Trinath
Harichandan & Ors Vs. Chairman, Paradeep Port Trust & Ors [1998] INSC 68 (5 February 1998)
S.B.
Majmudar, M. Jagannadha Rao. S.B. Majmudar, J.
ACT:
HEAD NOTE:
THE
5TH DAY OF FEBRUARY, 1998. Present:
Hon'ble
Mr. Justice S.B. Majmudar Hon'ble Mr. Justice M. Jagannadha Rao G.Pai, Milan K.
Banerjee, Sr. Advs., Debendra Mohanta, Debasish Mohanty, K.N. Tripathy, Janaranjan
Das, S.K. Padhi, S.P. Sharma, S.B. Upadhyay, P.N. Misra, S.Misra, A.K. Mohanty,
A. Mohapatra, V.N. Koura, Paramjit Benival, Ms. Aruna Mathur, A. Mariarputham, Manoj
Goel and S.A. Syed, Advs. with them for the appearing parties.
The
following Judgment of the Court was delivered:
Leave
granted in both the Special Leave Petitions.
With
the consent of learned advocates appearing for the contesting parties these
appeals were taken up for final hearing and after hearing them they are being
disposed of by this judgment.
The
appellants in these appeals represent 332 workmen who claim to be treated as
regular workmen entitled to be covered by the Paradeep Port Clearing,
Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994
[hereinafter referred to as `CFH Scheme']. It is their contention that they are
so entitled pursuant to the recommendations of a High Power Committee called Khanne
Committee appointed by this Court by its judgment in Paradeep Port Trust and
another V. Paradeep Port and Dock Mazdoor Union and others in Civil Appeal No.
1422 of 1990 reported in AIR 1990 SC 1125 and the subsequent order of this
Court approving the said report by its decision dated 31 st January, 1995 in
Special Leave petition (Civil) No.13490 of 1994. 170 of these appellants have
felt aggrieved by the judgment and order of the High Court of Orissa at Cuttack
in OJC No. 12149 of 1996 and the remaining appellants out of the said 332
agitating workmen who are petitioners in S.L.P.(c) No. 14312 of 1997 out of
which the companion appeal arises have felt aggrieved by the common decision of
the same High Court disposing of number of writ petitions including OJC No 3308
of 1995 whereby the said appellants' Intervention Application was disposed of.
In
order to appreciate the grievance of the appellants which is common to both
these groups of appellants it will be necessary to note a few facts leading to
these proceedings.
Background Facts Paradeep Port Trust is situated in the State of Orissa.
It is
governed by the Major Port Trusts Act, 1963 [hereinafter referred to as `the
Act']. As per Section 42 of the said Act a duty is cast on the major port
governed by the Act to undertake and perform services mentioned therein.
In the
exercise of powers conferred by Section 42 of the Act the Board of Trustees of paradeep
Port which it duly constituted under Section 3 of the Act framed a scheme in
connection with the handling of corgoes at the said port.
The
said scheme was styled as the paradeep port Cargo Handling Scheme of 1979. As
per Clause 2 of the said Scheme Paradeep Port Trust has to undertake the supply
of cargo handling workers to the licensed stevedores and to the trade for all
operations on the Board of vessels and for bagging, stitching and sealing
operations on berth respectively.
Clause
18 of the said scheme Prescribed composition of gangs of workers to be
entrusted with the said task. Sub-Clause (iii) of the said Clause related to
stevedoring gang and sub-clause (iv) related to shore gang. The said 1979
scheme came into force with effect from January 1980. Under the said Scheme two
lists of workmen were Prepared - (1) Main List and (2) Subsidiary/Standby List.
Under the said Scheme of 1979 the Paradeep Port directly undertook the following
services to facilitate the movement of cargo, outward and inward, at the said
port. The said services comprised of the following categories:
(a)
Handling of all cargoes on shore (including Cargo in bulk) in the course of
landing or shipment;
(b) Intraport
transportation; and
(c)
Any other operations, directly connected with landing and shipment of Cargo but
not including bagging stitching and sealing.
The
categories of Cargo Handling workers to whom the said 1979 Scheme applies are
mentioned in Schedule II to the Scheme as under :
(a) Winchman
(b)
Signalman
(c)
Gang Leader
(d) Mazdoor
(e)
Tally Clerk
(f)
Supervisor
(g)
Deck Foreman.
It
appears that some disputes arose amongst the dock workers in connection with
the right to be employed for carrying out all the aforesaid services at the Paradeep
port. Different trade unions of workmen raised diverse claims which ultimately
came to be considered by this Court in an appeal against the decision of the
High Court of Orissa in OJC No. 2539 of 1985. In the decision rendered by this
Court in Civil Appeal No 1422 of 1990 (supra) this Court observed that the
benefit of decasualisation of the workers should be in conformity with the Paradeep
Cargo Handling (Regulation of Employment) Scheme, 1979. In order to work out
the said benefit in an appropriate manner this Court in the aforesaid decision
appointed a High Power Committee under the chairmanship of a retired Judge of
this Court Justice H.R. Khanna who was to be associated with two experts in the
field. Justice Khanna Committee after due deliberation spread over couple of
years submitted its report, now know as khanna Committee Report or High Power
Committee Report.
