Board of Trustees for
Pt. of Cal.& Ors. Vs. Avijit Kumar Ray & Ors.Etc. [2008] INSC 2006 (25
November 2008)
Judgment
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6754 OF
2008 [Arising out of SLP (C) No.6463/2008] Board of Trustees for Port of
Calcutta & Ors. ... Appellants Versus Avijit Kumar Ray & Ors. etc. ...
Respondents
AFTAB ALAM,J.
1.
Heard
counsel for the parties
2.
Leave
granted 2
3.
In
times of fast shrinking employment opportunities, trade apprentices who have
completed their training staked their claim on an old practice, long
discontinued, under which the Calcutta Port Trust in the port's Mechanical
Engineering department used to make recruitment of trained apprentices and
wards of employees dying in harness in the ratio of 1:1.
4.
Three
hundred and twenty one trained apprentices (respondents before this Court;
hereinafter referred to as `the trained apprentices') joined together and
approached the Calcutta High Court in WP No. 21877(W)/99.
They made the
grievance that in disregard of the practice earlier followed, the Calcutta Port
Trust was giving appointments only on compassionate grounds to the wards of
their employees dying in harness and had completely stopped the recruitment of
trained apprentices. They sought appropriate directions from the High Court
asking the Calcutta Port Trust to appoint trained apprentices equal in number
to those appointed on compassionate basis during the past many years so as to
restore the 1:1 ratio between the two groups. At that stage the High Court did
not pass any positive order in the matter but disposed of the writ petition
directing the Chairman, Calcutta Port Trust to examine the claim of the
trained 3 apprentices and to dispose of their representation after giving them
an opportunity of hearing.
5.
In
compliance with the order of the Court the Chairman, Calcutta Port Trust heard
representatives of the trained apprentices and examined their claim. He turned
down the claim by a reasoned order dated July 5, 2000.
From the order it
appears that the trained apprentices raised three grievances/demands before
him. One, the Calcutta Port Trust should not fill up the vacancies of Firemen
in the Marine department by transfer of unskilled labourers from the Mechanical
Engineering department. Two, the Port Trust should maintain a list of trade
apprentices who completed the apprenticeship course in the Port for
consideration for employment against future vacancies and three, the vacancies
of unskilled labourers in the Mechanical Engineering department should be
filled up by the dependents of employees dying in harness and trained
apprentices in 1:1 ratio. In regard to the third demand the trained apprentices
further claimed that during the last 20 years the ratio was not properly
maintained and in order to restore it trained apprentices should be appointed
in equal numbers to those appointed on compassionate basis. The Chairman noted
that the posts of Fireman in the Marine department were never filled up by
transfer of unskilled labourers from the Mechanical Engineering department;
hence, 4 the first grievance/ demand of the trained apprentices was quite
unfounded.
As regards
maintenance of list of trade apprentices for appointment as Firemen the
Chairman noted that the Trust was passing through great financial stringency
and was burdened with surplus workforce. As a result, the Trust was not in a
position to take in any more unskilled labourers or to make appointments on
other posts. He further noted that there was already a list of about 1200
persons, dependents of the employees who died in harness. Similarly, a list of
trained apprentices was already maintained by the Trust in light of the Central
Government instructions and the decisions of this Court for giving preference
to them in the matter of direct recruitment to the post(s), matching their
skills and qualifications. As per the instructions, being followed by the
Trust, a trained apprentice is not required to get his name sponsored by any
employment exchange and he is also given relaxation of age bar to the extent of
the period of training. Thus there was no occasion to maintain any other list
of trained apprentices for filling up only the vacancies in the Marine
department. In conclusion the Chairman passed the following order:
"Notwithstanding
anything contained hereinabove it is reiterated that if any occasion arises to
fill up the posts of USL under Mechanical Engineering department by Direct
recruitment the passed out Trade apprentices may also be considered."
6.
The
trained apprentices once again went to the High Court in WP No. 9259 (W) of
2001 re-agitating their claims and challenging the order of the Chairman,
Calcutta Port Trust.
7.
This
time a learned Single Judge of the Court allowed the writ petition by judgment
and order dated June 11, 2004, giving the following directions to the Calcutta
Port Trust:
"For the above
reasons the writ petition should succeed.
