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2023 DIGILAW 2824 (ALL)

Ghanshyam Prajapati v. Union of India

2023-12-14

MAHESH CHANDRA TRIPATHI, PRASHANT KUMAR

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JUDGMENT Heard Sri. Vijay Kumar, learned counsel holding brief of Sri. Gopal Chandra Saxena, learned counsel for the petitioners and Sri. Santosh Kumar Mishra, learned counsel for the respondent-Food Corporation of India. 2. By means of instant writ petition the petitioners sought for the following reliefs:- "i) issue a writ, order or direction in the nature of certiorari quashing the impugned exemption notification dated 06.07.2016, under section 31 of CL( R & A) Act, 1970 issued by FCI. (Subject matter of writ petitions (civil) no.7627 of 2016 & 7241/16 filed before Hon'ble High Court of Delhi). ii) issue a writ, order or direction in the nature of certiorari quashing the impugned guidelines dated 12.07.2016 issued by FCI- Respondent no.2 to its general managers for implementation of the aforesaid exemption notification vide letter no.IR-L/31 (10)/2004/vol. x dated 12.07.2016, issued by FCI; iii) issue a writ, order or direction in the nature of quashing the letter dated 30.10.2021 (Impugned Order) bearing no.IR-L/14(7)/2021 issued by Assistant General Manager (IR-L) respondent no.2. iv) issue a writ, order or direction in the nature of certiorari quashing the tender dated 18.02.2022 issued by the General Manager, FCI, Lucknow, Region, Respondent no.3, whereby inviting for appointment of Handling and Transport Contractors (HTC) at FSD Maduadih-10 deploy the contract labour at FCI FSD Maduadih-Uttar Pradesh (settlement depot). v) issue a writ, order or direction in the nature of mandamus prohibiting the respondent nos.2 & 3 from transferring En-bloc 171 regular labours of FCI FSD Manduadih, Uttar Pradesh to FCI FSD Chandari-Uttar Pradesh. vi) issue any other writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case. Vii) Award the cost of present writ petition." 3. Before adverting on merits, it would be appropriate to refer to the background of the case. A news item appeared in the Times of India sometimes in 2014, wherein it was reported that a number of loaders working with the Food Corporation of India (here-in-after for the sake of brevity has been referred as "FCI") are earning around four lacs per month and also reflected abuse of government funds, inefficiency and reluctance on the part of the authorities to act sternly against such people, who were responsible for siphoning of Government funds. It was further reported that some of the loaders of the Corporation clandestinely engaged the services of other persons by paying paltry amount. It was further reported that all these things are done in connivance with the officers of the Food Corporation of India. On this news item, the Nagpur Bench of Bombay High Court took suo moto cognizance and treated the news item as PIL, which was numbered as PIL No.84 of 2014 (Court on its Own Motion v. Union of India & others). 4. In that, suo moto during the course of hearing it was pointed out to the Court, that there was some notification prohibiting employment of contract labours, hence, the FCI continued to engage services of departmental labours. 5. The FCI had approached the Central Government under Section 31 of 1970 Act. It also pointed out the other difficulties like equal pay for equal work, reducing the size of the bag from 95 kg. to 50 kg. and when the incentive of the labours were reduced the labours went to the Industrial Court, the department of labour refuted to transfer from one depot to another depot. After a detail deliberation Nagpur bench was pleased to pass the judgement and order dated 20.11.2015. Relevant part of which is as follows:- ..... (i)The Government of India is directed to decide the representation made by the Food Corporation of India for grant of exemption under the provisions of Section 31 of the said Act within a period of one month from today,in the light of observations made by us hereinabove within a period of one month from today. (ii) The Government of India shall decide the issue regarding denotification of the depots of the Food Corporation of India, in respect of which notification is issued under section 10 of the said Act, within a period of six months from today, in the light of observations made by us hereinabove and the report of M/s. Deloitt Consultancy and the report of High Level Committee appointed by the Government of India itself. (iii) We clarify that the respondent/Food