The
Said High Power Committee though identified and noticed increased workload in
respect of paradeep Port, did not recommend the cases of 332 workers who have been
working in the Port for few years on the ground that they cannot be considered
because they have not worked for sufficiently long period. The said High Power
Committee fixed the criteria for enlisting appropriate number of workmen for
the work of clearing, forwarding and handling of cargo at the Paradeep Port. The said Report was submitted by the High Power Committee
on 18th July 1993. As per the said Report Paradeep
Port Trust Management Committee, respondent no. 2 in these appeals framed
another scheme 1994 called Paradeep Port Clearing, Forwarding and Handling
Workers (Regulation of Employment) Scheme 1994, which., as noted earlier, is
known as CFH Scheme. Pursuant to the said Scheme apart from 1500 workers
cleared by the High Power Committee by placing them in the main list, a
provisional list of 437 standby workers was prepared by respondent no.2. As the
High Power Committee had not recommended the cases of 332 workmen, some of them
are the appellants before us in these appeals, they came to this Court after
having unsuccessfully approached the Orissa High Court. In their S.L.P. (C) No.
13490 of 1994 this Court on 31st January 1995 while disposing of their petition
laid down as under :
"The
respondents will give preference in the vacancies that may be available with
them, to the standby workers first. if there are more vacancy or vacancies
which are not filled in by the standby workers, the respondents will go
according to their record, and give preference to the other workmen found to
have worked under them as per their record, including the petitioners and the
members of the other Unions. The job should be given strictly according to
seniority. These proceedings stand closed." It therefore, becomes obvious
that this Court while upholding the High Power Committee Report and the CFH
Scheme accordingly framed by respondent no. 2-authority in the light of the said
Report clearly laid down that the available vacancies must first be filled in
by standby workers and after exhausting their claim if any more vacancies were
loft then the respondent-authorities had to go according to their record and
give preference to the other workmen found to have worked under them as per
their record, including the 332 appellants before the Supreme Court and the
jobs could be given strictly according to seniority. This Court directed that
the proceedings should stand closed. Unfortunately the desire of this Court to
bring down the curtain on this simmering controversy and dispute between the
parties did not fructify, as will be seen presently.
A
spate of writ petitions came to be filed in the Orissa High Court after this
Court's order dated 31st January 1995. The appellants in appeal arising out of
S.L.P.(c) No. 9719 filed OJC No. 12149 of 1996 before the High Court of Orissa.
The prayer in that petition read as under :
"Under
the circumstances stated above, the petitioners most respectfully pray that
this Hon'ble Court may be graciously pleased to issue a writ or writs in the
nature of writ of mandamus directing the opp. parties to declare the present
petitioners as listed 1994 Scheme workers:...." In short they contended
before the High Court that even if the High Power Committee might not have
given them any preference in the light of the decision of this Court in S.L.P.(C)
No. 13490 of 1994 decided on 31st January 1995 they were entitled to be
considered for regular listing as there were vacancies available after the
claims of eligible standby workers were considered and got exhausted. Their
main grievance in the petition was that pursuant to the CFH Scheme most of the
eligible standby workmen kept sitting on the fence and as they were not
inclined to put forward their claims for being listed as workmen under the said
CFH Scheme and as they were all the while thinking that they were entitled to
the benefit under the statutory scheme of 1979, they did not offer themselves
for medical examination as required under the Scheme of 1994. Not only that but
even after inclusion of 125 workmen in the standby list of 1994 Scheme, for the
remaining vacancies respondent no. 2 gave number of notices and opportunities
to the remaining standby workmen to put forward their claims under the Scheme
for being listed as regular workmen and get themselves medically examined but
they did not opt out for the same. Number of opportunities were given for the
medical tests to these workmen. According to the appellants 14 such
opportunities were given ranging from 23rd march 1993 upto 20th May 1995, but
they did not come forward for getting the benefit of the 1994 Scheme. The
appellants submitted that the Union representing the standby list of workmen
filed writ application being OJC NO. 674 of 1996 praying therein to give one
more chance to them for their medical examination, as intention of the standby
workers to join 1994 Scheme was not very clear, despite the High Court giving
several chances to their Union to file individual affidavits of the standby
workmen who wished to appear for medical test only for affidavits of standby
lists workmen were filled and the rest did not do so. In the meantime according
to the appellants respondent no. 2 - authorities in the light of the increasing
workload at the port had to fill up the vacancies which remained unfilled under
the 1994 Scheme as sufficient number of standby workmen who were given priority
by the High Power Committee Report did not come forward to fill up these vacancies.
Respondent no.2, therefore, undertook that exercise and pending the aforesaid
OJC No.674 of 1996 before the High Court passed a resolution after considering
the seniority of 332 workmen 170 of whom are the appellants before us, and
decided to appoint them on ad hoc basis as casual workmen awaiting the final
result of the aforesaid OJC. The said OJC was disposed of by the Orissa High
Court on 26th April
1996 in the following
terms:
"Since
only four persons have filed affidavits standing by stand of Utkal port and
Dock workers union inspite of directions given by this Hon'ble Court that
affidavits of all the persons whose cause is supposed to be espoused by the
petitioner union, we do not entertain this application filed on behalf of the
petitioner. The writ application is disposed of accordingly." The
appellants, therefore, contend that at least 174 workmen who were found
eligible to be offered ad hoc appointments as casual workmen after the disposal
of the aforesaid writ petition of the Union of standby workmen are required to
be considered to have been regularly appointed on the available 174 vacancies
under the CFH Scheme as regularly listed workmen just below the 125 standby
workmen who had already got the benefit of the said scheme. The aforesaid contention
of the 174 petitioners in OJC No. 12149 of 1996 was sought to be repelled by
the other respondents who had filed diverse writ petitions in the High Court
for getting the benefit of 1994 CFH Scheme. Amongst them were also some of the
standby workmen who had not opted out for medical examination earlier but also
individually filed writ petitions in the High Court for getting one more chance
for being medically examined. The High Court by the impugned common judgment
thought it fit to give one more chance to these standby workmen who had also
been given appropriate priority in the Report of the High Power Committee and
directed that after giving them one more chance for opting out for the said
Scheme after undertaking the medical tests, they be considered for regular
employment. It was then observed by the High Court in the penultimate paragraph
of its common judgment to the following effect :
"...The
vacancies remaining after accommodating these writ petitioners may be made
available for the interveners upon proper consideration." Having said so,
in the last paragraph of the impugned judgment it was observed that all the
aforesaid writ petitions were disposed of. Thus, not only the writ petitions
filed by left-out standby workmen were allowed by giving them one more chance
for getting themselves medically examined for obtaining eligibility for regular
employment under the CFH Scheme, writ Petition being OJC No. 12149 of 1996
filed by the appellants-174 workmen who were given ad hoc appointments by respondent
no.2 also got disposed of without any express consideration of their claim in
the said writ petition.
