A.I. Railway Parcel & Goods Porters Union Vs. Prem Lata [2003] Insc
387 (19
August 2003)
S. Rajendra Babu, Dr. Ar. Lakshmanan & G.P. Mathur.
Versus Union of India & Ors. @ August 22, 2003.
WITH Writ Petition (Civil) Nos. 457 of 1998, 278
of 1999, 530 of 2000, 599 of 2000, 45 of 2001, 121 of 2000, 262 of 2002 and 19
of 2003, Civil Appeal No. 57 of 2001 and Civil Appeal No.________of 2003 @
Special Leave Petition (Civil) No. 6560 of 2001 Dr. AR. LAKSHMANAN, J.
Leave granted in Special Leave Petition No. 6560
of 2001.
This group of writ petitions and appeals raise
common questions of law relating to the abolition of contract system of labour.
Writ Petition No. 433 of 1998 was filed by the All India Railway Parcel and
Goods Porters Union praying for the following reliefs:
"a) Issue appropriate writ in the nature of
mandamus or any other writ, direction or order commanding the respondents to
treat the petitioners who are working as Parcel Porters as permanent employees
of the Northern Railway as has been directed by this Hon'ble Court in various
petitions filed by the colleagues of the petitioners and a further direction
may be given to abolish contract system in parcel handling work at different
Railway Stations in Northern Railway and all the Parcel Porters working at
different Railway Stations of Northern Railway may be treated as regular
employees of the Railways;
b) Issue an appropriate writ, direction or order
commanding the respondents to treat the petitioners as employees of Northern
Railway and give them the same benefits which have been given to other parcel
porters working at different Railway Stations of Northern Railway as regular
employees of Northern Railway;
c) Issue an appropriate writ, direction or order
commanding the respondents to stop treating the petitioners as contract labour
at Railway Stations of Northern Railway for loading and unloading of parcels as
this work done by the petitioners is of permanent and perennial nature."
Similar prayers have been asked for by the
petitioners union in other writ petitions. Civil Appeal No. 57 of 2001 was
filed by the Union of India and Others questioning the correctness of the final
judgment and order dated 07.07.2000 passed by the High Court of Delhi in Writ
Petition No.5595 of 1998. In the said case, the Central Administrative Tribunal
allowed the claim of the respondents therein by following the judgment of this
Court in National Federation of Railway Porters, Vendors and Bearers vs. Union
of India and Others reported in 1995 Supp (3) SCC 152. Since the issue raised
in the said writ petition before the Delhi High Court is pending consideration
of this Court in Writ Petition No. 433 of 1998 wherein this Court on
08.09.2000, passed the following interim order.
"Pending disposal of these petitions, there
shall be no regularization of parcel porters working at different railway
stations notwithstanding any order of any Court, Tribunal or other authorities.
Call after six weeks." Since the High Court dismissed the writ petition
filed by the Union of India holding that there is no legal infirmity in the
order of the Tribunal, the Union of India has preferred the above civil appeal.
Appeal @ Special Leave Petition No. 6560 of 2001
was filed by one Radhey Shyam and Others against the Union of India and Others
questioning the correctness of the judgment and order dated 10.11.2000 passed
by the High Court of Judicature at Allahabad in Writ Petition No.1760 of 2000
dismissing the writ petition and affirming the order passed by the Central
Administrative Tribunal.
For the sake of convenience, we will first deal
with the facts in Writ Petition No. 433 of 1998 and the questions of law as
they arise therefrom. The petitioners in this writ petition is the Union. The writ petition was
filed seeking the same relief which has been granted by this Court to the
colleagues of the petitioners similarly situated and working as Parcel Porters
in Northern Railways at different railway stations for the last 10-30 years
onwards continuously. However, they have not been treated as the permanent
employees of the Railway so far, though they are discharging the duties of
permanent and perennial nature. A list containing the names of Parcel Porters
who have been engaged by the Northern Railways as contract labour at different
railway stations along with their service details was also filed and marked as
Annexure-A.
Mr. Dinesh Kumar Garg, learned counsel appearing
for the writ petitioners, submitted that this Court in the case of National
Federation of Railway Porters, Vendors and Bearers (supra) (vide its judgment
and order dated 09.05.1995) gave directions to absorb all Parcel Porters as
permanent employees of the Railway. He also invited our attention to the
judgment and order dated 15.04.1991 in Writ Petition No. 277 of 1988 in which
this Court while directing to abolish the Contract Labour system in Parcel work
on different Railways, directed the Government of India to treat 166 Parcel
Porters working at Charbagh Railway Station at Lucknow of Northern Railway to
treat them as permanent employees of Northern Railway (Annexure-B). It is
further submitted that subsequently this Court in Writ Petition Nos. 568 and
711 of 1995 vide judgment and order dated 08.07.1996 again directed the
Railways to absorb parcel porters as permanent employees of the railway
according to their seniority (Annexure-D). Learned counsel has also invited our
attention to the order dated 19.09.1997 passed by this Court in Writ Petition
No. 90 of 1997 directing the Assistant Commissioner (Labour), Central Government
to conduct an enquiry as to whether the Parcel Porters in the aforesaid writ
petition had been discharging the work of permanent and perennial nature and if
so the period for which they have been engaged. The learned counsel also drew
our attention to various similar orders passed by this Court directing the Labour
Commissioner to conduct an enquiry regarding the working of the Parcel Porters.