Corporation of India would be entitled to transfer the services of departmental labourers from one depot to another subject to protecting their salary and all other service conditions. (iv) We also clarify that the respondent/ Corporation would be at liberty to implement its policy of change in the Scheme of incentives. (iii) We clarify that the respondent/Food Corporation of India would be entitled to transfer the services of departmental labourers from one depot to another subject to protecting their salary and all other service conditions. (iv) We also clarify that the respondent/ Corporation would be at liberty to implement its policy of change in the Scheme of incentives. (v) The Government of India shall also take a decision regarding abolition of system of departmental labourers in a phased manner or absorbing their services in other establishments as recommended by the High Level Committee. ...... 6. This judgement passed by the Nagpur Bench of Bombay High Court was challenged by the department of labour of FCI before Hon'ble Supreme Court by means of Special Leave to Appeal (C) No.19218 of 2016 and the Hon'ble Supreme Court on 08.01.2016 was pleased to pass the following order:- "Mr. Ranjit Kumar, learned SG is requested to take instructions from the Government of India, in the meantime, as to the steps they have taken in terms of the impugned order passed by the High Court." 7. As per the direction issued by Nagpur Bench of Hon'ble Bombay High Court, Government of India Ministry of Labour and Employment issued a notification dated 06.07.2016 whereby, under Section 31 of 1970 Act, the FCI was allowed to employ contract labour for period of two years. 8. Thereafter, the SLP was fixed for hearing on 16.09.2016 before Hon'ble Supreme Court and on that date it was informed to the Court that the Union of India has issued exemption notification on 06.07.2016 upon this information the SLP was dismissed, however, the liberty was given to the workers of FCI to challenge the notification before the appropriate Court. Outcome Of Identical Petitions 9. The departmental workers, who have been making a huge amount of money never wanted any contractual labour to work in the organization so they challenged the exemption notification dated 06.07.2016 in various High Courts. A writ petition being Writ-A No.43569 of 2016 (Satish Kumar and two others v. Union of India) was filed before this Court challenging the exemption notification dated 06.07.2016. In this writ petition the petitioner had made the following prayers:- "A. Issue a writ, order or direction in the nature of certiorari quashing the notification dated 6.7.2016. A writ petition being Writ-A No.43569 of 2016 (Satish Kumar and two others v. Union of India) was filed before this Court challenging the exemption notification dated 06.07.2016. In this writ petition the petitioner had made the following prayers:- "A. Issue a writ, order or direction in the nature of certiorari quashing the notification dated 6.7.2016. B. Issue a writ, order or direction in the nature of mandamus directing the respondents not to take any whereby the service conditions of petitioners may be effected." 10. Learned Single Judge of this Court proceeded to dismiss the aforesaid petition vide order dated 14.09.2016. Relevant paragraphs of which are as follows:- "19...... The petitioners have completely failed to point out infringement of their fundamental rights guaranteed under part III of the Constitution of India, by the impugned Notification. It is settled principles of law that there is always presumption in favour of constitutional validity of a legislation. 21. Considering the facts and circumstances as noted above as well as the judgment of Nagapur Bench of Bombay High Court in P.I.L. No.84 of 2014 and the order of Hon'ble Supreme Court as noted above, I do not find any infirmity in the impugned Notification. Writ petition No.34027 of 2013 filed by the petitioners for regularisation is also admittedly pending. 22. Writ petition lacks merit and is consequently dismissed. There shall be no order as to costs." 11. Satish Kumar and two others, who are workers of the FCI, challenged the aforesaid judgement passed by learned Single Judge of this Court in Special Appeal, which was numbered as Special Appeal No.653 of 2016. The aforesaid Special Appeal was also rejected by this Court and the exemption notification dated 06.07.2016 was further affirmed vide order dated 18.10.2016. 