As
noted earlier, out of the aforesaid 332 workmen after excluding 174 workmen who
had filed OJC No. 12149 of 1996 the remaining 121 workmen filed an Intervention
Application in OJC No. 3308 of 1995 which was filed by another group of workmen
who were also claiming seniority amongst left-out workmen for being included in
the residuary category of workmen to whom the balance of vacancies could be made
available in the light of the High Power Committee Report and also in the light
of the further direction of this Court dated 31st January 1995 in S.L.P.(C) No.
13490 of 1994. Thus, there were rival claims for getting residuary vacancies
after exhausting the claims of standby workmen.
They
were put forward by the petitioners in OJC No. 3308 of 1995 on the one hand and
the 121 workmen who through their Union submitted their intervention
application claiming the same vacancies in the residuary category, on the
other. In addition to these two groups of rival claimants, one another group of
workmen claiming top seniority for allotment of residuary vacancies filed
another intervention application in OJC No 3308 of 1995. Those intervention
applications got disposed of as the OJC No. 3308 of 1995 was itself disposed of
by the impugned common judgment. The High Court found that petitioners in OJC
No 3308 of 1995 were not entitled to be considered for employment in residuary
vacancies. Their petition was dismissed on merits. We are informed that the
S.L.P. filed by the petitioner's arising out of OJC No 3308 of 1995 is already
dismissed by another Bench of this Court.
Therefore,
petitioners in OJC No. 3308 of 1995 before the High Court are no longer in the
field of controversy at this stage. We may mention that their learned counsel
tried to submit an I.A. for intervention in the present appeals but as the
decision of the High Court against them has become final upto this Court such
intervention application obviously could not be entertained and was, therefore,
not entertained. However, 158 workmen out of 332 who claim to be listed in the
residuary category under the CFH Scheme and whose 170 colleagues have filed the
companion civil appeal arising out of S.L.P.(C) No. 9719 of 1997, made a
grievance before us that at least their claim may be considered. As their
intervention application in the High Court was filed in OJC No 3308 of 1995
which no longer services for consideration their intervention application
obviously cannot service by itself. Therefore, if they have any independent
claim for being considered for remaining vacancies after the claims of eligible
standby workmen are satisfied then it will be for them to approach the High
Court of Orissa by filing a substantive application under Article 226 of the
Constitution for ventilating their grievance. We, therefore, dispose of their
civil appeal arising out of intervention application in OJC No. 3308 of 1995,
without expressing any opinion on merits of their claim and reserving liberty
to them to agitate their claim and contentions in substantive writ petition
before the Orissa High Court if they so chose and think fit to state their
claim for being considered for regular employment under the CFH Scheme. As and
when such claim is put forward it is obvious that the High Court will decide
the same strictly on its own merits in the light of the High Power Committee
Report which is accepted by this Court and also in the light of the decision of
this Court in S.L.P.(C) No.13490 of 1994 dated 31st January 1995.
It is
now time for us to consider the main contentions canvassed by learned senior
counsel Shri G.B. Pai in support of the appeal on behalf of 170 workmen who
were petitioners before the High Court in OJC No. 12149 of 1996. In the said
appeal arising out of S.L.P.(C) No. 9719 of 1997 Shri Pai submitted that these
appellants were appointed by Paradeep Port Trust authorities because it was
found that available vacancies were not filled in by eligible standby workmen
who did not come forward to stake their claims for the same and hence the said
vacancies should have been given to the remaining workmen in the light of their
seniority as directed by this Court by its order dated 31st January 1995 in
S.L.P.(C) No 13490 of 1994. It is true that by resolution dated 09th February,
1990 of the Committee of management of the Paradeep Port Trust, respondent no.2
herein, these 174 workmen were given ad hoc appointments as causal labourers
but that was done only because of the pendency of the earlier writ petition
being OJC No. 674 of 1996. But once that petition was disposed of on 26th April
1996, they should be treated to have continued as regular workmen. Shri Pai
next contended that their inter se seniority was considered for such appointments
by the Committed of Management vis-a-vis those who were claiming to be included
in the residuary category of workmen entitled to be considered against the
available vacancies after the claims of standby workmen were considered and got
exhausted. It was submitted by Shri Pai, that so far as 138 workmen who have
filed intervention application being I.A. No. 4 of 1997 in the present
proceedings through their Union are concerned, a sub-committee of the Paradeep
Port Trust had considered the relevant seniority of the claimants for residuary
vacancies and, therefore, the decision of the Committee of Management dated
09th February 1996 was binding on them. Shri Pai also tried to contend that the
High Court was not justified in giving a fresh opportunity to left-out standby
workmen for getting one more chance to be considered for regular appointment
under the CFH Scheme as 14 times in past they were offered such opportunities
but they did not avail of the same. However, when it was pointed out to Shri Pai
that the decisions rendered in their favour in their writ petitions which were
also disposed of by the very same common judgment by which the appeal in OJC
No. 12149 of 1996 was disposed of, were not made subject matter of challenge in
the present appeals and the S.L.P.(C) No. 9719 of 1997 only challenged the
decision of the High Court in OJC No.12149 of 1996, Shri Pai, learned senior
counsel for the appellants, fairly stated that in view of this technical hurdle
he does not challenge the said benefit made available to 114 such standby
workmen pursuant to the common order of the High Court in their favour in their
writ petitions being OJC No. 10957 of 1996, 11618 of 1996, 11900 of 1996 and
12575 of 1996. Thus 114 standby workmen covered by the decisions in the
aforesaid writ petitions who have got the benefit of the common judgment of the
High Court and who, after medical test have already been appointed as regular
workmen under CFH Scheme cannot in any way be affected by any decision to be
rendered in favour of the present appellants. In other words, the claims of the
present 170 appellants will have to be decided in connection with only
remaining vacancies after excluding vacancies with only remaining vacancies
after excluding vacancies filled in by these 114 eligible standby workmen.
