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2000 DIGILAW 409 (CAL)

SUJAN BANERJEE v. UNION OF INDIA (UOI)

2000-08-16

BHASKAR BHATTACHARYA

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BHASKAR BHATTACHARYA, J. ( 1 ) THE writ petitioners are sixteen in number. Their case as made out in this application is that the respondent No. 6 initially appointed petitioner Nos. 1 to 15 as Data Entry Operators and petitioner No. 16 as Peon and deployed them as such in the International Air Cargo Complex (Import and Export Division) of Calcutta Customs at the Netaji Subhas Chandra Bose International Airport ("nscbi") on December 18, 1998 after execution of an agreement of sub-contract between the respondent No. 4 and the said respondent No. 6. However no appointment letter was issued in their favour by the said respondent No 6. ( 2 ) SUBSEQUENTLY, the said sub-contract was terminated and a new sub-contract was given to respondent No. 5. After the creation of such new "sub-contract, the respondent No. 5 assigned the same job to the petitioners with the difference that appointment letters were issued to the petitioners on April 26, 2000. Thereafter, the respondent No. 6 issued order of transfer of the petitioner Nos. 1 to 4 on June 23, 2000 asking them to join Chinchura checkpost from July 1, 2000. In the meantime on May 27, 2000 the petitioners gave a representation to the respondent No. 5 requesting the said respondent not to transfer them to any other place but inspite of such representation, the respondent No. 5 not only transferred the petitioner Nos. 1 to 4 but by subsequent letter dated July 18, 2000 threatened to initiate disciplinary proceeding for not joining at the place on transfer. 1 to 4 but by subsequent letter dated July 18, 2000 threatened to initiate disciplinary proceeding for not joining at the place on transfer. ( 3 ) UNDER such circumstances, the petitioners came forward with this writ application claiming the following reliefs:"a) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding and/or directing the respondents authorities to regularise and/or absorb the petitioners in the service of the customs authorities for the post of Data Entry Operators in respect of the petitioners No. 1 to 15 and peon in the case of petitioner No. 16 and to act in accordance with law;b) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding and/or directing the respondents No. 1 and 2 to consult with the Central Board under the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 for prohibition of employment of contract labour in the job undertaken by the petitioners which is of perennial nature in the establishment of the respondent No. 3, by notification in the Official Gazette and to direct for regularisation and/or absorption of the petitioners in the service of the respondent No. 3 following the decision of the Hon'ble Supreme Court reported in Air India Statutory Corporation v. United Labour Union and Ors. , followed by the decision reported in Secretary, Haryana State Electricity Board v. Suresh and Ors. and to act in accordance with law;c) A writ of and/or order and/or direction in the nature of Certiorari do issue commanding and/or directing the respondents and each of them their servants and/or agents to transmit and/or certify the record relating to the instant case so that conscionable justice may be rendered;d) An appropriate writ or direction do issue for production of all the relevant records and/or protection of all the rights of the petitioners and for granting the petitioners such reliefs as in the circumstances shall be just;e) Rule NISI in terms of prayers (a) to (d) above. f) Injunction to issue restraining the respondents No. 4 and 5 and each of them their servants and/or agents from transferring the petitioners Nos. f) Injunction to issue restraining the respondents No. 4 and 5 and each of them their servants and/or agents from transferring the petitioners Nos. 1 and 4 to elsewhere in the terms of the transfer orders dated June 23, 2000 being Annexure E-5 hereof and taking any action in terms of letter dated July 18, 2000 in Annexure P-6 hereof till the disposal of the application. g) An injunction do issue restraining the respondents and each of them their servants and/or agents from in any manner terminating and dispensing with the service of the petitioners till the disposal of the application;h) Ad interim order in terms of prayers (f) and (g) above; i) Suitable Order as to costs be made; j) Such further or other order or orders be made and/or direction or directions be given as would afford complete relief to your petitioners. " ( 4 ) MR. Bhattacharya, the learned counsel appearing on behalf of the petitioners fairly concedes that so long a notification under. Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (Act) is not issued, his clients cannot get the relief mentioned in prayer (a) above. Mr. Bhattacharya however strongly relies upon a decision of this High Court in the case of Sheikh Jahangir Ali and Ors. v. Calcutta Port Trust and Ors. , 1999-II-LLJ- 381 (Cal) and prays for leave to make an application before the appropriate Government under Section 10 (1) of the Act and for a direction upon the appropriate Government consider and dispose of such application in accordance with law within a specified period. Mr. Bhattacharya further prays for an order of status quo as regards service and the place of posting of the petitioners as on this date till the disposal of such application. ( 5 ) MR. Sengupta, the learned counsel appearing on behalf of the respondent No. 4 has opposed the aforesaid prayer of the petitioners and has contended that this writ application should be dismissed as a premature one. Mr. Sengupta contends that before approaching the appropriate Government making a demand of the enquiry mentioned in Section 10 of the Act, the petitioners cannot maintain a writ application. Over and above Mr. Mr. Sengupta contends that before approaching the appropriate Government making a demand of the enquiry mentioned in Section 10 of the Act, the petitioners cannot maintain a writ application. Over and above Mr. Sengupta by referring to the definition of "contract labour" appearing in Section 2 (b) of the Act contends that the petitioners on their showing not contract labour nor is the nature of their work perennial in nature within the meaning of Section 10 (2) (b) and as such even on merit this writ application is liable to be rejected. His further contention is that the sole object of the petitioners is to resist an order of transfer passed by their employer although the terms of employment provides for such transfer. ( 6 ) MR. Rahaman appearing for the respondent No. 5 adopts the submission of Mr. Sengupta. ( 7 ) AFTER hearing the learned counsel for the parties and after going through the materials on record I am at one with Mr. Sengupta that this application is a premature one. The cause of action for grant of Mandamus arises when the concerned respondent inspite of demand of justice has paid a deaf ear to the request of the petitioner. It is rightly pointed out by Mr. Sengupta that the petitioners have not even drawn attention of the appropriate Government for taking step under Section 10 of the Act. In this connection reference may be made to the decision of the Apex Court in the case of State of Haryana v. Chandan Mall, where it has been held that an application for mandamus shall contain a statement as to whether a demand for justice has been made. Moreover, the Calcutta High Court Rules enjoin fulfilment of such requirement. Thus, no cause of action for grant of relief (b) above has arisen. As mentioned earlier, relief (a) can be granted only on the issue of a notification under Section 10 of the Act. Therefore, if the petitioners are not entitled to the main reliefs claimed herein, no order of status quo can be passed in favour of the petitioners even after dismissal of the writ application. ( 8 ) MR. Bhattacharya strenuously contended that in the case of Sheikh Jahangir Ali and Ors. Therefore, if the petitioners are not entitled to the main reliefs claimed herein, no order of status quo can be passed in favour of the petitioners even after dismissal of the writ application. ( 8 ) MR. Bhattacharya strenuously contended that in the case of Sheikh Jahangir Ali and Ors. (supra), under similar circumstances KABIR, J. passed an order of status quo and as such the said decision is a precedent which should be followed by me. ( 9 ) MR. Bhattacharya has further placed the certified copy of an unreported decision of BARIN GHOSH, J. in the case of Paschim Bengal -Security Karmi Union and Anr. v. State of West Bengal, W. P. No. 16242 (W) of 1999 disposed of on November 22, 1999, here His Lordships passed a direction similar to the one passed by KABIR, J. ( 10 ) AFTER going through the decisions passed in aforesaid two cases I find that in none of the aforesaid cases, the question of prematurity of the writ application was raised and their Lordships did not consider the: aforesaid question. A decision can be put forward as a precedent in support of a proposition of law if the Court decides such point. ( 11 ) BUT the said decision cannot be used as a precedent in support of a point not argued or considered by Court on the ground that the Court logically approved such point. In this connection, the following passage from SALMOND on JURISPRUDENCE, 12th Edition (P. J. FITZGERALD) at pages 153-154 may be referred to:"a decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. " ( 12 ) MOREOVER, when a Court rejects an application under Article 226 of the Constitution of India as premature and does not decide on the rights of the parties and expressly holds that such right should be adjudicated by an appropriate Government, it cannot for the purpose of enabling the writ petitioner to make appropriate application, issue direction in the nature of temporary injunction. The language of Article 226 of the Constitution of India does not permit such an action. (See Amarsarjeet v. State of Punjab, State of Orissa v. Madan Gopal. ( 13 ) I thus hold that this writ application is a premature one and as such is rejected. I make it clear that rejection of this will not prevent the petitioners from approaching the appropriate Government for relief under Section 10 of the Act. I have not gone into the question whether the petitioners are entitled to such relief and it is for the appropriate Government to take such decision. All interim orders granted earlier stand vacated. No costs.