Pursuant to the directions given by this Court
in the instant case on 30.11.1992, the Assistant Labour Commissioner (Central) Lucknow
conducted an elaborate enquiry and submitted a detailed report in which he had
recorded the findings that the work of parcel handling Northern Railway is
permanent and perennial in nature and sufficient to keep all the Parcel Porters
engaged continuously, and the requirements of Section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 had been satisfied and the petitioner
parcel porters were working continuously for long years without any break in
service.
According to the learned counsel, in spite of
the directions given by this Court for the abolition of the Contract System in
parcel handling work and in spite of various orders passed by this Court and of
the commitment made by the Northern Railway, the contract system in parcel
handling work is neither been abolished nor the parcel porters working in
different railway stations have been treated as permanent employees of the
railway, though these parcel porters had been working for the last 10-30 years
continuously. He would further submit that though the contractors are changed
from time to time, the petitioners have been working continuously as Parcel
Porters under the direct control of Railways which is the principal employer,
therefore, he submitted that the petitioners should be given the relief which
has been granted by this Court to their colleagues by absorbing them as
permanent employees and also to issue a further direction to abolish contract
system in parcel handling work at different railway stations in Northern
Railway The learned counsel has also invited our attention to para 12 of the
writ petition as to how the petitioners are discharging the work of permanent
and perennial nature and as to how it is very essential for the railways to
continue its activities as narrated in para 12 (a)–(k). It is also submitted
that the conduct and duties of the petitioners are being controlled by the
Railway Authorities and if the Authorities are displeased with any of the
Parcel Porters, they are empowered to punish such parcel porters and turn them
out of the railway station and do not issue entrance passes as well as badges
to such parcel porters. It is also contented that since the petitioners have to
discharge their loading and unloading and shifting duties under the strict
supervision of the Railway Authorities, they cannot be treated as contract labourers.
Counter affidavit was filed on behalf of
respondent Nos. 1-7 contending that this Court has ordered for regularization
of the required number of persons to the extent of perennial number of posts
ascertained after conducting work study and not all the petitioners as stated
in the annexures. It is further submitted that most of the petitioners of the
petitions mentioned have already been regularized against the perennial posts
and on the basis of work study report in case any additional post is found as
perennial and permanent in nature, the senior-most person(s) will be
regularized after completing all other formalities as per the Railway rules. It
is also stated in the counter that it is not possible to stop the contract labour
system of handling work and that the nature of job which is not perennial and
permanent will have to be completed by engaging contract labourers and for the
work which has been casual in nature are not permanent in nature it is not
possible to engage permanent parcel porters. It is further stated that parcel
handling works are awarded to the labour cooperative societies which supply the
labour as per the requirement of the Railways on a day to day basis depending
upon the volume of the work to be handled on a particular day, and the payment
is made to the cooperative societies and not to the individual labourers on the
basis of the total weight handled.
Another counter affidavit was filed on behalf of
respondent Nos. 1, 3 and 8 stating that the muster rolls of the cooperative
societies have no sanctity and cannot be taken to show the names of the labour
who have been genuinely working and the length of time for which they have been
continuously working.
An additional affidavit was filed by respondent
Nos. 1-7 through their Deputy Chief Marketing Manager, Northern Railway stating
that the Railways do not have the records of the porters who have been working
with the contractors, and in the absence of any documentary proof, they were
not in a position to either accept or deny the claims of the petitioners. A
rejoinder affidavit was filed by the petitioners' union denying the averments
contained in the counter affidavit.
The Eastern Railway Administration filed an
additional affidavit on its behalf.
Mr. Raju Ramachandran, learned Additional
Solicitor General, took us through the statements and averments contained in
various affidavits filed by the Railways and submitted that the Railways is not
just a commercial concern, but also a public utility concern which carries
several essential commodities at a very concessional freights and also gives a
lot of concessions in passenger traffic to innumerable categories of persons.
This being so, if such economically non-viable acts like regularization of the
petitioners is forced upon the railways, public utility and passenger amenity
items are bound to suffer. He would further submit that the work performed by
the contract labour is of fluctuating nature and the amount of work depends
upon the parcels received in a particular day and that no labour is required as
the loading and unloading is done by the party itself and in view of the
fluctuations and irregular and seasonal type of work, keeping permanent cadre
for doing this parcel handling work is not possible. He would further urge that
the Railways are facing a financial crisis due to decreasing budgetary support
and increasing cost of production and purchase of various items and the Railway
Administration is itself contemplating measures for downsizing its present
cadre, minimizing the staff cost and operating ratio. This being the case, it
will not be feasible for the railway administration to absorb the petitioners
in regular service. Moreover, if the present petitioners unreasonable prayers
are acceded to by this Court, it would lead to several such requests for
regularization from many quarters even though the applicants may be working
elsewhere and may not have undergone the well laid down procedures for
recruitment and may not be fulfilling the eligibility criteria for appointment
for the post or may not be adequately trained. It is thus submitted that in
view of the huge number of petitioners, lack of any documentary proof of their
having worked continuously, and the meagre parcel handling earnings, their
regularization by the Railways is financially not viable. It is further
submitted that due to the government policy of downsizing the staff cadre, the
Railways is coming up with many schemes of awarding contracts to private
parties by leasing of SLRs and BOLT schemes etc. to implement the Fifth Pay
Commission recommendations. Thus, the absorption of such a huge work force of
Class IV employees without adequate amount of work will result in a financial crunch.