Shri Pai,
however, contended that even leaving aside these 114 standby workmen who have
joined the group of their brethren, namely, 125 standby workmen who had already
been treated as eligible workmen under the CFH Scheme the balance of the
vacancies filled up by 239 standby workmen should be accommodated in these
remaining vacancies as their higher seniority and the other remaining workmen
claiming to be included in the residuary category is already recognised by the
Committee report as noted in the resolution of the Management Committee meeting
dated 09th February 1996. Shri Pai submitted that these grievances of the
appellants squarely put forward before the High Court in OJC No. 12149 of 1996
were not at all considered by the High Court and that save and except noting,
their contentions in paragraphs 8 and 20 of the impugned judgment the High
Court has not come to the grips of the problem put forward by the appellants in
their writ petition being OJC No. 12149 of 1996 and has abruptly disposed it of
along with other matters in paragraph 48 of the common judgment, as noted
earlier, Shri Pai, learned senior counsel for the appellants, in this
connection submitted that under these circumstances in normal course this writ
petition would have been required to be remanded to the High Court for decision
on merits. It is argued as these 170 appellants, writ- petitioners before the
High Court, have already been filtered for appointment by the Committee of
Management of the Port Trust and they have been found to be sufficiently senior
for claiming vacancies available in the residuary category their prayer in the
writ petition deserves to be granted straightaway and out of the remaining
vacancies 170 vacancies may be made available to these appellants and the
balance of vacancies may be left open for consideration of the claims of the
rival claimants raised in the remaining writ petitions before the High Court
and in any other writ petition which this Court may deem it fit to permit to be
moved before the High Court in this connection.
Refuting
the aforesaid contentions, learned senior counsel Shri Milon K. Banerjee, for
respondent no.2 and learned counsel for the contesting rival claimants whose
intervention application was disposed of by the High Court and who have filed a
similar intervention application being I.A. No. 4 of 1996 and also learned
senior counsel for the 77 sardars of standby workers who have filed I.A. No., 3
in these proceedings submitted that the Committee of Management of the Port
Trust by the resolution of 09th February 1996 had not undertaken the exercise
of considering the seniority of 170 workmen, appellants in the present case, vis-a-vis,
the seniority of other rival claimants and they were merely given ad hoc
appointments as ad hoc casual workmen and consequently they cannot be permitted
to steal a march over other claimants without undertaking a comprehensive
exercise of finding out relevant seniority of these rival claimants for being
accommodated in the remaining available vacancies in Paradeep port Trust as per
the CFH Scheme of 1994.
Consideration
of the rival contentions We shall first deal with the claims put forward by
learned counsel for the intervenors in I.A. Nos.3 and 4 respectively. I.A. No.
3 is moved by 77 Sardars of standby workmen who according to the learned
counsel appearing for them have been inadvertently left out by the High Power
Committee and they deserve consideration a Mazdoors and they would be as good
as standby workmen and if that is so they will be covered by the sweep of the
recommendations of the High Power Committee in favour of standby workmen and
would naturally become eligible for getting regular employment under CFH Scheme
of 1994. Whether the 77 sardars of standby workmen can be bracketed with the
treated as Mazdoors falling in the category of standby workmen is a question
which has first to be examined by the Orissa High Court.
These
77 applicants cannot straightaway file an I.A. before this Court in the present
appeal which represents only a limited controversy raised by 170 workmen who
though working as casual workmen claim regular appointments under CFH Scheme of
1994 and who allege that their seniority is already recognised by the Committee
of Management of the Port Trust. These 77 workmen, therefore cannot be
permitted to seek intervention in the present proceedings without there being
any decision rendered in connection with their claim, by the High Court. We,
therefore, express no opinion on the merits of their claim as put forward
before us and relegate these applicants to the remedy of filing a writ
petition, if so advised, under Article 226 of the Constitution for
consideration by the High court on its own merits. The High Court obviously
will consider the said writ petition on merits as and when such occasion arises
and that decision only will have to be rendered in the light of the High Power
Committee Report which has stood accepted by this Court and also in the light
of the general directions issued by this Court in S.L.P.(C) No. 13490 of 1994
decided on 31st January 1995. It will be for the High Court to decide this
question in accordance with law after hearing the parties concerned. We have
nothing to say in this connection save and except reserving the aforesaid
liberty to these applicants for filing a writ petition before the High Court if
so advised.
