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2011 DIGILAW 1293 (CAL)

Sankar Ghosh v. Food Corporation of India

2011-09-16

PRANAB KUMAR CHATTOPADHYAY, SHUKLA KABIR SINHA

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JUDGMENT PRANAB KUMAR CHATTOPADHYAY, J. Food Corporation of India has Food Storage Depots through out the country for the purpose of storage of food grains, which are normally distributed through the Public Distribution System in various parts of the country. Food Corporation of India (hereinafter called as F.C.I.), however, cannot maintain its regular staff for the purpose of loading and unloading of the food grains in each and every depot. Therefore, Food Corporation of India appoints handling and transport contractor for handling of such food grains and also for doing the ancillary works relating to preservation of such food grains. The appellants herein were employed by the F.C.I. in 1983 at the Government Food Depot, New Jalpaiguri. 2. It is the case of the appellants that they were appointed directly by the District Manager, Food Corporation of India on 9th January, 1983 and always received the salaries/wages directly from the Food Corporation of India. It has been specifically submitted on behalf of the appellants that the said appellants were working under the supervision and control of the Food Corporation of India since their appointment in the year 1983. The real grievance of the appellants herein is that they are being treated as casual workers in spite of discharging the duties as regular employees of the Corporation. The appellants herein claimed permanent absorption and regularization of their services in the establishment of the Food Corporation of India. The appellants herein raised an industrial dispute since the management of the FCI refused to regularize the services of the appellants herein in the regular establishment of the FCI. Ultimately, the said industrial dispute was referred to the Central Government Industrial Tribunal, Calcutta for adjudication by the order dated 15th September, 1994 issued by the Ministry of Labour, Government of India. The terms of reference mentioned in the said order dated September 15, 1994 are set out hereunder :- “Whether the action of the management of Food Corporation of India in not regularising the services of 12 workmen (list enclosed) of FCI New Jalpaiguri GFD Calcutta Section and depriving them to payment of wages as per the departmental regular, employees and other benefits is justified ? If not what relief the said workmen are entitled to ?” 3. If not what relief the said workmen are entitled to ?” 3. The Central Government Industrial Tribunal thereafter passed an award upon holding that the FCI Authorities should regularise the services of the appellants herein as Dusting Operators from 6th May, 1987. The learned Tribunal also held that the appellants herein will be entitled to get wages including all other benefits like the regular employees of the establishment working in the said post from the date of their appointment i.e. from 9th January, 1983 since the said appellants had performed the same nature of duties as regular employees of the FCI. 4. Challenging the aforesaid award, a writ-petition being W.P. No. 16159 (W) of 1998 was filed by the FCI Authorities before a learned Judge of this court. The said writ petition was dismissed by the learned Single Judge. The FCI Authorities thereafter filed an appeal before the Division Bench of this Court. The Division Bench, however, allowed the said appeal preferred by the FCI Authorities and set aside the award passed by the learned Tribunal and also the judgment and order passed by the learned Single Judge. 5. Challenging the said judgment of the Division Bench of this Court, appellants herein filed a Special Leave Petition before the Supreme Court. The Hon’ble Supreme Court while deciding the said Special Leave Petition expressed an opinion that the matter should be considered afresh by the learned Single Judge in the light of the Constitution Bench decision of the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1 as also the decisions rendered by the Supreme Court in its subsequent judgments. The Hon’ble Supreme Court was pleased to set aside the judgments of the learned Single Judge as well the Division Bench of this High Court and remitted the matter to the learned Single Judge for fresh consideration. The relevant extracts from the order passed by the Hon’ble Supreme Court in the Civil Appeal No. 4243 of 2006 arising out of the Special Leave Petition filed by the appellants herein being S.L.P. ( C ) No. 15395 of 2004 are set out hereunder :- “We have heard learned counsel for