Accordingly, I allow
the writ petition. The order impugned is hereby set aside. The respondents are
hereby directed to consider the cases of the petitioners in accordance with the
decisions that the respondent Port Trust had taken for giving employment to its
trade apprentice in the ratio 1:1 to be maintained with the candidates from the
died in harness category. Since the respondent Port Trust has already given
employment to the died in harness category candidates in excess of the quota
available to such category, the respondents are hereby directed to take immediate
steps for rectifying the situation and restoring the balance in the quota meant
for the two categories. For implementing this order the respondent shall
immediately frame a scheme on the basis of such scheme they shall consider the
case of the petitioners. The scheme shall be prepared and the names of the
petitioners shall be placed in an appropriate panel within a period of four
weeks from the date of receipt of a copy of this judgment and order by them.
After preparing the scheme and the panel, the respondents shall consider the
cases of the petitioners according to the scheme and panel against the
available vacancies, in terms of the government order issued in the year 1983
and their own decisions as quoted hereinbefore."
8.
Against
the judgment of the single Judge the appellant, Calcutta Port Trust preferred
an appeal (MAT 2601 of 2004) before the Division Bench of the High Court. The
appeal was dismissed by judgment and order dated May 10, 2007 and confirming
the order of the single judge the Division Bench made the following
observations and directions:
"In the
aforesaid circumstances, we are of the considered view that the learned Single
Judge has rightly issued appropriate directions for considering the cases of
the writ petitioners and giving employment as ex-trade Apprentices along with
the died-in-harness category candidates in the ratio of 1:1 in the matter of
giving employment in the Kolkata Port trust pursuant to the promise given on
behalf of the said appellants and as mentioned in the written communication of
Labour Advisor dated 4th January, 1985 and further considering the guidelines
issued by the Government of India and mentioned in the circular dated 21st
April, 1983."
9.
The
appellant has brought the matter in appeal to this Court.
10.
Mr.
G. Vahanvati, learned Solicitor General appearing on behalf of the appellants
submitted that the orders passed by the High Court were quite bad and illegal.
The High Court clearly exceeded its jurisdiction in directing the appellant to
give employment to three hundred and twenty one writ petitioners without any
consideration of the appellant's requirements, its financial position and other
similar issues. Moreover, the High Court arrived at its conclusions on a
complete misreading and misinterpretation of 7 the relevant government
guidelines and circulars and communications issued by the Port Trust. The
Solicitor General emphasised that there was never ever any promise made by the
appellant to absorb the trained apprentices in employment and the High Court completely
misread the communication of the Labour Advisor of the Trust dated January 4,
1985 and the guidelines contained in the circular dated April 21, 1983 issued
by the Government of India.
11.
The
Solicitor General stated that in the 1970s the Calcutta Port Trust indeed
followed the practice of making recruitment of unskilled labour in the
Mechanical Engineering department of the Port from amongst the dependents of
employees dying in harness and trained apprentices in the ratio of 1:1. He,
however, made it clear that the practice was based neither on any statutory
provision nor on agreement(s) of any binding nature; it was followed by the
Trust unilaterally having regard to the circumstances obtaining at that time.
He further clarified that this practice was confined only to the Mechanical
Engineering department while the other departments had their own recruitment
policy, depending upon their respective requirements. He then took us, one by
one to the circulars, decisions, communications etc. relied upon by the High
Court for making the impugned directions.
12.
First
in the series is a circular bearing no. D.O. DECT-1-83/AP dated April 21, 1983
issued by the Ministry of Labour and Rehabilitation (Department of Labour),
Government of India. By this circular all the ministries were urged to
endeavour to ensure that 50% of the total semi- skilled and skilled categories
of jobs in the establishment under them should be filled by direct recruitment.
Further, that 50% of the vacancies available for direct recruitment should be
filled by trained apprentices and first preference be given to apprentices
completing the training course under that establishment. Para.2.2 of the
circular read as follows:
"50% of the
direct recruitment vacancies may be filled by trained apprentices first
preference being given to the apprentices trained by the said establishment and
thereafter to those trained by other establishment."
13.
Next
is a letter of January 4, 1985 from the Labour Adviser & Industrial
Relations Officer of the Port Trust to the Joint General Secretary of the
Calcutta Port Shramik Union. The letter is on the subject of recruitment of the
ex-trade apprentices and refers to some discussion held in that regard. As this
letter is the mainstay of the High Court judgments it is reproduced below in
full.
