Corporation of India Workers Union. Vs. The Food Corporation of India & Anr 
INSC 818 (16 July 1996)
K.S.(J) Paripoornan, K.S.(J) Kuldip Singh (J) Paripoornan,J.
JT 1996 (6) 424 1996 SCALE (5)218
J U G
D M E N T
appellant is the Food Corporation of India Workers Union claiming to be a
registered trade Union at Calcutta.
present proceedings are filed by its Secretary. The respondents are –
Food Corporation of India, New Delhi and
The Presiding Officer, Central Government Industrial Tribunal at Calcutta. This appeal is filed assailing the
award passed by the Central Government Industrial Tribunal (the 2nd respondent)
dated 5.11.1993 in Reference No. 13 of 1977 and published by the Central
Government on 5.3.1994.
heard counsel. This litigation has a chequered history. This is the third round
in this Court. The first respondent, the Food Corporation of India, is a statutory Corporation established
for the purpose of trading in foodgrains and other food stuffs and for matters
connected therewith and incidental thereto. It undertakes purchase, storage,
movement, transport, distribution and sale of foodgrains and other food stuffs.
The Corporation has set up its godowns/depots and other storage facilities. Labour
is engaged at different stages in the various Depots for handling storage and
transit of foodgrains and other food stuffs. The Corporation is functioning
through various offices and depots through out India. It seems that the Corporation adopted different methods at
different places for employing labour for handling foodgrains. We are concerned
in this case with one such Depot set up by the Corporation at Siliguri in West Bengal State. It is stated that at the relevant
time, 464 workmen designated as Handling Majdoors were attached to the said
a contractor was engaged by the Corporation for handling, storage and transit
of foodgrains at Siliguri Depots. Subsequently, the procedure of direct payment
to 'labourers was followed by the Corporation. The workmen at its Siliguri
Depot went on strike in about January 1975, which was called off in March 1975.
Thereafter, the Corporation changed the method of payment. The direct payment
system was superseded. The payment through contractor was reintroduced. The 464
workmen already accepted as the workmen of the Corporation, agitated through
their Union that the change-over was illegal
question arose, whether the aforesaid 464 persons represented by the Union and attached to Siliguri Depot were the workmen of
the Corporation and the change in the conditions of service made by the
Corporation was valid and legal. This led to an industrial dispute. The matter
came up finally before this Court in Civil Appeal No. 1055(NL)/81.
judgment dated 28.2.1985, a three-Member Bench of this Court examined the
matter in great detail, and held thus:
the system of direct payment as setout in the letter dated April 28, 1973 further amplified by the letter
dated October 29, 1973, it becomes crystal clear that name
of every workman enaged to handle foodgrains at Siliguri Depot will be mustered
in a register and his daily out turn will be specified. The payment will be by
piece rate as was in vogue at the time of the contractor system. The bill will
be prepared setting out the name of the workmen and the out-turn of each. The
pay bill will be prepared setting out the names of the workmen and the out-turn
of each. The pay bill will be prepared by the Depot staff who are regular
employees of the Corporation. The payment will be made by the Corporation but
will be distributed to each workman according to the piece rate by what are
called Sardar/Mondal. The bills with the acquittance in original evidencing
payment would be filed with the Corporation." "When the direct
payment system was introduced, the intermediary contractor disappeared from the
picture. The work rendered by each workman had to be entered into a muster roll
register. The Corporation will distribute the wages calculated on piece rate to
each workman and each workman was required to be a party to the acquittance
roll to be retained by the corporation. The wages were distributed by Sardars/Mondals."
(p. 97 Main paperbook) "................the conclusion is inescapable that
since the introduction of the direct payment system, the workmen became the
workmen of the Corporation and a direct master- servant relationship came into
existence." "if what was intended to be done was retrenchment, ex
facie the action is contrary to the provisions of Sec. 25F of 9 the I.D. Act,
1947. Viewed from either angle, the action of introducing so as to displace the
contract of service between the Corporation and the workmen would be illegal
and invalid and an initio void and such action would not alter, change have any
effect on the status of the afore-mentioned 464 workmen who had become the
workmen of the Corporation." (pp. 101-102 Main Paperbook)
"..........an award be made that the afore mentioned 464 workmen who had
become the workmen of the Corporation continued to be the workmen employed by
the Corporation and shall be entitled to all the rights, liabilities,
obligations and duties as prescribed for the workmen by the Corporation. A formal
award to that effect shall be made by the Tribunal." (pp 107 Main paperbook)
(emphasis supplied) "As it was stated before this Court that these workmen
continued to be employes, undoubtedly under the contractor since the illegal
change was introduced, the question of paying back wages does not arise.