The learned Additional Solicitor General drew our attention to the additional
affidavit of Respondent Nos. 1-7 and the statements made thereunder, to the
effect that as a result of the present loading/unloading operations being
totally uneconomical, a loss of approximately 900 crores is being incurred by
the Railways and, therefore, there is no option but to rationalize the entire
operation with regard to the parcel handling business. The learned Additional
Solicitor General would further contend that in order to improve services, the
Railways introduced the concept of leasing the space in the luggage compartment
of the front luggage coach of some of the passengers carrying trains in
November, 1991. However, a comprehensive policy was introduced in the year 1999
in order to attract parcel traffic through the leasing route and as per the
master circular issued on 16.11.1999, SLR space in the front SLR was permitted
for leasing for all types of trains and SLR space in over 200 trains is being
leased out to provide operators, where the loading and unloading is also done
by them. The process of leasing was taken one step further with the launch of
the Parcel Express trains known as "Millennium Parcel Express" trains
in March, 2001, which envisages running of high speed "time-tabled"
parcel trains leased to cargo consolidators on the basis of open tenders and
two such weekly trains are already being operated and more are likely to be
introduced in future. It is further submitted that the steps taken by the Indian
Railways to encourage handling of parcel by private parties through leasing of
the space in SLRs, VPs and parcel trains has helped in increasing the railway
earnings and as a result thereof, the earning from parcel traffic has increased
from 294.24 crores in 1998 to Rs. 433.46 crores in 2001- 02 which according to
the learned Additional Solicitor General is proof of the fact that the senders
and receivers of parcel prefer handling through their own agency.
With a view to make the parcel services vibrant
business along with better service to its customers, the Government has
accepted the recommendation of the Parliamentary Standing Committee on
Railways, as contained in their 9th Report (2001) presented in Lok Sabha in
April, 2001 to segregate parcel services from passenger services. He would
further state that the Government of India's plan of "rightsizing"
the workforce has been acted upon by the Railways. Rightsizing automatically
involves rationalizing the operations, coming down to redundant areas and
outsourcing of "non-core" areas. As loading/unloading of parcels is a
non-core activity, the parcel leasing schemes vest the leaseholder with the
responsibility of handling the parcel traffic.
Learned Additional Solicitor General further
submitted that apart from the losses in parcel business that the Railways are
sustaining, they have also to face the mounting wage bill of the employees. The
average annual wage bill of a Railway employee during 2000-01 was Rs. 1,21,281/-.
As against this overall average for all staff, the annual wage bill of a group
D employee was as high as Rs. 84,576/-. The wage bill has been increasing over
the years and the average wage bill of group D employee has increased from Rs.
37,344/- in 1994-95 to Rs. 84,576/- in 2000-01. The current wage bill can be
estimated to be nearly around Rs. 1 lakh per group D staff. Thus, with a
workforce of over 9000 departmental parcel porters, the annual wage bill on
this account is over Rs. 90 crore. Thus, though the average number of group D staff
has reduced from Rs. 5.06 lakh in 1994-95 to Rs. 4.62 lakh in 2000-01, there is
a continuous and heavy increase in the wage bill of the Indian Railways, which
is difficult to bear.
It is also submitted in the instant batch of
cases, the number of petitioners are again more than 1500. If the judgment of
this Court is in favour of the petitioners, there will be spate of litigation
with many more parcel porters and other similarly placed workers approaching
this Court for similar relief. The financial implication for the Indian
Railways in regularization of the petitioners would be Rs. 1 crore for every
100 such private parcel porters.
Concluding his argument, the learned Additional
Solicitor General submitted even for the parcel traffic handled departmentally
by the Railways by Mail/Express and Passenger trains, the loading/unloading
work is of a sporadic and intermittent nature. Even this work is confined only
to the time when the various trains originate/terminate/stop at the stations
for short duration. Thus, whichever worker is engaged by the contractor, will
generally be available on the Railway premises for the purpose of
loading/unloading only on the day and at the time of arrival/departure of
various trains and that the work of loading/unloading is neither regular nor
continuous in nature and, therefore, does not require engagement of regular
workers. Concluding his argument, the learned Additional Solicitor General
submitted that as the railways are sustaining an annual loss of Rs. 900 crores
and also have to face the mounting wage bill, they have no option but to
rationalize the parcel business by leasing out to private cargo operators and
will not be in a position to absorb the contract labourers engaged in parcel
handling.
Our attention was also drawn to the various
circulars issued by the Government of India, Ministry of Railways marked as
Exhibit-R1, R2 and R3.
The petitioners have not filed any reply or
rejoinder to the additional affidavit of respondent Nos. 1-7 filed on 16.01.03.
Learned counsel for the other writ petitioners
have adopted the arguments advanced by learned counsel for the writ petitioner
Mr. Dinesh Kumar Garg.
Learned counsel for the writ petitioners drew
our attention to the order passed by this Court on 14.07.1999 in Writ Petition
No. 433 of 1998 which reads thus:
"The Assistant Labour Commissioner
(Central), Lucknow to whom copies of all
the previous orders passed in the case, shall be sent, shall conduct an inquiry
as to whether the petitioners were working continuously and whether the job
which they perform is of a perennial nature. The inquiry may be completed
within three months from the date of receipt of this order and a report
submitted to this Court." He also invited our attention to the report of
the Assistant Labour Commissioner (Central) Lucknow dated 18.01.2000 containing 85 pages. We have
perused the same. The Assistant Labour Commissioner framed two issues for
enquiry which are as follows:-
1. Whether the petitioners were working
continuously and
2. Whether the job which they perform is of a
perennial nature.
