh Wadhawan’s case which is under the Punjab
Act has no relevance and applicability insofar as the provisions of the
Haryana Act are concerned. We find no merit in the submission so made.
Except for a difference in the manner of constructing the sentences there is
no substantial difference in effect between the two provisions and the crux of
the issue emerging for decision under the relevant provisions of the two Acts
remains the same.
In Rakesh Wadhawan’s case, this Court noticed a lacuna in the drafting
of Section 13(2)(i) of the Punjab Act and resolved the same by applying well-
settled principles of statutory interpretation so as to cull out the legislative
intent and then held that the expression "assessed by the Controller" as
occurring in the proviso to Section 13(2)(i) of the Act qualifies all the three
things, i.e., (i) the arrears of rent, (ii) interest at 6% per annum on such
arrears, and (iii) the cost of application, which are included in the preceding
part of the sentence. The order of assessment made by the Controller is not
an assessment of costs alone; it is an assessment of the arrears and interest
as well. The Court further held that such order of the Rent Controller making
an assessment shall, in the scheme of the section, be an interim or
provisional order which would be based on a summary enquiry leading to the
formation of a prima facie opinion based on the consideration of relevant
material brought on record by the parties, which may consist of the
documents, affidavits and pleadings which would enable the Controller to
make a provisional and yet judicial assessment, and place it on record by
way of an order to satisfy the spirit of the proviso. Having said so, the Court
explained the mechanism to be followed by the Controller in this regard and
the meaning to be assigned to the expression "the first date of hearing" so as
to make it practical and workable. Failing the interpretation adopted by the
Court in Rakesh Wadhawan’s case, the provision under consideration could
have run the risk of being struck down, because it would be unworkable and
lead to uncertainty. The provision had remained on the statute book for
more than 50 years but was creating practical difficulties in its working and
applicability to different sets of facts. Such meaning has been placed on the
language of the proviso to Section 13(2)(i) as would make it workable and
sensible and would least offend the sense of justice. Care has been taken to
protect the interests of both the landlord and the tenant. The interpretation
protects the landlord from frivolous pleas raised by recalcitrant tenants and
at the same time saves the tenants from undue hardship likely to be caused
by unscrupulous landlords accusing the tenants of such default as may not
exist.
In M/s. Rubber House’s case (supra), the provisions of the Haryana Act
came up for the consideration of the Court. Having scrutinized Section
13(2)(i) and the first proviso thereto, the Court held that there is no
statutory duty cast on the Controller even in the first instance to determine
and calculate the arrears of rent and the interest but, on the contrary, the
proviso requires the tenant to pay or tender the actual arrears of rent within
15 days of the hearing of the application for ejectment after due service.
The calculation by the Controller is confined only to calculating the interest at
8% per annum on such arrears together with the cost of the application. The
argument advanced by the learned counsel for the tenant in that case that
the proviso casts a statutory duty on the Controller to calculate and
determine the arrears of rent as well as the interest to be paid by the tenant
within a period of 15 days of the first hearing of the application for ejectment
after due service was rejected by the Court on the reasoning that such an
argument, if accepted, would result in the Rent Controller holding an enquiry
at the first instance in every case and determining the arrears of rent even
on the first date of hearing which is in the nature of things not possible
without any evidence, nor is contemplated under the scheme of the Act. We
find it difficult to agree with the above-said reasoning in M/s. Rubber House’s
case. On the plain language of the Haryana Act, the expression "to be
calculated by the Controller" qualifies both the arrears of rent and interest.
The succeeding expression "such costs of the application" is again qualified
by the expression "if any, as may be allowed by the Controller". Thus the
provision itself casts an obligation on the Controller to calculate and
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determine by its order (i) the arrears of rent; (ii) the interest; and (iii) the
costs, quantifying the amount which should be paid or tendered by the
tenant (at that stage) to comply with the proviso. The words ‘calculated’
and ‘allowed’ occurring in the proviso imply a duty cast on the Controller
which has to be discharged judicially. Such determination will be only for the
purpose of securing compliance by the tenant on ‘the first date of hearing’
succeeding the date of order by the Controller, which order would be based
on a summary enquiry and would obviously be subject to final determination
by the Controller at the end of the regular full-fledged enquiry. Thus it is not
correct to say that the provision does not contemplate an enquiry, nor is it
correct to say that such an interpretation would result in the holding of a full-
fledged enquiry on the first date of hearing, which is not possible.
In M/s. Rubber House’s case, the Court further held that it is for the
tenant to calculate the exact arrears of rent due and to pay or tender the
same and if the tenant fails to do so, he is deemed not to have paid or made
the valid tender of the rent. However, the case does not answer the question
as to what would happen if the tenant, having paid or tendered the arrears of
rent as per his own calculation, is found at the end of the enquiry to have
made a wrong - if not a deliberately wrong - calculation of the arrears.
Rajinder Kumar Joshi’s case is under the Punjab Act. There also the
Court had noticed a lacuna in the legislative drafting raising a contention
worthy of serious consideration and the hardship to which a tenant may be
put where the landlord makes a demand on the tenant for rent which is not
due from him, as was found to have been done in that case. The Court was
faced with a dilemma in adopting either interpretation. If the provisions of
Section 13(2)(i) of the Act were to be so interpreted as to require the tenant
to tender the rent as demanded (though the demand is exaggerated by
reference to the rate of rent or the period of default) or to face the
consequences of eviction from the rented premises, the provision would
result in causing hardship to the tenant. On the other hand, to hold the
requirement of the proviso to Section 13(2)(i) to tender the rent as meaning
the tender of the rent as the tenant thinks he is in arrears of, would render
nugatory the requirements of the said proviso. The Court felt the need for
striking a balance between the two situations so as not to render the
protection given by the Act to the tenant illusory, and at the same time not
to deprive the landlord of his minimum legitimate expectation to be paid
regularly the rent for the use and occupation of his premises. The solution
which the Court provided was in the background of the facts of that case,
and is hence a limited one. The Court said that if the rate of rent is not fixed
or becomes the subject matter of dispute, the tenant may have resort to
Section 4 of the Act and apply to the Controller to fix the fair rent failing
which he must deposit the rent at the rate as demanded by the landlord. If
there is any dispute as to the period of default, the tenant may deposit the
rent which he thinks to be in arrears, but he must take the risk for doing so.
If it is proved ultimately that the rent paid or tendered by him was less than
what was due, he must face eviction. Such an interpretation gives an
uncertainty to the litigation and does not take care of several situations
which may emerge in a litigation other than the one as arose in that case
before the Court.
It is true that the decisions in M/s. Rubber House (supra) and Rajinder
Kumar Joshi (supra) were not brought to the notice of the Court deciding
Rakesh Wadhawan’s case (supra) and it would have been better if that would
have been done at the Bar. However, the present petition has given us the
opportunity of examining afresh the merits of the three decisions under
consideration and also for making a comparative study of the provisions
contained in the Punjab Act and the Haryana Act insofar as the ground for
eviction on account of default in payment or tendering the arrears of rent by
the tenant is concerned. We are of the opinion that M/s. Rubber House’s
case and Rajinder Kumar Joshi’s case do not place a correct interpretation
upon the provisions. The decision in Rakesh Wadhawan’s case correctly lays
down the law and is re-affirmed. The interepretation placed by this Court in
Rakesh Wadhawan’s case on Section 13(2)(i) with the proviso in the Punjab
Act applies for interpreting Section 13(2)(i) and the proviso as contained in
the Haryana Act.
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The petition is held devoid of any merit and is dismissed.