Tribunal however must satisfy itself before making the final award whether any
workman was denied work and consequently wages." (pp. 107-108 Main Paperbook)
(emphasis supplied) (Pages 83 to 108 - Main Paperbook contain the judgment
seems that subsequent to the above judgment, the Tribunal passed an Award dated
24.11.1988 in the following terms :
In view of what has been stated and discussed above, before I go into the determination
of the question with regard to the back wages to be obtained by the eligible
workmen concerned on proper materials to be produced before this Tribunal, this
Tribunal in reference, to the direction of the Hon'ble Supreme Court in the
penultimate first paragraph, makes the formal award as directed by the Hon'ble
Supreme Court by way of interim award in the following manner.
The 464 workmen named and mentioned in the list annexed to the written
statement of the workmen and referred to by the Hon'ble Supreme Court in their
judgment in Civil Appeal No.1055(NL) of 1981, who had become the workmen of the
Corporation continue to be the workmen employed by the Corporation and shall be
entitled to all the rights, liabilities, obligations and duties as prescribed
for the workmen by the Corporation".
(p. 4 Paperbook
Part II) (emphasis supplied)
first respondent, Food Corporation of India, agitated the matter again and in
Civil Appeal No. 155/90, a two- Member Bench of this Court by judgment dated
17.1.1990, passed the following order:
on both sides and in our opinion very fairly submitted that there is need to
identify the workmen who are entitled to reinstatement. In fact, with that
understanding we made the order dated December 29, 1989 keeping in abeyance of
the interim award of the Tribunal.
seems to us having regard to the facts of the case, the identification of the
workmen is a must and it should be properly done by the Tribunal. We therefore,
direct the Tribunal to proceed to examine the identification of the 464 workmen
including 203 persons in respect of whom there appears to be no dispute from
the management." (p.147 Main Paperbook) (emphasis supplied)
Subsequently, the Tribunal had passed the Award dated 5.11.1993, after completing
the identification exercise in respect of 287 workmen. (See Annexure to the
order detailing "287" and their number in the list of 464, mentioned
by the appellant-Union in the statement filed by it.) The Tribunal has taken
the view that none of them were ever employed by the Food Corporation of India. It has stated that they will not
be taken within the fold of 464 workmen dealt with in the above mentioned two
appeals of this Court. It should be stated again that out of 464 workmen dealt
with in the above mentioned two appeals of this Court. It should be stated
again that out of 464 workmen dealt with in judgment in C.A. No.1055(NL)/81
dated 28.2.1985, the Corporation had no dispute with regard to 203 persons; and
so, it appears, the dispute centered around 261 persons only; and perhaps it is
in this context, only the cases of 287 workmen who came forward to prove their
identity, as having been included in the total 464' were considered by the
Tribunal in its order dated 5.11.1993.
Special Leave Petition came up before this Court on more than one occasion. The
counsel for the Corporation fairly stated that he shall contact the Corporation
and assist this Court to settle the problem in an amicable way.
Counsel appearing for the parties were also heard at some length and this Court
taken through the rather voluminous order of the Presiding Officer, Central
Government Industrial Tribunal, which is assailed herein.
will be evident from a perusal of the earlier orders dated 20.3.1995 and 3.4.1955.
But, no satisfactory solution could be arrived at to solve the problem
were informed by appellant's counsel during one or two hearings that a few
workers were also present in Court.
the matter came up during hearing, we expressed the view that we will, on our
own, examine a few specimen cases and endeavour to identify whether such
persons present in Court would fall within the "287 persons" whose
identifications were questioned and considered in the order of Tribunal dated
5.11.1993. A list containing the photo copies duly attested by the Tribunal of
the Identity Cards of 22 concerned workmen was filed before us. We were
informed that 287 workmen deposed before the Tribunal. The
"Identification" exercise is attempted after a lapse of more than 15
years and due to lapse of time, there is every possibility of the photographs
and writings thereon getting blurred. The workmen are illiterates or
vital handicaps have to be borne in mind in evaluating the "identification"
to be undertaken and it is evident that the Tribunal was totally oblivious to
the above stark or hard realities of the situation, in its approach and
conclusion in the matter. We compared the Identity Cards of two such persons --
Permit No., 23 Sri Chandradeo Thakur date of issue of identity card, 14.4.1978;
and Permit No.178, Sri Sachidanand Sahani, date of issue of the identity card,
not easily traceable. They are available at pages 7 and 11 of the papers
containing the xerox copies of the identity cards. We talked to the above
persons, who were present in Court, in the presence of counsel and passed the
following order on 4.5.1995 : (Page 264(A) - main paper book "One of the
workers by the name of Chander Dev Thakur is present before us. We have seen him
and talked to him. His photograph on the xerox copy of the identity card dt.