According to the Labour Commissioner, the
railways have not produced any records pertaining to the period of working of
the parcel porters as no records of the petitioners are maintained at the
stations or any other railway office. Railways have also contended that they
have no knowledge as to which of the petitioners were engaged by the
contractors and from what date. It is further stated in the report that only
six contractors appeared and dozens of them did not even respond to his notice
he had sent to them on their addresses which were supplied to him by the
petitioners and the railways. A number of registered letters were returned
undelivered with the postal department's remarks that either the contractors
refused to accept the letters or they were not available at those addresses.
The contractors who appeared before the Labour Commissioner did not also
produce any records. Under such circumstances, he heard the individual
petitioners who appeared before him and recorded their statements. The Labour
Commissioner has stated that in fact the contractor is suppressing the records
to conceal the fact of the petitioners working and, therefore, he accepted the
employment cards/service certificates submitted by the petitioners as proof of
their working for the period claimed by them. The findings on issue Nos. 1 and
2 rendered by the Labour Commissioner runs thus:- "Issue No.1:
The Railways and the contractors have verified
the period of working of the petitioner parcel porters in some cases.
The period of such verification is very short in
many cases, the reason being that the contractors have changed very frequently
and the records that might be in possession of earlier contractors could not be
obtained. The Railway and the contractors have not produced the records of
working of the parcel porters who have claimed to have worked prior to the
period as verified by the contractors and the Railway. It appears unjust that
the petitioners' interests should be harmed due to non-production of records.
Despite several notices having been issued to
the concerned respondent Railways and the contractors that in the event of
failure on their part to produce records the claim of the petitioners would be
accepted, till 14.1.2000 on which date I finalised this report none of them
produced records for the past period to admit or deny the claim of petitioners.
I am left with no other option than to conclude that they must have worked.
a) The list of petitioners whose period of
working has been verified is enclosed as Annexure "A" to this report.
b) The list of petitioners who have claimed to
have worked but whose working period could not be verified due to
non-production of records by the Railway and the contractors is enclosed as
Annexure "B" to this report.
Issue No.2 I have reached to the conclusion that
the work of parcel handling/loading/un-loading is an activity that is not
separate and detatched from the complex parcel handling job being done by
Railways. Parcel handling is an integral part of the whole system and it has
been going on for ages round the clock during day and night for all the 365
days in a year without the break of a single day. In fact the job of parcel
handling which is being performed by the petitioners is the foundation on which
the gigantic structure of parcel department stands. If the parcel handling work
is stopped then the whole work of parcel transportation will come to stand
still and all the regular staff and officers whose number is very large will
become idle.
The parcel handling work being performed by the
petitioners is of a perennial nature.
Submitted." The Railways filed opposition
to the report of the Labour Commissioner. It is stated therein that the
railways came to know about the report only through the Central Agency Section
on 08.05.2000 and more surprisingly, the report dated 18.01.2000 appears to
have been submitted before this Court in the same week itself but neither the
answering respondent nor the railways was afforded any opportunity to either
lead evidence or cross-examine the witnesses appeared on behalf of the
respondents. According to the railways, from a bare reading of the report it
will be clear that the report is not based on any documentary evidence and that
the objections raised by the Railway Authorities have either been not
entertained and incorporated in the report or have been dealt in most unfair
manner and that the Labour Commissioner has not taken pain to summon the
contractors along with the relevant records though complete addresses of such
contractors were supplied by the Railway Administration. It is, therefore,
submitted that in the absence of the documents regarding the particulars of the
services rendered by the Porters, the Railway Administration was obviously not
in a position either to admit or deny the claim of the petitioner. It is also
stated in the opposition that since the contract labour is abolished w.e.f.
30.10.1995 there is no question of any other labourers left to be regularized
and, therefore, the Assistant Labour Commissioner should be directed to permit
the Railway Administration to verify the contents of the documents submitted by
the petitioners and ex-contractors by cross- examination; compel all the
ex-contractors to be present at the hearing and submit a fresh report based on
the documents actually presented before him.
Per contra, learned counsel for the petitioners
submitted that the Labour Commissioner gave repeated adjournments to enable the
Railways for finalizing objections or to cross-examine the petitioners and
contractors under whom the petitioners have been discharging their duties at
different railway stations. However, the officials refused to cross-examine the
petitioners or the contractors and, therefore, the Labour Commissioner on the
basis of the record available on the file of the Assistant Labour Commissioner
as well as with the officials of the Railways have submitted his report. Thus,
it is submitted that the objections regarding the report of the Labour
Commissioner had been raised for no reason or basis.
It is seen from the report of the Labour
Commissioner that the contractors have refused to produce the records and
cooperate with the Labour Commissioner at the enquiry. Likewise, Railways also
complained that the Labour Commissioner has not afforded them sufficient
opportunity to verify the veracity of the documents as well as the period for
which the petitioners have already worked as parcel porters. Therefore, the
report of the Assistant Labour Commissioner cannot be taken as a full and
complete report as to whether the petitioners were working continuously and
whether the job they perform is of perennial nature.
