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2015 DIGILAW 495 (JK)

Food Corporation of India v. Hussain Ali

2015-09-14

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. These appeals are filed against the common order made in SWP Nos. 09/2011 and 333/2010 dated 11.03.2015 giving direction to the appellant Corporation to regularize the services of the private respondents. Brief facts necessary for disposal of these appeals are that the private respondents were engaged as daily-rated workers or Watchmen by the Food Corporation of India (FCI) in the year 1998 in Kargil and since then they are serving, however, their services were not regularized. They preferred SWP Nos. 1605/2004 and 1276/2004 praying for regularization and the said writ petitions were disposed of by a common order dated 24.05.2007 giving direction to the FCI to consider the claim of the private respondents for regularization in accordance with rules/norms/policy governing the field taking into consideration the judgment made in SWP No. 1549/1998, within a period of three months and the private respondents were given liberty to re-agitate the matter if cause survives. The appellants failed to implement the said direction issued, hence an application (CMP No. 2078/2007) seeking further time to implement the judgment was allowed vide order dated 31.08.2007 and eight weeks further time was given. Again while disposing of the similar application on 23.09.2008, further time of eight weeks was granted for the purpose. In spite of extension of time, the order having been not complied with, contempt Petition No. 199/2009, was preferred. Therefore, on 03.07.2009 the rejection order was passed. The said order was challenged by contending that they having been engaged in the year 1998 as Casual Labourers and the Corporation is requiring the services of the private respondents as Watch & Ward of Godown and other allied jobs in the Depot opened at Kargil in the year 1992 and in spite their names having been recommended for regularization by District Manager Operations and in spite of availability of 20 posts in the District Office at Srinagar, their services are not regularized. It is also stated in the writ petition supported by an affidavit that similarly placed persons were granted regularization pursuant to the directions given in SWP No. 1549/1998 and therefore, they were discriminated. It is also stated in the writ petition supported by an affidavit that similarly placed persons were granted regularization pursuant to the directions given in SWP No. 1549/1998 and therefore, they were discriminated. The Food Corporation of India filed objections before the Writ Court stating that the private respondents having been inducted through backdoor entry and due to non-availability of vacancies by applying the judgment of State of Karnataka v. Uma Devi, reported in (2006) 4 SCC 1 , the claim of the private respondents was rejected and there is no illegality in the order. The learned Single Judge considering the continuous engagement of private respondents from 1998 and also taking note of the fact that similarly placed persons were granted regularization pursuant to the directions issued by this court, allowed the writ petition. Feeling aggrieved with the order of the learned Single Judge, these appeals are preferred. 2. Learned senior counsel appearing for the appellants submits that entry of the private respondents in the FCI Godown at Kargil was illegal as they were inducted without following the procedure established under law for selection of candidates and there is no sanctioned post available to regularize the services of the private respondents. Learned senior counsel also relied on the judgments of the Hon'ble Supreme Court in support of his contention and submitted that the Board has considered all aspects particularly the judgment of the Hon'ble Supreme Court in Uma Devi's case and the senior counsel also stated that regularization granted to persons cited by the private respondents was under special circumstances and same cannot be treated as precedence as the said persons worked during the militancy period. 3. Learned counsel appearing for the private respondents on the other hand submitted that there are vacancies available in Srinagar and he has also relied on the vacancy position which was furnished by the FCI Branch Manager and the names of the private respondents were also recommended as they are serving from 1998 i.e. from the year of the Kargil War in the remote area and, therefore, their claim should be also considered as a special case particularly when they are continuously working from 1998 i.e. for the past seventeen years and the engagement of the private respondents for more than seventeen years establishes the necessity to have the posts particularly watchmen etc. Learned counsel also submits that the learned senior counsel for the appellant is not justified in relying upon the judgment of the Hon'ble Supreme Court in Uma Devi's case as in the said judgment itself in paragraph 53, a direction was issued to grant regularization to the persons working for ten or more years as a one-time gesture. Learned counsel also submitted that FCI is a Government Corporation which is also an industrial establishment and, therefore, the decision of the Uma Devi's case may not be applicable. Learned counsel also relied on the judgments of the Hon'ble Supreme Court reported in AIR 2013 SC 3547 (Nihal Singh & Ors. v. State of Punjab & Ors.) and 2007 SLJ 491(SC) : (2007) 11 SCC 92 (U.P. State Electricity Board v. Pooran Chandra Pandey & Ors.) and contended that the Hon'ble Supreme Court rejected the plea that there was no sanctioned post to absorb the appellants after utilization of their services for a decade. Learned counsel ultimately submitted that while considering the judgment in Uma Devi's case, the FCI Board has not considered the subsequent judgment rendered in the year 2007 and 2013 cited supra and therefore, the Board failed to consider relevant facts while deciding the issue pursuant to the direction issued by this court while relying on the irrelevant material. 4. We have considered the rival submissions. 5. The admitted facts in these appeals are that the private respondents were engaged in the year 1998 for watch and ward of the Godown and for other allied jobs on casual basis. The FCI opened its depot at Kargil in the year 1992 and the continuous engagement of private respondents from 1998 is reflected in the communication dated 25.08.2004 addressed by the District Manager Operations. In letter dated 25.10.2005 also the same was reiterated. The complete service details of the private respondents are contained in the list prepared by the Depot Manager FCI and all of them belong to Schedule Tribe community. Twenty posts are available in the District Office Srinagar and under its control the Kargil Depot also falls. The same is evident from the communication dated 11.10.2005 addressed by Assistant Manager Administration. The private respondents filed SWP Nos. Twenty posts are available in the District Office Srinagar and under its control the Kargil Depot also falls. The same is evident from the communication dated 11.10.2005 addressed by Assistant Manager Administration. The private respondents filed SWP Nos. 1605/2004, 1276/2004 and 1547/2004 and the writ court by order dated 24.05.2007 directed the appellants FCI to consider their claim for regularization and the appellants FCI rejected the regularization request by relying upon the judgment of the Hon'ble Supreme Court (Uma Devi's case cited supra). 