the parties at some length. The relevant extracts from the order passed by the Hon’ble Supreme Court in the Civil Appeal No. 4243 of 2006 arising out of the Special Leave Petition filed by the appellants herein being S.L.P. ( C ) No. 15395 of 2004 are set out hereunder :- “We have heard learned counsel for the parties at some length. Apart from the question which had been taken into consideration by the tribunal in arriving at its finding, we are of the opinion that the issues should be considered having regard to Staff Regulation, 1971 and in the light of the Constitution Bench decision of this Court in Secretary State of Karnataka and Ors. Vs. Uma Devi (3) and Ors. – 2006 4SCC 1 as also the decision rendered by this Court in its subsequent judgments. We are, therefore, of the opinion that the matter requires a fresh consideration at the hands of the learned Single Judge. The impugned judgment of the High Court as also of the learned Single Judge are set aside and the matter is remitted to the learned Single Judge for consideration of the matter afresh.” 6. Upon such remand, the writ-petition of the FCI Authorities was heard and allowed by the learned Single Judge on 26th August, 2009. 7. Assailing the said judgment and order passed by the learned Single Judge, appellants herein have preferred the instant appeal. 8. The learned counsel representing the appellants submitted that the learned Single Judge while deciding the writ petition failed to appreciate that the learned Tribunal arrived at the specific findings on fact to the effect that the appellants herein possessed the requisite qualification and had been performing the continuous service in Class-IV post since 1983. The learned counsel of the appellants further submitted that the learned Tribunal also arrived at the specific finding that there are 28 vacancies which are to be filled up. It has also been submitted on behalf of the appellants that the Food Corporation of India in the memo dated 6th May, 1987 categorically recorded that a proposal was placed before the Board of Directors of the Food Corporation of India in its 176th meeting held on 24th February, 1987 to relax the ban on recruitment for filling in entry level category – III & IV posts by considering casual/daily rated employees who have completed three months period of service as on 02/05/1986. The Board of Directors of the Food Corporation of India approved the aforesaid proposal which has also been mentioned in the said memo dated May 6, 1987. The learned Tribunal upon considering the circular issued under aforesaid Memo dated May 6, 1987, passed order for absorption of the appellants in the post of ‘Dusting Operators’. 9. Mr. Chakraborty, learned counsel of the appellants submitted that Regulations 7 (3) ( c ) of the FCI Staff Regulations provides for appointment in the Corporation on a purely temporary basis. Mr. Chakraborty further submitted that Regulation 7 (2) ( c ) empowers the Board to relax any of the provisions of Recruitment Rules contained in Appendix – (I). 10. Mr. Chakraborty also submitted that the learned Single Judge has erroneously held that there was no scope for regularisation of the services of the appellants herein in the post of ‘Dusting Operators’ which according to the learned Single Judge is a promotional post. Mr. Chakraborty submitted that the learned Single Judge failed to take note of the fact that the said post of ‘Dusting Operators’ can also be filled up by direct recruitment in the event of suitable candidates are not available for the said post. 11. The learned counsel of the appellants submitted that the learned Tribunal upon considering the records specifically found in the present case that out of 70 sanctioned posts 28 posts, still are lying vacant which can be filled up by the appellants herein and therefore, the learned Tribunal issued necessary direction in this regard. 12. The learned counsel of the appellants specifically urged before this Court that the decision of the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors., reported in AIR 2006 SC 1806 does not prohibit regularisation of the appellants to the post of ‘Dusting Operators’. Mr. Chakraborty further submitted that the prohibition/restrictions imposed in the matter of regularisation of the services pursuant to the aforesaid decision of the Supreme Court in the case of Uma Devi (supra) cannot have any manner of application in the facts of the present case since the appellants herein were appointed in the year 1983 without violating the provisions of the Recruitment Rules. Mr. Mr. Chakraborty also submitted that the procedural irregularities, if any, in the matter of appointments of the appellants herein can also be rectified as the appellant Corporation can take steps to regularise the services of the appellants as “one time measure” in terms of the decision of the Supreme Court in the case of Uma Devi (supra)”. 