That
takes us to the consideration of I.A. No. 4 of 1997. These applicants were intervenors
in Writ Petition 3308 of 1995. They are 138 applicants who also staked their
claim for being appointed as regular workmen under the CFH Scheme of 1994.
Their intervention application was disposed of by the High Court while
disposing of writ Petition No.3308 of 1995 by observing, as noted earlier, that
vacancies remaining after accommodating the standby workmen whose writ
Petitions were allowed as aforesaid by the High Court may be made available for
intervenors upon appropriate consideration. Once the main Writ Petition No 3308
of 1995 in which they wanted to intervene has stood disposed of upto this
Court, as seen earlier, this intervention application also must fall through on
a parity of reasoning by which we have disposed of the claim of the appellants
in appeal arising out of S.L.P.(C) No. 14312 of 1997 moved on behalf of 112
workmen out of 332 workmen and whose intervention application in the same Writ
Petition No 3308 of 1995 was disposed of by the High Court in the aforesaid
terms. I.A.No. 4 of 1997 is also, therefore, disposed of reserving liberty to
the applicants to file substantive writ petition for ventilating their
grievance before the High Court if they deem it fit. We express no opinion on
the merits of the controversy raised in this I.A. by the applicants. Their
grievances will have to be decided if properly raised before the High Court in
the substantive writ petition and the same will have to be resolved by the High
Court after hearing the parties in the light of the High Power Committee Report
accepted by this Court as well as in the light of the decision of this Court in
S.L.P.(C) No. 13490 of 1994 decided on 31st January 1995.
After
having disposed of these I.As. now remains the consideration of the main
contentions canvassed by learned senior counsel Shri Pai in support of the
appeal on behalf of 170 workmen. It is of course true, as submitted by Shri Pai,
that despite 14 opportunities given to the remaining standby workmen to get
themselves medically examined and despite further opportunity given to them by
the High Court in their Union's Writ Petition being OJC No. 674 of 1996 only 4
workmen filed affidavits for availing the further opportunity of getting
themselves medically examined for being eligible for appointment as regular
workmen. It is also true that pending the said writ petition the committee of
Management by its resolution dated 09th February 1996 decided to fill up the available
vacancies on ad hoc basis by appointing the present 170 appellants and they are
so working. However, the short question is whether their claim for regular
employment under the CFH Scheme was considered in the light of appropriate
seniority of claimants for these residuary vacancies after the claims of
standby workmen were fully considered. Shri Pai submitted that the claims were
so considered and the seniority question is no longer res integra, while
learned senior counsel for the respondents on the other hand submitted that it
is not so and that question was kept open and it was only the limited inter se
seniority of the group on 332 workers which was considered from the limited
point of view of appointing them as casual workmen on available 174 vacancies
for filling up 174 vacancies from that group of 332 worker. Our attention was
invited to the proceedings of the meeting of the Committee of Management held
on 09th February 1996 and Resolution No. 43/96 which was
passed therein. Clause (iv) of the said Resolution deserves to be noted in this
connection :
"(iv)
VERIFICATION OF LIST OF 332 GROUP WORKERS –
On a
question raised by Sri A. Ranahandol, member, it was clarified that the Sub-Committee
constituted for the purpose shall submit their report towards end of this
month. The question of booking of 41 workers of Steel Gang and 125 group of
standby workers for unloading of coal wagons was discussed, Sri Ranahandol,
member insisted that booking for additional workers should be taken up together
with verified workers of 332 group. In the above context, the committee was
informed of the writ petition filed by some of the standby workers in the High
Court of Orissa for their medical examination and inclusion in the CFH Scheme.
Since the matter is subjudice and no orders has been passed as yet, the
committee decided that the verified workers of 332 group can only be booked on
casual basis for the time being. It was decided to convene an extra-ordinary
meeting of the management Committee after receipt of the report of the
Sub-Committee.
A mere
look at the aforesaid Clause (iv) of the Resolution shows that the claim of
only the group 332 workers was considered and that too for being appointed to
standby workmen through their Union as aforesaid. The said Clause (iv) nowhere
provides that the seniority of 332 workers, vis-a-vis, other contesting
claimants seeking for regular employment in the residuary vacancies was at all
considered by the committee of Management. Not only that but as pointed out by Shri
Banerjee, learned senior counsel for respondent no.2, by a latter resolution,
Annexure P-2 dated 07th March 1996 of the management Committee produced in the
High Court in OJC no 3308 of 1995 and which is noted by the High Court in
paragraph 16 of the impugned common judgment, booking of 145 workers and other
workers as may be recommended by the said Committee had to be done purely on
casual basis with a view to carry on day to day work and that no worker shall
have any right or claim on the basis of present casual engagement in future.
It, therefore, become clear that no appropriate exercise for deciding the
seniority of rival claimants for the residuary vacancies as contemplated by the
order of this Court in S.L.P.(C) No.13490 of 1994 decided on 31st January 1995
was at all undertaken by the Management Committee at any stage and these rival
claims remained to be adjudicated upon in the pending writ petitions in the Orissa
High Court. It is also not disputed by learned senior counsel for the
appellants that all these 170 workmen are working only as casual workmen on ad
hoc basis. Under these circumstances it is not possible to agree with his
contention that their seniority is finally decided vis-a-vis all other
claimants who have staked their claims for being considered for regular
employment in the residuary vacancies after fully meeting the claims of standby
workmen. As that comprehensive exercise has not been undertaken by the
management Committee the ad hoc appointments given to 174 workmen as casual
workmen and the work that is being carried on by them at the paradeep Port
cannot by themselves give them an edge or priority over other claimants till
their seniority, vis-a- vis these other claimants is finally decided. As that
exercise is not undertaken by respondent no.2-Management Committee nor such an
exercise is undertaken even by the Orissa High Court in pending writ petition
in which the rival claims will have to be adjudicated upon on merits in the
light of the High Power Committee Report and the decision of this Court in
S.L.P.(C) No. 13490 of 1994 decided on 31st January 1995, on direction can be
issued to straightaway appoint them as regular workmen. It will, therefore, be
premature to direct at this stage that all these 174 workmen should be
appointed as regular workmen under the CFH Scheme.