14.4.78 seems to be the photograph of Chander Dev Thakur.
have also taken his signatures before us and tally with the signatures which
are on the identity card. Both the signatures are identical.
worker, Sachidanand Sawhney is also present in Court.
seeing him and seeing the photograph on permit No. 178, we find that the
photograph is of the person who is standing before us.
have examined these two workers only to test the findings of the Industrial
Tribunal who found that the photographs of none of the workers tally with their
actual face and profile. "
would like to highlight a few facts. It is the Food Corporation of India
Workers Union, the appellant herein, who was a party in the earlier proceedings
which resulted in the decision of this Court in C.A. No.1055(NL)/81 and also
C.A. No.155/90. The appellant claims to be a recognised trade Union. The first
respondent - management, stated that the appellant was a recognised Union till 1984 and not thereafter, since no recognition
was given to Union dealing with contract labour. It is
so stated in the additional affidavit filed by the first respondent dated
17.7.1995. The appellant has filed an affidavit in reply dated 18.7.1995.
asserted that it is the only relevant trade Union, representing the handling
and loading & unloading Mazdoors, contract labour, direct payment or
departmental employees employed by the first respondent in the whole of India. The appellant has been
representing the above mentioned workers for more than three decades. It also
appears from the papers filed by the appellant that at various stages
negotiations were carried on between the appellant - Union and respondent. So it cannot be said that the
petitioner is not a valid or recognised Trade Union.
The second aspect which requires to be highlighted is this: the dispute
originally concerned 464 workmen. It is stated that pending the proceedings a
few persons died.
to appellant-Union, the number of persons who are dead is '56' and that has
been accepted by the Tribunal.
128 - paper book Vol . II ). It may be a case where employment should be
provided to the nearest kith and kin of the deceased workman as provided by the
relevant rules/orders etc.. From the later order of this Court in C.A.
No.155/90 dated 17.1.1990, it is evident that in respect of 203 persons, there
was no dispute by the Management. Perhaps, it was in this context that evidence
was led in respect of only 287 workmen. One clinching circumstance disclosed in
the case in appreciating the rival pleas of the parties regarding the identity
of the workmen, who were employed in the Siliguri Depot of the Food Corporation
of India, deserves to be noticed. In the
written statement filed by the appellant - Union
before the Tribunal as early as 7.7.1978 in paragraph 10, it is stated thus :
That the Siliguri depot of the Corporation, under the office of the District
Manager, Siliguri, 464 Handling Mazdoors, as whom in Annexure marked 'A' with
all relevant details, were employed on 21.7.75, for doing the handling workers
of the Corporation." (p.37 - Main paperbook) (emphasis supplied) The
management filed a reply thereto dated 26.10.1978 which is available at pages
149 to 162 of the Main Paperbook. At page 153, in paragraph 10, the management
The statement as made in paragraph 10 of the written statement of the workmen
is substantially correct." The annexure to the written statement (the list)
filed by the appellant's Union dated 7.7.1978 available at pages 44 to 59
contains the names and designation of the (464) Mazdoors of Siliguri Depot as
on 21.7.1975. The employment of such persons as specified in the list was not
disputed at all by the Management in the written statement. It does not appear
that the Management ever contested the fact that 464 workmen, specified in the
list, were attached to Siliguri Depot at the relevant time in two prior Appeals
i.e. C.A. No.1055(NL)/81 and C.A.No.155/90. Indeed, in the later appeal, out of
464 workmen the Management had no dispute about 203 persons.