As per the established principle of law, the
petitioners in order to succeed will have to substantiate their claim.
Non-production of evidence in opposition will not support the claim of the
petitioners even by legal fiction. The Assistant Labour Commissioner, in our
opinion, has failed to appreciate this proposition of law while recommending
the claim of the petitioners.
The burden of proving the claim of continuous
working rests on the claimants for which they are required to furnish concrete
proof and reliable documents. We are, therefore, of the view that an
opportunity to cross-examine the petitioners and to peruse the records produced
by the petitioners should be afforded to the railways. As already noticed, the
contractors did not produce the original records and the railways had no
opportunity to cross-examine the contractors also. The contractors are,
therefore, be directed to appear before the Labour Commissioner and to produce
the records for the relevant period in question and the claim of the
petitioners can again be verified and regularize the services of the members of
the petitioners association as employees of the Railway Administration. We,
therefore, direct the Labour Commissioner to again afford an opportunity to the
Railway Administration and the contractors and the petitioners and verify the
authenticity and genuineness of the claim made by the petitioners with
reference to the records that may be produced by the Railway Administration and
the contractors and submit a report to the Railways within six months from the
date of receipt of this judgment which, in our opinion, would resolve the
disputed claim of the petitioners and the railways and on the basis of the
report submitted, the railway administration shall consider the claim of the
individual petitioners subject to the terms and conditions to be stated infra
in this judgment.
Along with the writ petition, number of orders
passed by this Court on few earlier occasions have also been filed as Annexures.
Annexure- B is one such order in Writ Petition No. 277 of 1998 filed by one Raghavendra
Gaumastha, under Article 32 of the Constitution. The petitioners claimed relief
for issue of writ of mandamus directing the Railway Administration to
regularize the petitioners services and to pay them the same salary which is
paid to others carrying out the similar duties and functions. This Court, by
order dated 04.10.1989, referred the matter to the Labour Commissioner to
decide the question whether the petitioners are contract labourers or they are
the employees of Railways and also the question as to whether they have been
working as labourers for a number of years. This Court, after extracting the
report of the Labour Commissioner, directed the railway administration to treat
the petitioners as regular parcel porters and to grant them the same salary
which is being paid to regular parcel porters in view of the fact that most of
the petitioners have been working since 1972 and some of them since 1980 and
few of them in 1985.
The order passed by this Court dated 15.04.1991
in writ petition No. 277 of 1998 was followed by this Court in the case of
National Federation of Railway Porters, Vendors and Bearers (supra). This
Court, taking into consideration the nature of the prayer in the writ petition,
made an order directing the Labour Commissioner to enquire and submit a report
and after perusal of the said report issued certain guidelines and directions
to the Union of India and the Railway Administration in regard to the
absorption of the railway parcel porters on permanent basis.
Again this Court by order dated 08.07.1996 in
Writ Petition No.568 and 711 of 1995 filed by National Federation of Railway
Porters Union have issued directions for regularization of their services as
mentioned in the order if the petitioners are found to be eligible.
Yet another order can also be profitably looked
into in this context which has been passed by this Court in Writ Petition No.
90 of 1997 dated 19.09.1997 in which this Court directed the Assistant Labour
Commissioner, Calcutta to conduct an enquiry into the allegations whether the
petitioners who were working as parcel porters at various railway stations had
been working continuously at the concerned railway stations and the work is of
a perennial nature and requirements of Section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 have been satisfied. Similar direction was
issued by this Court on 27.04.1998 in Writ Petition No. 176 of 1995.
The learned counsel for the petitioners placed
strong reliance on the judgment of this Court in National Federation of Railway
Porters, Vendors and Bearers (supra) and the directions given by this Court in
absorbing the labourers under certain conditions. This Court in R.K. Panda and
Others vs. Steel Authority of India and Others reported in JT 1994 (4) SC 151
issued directions that all labourers who had been initially engaged through
contractors but have been continuously working with the respondent for the last
10 years on different jobs assigned to them in respect of the replacement and
change of the contractors shall be absorbed by the respondent as regular employees
subject to being found medically fit and if they are below 58 years of age
being age of superannuation. The Court also gave further directions for fixing
inter se seniority, absorption of wages and terms and conditions of service.
The Court also directed that the respondent shall be at liberty to retrench the
workmen so absorbed in accordance with law.
In Gujarat Electricity Board, Thermal Power Station, Ukai
vs. Hind Mazdoor Sabha and Others AIR 1995 SC 1893, this Court held that where
the contract labour system is abolished the industrial adjudicator can,
depending upon the facts of the case, direct the principal employer to absorb
all or any of the workmen of the ex- contractor and on such terms as he may
determine. This Court after pointing out the vital lacuna in the Act, namely,
no provision as to the fate of workman of ex-contractor after the abolition of
contract labour system however issued guidelines for such absorption that the
workmen of the ex-contractor, if found suitable can be absorbed by the
principal employer after the contract system is abolished. This Court has laid
down guidelines for the same in the said judgment.