13. The learned counsel of the appellants submitted that the appellants herein are duly qualified and served the Corporation for more than 10 years without the intervention of the Hon’ble Court or Tribunal and further there are existing vacancies. The said learned counsel further submitted that there could be no bar for absorption of the appellants in the existing available vacancies. Learned counsel of the appellants referred to and relied on a decision of the Supreme Court in the case of State of Karnataka & Ors. vs. M. L. Kesari & Ors., reported in AIR 2010 SC 2587 in support of the aforesaid contentions. 14. The learned counsel of the appellants submitted that in the instant case, the Board of Directors of Food Corporation of India having the authority to frame the policy towards the regularisation of the employees had directed regularisation of casual employees by issuing the circulars on 06/05/1987 and 09/09/1996 and therefore, the respondent Corporation can not take any contrary stand at this stage. 15. Mr. L. K. Gupta, learned senior counsel of the respondent F.C.I. Authorities submitted that the circular dated 6th May, 1987 provided for regularisation of casual/daily rated employees of Food Corporation of India upon relaxing the ban on recruitment. Mr. Gupta submitted that the said circular does not change or relax the FCI (Staff) Regulations. Mr. Gupta further submitted that the aforesaid circular dated 6th May, 1987 is not only illegal but also unconstitutional being violative of Article 14 in view of the principles settled by the Supreme Court in various decisions after pronouncement of the judgment in the case of Uma Devi (supra). Mr. Gupta referred to and relied on the following decisions of the Supreme Court, in support of the aforesaid contentions :- 1. Accounts Officer (A & I) A.P. SRTC & Ors. Vs. P. Chandra Sekhara Rao & Ors., reported in (2006) 7 SCC 488 , Paragraphs-6 to 8. 2. Accounts Officer (A & I), A.P. SRTC & Ors. Vs. Mr. Gupta referred to and relied on the following decisions of the Supreme Court, in support of the aforesaid contentions :- 1. Accounts Officer (A & I) A.P. SRTC & Ors. Vs. P. Chandra Sekhara Rao & Ors., reported in (2006) 7 SCC 488 , Paragraphs-6 to 8. 2. Accounts Officer (A & I), A.P. SRTC & Ors. Vs. K. V. Ramana & Ors., reported in (2007) 2 SCC 324 , Paragraphs 479. Mr. Gupta further submitted that for the identical reasons, the subsequent circular dated 09/09/1996 in respect of the left out candidates is also violative of Article 14 of the Constitution. According to Mr. Gupta, the aforesaid circulars have been issued by the FCI Authorities in order to treat the in-house employees as a special favourite class and to debar all other eligible external candidates from seeking employment in FCI. Mr. Chakraborty, learned counsel of the appellants specifically urged before this Court that several casual employees similarly placed like the appellants herein were regularised pursuant to the aforesaid circulars of the FCI and the appellants herein have been left out from the zone of regularization due to the discriminatory treatment of the FCI Authorities. Mr. Gupta, learned senior counsel of the FCI Authorities, however, submitted that the aforesaid circulars are unconstitutional and therefore, plea of discrimination based on the aforesaid circulars cannot be held to be just and proper. 16. The learned senior counsel of the respondent Corporation submitted that in view of the principles laid down by the Supreme Court in the case of Uma Devi (supra) and in the subsequent decisions, any recruitment in violation of the Recruitment Rules makes the appointment illegal. 17. The learned senior counsel of the respondent Corporation further submitted that in the present case no regularisation or absorption is permissible in the establishment of the Food Corporation of India at this stage. 18. Mr. Gupta, learned senior counsel of the respondent Corporation referred to and relied on the following decisions of the Supreme Court, in support of his arguments :- 1. Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1 . 2. Accounts Officer (A & I) A.P. SRTC & Ors. Vs. P. Chandra Sekhara Rao & Ors., reported in (2006) 7 SCC 488 . 3. Surinder Prasad Tiwari Vs. Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1 . 2. Accounts Officer (A & I) A.P. SRTC & Ors. Vs. P. Chandra Sekhara Rao & Ors., reported in (2006) 7 SCC 488 . 3. Surinder Prasad Tiwari Vs. U. P. Rajya Krishi Utpadan Mandi Parishad & Ors., reported in (2006) 7 SCC 684 . 