Similarly,
the contention of learned senior counsel Shri Pai against the merits of the
claim of 138 workmen who have moved I.A.No. 4 of 1997, before us cannot be
considered at this stage as we have already relegated the said workmen to the
remedy of filing a writ petition before the High Court. As and when such writ
petition is filed naturally the appellants who have a rival claim will be
entitled to be heard on merits and it will be open to them to point out all
their objections regarding the locus standi of these 138 workmen.
However,
one contention of Shri Pal requires closer scrutiny. He submitted that the 174
petitioners' contention in OJC No. 12149 of 1996 which was already noted by the
High Court in the impugned common judgment at paragraphs 8 and 20 have not at
all been considered by the High Court while disposing of the appellants' writ
petition along with others writ petitions by the same common judgment. To that
extent Shri pai is right. Consequently, even though we are not inclined to go
into the merits of the case of appellants in this appeal arising out of the
decision of the High Court in OJC No. 12149 of 1996, it will be in the interest
of justice to allow this appeal by quashing the order of the High Court
disposing of OJC No. 12149 of 1996, to the extent that the claims of these 174
persons were not considered. It will have to be remanded to the High Court of Orissa
for a fresh decision on merits in accordance with law after hearing the parties
concerned in the light of the High Power Committee Report which was approved by
this Court and which culminated into Paradeep Port Trust Scheme of 1994 and
also in the light of the direction of this Court in S.L.P.(C) No.13490 of 1994
decided on 31st January 1995.
It is
now time for us to take stock of the situation.
Pursuant
to our present order liberty is being reserved to applicants of I.A. Nos. 3 and
4 as well as the appellants in the companion civil appeal arising out of
S.L.P.(C) No. 14312 of 1997 to move, if so advised, three separate writ
petitions for putting forward their grievances for consideration of the High
Court. In addition to these three writ petitions, if they are filed, the fourth
additional writ petition will also have to be considered by the High Court as
we are, by our present order, remanding OJC No.12149 of 1996 for fresh
consideration of the High Court on merits, allowing the appeal arising out of
S.L.P.(C) No.9719 of 1997 to the aforesaid limited extent, In addition to these
four writ petitions, we are informed that number of other writ petitions are
pending in the High Court which are moved by left-out standby workmen and also
other claimants.
All
such writ petitions which are at present pending in the Orissa High Court in
connection with the claims of workmen concerned for being included in the CFH
Scheme of 1994 shall be decided by the High Court conjointly with the aforesaid
four writ petitions covered by this order so that the High Court can have a a
comprehensive idea about the claims of the rival claimant-workmen for being
included in the residuary category as listed workmen under the said Scheme in
vacancies left after accommodating all eligible standby workmen, of course in
the light of their inter se seniority which may be ascertained by the High
Court. We, however, note that these claims are in a melting pot since 1979 and
despite the High Power Committee's efforts spread over more than three years
and despite the Report of the said Committee being accepted by this court and
despite this Court's pious wish reflected by the order dated 31st January 1995
in S.L.P.(C) No. 13490 of 1994 that the proceedings may be close, the simmering
discontent continues in connection with the CFH Scheme. it is, therefore, in
the fitness of things to direct in exercise of our powers under Article 142 of
the Constitution of India that all writ petitions pending in the High Court
pertaining to the claims of rival claimants , to be included in the CFH Scheme
of 1994 for getting regular employment under the said Scheme for working at Paradeep
Port as clearing, forwarding and handling workers, shall be decided by the High
Court along with the aforesaid four writ petitions only pursuant to the present
order. But the High Court shall not entertain any more writ petitions
pertaining to the said Scheme and the date of our present order shall be taken
as a cut-off date beyond which no new writ petitions in this connection shall
be entertained by the High Court. Only those writ petitioners who have
approached the High Court prior to this cut-off date will be entitled to get
their claims decided by the High Court on merits along with the four writ
petitions which will be considered by the High Court pursuant to our present
order wherein three writ petitions would be fresh writ petitions permitted by
us and one writ petition being OJC No. 12149 of 1996 which is restored to the
file of the High Court pursuant to the present order for being decided afresh
on merits.
We
have clarified about this cut-off dare so that no fresh spate of litigation in
connection with the CFH Scheme of 1994 would be filed in the High Court and the
claims of rival claimants that will be on the anvil of the High Court for
scrutiny as per the said cut-off date will get crystalized and frozen. The next
question which remains for consideration is as to vis-a-vis which number of
vacancies the High Court should consider the rival claims of these claimants
left in the arena of contest. This exercise in necessary for us to shorten
litigation before the High Court so that the High Court will be able to
effectively being down the curtain on this dispute in a comprehensive manner.
The
claims of the aforesaid rival claimants shall be examined in the light of their
inter se seniority for being considered for getting accommodated in available
vacancies.
These
vacancies as on date are computed by us as under.