12. After the exemption notification was issued by Government of India, the respondent no.2 vide its order dated 08.08.2016 transferred the departmental labours working in Food Storage Depot Naini, Allahabad to Food Storage Depot, Manduadih, Varanasi. These transfers were also made as per guidelines issued by the Nagpur Bench of Bombay High Court. 13. This en-bloc transfer order from Food Storage Depot Naini, Allahabad to Food Storage Depot, Manduadih, Varanasi was again challenged by way of Writ Petition No.38560 of 2016 (Bhartiya Khadya Nigam Mazdoor Sangh and 40 others v. F.C.I. through its Chairman and three others) before this Court, which was dismissed vide order dated 26.09.2016. 13. This en-bloc transfer order from Food Storage Depot Naini, Allahabad to Food Storage Depot, Manduadih, Varanasi was again challenged by way of Writ Petition No.38560 of 2016 (Bhartiya Khadya Nigam Mazdoor Sangh and 40 others v. F.C.I. through its Chairman and three others) before this Court, which was dismissed vide order dated 26.09.2016. Relevant paragraphs of which are as follows:- "10. Respondents vide counter and supplementary counter affidavit state that following four types of labourers are employed for handling operations in FCI depot:- (i) Departmental Labour (DL); (ii) Direct Payment System Labour (DPS); (iii) No Work No Pay Labour (NWNP); & (iv) Contract Labour (CL). It is stated by the respondents that only one system of labourers are deployed in one depot, as otherwise it may result in industrial unrest since different wages/salary would be payable for performing same work. Accordingly, it is stated that if in a particular depot, departmental labourers are engaged then labourers of other category i.e. direct payment system (DPS), no work no pay (NWNP) and contract labour (CL) are not engaged in that depot. It is stated that FCI intends to pool all departmental labourers in few depots according to their operational requirement. It is also stated that petitioners hold transferable post, and merely on the strength of transfer order passed, no prejudice is caused to them. 11. During the course of hearing, much emphasis was laid by the Senior Counsel for the petitioners on the aspect of en masse transfer being affected without anyone else being posted in place of petitioners. Rationale of such decision was specifically questioned. According to petitioners, Clause 5 of the Certified Standing Orders provides as under:- "Clause No.5: Transfer- A worker shall be liable to be transferred from one place of work to another place of work of the Corporation as per practice in existence with the whole gang, except in the case of request for transfer from the individual worker." It is stated that there is no practice of transferring workers, who are otherwise Class-IV employees. Violation of provisions of Sections 9-A and 2(ra) of the ID Act, are also alleged. 12. From the materials placed on record, it cannot be doubted that petitioners are all departmental labourers, who hold transferable post. Violation of provisions of Sections 9-A and 2(ra) of the ID Act, are also alleged. 12. From the materials placed on record, it cannot be doubted that petitioners are all departmental labourers, who hold transferable post. Hon'ble Supreme Court in Food Corporation of India Worker's Union v. Food Corporation of India and another, has been pleased to reject contention of workers that labourers such as petitioners cannot be transferred. Para-27 of the judgment of Nagpur Bench also recognizes such position. Petitioners' transfer from one depot to another, therefore, cannot be questioned, on the ground that petitioners do not hold transferable post. It is also not in dispute that salary and other service benefits admissible to petitioners at their present place of posting are not being altered to petitioners' detriment. 13. So far as justification of mass transfer without anyone else being posted in place of petitioners, or the transfer not being warranted in facts of the present case is concerned, all such issues may not be gone into by this Court. It is apparent that an exercise to rationalize deployment of departmental labourers is in process, pursuant to the orders passed by the Nagpur Bench. Some play in the joints would otherwise have to be conceded to employers, while undertaking steps to protect state exchequer. At the instance of workers' union, the matter is otherwise engaging attention of Apex Court in appeal, which is pending. 