4. Accounts Officer (A & I), A.P. SRTC & Ors. Vs. K. V. Ramana & Ors., reported in (2007) 2 SCC 324 . 5. U. P. Power Corporation Ltd. & Anr. Vs. Bijli Mazdoor Sangh & Ors., reported in (2007) 5 SCC 755 . 6. Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408 . Mr. Chakraborty, learned counsel of the appellants submitted that the appointments of the appellants herein can be regularised even in terms of the decision of the Supreme Court in the case of Uma Devi (Supra) by taking appropriate steps as a ‘one-time measure’. 19. The learned senior counsel of the respondent Corporation further submitted that in the case of Uma Devi (Supra), the Hon’ble Supreme Court has permitted the employer to take steps to regularise the services of irregularly appointed employees as a ‘one-time measure’ provided the employees have continued to work for 10 (ten) years or more but without the intervention of the order of the Courts or the Tribunals and also fulfilled the eligibility conditions at the point of entry level in service. 20. Mr. Gupta, learned senior counsel of the respondent Corporation further submitted that the case of regularisation of irregularly appointed employees can be taken up for consideration only when the vacant posts are available. 21. On examination of the available records, we find that the Board of Directors of the respondent Corporation in its 176th meeting held on 24/02/1987 decided to relax the ban on recruitment for filling in any entry level category –III & IV posts by considering full-time casual/daily rated employees who have completed three months period of service as on 02/05/1986. 22. In the present case, unfortunately the respondent Corporation did not regularise the services of the appellants herein whereas several other identically placed employees were absorbed pursuant to the aforesaid decision of the Board of Directors to relax the ban on recruitment. 22. In the present case, unfortunately the respondent Corporation did not regularise the services of the appellants herein whereas several other identically placed employees were absorbed pursuant to the aforesaid decision of the Board of Directors to relax the ban on recruitment. The learned Tribunal specifically found on examination of the relevant records that 28 vacancies are still available and the same can be filled up by regularising the services of the appellants herein. The authorities of the respondent Corporation are seeking to deny regularisation of the services of the appellants in spite of availability of the adequate number of vacant posts. 23. The learned senior counsel of the respondent Corporation specifically submitted before this Court that in view of the decision of the Supreme Court in the case of Uma Devi (Supra), no step can be taken to regularise the services of the appellants herein. We are, however, unable to accept the aforesaid contentions since the Hon’ble Supreme Court in the case of Uma Devi (Supra) also specifically permitted the employer to regularise the service of the casual/daily rated employees by taking appropriate steps as a ‘one-time measure’. 24. The relevant extracts from the judgment of Uma Devi (Supra) are set out hereunder:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R. N. Nanjundappa and B. N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of order of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 25. The rights accrued in favour of the appellants with regard to regularisation of the services in the establishment of the respondent Corporation before pronouncement of the judgment by the Supreme Court in the case of Uma Devi (Supra) cannot be curtailed specially when the Hon’ble Supreme Court has permitted the employer to take necessary steps for regularisation of casual employees/daily rated employees as a ‘one-time measure’. 26. The right of the employees for regularisation has been considered by the Supreme Court recently in the case of State of Karnataka & Ors. Vs. M. L. Kesari, reported in AIR 2010 SC 2587 in the light of the earlier decision of the Supreme Court in the case of Uma Devi (Supra). The relevant extracts from the aforesaid decision are set out hereunder :- “10. The Division Bench of the High Court has directed that the cases of respondents should be considered in accordance with law. The relevant extracts from the aforesaid decision are set out hereunder :- “10. The Division Bench of the High Court has directed that the cases of respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, a general one-time regularization exercise, to find out whether there are any daily wage casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 (Para 44 of AIR) of Umadevi. If they fulfil them their services have to be regularized. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of Para 53 (Para 44 of AIR) of Umadevi, their services need not be regularised. If the employees who have completed ten years’ service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts. This appeal is disposed of accordingly.” 27. Following the aforesaid decisions of the Supreme Court, we are also of the opinion that the claims of the appellants cannot be rejected straightway as we find that the regularisation of services of the casual/daily rated employees are not forbidden by law. 28. Undisputedly, the Board of Directors of the Food Corporation of India in its meeting held on 24/02/1987 relaxed the ban on recruitment for filling up the posts in entry level category-III & IV by considering full-time casual/daily rated employees and as a matter of fact casual/daily rated employees were permanently absorbed against the available vacant posts excepting the appellants herein. The Hon’ble Supreme Court has also provided for a relief to the casual/daily rated employees subject to fulfillment of certain conditions as mentioned in Paragraph-53 of the judgment in the case of Uma Devi (supra). 29. The Hon’ble Supreme Court has also provided for a relief to the casual/daily rated employees subject to fulfillment of certain conditions as mentioned in Paragraph-53 of the judgment in the case of Uma Devi (supra). 29. The aforesaid Paragraph 53 in the case of Uma Devi (supra) has been explained and clarified by the Supreme Court in a recent judgment in the case of State of Karnataka & Ors. Vs. M. L. Kesari (supra) wherein the Supreme Court specifically observed that even if the one-time scheme for regularisation had not been framed by an employer for regularisation of its casual /daily rated employees within six months as directed by the Supreme Court in the case of Uma Devi (supra) in Paragraph 53, the said scheme can be framed even afterwards. 30. Therefore, following the guidelines of the Supreme Court in the case of Uma Devi (supra) and State of Karnataka & Ors. Vs. M. L. Kesari (supra) some relief can be granted to the appellants herein. 31. The appellants herein initially joined as contract labours and as found by the Tribunal, said appellants became usual employees of the Corporation since even after expiry of the contract period, FCI authorities continued to receive service from the said appellants. In the aforesaid circumstances, it cannot be said that the appellants herein were illegally appointed. Appointment of the appellants may be irregular but under no circumstances can be held to be illegal. The learned Tribunal has directed the respondent Corporation to absorb the appellants as ‘Dusting Operators’. 32. The learned senior counsel of the respondent Corporation submitted that the aforesaid direction of the learned Tribunal is contrary to the FCI Staff Regulation since the post of Dusting Operator is a promotional post and there can be no direct recruitment. 33. We do not accept the aforesaid contentions since direct recruitment can be made when no employee for promotion is available. 34. In the present case, learned Tribunal found that 28 vacancies are still in existence. Therefore, the aforesaid vacancies could be filled up by direct recruitment and the cases of the appellants can be considered against the aforesaid available vacancies. 35. The FCI Authorities are, therefore, directed to consider the claims for regularisation of the services of the appellants herein upon treating the said appellants as casual employees appointed in irregular manner. Therefore, the aforesaid vacancies could be filled up by direct recruitment and the cases of the appellants can be considered against the aforesaid available vacancies. 35. The FCI Authorities are, therefore, directed to consider the claims for regularisation of the services of the appellants herein upon treating the said appellants as casual employees appointed in irregular manner. The respondent Corporation will be at liberty to absorb the appellants in any available vacant posts where the educational qualifications of the appellants will not stand as a bar. The present age of the appellants will also not stand as a bar excepting those who have attained the age of superannuation. Because of the break in service the appellants herein will not be entitled to any benefit which normally emanate from continuous service. 36. With the aforesaid directions, we set aside the impugned judgment and order under appeal passed by the learned Single Judge and dispose of this appeal without awarding any cost. 37. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.