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2023 DIGILAW 1260 (RAJ)

Union of India through General Manager, North Western Railway, Jaipur v. Regional Labour Commissioner (Central), Lucknow

2023-07-03

REKHA BORANA

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JUDGMENT : REKHA BORANA, J. 1. The brief facts of the case are that a writ petition under Article 226 of the Constitution of India bearing No. 433/1998 and other writ petitions came to be filed before Hon’ble the Apex Court by All India Railway Parcel & Goods Porters’ Union wherein a prayer was made by porters to treat them as permanent employees of the Northern Railway and the Hon’ble Supreme Court passed the following order: “34. 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 record 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 ever claimant for 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 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 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 won 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. 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.” 2. I.A. Nos. 10. 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.” 2. I.A. Nos. 29-30 of 2011 and 1-2/2012 were preferred before the Hon’ble Supreme Court and vide order dated 15.02.2013, the Hon’ble Court passed the following order: “The grievance of these applicant is that although, they are eligible they have so far not been considered in terms of the two aforesaid judgments. Having heard the learned Additional Solicitor General Mr. Amarjit Singh Chandhiok, and learned Counsel for the other parties, we direct that an officer of the Railways be specially appointed for each zone, to consider the cases of the applicants and if they have been found to be eligible or they satisfy the conditions concerned they may be considered for regularization, within six weeks from date. The interlocutory applications filed in the writ petitions are accordingly disposed of. This order will also govern the contempt petitions which are appearing in the list...” 3. The Regional Labour Commissioner (Central) Lucknow, after receiving the representations, decided the same keeping into consideration the reply filed by the petitioners and vide his order dated 29.12.2015, held as under: “I came to the conclusion that the Railway Administration has already absorbed some of the parcel porters in different Division of the Indian Railways including Bikaner Division in pursuance of the order of the Hon’ble Supreme Court, hence these applicants whose working is accepted by the Railway Administration and reflected in the report of the Asstt Labour Commissioner (Central), Lucknow U.P. can not be discriminated only on the pretext that they have no vacancy to induct further as parcel porters. Though all the names of the applicants are connected and the part of the concern said Writ petition. The contention of the Railway department that these parcel porters were engaged by the different agencies and societies and not by the Railway department directly therefore there is no claim for the regularization in the department, is not acceptable as they have already engaged the sixty parcel porters in compliance of the orders of the Hon’ble Supreme Court. The contention of the Railway department that these parcel porters were engaged by the different agencies and societies and not by the Railway department directly therefore there is no claim for the regularization in the department, is not acceptable as they have already engaged the sixty parcel porters in compliance of the orders of the Hon’ble Supreme Court. It is well known fact that the number of the trains and goods transmission/loading & unloading of goods and Railway parcel work in the Railway department is certainly increased in last few years. The Railway is a vast organization and several similar type of jobs of such nature, status and grade is enhanced, as such it is not acceptable that Railway administration has no work for these applicants. In the instant case the all the 05 applicants of Bikaner Division have spent a long period of their life and at this juncture of life they can not be ignored and deprived from the regular job. Accordingly, all the applicants whose names are mentioned in the report are entitled for absorption on the regular basis at Bikaner Division of North Western Railway.” 4. Aggrieved against the above order dated 29.12.2015, the present writ petitions have been preferred. 5. Similar Writ Petition No. 522/2016 [Union of India vs. The Regional Labour Commissioner (Central) and Others] pertaining to the parcel porters of Jaipur Division of North Western Railway was preferred at Jaipur Bench of this Court and the same has been decided vide judgment dated 20.02.2019 by the Coordinate Bench of this Court at Jaipur. The Court while dismissing the writ petition as preferred by the Union of India held as under: “Thus, this court finds that once the Labour Commissioner has mentioned the names of the concerned porters after verification having also considered all the objections from the Railways, this court in writ jurisdiction would not substitute its opinion on factual aspects as has been held in Sadhana Lodh vs. National Insurance Co. Ltd. and Another, (2003) 3 SCC 524 , wherein it has been held as under: “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” The contention of the petitioners that the Labour Commissioner had only authority akin to conciliation proceedings and could not have adjudicated the claim is misconceived. Keeping in view the directions issued by the Supreme Court empowering the concerned Labour Commissioner to adjudicate the claims, I find that jurisdiction was available to it. Accordingly, the contention of petitioner is rejected. Writ petition is found to be devoid of merits. Order passed by the Regional Labour Commissioner (Central) Lucknow dated 02.12.2015 is upheld. Accordingly, writ petition is dismissed. No costs.” 6. Learned counsel for the petitioners is not in a position to refute the fact that the present petitions are squarely covered by the judgment dated 20.02.2019. 7. In view of the same, the present writ petitions are also dismissed in light of judgment dated 20.02.2019 passed in S.B. Civil Writ Petition No. 522/2016 by a Coordinate Bench of this Court at Jaipur. 8. The stay petitions and all other pending applications, if any, also stand disposed of.