14. It may further be noticed that in some what identical facts and circumstances, a Division Bench of the Bombay High Court in Ravi B. Ghorpade (supra) has refused to entertain similar writ petition filed by workers against the order of transfer in following words:- "3. In view of the above, we are not inclined to entertain the present writ petition filed by the petitioner. It is based upon the order and directions so issued by the Nagpur bench and also for the fact that the proceedings against the same are pending in the Supreme Court. As regards the submission as made on behalf of the petitioners on merits referring to the placements/transfers, we are not inclined to accept these submissions for the extensive reasons recorded in the judgment of the Nagpur Bench so referred above, and also for the fact that a Special Leave Petition is pending. The remedy of the petitioner is therefore, elsewhere. As regards the submission as made on behalf of the petitioners on merits referring to the placements/transfers, we are not inclined to accept these submissions for the extensive reasons recorded in the judgment of the Nagpur Bench so referred above, and also for the fact that a Special Leave Petition is pending. The remedy of the petitioner is therefore, elsewhere. For the above reasons we accordingly dismiss the present petition. No costs." 15. Judicial propriety and consistency requires that in similar facts and circumstances, similar orders be passed. I am otherwise of the opinion that merits of the rationalization process or justification to effect orders of transfer need not be gone into, any further, as these are administrative acts undertaken, purportedly in compliance of the directions issued by the Nagpur Bench of Bombay High Court, against which an appeal is pending before the Apex Court. So far as violation of the Standing Orders or other provisions of ID Act is concerned, remedy available to the petitioners is to approach the Industrial Adjudicator. 16. The writ petition, consequently, fails and is dismissed. Interim order is discharged." 14. Since as per the exemption notification dated 06.07.2016 FCI was allowed to engage contract labour, so the respondent no.2 issued e-tender for appointment of handling and transportation contractors. 15. Another writ petition bearing Writ-C No.35175 of 2016 (FCI Mazdoor Association Union v. Union of India and 10 others) was filed, challenging the e-tender Notice No.02/2016 for HTC, RTC Contractor on 08.04.2016 for appointment of handling and transport contractor, that too has been dismissed vide order dated 01.08.2016. The relevant paragraphs of which are as follows:- "Counsel for the contesting respondents submits that the tender process got over in April, 2016 itself and work at four depots is also complete. Further, he submits that the petitioners had earlier filed Writ Petition No. 30350 of 2016 and this Court, while disposing of the writ petition vide order dated 6 July 2016 permitted the petitioners to approach respondent no.1 for seeking reference under Section 10 of the Industrial Disputes Act, 1947 to the Industrial Adjudicator within a time frame. However, till date, the petitioners have not approached the first respondent for seeking reference, as observed in the order dated 6 July 2016. In this backdrop, it would not be possible to entertain and examine merits of the case. However, till date, the petitioners have not approached the first respondent for seeking reference, as observed in the order dated 6 July 2016. In this backdrop, it would not be possible to entertain and examine merits of the case. It is still open to the petitioners to seek reference under Section 10 of I.D. Act, 1947. The petition is dismissed." 16. The petitioners herein, are the regular departmental labours working in Food Storage Depot, Manduadih, Varanasi, which is a notified depot under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (here-in-after for the sake of brevity has been referred as "Act, 1970"). 17. Learned counsel for the petitioners submits that exemption under Section 31 of 1979 Act was granted on 06.07.2016 for a period of two years as an emergent situation, now 7 years have passed by and it cannot be said that the emergent situation is still continuing. 