"Subject:
Recruitment of Ex-Trade Apprentices Dear Sir, 9 Kindly recall the discussion
held in Chairman's room on 3.1.1985 on the above subject.
Ex-Trade Apprentices
were being recruited along with the died in harness candidates in the ratio of
1:1.
This is now been
stopped in view of the ban imposed by Government on direct recruitment.
Ex-Trade Apprentices will be recruited again as and when the ban is lifted and
their quota will be restored."
It is this letter
that is mainly relied on by the High Court to hold that the Port Trust was
bound by its promise to recruit the trained apprentices in the same ratio as
dependents of employees dying in harness. The Solicitor General submitted that
it is quite unreasonable to read this letter as an unqualified promise of
recruitment of trained apprentices in all future times.
The letter simply
said the ex-trade apprentices would be recruited and their quota would be
restored again as and when the ban on direct recruitment was lifted. He pointed
out that in the order of the Chairman, Calcutta Port Trust that came under
challenge before the High Court it was likewise stated that the Trust was not
in a position to provide employment opportunity to the trained apprentices on
account of the twin problems of actuate financial distress and surplus
workforce but as and when the need arises to induct unskilled labour in the
Mechanical Engineering department the trained apprentices would also be considered
for recruitment. There is thus no 10 change in the stand of the Trust and
there is no question of enforcement of any unconditional promise made by the
Trust.
14.
The
Solicitor General referred to the decision in U.P. State Road Berozgar Sangh
& Ors. (1995) 2 SCC 1 and submitted that on similar facts this Court held
that the High Court was wrong in giving direction to give employment to the
trainees. In regard to enforcement of promise the Court, in paragraph 10 of the
decision, observed and held as follows:
"For a promise
to be enforceable, the same has, however, to be clear and unequivocal. We do
not read any such promise in the aforesaid three documents and we, therefore,
hold that at the call of promissory estoppel, the direction in question could not
have been given by the High Court. But then, we are left in no doubt that the
Government of India did desire that preference should be given to the trained
apprentices and it is because of this that the State Government stated in its
letter No.735/38-6-16(T)-79 dated 12-11-1979 that where such apprentices are
available, direct recruitment should not be made. Indeed, the Government of
India in its letter dated 23-3-1983 even desired reservation of 50 per cent
vacancies for apprentice trainees."
(emphasis added)
15.
Proceeding
then to examine the rights of the ex-trade apprentices under the Apprentices
Act, 1961 the Court, in paragraph 12 of the decision, laid down as follows:
"In the
background of what has been noted above, we state that the following would be
kept in mind while 11 dealing with the claim of trainees to get employment
after successful completion of their training:
(1) Other things
being equal, a trained apprentice should be given preference over direct
recruits.
(2) For this, a
trainee would not be required to get his name sponsored by any employment
exchange. The decision of this Court in Union of India vs. N. Hargopal would
permit this.
(3) If age bar would
come in the way of the trainee, the same would be relaxed in accordance with
what is stated in this regard, if any, in the service rule concerned. If the
service rule be silent on this aspect, relaxation to the extent of the period
for which the apprentice had undergone training would be given.
(4) The training
institute concerned would maintain a list of the persons trained year-wise. The
persons trained earlier would be treated as senior to the persons trained
later. In between the trained apprentices, preference shall be given to those
who are senior."
16.
The
Solicitor General submitted that in light of the decision in U.P. State Road
Transport Corporation, other things being equal, the ex-trade apprentices were
entitled to preference in the ways indicated in that decision. The decision
made it clear that the establishment where the apprentices had completed their
training was under no obligation to absorb them in employment regardless of
availability of any vacancies or other considerations. The trust was
scrupulously following the directions of the Supreme Court in U.P. State Road
Transport Corporation in the matter of recruitment of trained apprentices.
17.