Our finding in the earlier order dated 4.5.1995, at least regarding two persons
who were present in Court and whose identity could not and was not disputed
with reference to their photographs and xerox copies of the Indentity cards,
signatures therein etc., (though illustrative) points out the palpably
erroneous conclusion of the Tribunal that "none" of the 287 persons,
who claimed to be included in the list of "464" were able to
establish that they were employees of the Siliguri Depot of the Food
Corporation of India at the relevant time. We are of the view that this Court
in C.A. No.155/90 by order dated 17.1.1990, only directed the Tribunal to
examine the indentification of 464 workmen, including 203 persons in respect of
whom there was no dispute from the Management. There was no direction nor was
any need to find out whether the said workmen mentioned in the list attached to
the written statement filed by the appellant dated 7.7.1978 worked for the
Corporation at the relevant time and that matter was settled by the judgment of
this Court dated 28.2.85 rendered in C.A. No.1055(NL)/81. On the question as to
whether the identification directed by this Court vide judgment dated 17.1.1990
in C.A. No.155/90 has been made properly by the Tribunal, we are of the view,
in the light of our earlier order dated 4.5.1995, that we should proceed on the
basis that the finding of the Tribunal in this regard is vitiated. The counsel
for the appellant submitted before us that the concerned workmen produced
before the Tribunal the following to prove their identity:
Identity Cards issued by the Food Corporation of India (attested by one of the officers of the Corporation).
Permit Slips issued by the Corporation at the relevant time.
Ration Cards issued to the workmen.
Certificates issued by the Commissioner, Panchayats.
the specimen of the xerox copy of the identity card, (all of them similar) we
find that apart from the signature of the workmen concerned, it was attested by
the labour union official and also by the official of the first respondent
Corporation. This fact was not denied at the time of hearing. We should bear in
mind the undisputed fact that the identity cards are prepared by the Management
and signed by one of their officials. In this case, it is proved that one Sri
S. Dutta (WW 2) has signed in most of the identity cards. Sri S. Dutta is an
official of the Corporation. His signature is admitted (page 12 of the paper
book, Vol. II).
are also informed that documents like the Pay sheets, deduction of Provident
Fund Contribution, Hajira Sheets, xerox copies of Permit Slips, original list
of workmen working with the Corporation, published on 12.12.1978 by the
Corporation, which should admittedly be in the possession of the Corporation
and directed by the Tribunal to be produced, were not produced by the
Corporation. It seems that the Management filed an affidavit stating that the
documents are not in their possession and the Tribunal stated that the plea of
the appellant to call for the documents does not arise. That such primary
documents should be and are available with the Corporation, cannot be denied,
in view of the facts highlighted or stated by this Court in the earlier
judgment in C.A. No. 1055(NL)/81. The Tribunal abdicated its duty in not taking
effective or proper steps to obtain the said crucial and primary documents. In
the circumstances, an adverse inference was called for, against the Corporation
for non production of vital primary documents.
disposing of C.A.No.1055(NL)/81 this Court had occasion to advert to the fact
that the names of workmen engaged in handling foodgrains at the Siliguri Depot
will be mustered in a Register and his daily out-turn will be specified. And
further the payment will be made by piece rate and bill will be prepared
setting out the names of the workmen and the out-turn of each, by the Depot
Staff who are regular employees of the Corporation; and the payment will be
made by the Corporation and the same will be distributed to each workman
according to the piece rate, and the bills with the acquittance in original
would be filed with the Corporation. This Court also observed that the work
rendered by each workman had to be entered in the muster roll register and each
workman is required to be a party to the acquittance roll to be retained by the
Corporation. Such registers, which should be available with the Corporation,
were not even produced before the Tribunal. The first respondent Corporation
could have demonstrated that the presumption flowing from the various identity
cards, issued by it, permit slips, ration cards and the certificates issued by
the Commissioner of Punchayats produced by the workmen, did not relate to
either the 464 workmen or any of them, and who were mentioned in the list filed
along with the written statement of the Union dated 7.7.1978. No such attempt
was made by the Corporation, which at all times was in possession of the above
primary records in the matter. It is evident that the best evidence available
with the Corporation was withheld.
have already adverted to the fact that the Corporation did not challenge the
list filed along with the written statement of the appellant dated 7.7.1978; on
the other hand, it was admitted in the written statement filed by the
Corporation. On an examination of two illustrative cases (persons who were
present in Court along with their identity cards), we are convinced, that the
order passed by the Tribunal that "none" of the 287 workmen were able
to establish that they were employees of the Siliguri Depot of the Food
Corporation of India, is a palpable error.
The judgment of this Court in C.A. No. 1055(NL)/81 is conclusive to show that
464 persons attached to "the list" are workmen of the Corporation
entitled to the benefit given by the judgment. The only further question that
fell for consideration as a result of the later order of remit in C.A.No.
155/90 was "the identity of the 464 workmen" and not wether they or
any of them, had been in employment at the relevant time. On a perusal of the
order of the Tribunal we are inclined to hold that the Tribunal wholly
misconceived the nature of the orders passed by this Court in C.A. NO.1055(NL)/81
and C.A.No.155/90 and in conducting a fresh appraisal as to whether all or any
of the "464" workmen included in the list were in employment of the
Corporation at the relevant time. The approach made by the Tribunal, even in
the matter of marshalling or considering the material placed before it, seems
to be wrong for the following reasons. The Tribunal was apparently of the view,
that there should be "evidence" to prove the facts, as per the
provisions of the Evidence Act; It is not so. The Tribunal is not a Court.