18. Learned counsel for the petitioners further submits that the en-bloc transfers cannot be done. Infact FCI has carried out identical transfers in Delhi, and Delhi High Court on Writ Petition Nos.7627 and 7241 of 2016 filed by the labours, passed an interim order restricting respondents from transferring the labours en-bloc. 19. He further submits that Section 10 of 1970 Act clearly prohibits the employment of contractual labours. He also submitted that FCI had moved to Central Advisory Contract Labour Board for grant of exemption under Section 31 of the Act but the Board had dismissed the application of the FCI and that decision attained finality. The en-bloc transfer of employees from one Depot to another Depot is contrary to the interim order passed by the Delhi High Court. He further submits that though the interim order passed by the Delhi High Court is not binding still it has persuasive effect and this Court should consider this fact sympathetically. 20. Learned Counsel for the petitioners further submits that the guidelines issued on 12.07.2016 for implementation of exemption notification is illegal and liable to be set aside. Further, the order for pooling of handling the labours by FCD Chandari has been passed arbitrarily. 21. Per contra, Mr. S.K. Mishra, learned counsel for the F.C.I. submitted that the main ground of the petitioners in this writ petition is that exemption notification dated 06.07.016 has been issued in consultation with Central Advisory Board (CACLB). Further, the order for pooling of handling the labours by FCD Chandari has been passed arbitrarily. 21. Per contra, Mr. S.K. Mishra, learned counsel for the F.C.I. submitted that the main ground of the petitioners in this writ petition is that exemption notification dated 06.07.016 has been issued in consultation with Central Advisory Board (CACLB). Though the exempted depot were notified under Section 10 on the advise of Central Advisory Board (CACLB). Section 31 of the Act empowers Central Government to exempt establishments from the conditions and restrictions, if any, imposed by and under all or any of the provisions of the Act for such period or periods as may be specified in a notification issued in that behalf. Significantly, the power liable to be exercised by the appropriate Government under Section 31 of the Act, 1970 is not made subject to consultation with the Central Board. The Notification dated 6th July 2016 issued by the Union Government exempting the depots of the Corporation from the rigours of the notification dated 23rd April 2010 cannot, therefore, be faulted on this score. The Central Government has taken due care of the objection of CACLB. The Government incorporated the conditions that FCI has to comply the condition specified under Clause (iv) and (v) of Sub-Rule (2) of the Rule, 25 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 and the duration of exemption notification was for the period of 2 years from its publication in the official gazette. The F.C.I. was suffering tremendous loss as a demurrage under the Old Scheme and payment of wages to departmental labour. In April, 2022 - August, 2022 Contract Labours were deployed at FSD, Hapur and for said period department has paid only Rs. 1.26 crores at the rate of Rs. 70.23 per metric ton. Due to interim order dated 10.02.2022, the department has paid Rs. 29.77 crores as wages to petitioners from October, 2022 to October 2023 at the rate of Rs. 642.68 per metric ton. 22. It is noteworthy that after notification dated 06.07.2016 the Central Government has further issued exemption notification dated 20.06.2018, 25.06.2020 and notification dated 19.10.2022 exercising power conferred under Section 31 of C.L.R.A. Act. The petitioner has not brought on record or assailed the said notification except notification dated 06.07.2016, which has been affirmed by the Hon'ble Court and has lost its efficacy. 23. The petitioner has not brought on record or assailed the said notification except notification dated 06.07.2016, which has been affirmed by the Hon'ble Court and has lost its efficacy. 23. After hearing the parties and perusing the record as well the judgements passed in earlier writ petitions, we proceed to consider the prayers made in the instant petition one by one:- 24. The prayer '(i)' of this writ petition is for seeking a direction for quashing of the exemption notification dated 06.07.2016 issued under Section 31 of the C.L.(R & A) Act, 1970 also being the subject matter before Delhi High Court in W.P. (C) Nos.7627 and 7241 of 2016. The challenge to Exemption Notification has already been turned down by this Court in Writ-A No.43569 of 2016 vide judgement and order dated 14.09.2016. This order was challenged by similarly situated people in Special Appeal before this Court and the Special Appeal was also rejected and the exemption notification dated 06.07.2016 challenged herein has already been upheld. 