We have carefully examined the report of the
Assistant Labour Commissioner, the findings recorded therein and the counter
affidavits, reply affidavits and rejoinder filed by the respective parties. The
facts disclosed in the report and the findings recorded in regard to the
perennial nature of work cannot be overruled. Though we have heard at length
both the parties, the learned Additional Solicitor General appearing for the
Railway Administration was not able to point out to us any valid reason as to
why the present writ petitions should not be allowed in terms of the order
dated 15.04.1991 made by this Court in similar Writ Petition No. 277 of 1988
particularly when in the matter of absorption of contract labour by a public
undertaking on a permanent regular basis. We feel, therefore, it is just and
appropriate to issue the following directions to the respondent Union of India
and the Railway Administration Units:
1. The Assistant Labour Commissioner, Lucknow is
directed to again scrutinize all the records already placed by the petitioners
and also the records to be placed by the respective contractors and the railway
administration and discuss and deliberate with all parties and ultimately
arrive at a conclusion in regard to the genuineness and authenticity of each
and every claimant for regularization. This exercise shall be done within six
months from the date of receipt of this judgment.
2. Subject to the outcome of the fresh enquiry
and the report to be submitted by the Assistant Labour Commissioner, the
Railway Administration should absorb them permanently and regularize their
services. The persons to be so appointed being limited to the quantum of work
which may become available to them on a perennial basis. The employees so
appointed on permanent basis shall be entitled to get from the dates of their
absorption, the minimum scale of pay or wages and other service benefits which
the regularly appointed railway parcel porters are already getting.
3. The Units of Railway Administration may
absorb on permanent basis only such of those Railway Parcel Porters
(petitioners in this batch) working in the respective railway stations
concerned on contract labour who have not completed the age of superannuation.
4. The Units of Railway Administration are not
required to absorb on permanent basis such of the contract labour Railway
Parcel Porters who are not found medically fit/unsuitable for such employment.
5. The absorption of the eligible petitioners in
the writ petitions on a regular and permanent basis by the Railway
Administration as Railway Parcel Porters does not disable the Railway
Administration from utilizing their services for any other manual work of the
Railways depending upon its needs.
6. In the matter of absorption of Railway Parcel
Porters on contract labour as permanent and regular Railway Parcel Porters, the
persons who have worked for longer periods as contract labour shall be
preferred to those who have put in shorter period of work.
7. The report to be submitted by the Assistant Labour
Commissioner should be made the basis in deciding the period of contract labour
work done by them in the railway stations. The report shall be finalized and
submitted after discussions and deliberations with the railway administration
and the contractors and all the representatives of the writ petitioners or writ
petitioners themselves.
8. While absorbing them as regular employees
their inter se seniority shall be determined department/job-wise on the basis
of their continuous employment.
9. After absorption, the contract labourers will
be governed exclusively by the terms and conditions prescribed by the railway
administration for its own employees irrespective of any existing contract or
agreement between the respondent and the contractors. No claim shall be made by
the contractors against the railway administration for premature termination of
their contracts in respect of the contract labourers.
10. The railway administration shall be at
liberty to retrench the workmen so absorbed in accordance with law. This order
shall not be pleaded as a bar to such retrenchment.
11. This judgment does not relate to the persons
who have already been absorbed.
Several I.As were filed to modify the order
dated 08.09.2000 passed by this Court in Writ Petition No. 433 of 1998 and 457
of 1998.
Few I.As were filed seeking certain prayers
pending writ petition. Few I.As were filed to implead the proposed parties as
parties to the writ petition. Some I.As were filed for intervention.
In view of the disposal of the main matters, no
separate direction is necessary in these I.As.
In the result, the writ petitions and the civil
appeals including the I.As filed in different writ petitions shall stand
disposed of accordingly.
However, there will be no order as to costs.
+ 9 436 2003 5 8444 2002 ! VINOD KUMAR
R.C. LAHOTI, SHIVARAJ V. PATIL & BRIJESH
KUMAR.
R.C. LAHOTI, J.
Proceedings for eviction were initiated under
clause (i) of sub-section (2) of Section 13 of the Haryana Urban (Control of
Rent & Eviction) Act, 1973 (hereinafter referred to as the `Haryana Act'
for short) and culminated in favour of the landlord, directing the tenant to be
evicted from the premises in his occupation, on the finding that he had not
paid or tendered the rent due from him in respect of the rented premises. The
tenant preferred Appeal by Special Leave. By judgment dated 16.12.2002 this
Court allowed the tenant's appeal, set aside the judgments of the High Court
and the authorities below and directed the case to be sent back to the
Controller for hearing and decision afresh in accordance with the law laid down
by this Ors. (2002) 5 SCC 440. This petition for review of the judgment dated
16.12.2002 seeks to question the correctness of the law laid down by this Court
in Rakesh Wadhawan's case.
We have heard the learned counsel for both the
parties. The principal submission, rather the only one, made by the learned
senior counsel for the Review-petitioner is that two earlier decisions of this
Court, namely, M/s. brought to the notice of this Court while deciding Rakesh Wadhawan's
case and, therefore, Rakesh Wadhawan's case does not lay down the correct law.
All the three decisions, namely, the decisions
in Rakesh Wadhawan's case (supra), M/s. Rubber House's case (supra) and Rajinder
Kumar Joshi's case (supra), are two-Judges Bench decisions and, therefore, the
matter has been placed for consideration by a three-Judges Bench.
In Rakesh Wadhawan's case, the decree for
eviction was passed under Section 13(2)(i) of the East Punjab Urban Rent &
Restriction Act, 1949 (hereinafter referred to as `the Punjab Act' for short).