The
Solicitor General stated that after this Court's decision in U.P. State Road
Transport Corporation the Government of India also slightly modified its policy
on the matter. He referred to the letter DO NO. CGET 23 (3) dated 15 October
1996 issued under the hand of the Secretary, Ministry of Labour, Government of
India. In paragraph 5 of the letter it is stated as follows:
"5. I am taking
this opportunity to share with you our concern about the seriousness of the
problem and find practical solutions so that the trained apprentices can get
regular employment either within the establishments where they have been
trained or in other Government/Private sector establishment. I shall be grateful
if suitable steps are initiated by your Ministry to:
(a) fill up the seats
located by engaging apprentices under the Apprenticeship Act for utilization of
existing training facilities to the fullest extent;
(b) improve the
quality of training by closer monitoring of the scheme at the scheme at the
shop floor level; and (c) ensure that preference is given to passed out
apprentices for recruitment in regular jobs matching their skills and
qualifications.
(emphasis added) The
Solicitor General submitted that the policy of the Government of India is to
give preference to the passed out apprentices for recruitment in regular jobs
matching their skills and qualification.
18.
The
Solicitor General reiterated that in the communication of the Legal Advisor of
the Trust dated January 4, 1985 there was no promise to 13 recruit the trained
apprentices. He further submitted that in any event after the legal position
was made absolutely clear by the decision in U.P. State Road Transport
Corporation and following the decision the Government of India had also
modified its policy regarding recruitment of trained apprentices it was
completely unreasonable to make that letter the basis for the direction to
appoint three hundred and twenty one trained apprentices.
He further stated
that even though the decision in U.P. State Road Transport Corporation was
brought to the notice of the High Court it unfortunately persisted in reading
the letter dated January 4, 1985 as making the promise for appointment of
trained apprentices.
19.
As
regards the appointment of trained apprentices in equal number to appointments
on compassionate basis the Solicitor General submitted that was a practice
followed by the Trust at one point of time long ago when there was adequate
employment potential in the port. After more than 25 years and under vastly
changed conditions, both in law and in the circumstances concerning the
Calcutta Port, it was no longer possible to follow the practice and to link up
the appointments from two entirely different categories. The Solicitor General
stated that in the past thirty years though ex-trade apprentices were appointed
in substantial numbers, depending on the exigencies in certain years, the ratio
of 1:1 between the 14 two groups was never maintained. In recent years of
course, employment opportunity for every group had practically dried up. In
this regard he brought to our notice the following table giving the break-up of
appointments made as unskilled labourer in the Mechanical Engineering
department from different sources from 1979 till 2000, when this case started.
Year of By died- By
Ex- By By ST By Total in-harness Trade Casual candidate sports Recruitmen
candidate Apprentice worker s perso s s s n t 1979 54 98 140 5 X 297 1980 84 82
1 X X 167 1981 31 X X X X 31 1982 71 54 14 X 2 141 1983 6 23 1 X X 30 1984 45 9
X X X 54 l-TOTAL 291 266 156 5 2 720 1985 110 62 1 X X 173 1986 37 39 X X X 76
1987 1 X X X X 1 1988 14 4 X X X 18 1989 11 5 X 20 X 36 1990 X 2 X X 1 3
ll-TOTAL 173 112 1 20 1 307 1991 X 3 X X 3 6 1992 X X X X X X 1993 X X X X X X
1994 X X X X X X lll-TOTAL X 3 X X 3 6 1995 25 X X X X 25 1996 4 X X X X 4 15
1997 9 X X X X 9 1998 2 1 21 X X 24 1999 1 X 8 X X 9 2000 1 X X X X 1 IV- 42 1
29 X X 72 TOTAL TOTAL 506 382 186 25 6 1105 OF I,II,III &IV
20.
The
Table clearly shows the number of appointments from different groups tapering
off. In the ten years from 1991 to 2000, 42 persons were employed on
compassionate basis and only 4 persons from amongst the ex- trade apprentices.
The Solicitor General stated that appointments on compassionate basis were made
only in dire cases that had the potential of causing labour unrest creating
major problems. He submitted that in present conditions it is not possible to
link-up the recruitments from the two categories and the High Court was in
error in giving the impugned direction.
21.
We
find much substance in the submissions made by the Solicitor General. Like the
case of U.P. State Road Transport Corporation we find it difficult to read in
the communication of January 4, 1985 any clear, unequivocal and unqualified
promise that may be enforceable after a quarter of century under vastly
different conditions. We are also in agreement that 16 the recruitments from
the two categories cannot be linked-up and made contingent on each other.