25. On a pointed query by this Court as to whether the Special Appeal No.653 of 2016 decided on 18.10.2016 has ever been challenged before Hon'ble Supreme Court, both the parties states that this order has not been assailed and has attained finality. So far as the order passed by the Delhi High Court is concerned, admittedly it is an interim order. It is brought into our notice that the other High Courts of the country have declined to grant interim orders. The petitioners cannot ask for a parity of an interim order passed by one of the High Courts. 26. Since this issue has already been decided by coordinate Bench and the same has been permitted to attain finality, as such we are bound by the judgment of our coordinate bench, hence, we cannot entertain the petition seeking the same relief. Hence, the prayer no. (i) cannot be granted. 27. The prayer no. (ii) made in this writ petition is to quash the guidelines dated 12.07.2016 issued by respondent no.2 for implementation of the exemption notification dated 06.07.2016. These are nothing but a guideline laid down for implementation of the exemption notification dated 06.07.2016. Hence, the prayer no. (i) cannot be granted. 27. The prayer no. (ii) made in this writ petition is to quash the guidelines dated 12.07.2016 issued by respondent no.2 for implementation of the exemption notification dated 06.07.2016. These are nothing but a guideline laid down for implementation of the exemption notification dated 06.07.2016. Since the exemption notification dated 06.07.2016 has already been upheld by learned Single Judge and also by the Division Bench of this Court and the guidelines so issued are merely for implementation of that notification and there is no illegality per se in the guidelines. Hence, the prayer no. (ii) as prayed by the petitioner cannot be accorded. 28. The prayer no.(iii) is for quashing of the order dated 30.10.2021 for En-bloc transfer of departmental labours from Hapur Depot to Chanderi Kanpur Depot of the Food Corporation of India. Identical issue had earlier cropped up wherein En -bloc transfer of employees from Naini Depot, Allahabad to Manduadih, Varanasi Depot of Food Corporation of India was made, and the same was challenged in Writ Petition No.38560 of 2016 (Bhartiya Khadya Nigam Mazdoor Sangh and 40 others v. F.C.I. through its Chairman and three others) before this Court, which was dismissed vide order dated 26.09.2016. Hence, the impugned order dated 30.10.2021 is identical order, which has already been upheld by the learned Single Judge of this Court and the order passed by the learned Single Judge has not been challenged. Hence, there is no reason for this Court to take a contrary view, or pass any order stopping or holding back the transfer, which has been made. These transfers are made in administrative exigencies and no Court should ever interfere with the transfer order until and unless it is proved that the same has been made malafidely. Therefore, the prayer no.(iii) made in the writ petition cannot be accorded. 29. The prayer no.(iv) made in the writ petition is for issuing direction for quashing of the e-tender notice dated 18.02.2022 issued by respondent no.2 to engage the contract labours at FCI FSD Hapur-U.P. Since there is an exemption notification dated 06.07.2016 passed under Section 31 of 1970 Act, which has been upheld by this Court, which allows the respondent no.2 to engage contractual labours. As long as this exemption is there, respondent no.2 has to engage contractual labour to carry out the activities and in order to engage the contract labour the State Government has no other option but to float a tender and the e-tender has been floated calling for expression of interest to carry out the functions for FCI. Moreover, since the identical prayer was made in Writ-C No.35175 of 2016 and the same was dismissed by this Court, hence, the prayer no.(iv) so made cannot be accorded. 30. The prayer (v) of prohibiting the respondent no.2 and 3 from transferring en-bloc 171 regular labours of FCI FSD Manduadih, Uttar Pradesh to FCI FSD, Chandari, Uttar Pradesh is concerned. This Hon'ble Court has already decided this issue in writ petition No.38560 of 2016 (Bhartiya Khadya Nigam Mazdoor Sangh and 40 others v. F.C.I. through its Chairman and three others) and this Hon'ble Court has declined to interfere with the en-bloc transfers, hence, this prayer also cannot be accorded. 31. The prayer nos. (vi) and (vii) are formal in nature and the same cannot be accorded as all the prayers have been rejected. 32. The writ petition is devoid of merit and is, accordingly, dismissed.