It is, therefore, necessary to consider the relevant provisions of the two
Acts. The same are extracted and re-produced hereunder:
PUNJAB ACT
HARYANA ACT
S.13. Eviction of tenants.-
(1) A tenant in possession of a building or
rented land shall not be evicted therefrom in execution of a decree passed
before or after the commencement of this Act or otherwise and whether before or
after the termination of the tenancy, except in accordance with the provisions
of this section, or in pursuance of an order made under section 13 of the
Punjab Urban Rent Restriction Act, 1949 as subsequently amended.
(2) A landlord who seeks to evict his tenant
shall apply to the Controller for a direction in that behalf. If the
Controller, after giving the tenant a reasonable opportunity of showing cause
against the applicant, is satisfied –
(i) that the tenant has not paid or tendered the
rent due by him in respect of the building or rented land within fifteen days
after the expiry of the time fixed in the agreement of tenancy with his
landlord or in the absence of any such agreement, by the last day of the month
next following that for which the rent is payable:
Provided that if the tenant on the first hearing
of the applications for ejectment after due service pays or tenders the arrears
of rent and interest at 6% per annum on such arrears together with the cost of
application assessed by the Controller, the tenant shall be deemed to have duly
paid or tendered the rent within the time aforesaid;
X X X the Controller may make an order directing
the tenant to put the landlord in possession of the building or rented land and
if the Controller is not so satisfied he shall make an order rejecting the
application:
Provided that the Controller may given the
tenant a reasonable time for putting the landlord in possession of the building
or rented land and may extend such time so as not to exceed three months in the
aggregate."
S.13. EVICTION OF TENANTS.-
1. A tenant in possession of a building or a
rented land shall not be evicted there-from except in accordance with the
provisions of this Section.
2. A landlord who seeks to evict his tenant
shall apply to the Controller, for a direction in that behalf. If the
Controller, after giving the tenant a reasonable opportunity of showing cause
against the application, is satisfied –
(i) that the tenant has not paid or tendered the
rent due from him in respect of the building or rented land within fifteen days
after the expiry of the time fixed in the agreement of tenancy with his
landlord or in the absence of any such agreement, by the last day of the month
next following that for which the rent is payable:
Provided that if the tenant, within a period of
fifteen days of the first hearing of the application for ejectment after due
service, pays or tenders the arrears of rent and interest, to be calculated by
the Controller, at eight percentum per annum on such arrears together with such
costs of the application, if any as may be allowed by the controller, the
tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid:
Provided further that the landlord shall not be
entitled to claim arrears of rent for a period exceeding three years
immediately preceding the date of application under the provision of this Act.
the Controller may make an order directing the tenant
to put the landlord in possession of the building or rented land and if the
Controller is not so satisfied he shall make an order rejecting the
application:
Provided that the Controller may give the tenant
a reasonable time for putting the landlord in possession of the building or
rented land and may extend such time so as not to exceed three months in the
aggregate." The learned senior counsel for the Review-petitioner tried to
draw a distinction between the provisions of the Punjab Act and the Haryana
Act, submitting that the phraseology employed in the two Acts is different,
and, therefore, the decision in Rakesh Wadhawan's case which is under the
Punjab Act has no relevance and applicability insofar as the provisions of the Haryana
Act are concerned. We find no merit in the submission so made.
Except for a difference in the manner of
constructing the sentences there is no substantial difference in effect between
the two provisions and the crux of the issue emerging for decision under the
relevant provisions of the two Acts remains the same.
In Rakesh Wadhawan's case, this Court noticed a
lacuna in the drafting of Section 13(2)(i) of the Punjab Act and resolved the
same by applying well- settled principles of statutory interpretation so as to
cull out the legislative intent and then held that the expression
"assessed by the Controller" as occurring in the proviso to Section
13(2)(i) of the Act qualifies all the three things, i.e.,
(i) the arrears of rent,
(ii) interest at 6% per annum on such arrears,
and
(iii) the cost of application, which are
included in the preceding part of the sentence.
The order of assessment made by the Controller
is not an assessment of costs alone; it is an assessment of the arrears and
interest as well. The Court further held that such order of the Rent Controller
making an assessment shall, in the scheme of the section, be an interim or
provisional order which would be based on a summary enquiry leading to the
formation of a prima facie opinion based on the consideration of relevant
material brought on record by the parties, which may consist of the documents,
affidavits and pleadings which would enable the Controller to make a
provisional and yet judicial assessment, and place it on record by way of an
order to satisfy the spirit of the proviso. Having said so, the Court explained
the mechanism to be followed by the Controller in this regard and the meaning
to be assigned to the expression "the first date of hearing" so as to
make it practical and workable. Failing the interpretation adopted by the Court
in Rakesh Wadhawan's case, the provision under consideration could have run the
risk of being struck down, because it would be unworkable and lead to
uncertainty. The provision had remained on the statute book for more than 50
years but was creating practical difficulties in its working and applicability
to different sets of facts. Such meaning has been placed on the language of the
proviso to Section 13(2)(i) as would make it workable and sensible and would
least offend the sense of justice. Care has been taken to protect the interests
of both the landlord and the tenant. The interpretation protects the landlord
from frivolous pleas raised by recalcitrant tenants and at the same time saves
the tenants from undue hardship likely to be caused by unscrupulous landlords
accusing the tenants of such default as may not exist.