6. It is the case of the private respondents that Food Corporation of India framed a scheme in its 176th Board meeting which was held on 24.02.1987 providing that casual labourers/daily wagers working for more than three years should be regularized and the said policy was not followed by the appellants FCI in so far as the private respondents are concerned. The non-regularization of the private respondents who are serving for more than 17 years is a human problem as the private respondents cannot go for any other employment and they are also serving in a most difficult area of Kargil and that too even during the Kargil war time. The appellants regularized the services of similarly placed persons and an attempt was made by the learned senior counsel who is appearing for the appellants that the person with whom parity is sought by the private respondents worked in a difficult situation/turbulent period and their services were regularized and the private respondents cannot compare themselves with the persons who were granted regularization under special circumstances and same cannot be treated as a precedent. The existence of 20 posts is borne out by the records. The continued engagement of private respondents for about 17 years as Casual Labourers is not disputed. The FCI Board while considering the claim of the private respondents relied on the judgment of the Hon'ble Supreme Court reported in Uma Devi's case. Subsequent to the said Judgment the Hon'ble Supreme Court in the decision reported in 2007 SLJ 491(SC) : (2007) 11 SCC 92 (U.P. State Electricity Board v. Pooran Chandra Pandey & Ors.), while considering the similar claim of the casual labourers of U.P. State Electricity Board held thus: "16.......we find that often Uma Devi's case (supra) is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the presidential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference can make Uma Devi's case (supra) inapplicable to the facts of that case. 17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-à-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board "in the same manner and position." Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the Society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who are working from before 4.5.1990. To take contrary view would violate Article 14 of the Constitution. We have to read Uma Devi's case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land..." Again the Hon'ble Supreme Court in the decision reported in AIR 2013 SC 3547 (supra), while considering a similar claim of regularization, held that the public sector undertakings for Governmental organizations cannot exploit the rights of the Labourers over a period of decades and it was further held that Judgment in Uma Devi's case cannot become a licence for exploitation by the State and its instrumentalities. In the said judgment, the Hon'ble Supreme Court directed to regularize the services of the appellants by creating necessary posts within three months. In para 21 and 36 the Hon'ble Supreme Court held thus: "21. But we do not see any justification for the State to take a defence that after permitting the utilization of the services of large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. But we do not see any justification for the State to take a defence that after permitting the utilization of the services of large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the Legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits at par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Uma devi's ( AIR 2006 SC 1806 : 2006 AIR SCW 1991) judgment cannot become a licence for exploitation by the State and its instrumentalities." 7. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Uma devi's ( AIR 2006 SC 1806 : 2006 AIR SCW 1991) judgment cannot become a licence for exploitation by the State and its instrumentalities." 7. The judgment cited by the learned senior counsel appearing for the Food Corporation of India reported in (2014) 4 SCC 769 , has no application to the facts of this case as the case before the Court was whether part time sweepers engaged in Government schools are entitled to regularization contrary to the Government order issued for regularizing the full time sweepers who were in service as on 01.01.2006 and completed 10 years of service and that too in the absence of sanctioned posts. 8. In the light of the said judgments, we are of the view that though regularization cannot be claimed as a matter of right, the private respondents having been engaged in the year 1998 in a most difficult area, namely, Kargil Depot of FCI and they having been allowed to work for 17 years and posts being available for regularization and services of similarly placed persons having been regularized as admitted by the appellants may be on special reasons, the Board is bound to reconsider its decision already taken and pass a fresh order bearing in mind the scheme framed in 176th Board meeting held on 24.02.1987 providing regularization of casual labourers/daily wagers working for more than three years, within a period of three months from the date of receipt of copy of this order. The Board while making the decision shall also keep in mind that Food Corporation of India is an Industry and workers employed have a right to get fair treatment. The watchmen posts are also required permanently for FCI godowns. The FCI is an industry and it is bound to follow the provisions of Industrial Disputes Act in terms of the decision of the Hon'ble Supreme Court reported in 1985(2) SCC 136 (Workmen of the Food Corporation of India v. M/s. Food Corporation of India). In the said judgment not following Section 9-A of the Industrial Disputes Act, 1947, while changing the conditions of service was held illegal and the same was held ineffective. In the said judgment not following Section 9-A of the Industrial Disputes Act, 1947, while changing the conditions of service was held illegal and the same was held ineffective. The FCI Board while considering all aspects shall also consider the judgment of the Hon'ble Supreme Court reported in AIR 2015 SC 2210 (ONGC Ltd. V. Petroleum Coal Labour Union & Ors.) wherein while dealing with a similar claim of a workman appointed by the ONGC it is held that keeping an employee appointed on a temporary basis and continuing in such status for number of years is unfair labour practice. Both these appeals are disposed of in above terms. No costs.