Respondent
no.2 by way of additional affidavit has made the following pertinent
observations in paragraphs D(a) to D(g) as under :
"(a)
Optimum requirement of workers for CFH operations as assessed by High Power
Committee vide para: 15,14 :
Mazdoor
Supervisors Total ------- ---------- -----
(i)
Workers handling 1182 49 1231 coal and other bulk cargo.
(ii)
Truck unloading or iron ore and Chrome ore 128 6 134
(iii
Bag and Bale workers 362 15 377
(iv)
Iron and steel workers 54 4 58 -------- ------- -------- 1726 74 1800 --------
------ ------- (b) Presently Iron & Steel cargoes are not available for
handling by C&F workers and therefore, there is no requirement of iron and
steel workers. The Iron and Steel workers have been accommodated in thermal
coal unloading.
Therefore,
the requirement of Mazdoors and Supervisors will stand reduced as under :
Mazdoors.....................
1672 Supervisors.................. 70 ---------- 1742 ----------- (c) No. of Mazdoors
presently available and the vacancies to be kept for mazdoors of various groups
is as under :
Group Mazdoors
i) thermal
coal and other bulk cargo handling 673
ii)
Truck unloading of iron ore and chrome ore 46
iii) bag
and Bale cargo 396
iv)
Iron & Steel 49
v)
Standby group of workers who have joined the scheme on 14.3.96 125
vi)
No. of standby workers who have joined the CFH Scheme as per High Court order
dated 26.2.97 114
vii)
No. of cases pending for medical and Judicial clearance 15
viii)
Vacancies to be kept for accommodation of surplus Sardars 129 ----------------
1574 ---------------- The requirement of Supervisors as per recommendations of
High Power Committee for above is 70. Therefore, the total workforce available
can be taken as 1617 as against 1742.
(d) As
per recommendation of the HPC in Para : 15.18 129 Sardars who are declared
surplus may give their willingness to join as mazdoors and 395 standby workers
can be absorbed in the remaining vacancies. Out of 395 standby workers, 125
standby workers had joined w.e.f. 14.03.1996.
(e) As
per the direction of Hon'ble Orissa High Court, 115 standby workers had
attended medical examination and 114 have joined the Scheme w.e.f. 11.09.1997.
(f)
The remaining vacancies are 155.
(g)
Out of 155 vacancies, 54 vacancies are to accommodate the 54 mazdoors of the
Steel group as there is no work of steel handling for the present and there is
no likelihood of any work for them for the coming two years." It,
therefore, becomes clear that the existing vacancies are 155 after
accommodating 114 standby workers who have joined the CFH Scheme as per the
High Court's common order dated 26th February 1997. Respondent No.2 has also
added 15 cases of standby workmen who have claimed medical and judicial
clearance and whose writ petitions are pending in the High Court as on date and
which will also have to be examined by the High Court as indicated in the
present order. It is, therefore, obvious that if the High Court of Orissa in
the writ petitions of 15 standby workmen decides in their favour the vacancies
would remain 155 as for these 15 persons there is already a provision made by
respondent no.2 in the aforesaid affidavit and their vacancies are already
treated as being allotted to them subject to the result of the writ petition.
Thus claim of these 15 standby workmen is taken care of while computing these
155 vacancies. it is obvious that if the claim of these 15 standby workmen for
being included in CFH Scheme gets rejected by the High Court then the remaining
vacancies would naturally increase to 170 (155 + 15).
Now
remains the question whether any additional vacancies can be made available for
being filled up by the residuary category of workmen after exhausting the
requirements of standby workmen and who may be found eligible according to
their inter se seniority for filling up these vacancies . In this connection,
we may usefully refer to the affidavit of shri Antaryami patnaik, Secretary of
the Paradeep Port Clearing, Forwarding and Handling Agents' Association which
is styled as Preliminary Affidavit on behalf of paradeep Port Clearing,
Forwarding & Handling Agents' Association and who are the employers of these
CFH workmen. para 3(c), (d) and (e) of the said affidavit read as under :
"3(c).
That consequent to submission of the Report of the High Power Committee several
steps were taken by the C.F.H. Agents to go in for higher productivity and the Pradip
Port and Dock Mazdoor Union and agreed to undertake unloading of two 8-wheeler
wagons per gang and consequent to introduction of unloading of two wagons,
requests were made by them to consider a change in the manning scale. Having realised
and experiencing the Practical difficulties, the C.F.H. Agents had discussed
the matter with the Union representatives and it was agreed that one Supervisor
per Gang be deployed either as supervisor Gr - I of as Supervisor Gr - II by redesignating
the Sardars as Supervisor Gr - II without, however, any change in the pay
scales. This was necessary to take care of the shortage of Supervisors for all
the gangs. Accordingly, a proposal was submitted Committee and presently this
deployment Pattern has been introduced on an experimental basis. This matter
was also discussed with other groups of workers represented by paradip Port
Workers Union but, they have so far not come forward with any of their
suggestion. If this is agreed to, all the gangs will be booked for work with 9
persons as against the recommendation of High Power Committee for 8.33 persons.
In this connection, it may be further clarified that prior to the
recommendation of High Power Committee, all the gangs were booked with the
composition of 8 mazdoors + Sardar + 1 Supervisor (total 10 per gang). The High
Power Committee recommended in (para - 14.45 Annexure - XIV) that a gang should
consist of 8 Mazdoors and one supervisor for three gangs - 8.33 persons per
gang. This recommendation could not be carried out as the same was not workable
and consequently discussions were held with the Union to go in for a more
suitable and workable composition of gang and it was agreed with one of the
Unions handling bulk cargoes that the present composition should be 8 Mazdoors
+ one Supervisor (total 9) with a provision that all Sardars would be redesignated
as Supervisors Gr. II. Although this would mean that some number of Supervisors
will be appointed i excess of the recommendation of the report of High Power
Committee the employers feel that this would be beneficial to all concerned.