In M/s. Rubber House's case (supra), the
provisions of the Haryana Act came up for the consideration of the Court.
Having scrutinized Section 13(2)(i) and the first proviso thereto, the Court
held that there is no statutory duty cast on the Controller even in the first
instance to determine and calculate the arrears of rent and the interest but,
on the contrary, the proviso requires the tenant to pay or tender the actual
arrears of rent within 15 days of the hearing of the application for ejectment
after due service.
The calculation by the Controller is confined
only to calculating the interest at 8% per annum on such arrears together with
the cost of the application. The argument advanced by the learned counsel for
the tenant in that case that the proviso casts a statutory duty on the
Controller to calculate and determine the arrears of rent as well as the
interest to be paid by the tenant within a period of 15 days of the first
hearing of the application for ejectment after due service was rejected by the
Court on the reasoning that such an argument, if accepted, would result in the
Rent Controller holding an enquiry at the first instance in every case and determining
the arrears of rent even on the first date of hearing which is in the nature of
things not possible without any evidence, nor is contemplated under the scheme
of the Act. We find it difficult to agree with the above-said reasoning in M/s.
Rubber House's case. On the plain language of the Haryana Act, the expression
"to be calculated by the Controller" qualifies both the arrears of
rent and interest.
The succeeding expression "such costs of
the application" is again qualified by the expression "if any, as may
be allowed by the Controller". Thus the provision itself casts an
obligation on the Controller to calculate and determine by its order
(i) the arrears of rent;
(ii) the interest; and
(iii) the costs, quantifying the amount which
should be paid or tendered by the tenant (at that stage) to comply with the
proviso.
The words `calculated' and `allowed' occurring
in the proviso imply a duty cast on the Controller which has to be discharged
judicially. Such determination will be only for the purpose of securing
compliance by the tenant on `the first date of hearing' succeeding the date of
order by the Controller, which order would be based on a summary enquiry and
would obviously be subject to final determination by the Controller at the end
of the regular full-fledged enquiry. Thus it is not correct to say that the
provision does not contemplate an enquiry, nor is it correct to say that such
an interpretation would result in the holding of a full- fledged enquiry on the
first date of hearing, which is not possible.
In M/s. Rubber House's case, the Court further
held that it is for the tenant to calculate the exact arrears of rent due and
to pay or tender the same and if the tenant fails to do so, he is deemed not to
have paid or made the valid tender of the rent. However, the case does not
answer the question as to what would happen if the tenant, having paid or
tendered the arrears of rent as per his own calculation, is found at the end of
the enquiry to have made a wrong - if not a deliberately wrong - calculation of
the arrears.
Rajinder Kumar Joshi's case is under the Punjab
Act. There also the Court had noticed a lacuna in the legislative drafting
raising a contention worthy of serious consideration and the hardship to which
a tenant may be put where the landlord makes a demand on the tenant for rent
which is not due from him, as was found to have been done in that case. The
Court was faced with a dilemma in adopting either interpretation. If the
provisions of Section 13(2)(i) of the Act were to be so interpreted as to
require the tenant to tender the rent as demanded (though the demand is
exaggerated by reference to the rate of rent or the period of default) or to
face the consequences of eviction from the rented premises, the provision would
result in causing hardship to the tenant. On the other hand, to hold the
requirement of the proviso to Section 13(2)(i) to tender the rent as meaning
the tender of the rent as the tenant thinks he is in arrears of, would render
nugatory the requirements of the said proviso. The Court felt the need for
striking a balance between the two situations so as not to render the
protection given by the Act to the tenant illusory, and at the same time not to
deprive the landlord of his minimum legitimate expectation to be paid regularly
the rent for the use and occupation of his premises. The solution which the
Court provided was in the background of the facts of that case, and is hence a
limited one. The Court said that if the rate of rent is not fixed or becomes the
subject matter of dispute, the tenant may have resort to Section 4 of the Act
and apply to the Controller to fix the fair rent failing which he must deposit
the rent at the rate as demanded by the landlord. If there is any dispute as to
the period of default, the tenant may deposit the rent which he thinks to be in
arrears, but he must take the risk for doing so.
If it is proved ultimately that the rent paid or
tendered by him was less than what was due, he must face eviction. Such an
interpretation gives an uncertainty to the litigation and does not take care of
several situations which may emerge in a litigation other than the one as arose
in that case before the Court.
It is true that the decisions in M/s. Rubber
House (supra) and Rajinder Kumar Joshi (supra) were not brought to the notice
of the Court deciding Rakesh Wadhawan's case (supra) and it would have been
better if that would have been done at the Bar. However, the present petition
has given us the opportunity of examining afresh the merits of the three
decisions under consideration and also for making a comparative study of the
provisions contained in the Punjab Act and the Haryana Act insofar as the
ground for eviction on account of default in payment or tendering the arrears
of rent by the tenant is concerned. We are of the opinion that M/s. Rubber
House's case and Rajinder Kumar Joshi's case do not place a correct
interpretation upon the provisions. The decision in Rakesh Wadhawan's case
correctly lays down the law and is re-affirmed. The interepretation placed by
this Court in Rakesh Wadhawan's case on Section 13(2)(i) with the proviso in
the Punjab Act applies for interpreting Section 13(2)(i) and the proviso as
contained in the Haryana Act.
The petition is held devoid of any merit and is dismissed.
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