There should be only 'material' and not evidence as required by the Evidence
Act. It appears that a good many witnesses were examined by another member who
was the predecessor of the member, who delivered the final award. The Tribunal
has stated that the evidence of the petitioner (workmen) is not "duly
proved", "legally proved" or proved "beyond reasonable
doubt". This approach was also wrong. The only question was whether on
weighing the probabilities, the materials placed by the petitioner was
acceptable or rendered probable. The Tribunal has considered at length the
minute particulars in the case, in the light of the requirements of the
Evidence Act and has made much of the minor lapses in evaluating the
probabilities. There are vague generalisations and an unreal or impractical
approach to the materials available before it. Even where the predecessor has
found resemblance in the signatures of the identity cards with other records,
the later Tribunal has discarded cards as falling under four groups - 'no
resemblance', 'some resemblance', 'little resemblance' and 'clear resemblance'
- based on no clear guidelines or principles and has based the conclusion at
its ipse dixit. To crown all this, the Tribunal has totally failed to note that
the Management has no explanation, regarding workmen other than "203"
admitted by it, and it did not produce any person bearing the name in the list
of "464" not did it offer any explanation, regarding such other
persons (other than 203).
a review of the above facts and circumstances, we are satisfied that the order
of the Tribunal is infirm. The only question is, what is the further order to
be passed to reach a finality in this long drawn litigation. The matter is
pending for nearly two decades. No doubt, counsel for the Corporation invited
our attention to certain difficulties involved in "conclusively"
determining the identity of the persons as per orders of this Court dated
28.2.85 and 17.1.90. Be that as it may, long lapse of time cannot be ingnored and
this Court cannot shirk its responsibility in resolving the issue on the basis
of available material, however, difficult or arduous it may be. Afterall, it is
a "human problem" that calls for an urgent decision. Taking into
account the totality of the facts and circumstances and to do complete justice
in the matter, we hold that the only way to resolve this issue is to direct the
appellant, (trade union), through a responsible office-bearer, duly authorised,
to identify the persons, whose identity are questioned or disputed by the
Management. On such identification being made by the appellant, the Management
shall reinstate them in service forthwith and also continue to employ such
workmen, who shall be entitled to all the rights, liabilities, obligations and
duties as prescribed for the workmen by the Corporation, as held by this Court
in C.A.No. 1055(NL)/81 dated 28.2.1985. We would, however, like to stress the fact,
that the concerned officer of the appellant Union,
should act with extreme candour and circumspection. If it turns out later, that
any lapse or fraud in the matter was attempted or perpetuated, the concerned
official of the Union along with the persons identified,
will be liable to prosecution and further penalties. This order shall be implemented
within a period of 3 months from today. For working out the above, the first
respondent shall issue a detailed notice in writing to the appellant, with
particulars, asking the appellant to produce the concerned workmen, along with
their identity cards and such other records available with them and then, the
representative of the appellant Union shall in writing endorse by a certificate
the identity of the person concerned, as one covered by "the list" of
464 workmen (List filed along with the written statement dt. 7.7.1978).
disposing of C.A. NO. 1055(NL)/81 by Judgment dated 28.2.1985, this Court did
not award any back wages. The only direction given was that the Tribunal must
satisfy whether any of the workmen was denied work and consequently it resulted
in loss of wages. We direct that such of those persons, who are properly
identified as coming within the list in the manner stated hereinabove, shall be
reinstated in service forthwith. We are also satisfied, on an overall view of
the matter, that the 1st respondent Corporation - an instrumentality of the
State - has unnecessarily delayed the final disposal of the entire proceedings.
If one expected a "fair and impartial" deal from the 1st respondent,
he would feel disappointed. We are constrained to say so, on the facts of this
case. So, we further direct that such of those persons reinstated after
identification, as indicated above, shall also be paid back wages calculated at
70% of the "normal earnings", from the date of the expiry of the period
specified in C.A.No.155/90, i.e., 17.4.1990, till they are reinstated. It is
ordered accordingly. We, therefore, set aside the order of the Tribunal
appealed against and allow this appeal in the manner indicated hereinabove with
costs - costs quantified at Rs. 25,000/-payable to appellant by the 1st