This could not be made applicable to all groups of workers in view of the fact
that all other union handling bag and bale cargoes has not given consent to the
proposal.
(d)
That as per the recommendations of the High Power Committee, all the surplus Sardars
(127) working in the Clearing, Forwarding operations were required to exercise
option to work as Mazdoors but in view of practical difficulties explained
above, the Sardars may be redesignated as Supervisor Gr II. If this is agreed
to, calling for options from Sardars to work as Mazdoors shall not necessary.
This respondent prays that the report of the High Power committee be amended
suitably modified to this extent. keeping in view the present exigency and in
the interest of smooth operation of work. This suggestion is acceptable to most
of the workers and would be generally beneficial to them as it would create
additional requirement of work force.
(e)
Once the proposal for redesignation of the Sardars as Supervisor - II is agreed
to, the net vacancy for mazdoors will work out to 155 + 127 = 282." It is
of course true that the proposal put forward in the said preliminary affidavit
by the employer of these CFH workmen would require an extension of the coverage
permitted by High Power Committee whose report is accepted by this Court. In
this connection we must observe that as the report of the High Power Committee
which has taken great pains spread over more than three years in trying to
resolve the conflict and in deciding the rival claims so that the working in
the Paradeep Port Trust could go on more peacefully and efficiently and as the
said Report is accepted by this Court it has to be accepted as comprehensive
and fully binding on all concerned and cannot be tinkered with in connection
with its basic recommendation. However, so far as the limited question of
increase of vacancies it concerned, necessary modification regarding
re-designation of workmen concerned can be made by consent of all the contesting
parties. if this is done by consent of all the rival claimants for employment
in CFH Scheme, the basis of the scheme will not get adversely affected. We are
happy to know that all the learned counsel representing different groups of
workmen claiming to be included in the CFH Scheme and who are the rival
claimants in the writ petitions which are now to be decided by the High Court
pursuant to the present order have agreed that a limited exercise for
increasing the balance of available vacancies which would obviously be
beneficial to all rival claimants may be undertaken by their consent. All the
contesting onion of workmen were agreeable to the said exercise as submitted by
their respective counsel before us. Learned senior counsel Shri Banerjee
appearing for the management Committee, respondent no.2 herein, fairly left
that question to us. His only rider was that the Report of the High Power
Committee as accepted by this Court and which is a product of immense pain and
efforts put forward by learned Judge Shri H.R. Khanna and his colleagues should
not be in any way adversely affected. We entirely agree with him and make it
clear that we are seeking to extend the coverage of the said Report for the
benefit of all workmen concerned by their consent. We also make it clear that
our present exercise is confined only to the question of ascertaining available
vacancies as on date and nothing more and nothing less. We have already seen
earlier that as per the Additional Affidavit of respondent no.2 the remaining
vacancies are 155. As per the aforesaid preliminary affidavit of the employer
of these CFH workmen if the gang is to consist of 8 Mazdoor plus one
Supervisor, total 9 instead of 8 Mazdoors plus one supervisor for three gangs,
that is, 8.33 persons per gang as recommended by the High Power Committee and
as earlier accepted by this Court more Mazdoors will get accommodated. Hence
127 Sardars of standby workmen will now be treated as re-designated Supervisors
Grade - II with the result that they will release 127 vacancies in the Mazdoors
quota and these many more vacancies will be added to the vacancies of Mazdoors.
They will, therefore, work out to 155 + 127 vacancies, in all 282. We grant
this much modification in the report of High Power Committee and consequently
in CFH Scheme by consent of all the parties and direct re-designation of 127 Sardars
as Supervisors Grade - II. Thus the coverage of High Power Committee Report
will stand extended keeping in tact the said Report in all other aspects and
will remain binding and perative at the Paradeep Port Trust while it works out
the CFH Scheme of 1994. It is also made clear as agreed to between the
contesting parties that 127 re-designated Sardars as Supervisors Grade - II
will be continued to be employed on the same terms and conditions and on same
wages by the employer, namely, the Paradeep Port Clearing, Forwarding and
Handling Agents' Association as agreed to by them in their affidavit. The net
result in that the available vacancies of mazdoors for being covered under CFH
Scheme of 1994 will be 155 + 127 = 282 as on date. These available vacancies
will, of course, further get enlarged by 15 vacancies more if ultimately the
writ petitions filled by the 15 left-out standby workmen get rejected by the
High Court. In that eventuality the available vacancies as on date will be
treated as 282 + = 297 and if the writ petitions of these 15 standby workmen
are granted by the High Court then obviously the cake of the residuary
vacancies for distribution amongst the eligible claimants will be confined to
282. It is for these ascertained vacancies as existing on date that the High
Court will undertake the exercise of finding out the eligible claimants whose
writ petitions will be examined by the High Court as per the present order and
in the light of their vis-a-vis inter se seniority their claim for being
appointed as regular employees under the CFH Scheme will be worked out qua
these available vacancies. In short, once these available vacancies are
ascertained and if the High Court is not apprised of any further increase or
decrease in the vacancies by the parties concerned due to any future
contingencies then on the basis of these 282 available vacancies as on date,
the rival claims of the contesting claimants in the pending writ petitions and
in the writ petitions that will be placed before the High Court for
consideration pursuant to the present order, will have to be examined and
decided by the High Court. The appeal is allowed as aforesaid with no order as
to costs.
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