22.
Mr.
Krishnamani, learned counsel appearing for the respondents, the trained
apprentices supported the judgments of the High Court. He submitted that the
High Court rightly held that the letter of the Legal Advisor dated January 4,
1985 made the promise of recruitment of the trained apprentices and restoration
of the ratio between the two groups as and when the ban on direct recruitment
imposed by the Central Government was lifted. Mr. Krishnamani further submitted
that the ban on recruitment of ex-trade apprentices was lifted by letter dated
July 30, 1986 addressed by the Secretary of the Trust to the Joint General
Secretary, Calcutta Port Shramik Union and with the lifting of the ban the
promise made in the earlier letter of January 4, 1985 became enforceable and
binding. The letter of July 30, 1986 referred to by Mr. Krishnamani is as
follows:
"Dear Sir,
"Subject: Absorption of the Trade Apprentices under the S.R.C.
(ex.C.H.E.'s Deptt.) Reference your letter No.C/8/645 dated the 16th June,
1986.
2. The case has been
considered by the Chairman. It has been decided to resume recruitment or
ex-Trade Apprentices, as per their quota against the available vacancies of
U.S.L. subject to work requirement and on observance of SC/ST reservation
orders. The General Manager (Ship Repair Complex) is being suitably advised in
the matter."
This letter is of
July 30, 1986 and a reference to the table giving year-wise appointments would
show that in the year 1986, 39 ex-trade apprentices were appointed against 37
persons appointed under the scheme of compassionate appointments. Thus the
Trust did exactly what was stated in this letter.
23.
We
are unable to accept that this letter on its own or read along with the earlier
communication dated January 4, 1985 constitutes an unqualified, enforceable
promise or lays down a mode of recruitment on a permanent basis or creates any
rights in favour of the trained apprentices.
24.
Moreover,
the letter does not answer the main question in the case, i.e., how could the
High Court give direction for appointment of over three hundred trained
apprentices regardless of the vacancy position and the other relevant
considerations. Confronted with the question Mr. Krishnamani submitted that the
order of the High Court should not be understood to mean that all the
respondents must be appointed forthwith. The High Court asked the Trust to
evolve a scheme for their absorption in a phased manner. When pointed out that
if the directions of the High Court are to be understood in the way suggested
by him then their will not be much difference between 18 the High Court order
and the order passed by the Chairman, Calcutta Port Trust, Mr. Krishnamani
submitted the vital difference between the two was that the order of the
Chairman, Port Trust sought to do away with the parity between the two groups
in the matter of recruitment. He further submitted that the respondents' main
claim was to adhere to and restore the parity between the ex-trade apprentices
and those covered by the scheme of compassionate appointments in the matter of
recruitment. We are entirely unable to accept the claim of the respondents. As
stated by the Solicitor General the ex-trade apprentices were at one time
appointed in equal numbers to those appointed under the compassionate
appointments scheme but the practice was not on the basis of any statutory
provision or any agreement between the Trust and the workmen. We are equally
unable to see any rational basis for such parity between the two groups. It
might have served the interests of a certain group in the past and it may
appear to the present respondents as a handy bargaining point but in the long
term it will be fair neither to ex-trade apprentices nor to those coming under
the scheme of compassionate appointments. There is no comprehensible connection
between the two groups nor is there any rational basis for parity between the
two in the matter of recruitment.
25.
On
a consideration of the materials on record and the rival submissions we are of
the view that the orders passed by High Court are 19 plainly unsustainable. We
accordingly set aside the orders of the High Court and dismiss the writ
petitions.
26.
Before
parting with the records of the case we may, however, observe that though the
number of appointments has gone down very low, no uniform policy of recruitment
is discernible. For example three trained apprentices were recruited in 1993
and one in 1998. It is not clear under what policy those recruitments were made
or for that matter what policy the Trust is following in the matter of
compassionate appointments. The Trust should frame clear policies of
recruitment from these categories and give them due publicity to avoid any
scope of abuse and unfair labour practice.
27.
In
the result, the appeal is allowed subject to the aforesaid observations and
directions. There shall be no order as to costs.
.................................J.
[Tarun Chatterjee]
.................................J.
[Aftab Alam]
New
Delhi,
November
25, 2008.
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