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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: SUBIR MUKHARJI & ORS.

DATE OF JUDGMENT:       29/04/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                 THE 29TH DAY OF APRIL, 1998 Present:              Hon’ble Mr. Justice G.T. Nanavati              Hon’ble Mr. Justice S.P. Kurdukar N.N. Goswami, Sr. Adv., Ms. Smitha Inna and Ms. Sushma Suri, Advs. with him for the appellants. T.C. Ray, Sr. Adv., Rajesh Srivastava, Ujjwal Banerjee, S.K. Bandhopadhyay, P.Varghese  and H.K. Puri, Advs. with him for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: S.P. KURDUKAR, J.      This appeal by Special Leave is filed by the appellants challenging the  correctness of the judgment and order dated 13.3.1997 passed  in O.A.  No. 1045  of 1995  by the Central Administrative Tribunal (for short ’CAT’) Calcutta. (2)  The respondents  who are  20 in  number filed  D.A. NO. 1045 of  1995 before  the Central  Administrative  Tribunal. Calcutta alleging  inter alia that they have been working as labourers   since    1988   till   date   continuously   and uninterruptedly in the printing press of the Eastern Railway at Calcutta  . They  were engaged  as  labourers  through  a contractor viz.,  M/s. Bandel  Handling Porters  Cooperative Society  Ltd.   Several  labourers   were  also  engaged  by different organizations/labour  contractors  for  doing  the work on  several  development  projects  undertaken  by  the Eastern  Railway  on  Contract  basis.  the  contracts  were entered into between the said co-operative societies and the authorities of  the Eastern  Railway. The  respondents  have been performing  their  duties  and  the  functions  to  the satisfaction  of   the  appellants   and  no   complaint  of whatsoever nature  was made  against their  work. They  were initially paid  daily wages @ Rs. 14/- per day which came to be ennanced  to Rs.  31/- per  day. it  is then alleged that since  they   have  been   working  for   all  these   years uninterruptedly and  continuously. They  are entitled  to be absorbed and regularised in Group D  category in  terms of  the  Rules  and  Regulations framed  by  the  Railway  Authorities.  Respondents  further avered  that  by  reason  of  continuous  and  uninterrupted

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service  for   all  these  years.  They  have  acquired  the temporary status  and they  are entitled  to be  absorbed in Group D  in the  Pay scale  attached  thereto.  it  is  then alleged that  the Contract labour (Regulation and Abolition) Act and  Rules were enacted in the year 1971 for the purpose of ameliorating the grievances of the contract labourers who have been  engaged by  the contractors.  In the instant case though  these   respondents  discharge   their  duties   and functions under  the principal  employer through  the agency off the said society but the principal employer, namely, the Eastern Railway  is now denying the legitimate right to them for being  absorbed and regularized in the Railway services. The  respondents   have  annexed  with  their  D.A.  various documents is  indicate their  service record. They have also referred  to  various  correspondence  ensured  between  the Railway Authority  and the  said society.  The  respondents, therefore, prayed  that suitable directions be issued to the appellants to  absorb and  regularize the  services of these respondents in Group D in the pay-scale attached thereto and the appellants  be restrained  from terminating the services of any of these respondents. (3)  The appellant  Nos. 1  to  5  have  filed  their  reply denying the claim made by the respondents. According to them they were  employees of  the society and they are not in any way liable  either to absorb and/or regularize them in Group D. They  are also  not entitled  to claim  the pay-scale  of Group D  employees. The  CAT on  appraisal  or  evidence  on record by  its order  dated 13.3.1997 be held the claims set up by the respondents and issued the following directions:-      "  The  application  is,  therefor,      disposed of  with a  direction upon      the  respondents   to  absorb   the      petitioners  as   regular  Group  D      employees or  such of  them who may      be required  to do  the quantum  of      work which  may be  available on  a      prennial   basis.   If   they   are      otherwise found  fit, their  pay or      wages being fixed at the minimum of      the  appropriate   scale,  provided      they are  still working as contract      labourers. This  exercise shall  be      completed within  8 weeks  from the      date  of   communication  of   this      order."      It is  this  order  which  is  the  subject  matter  of challenge in this appeal. (4)  Mr. V.N.  Goswami, Learned  Senior Counsel appearing in support of  this appeal urged that the respondents being the employees of  the society,  the  appellants  are  not  their employees of  the society,  the  appellants  are  not  their employers. Notwithstanding  the fact  that the work allotted to the  society was  carried out by the respondents who were labourers of  the said  employee between  them. He also drew our attention  to some of the clauses of the agreement dated 22.11.1994 entered into between the said society and the CMM (BI), Eastern  Railway, Calcutta.  He, therefore, urged that the respondents  have no  right whatsoever to seek direction for absorption  and regularisation  as Group  D employees of the Eastern Railway. During the course of arguments he urged that the  CAT has no jurisdiction to entertain 0.4. No. 1045 of 1995 filed by the respondents. (5)  The Learned  counsel for  the respondents supported the order and  urged that  in the facts and circumstances of the case the  directions contained  in the order dated 13.3.1997

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are suite  fair and  an do  not call for any interference in exercise of  the  jurisdiction  under  Article  136  of  the Constitution. (6)  We heard  learned counsel  for  the  parties  as  great length  and   perused  the  pleadings  of  the  parties  and documents on  record. In our opinion  the affidavit in reply filed on  behalf of  appellant Nos.1 and 5 is as vague as it could be.  There is  no specific  denial to the averments in the O.A.  filed by  the  respondents  that  they  have  been working continuously  and uninterruptedly  since 1985,  that the nature of work which they have been doing is of prennial nature. (7)  Mr. Goswami,  Strongly relied upon the judgment of this court in Civil Appeal No. 1350 of 1986 Biswanath Sana & Ors. vs. Union of India & Ors. with other connected civil appeals and Special leave petitions rendered on April 3.1997. (8)  We have gone through this judgment and it appears to us that in  the case  of  Biswanath  Sana(Supra)  the  contract labourers were requisitioned intermittently by the authority of the  Eastern Railway  as and  when there  was work and on such requisition  the labour  contractor used  to supply the labourers. Moreover  the said  order appears  to be  consent order as it clear:-      " .......  since  the  contractor’s      labour  cannot   be  considered  as      employed  by   the  Railways.   The      Eastern Railways  however,  in  the      affidavit riled  on its  behalf  by      Shri  B.   Maji.  Chief  Mechanical      Engineer     (planning)     Eastern      Railways. Calcutta dated 13th April      1993 has  offered, on  humanitarian      grounds,  that   the   contractor’s      labourers  can   form   their   co-      operative societies and participate      in  handling  and  other  contracts      issued by the Railways from time to      time.  The   appellants/petitioners      state that  they  will  accept  the      scheme.     it      is     directed      accordingly".      It is in these circumstances this held that the CAT has no jurisdiction to entertain the application filed on behalf of the Railway Contractor’s labourers. (9)  There is  a distinguishing  feature in  the case before us. In  the present case admittedly the respondents who were labourers  of   M/s  Bandel  Handling  Porters  Co-Operative Society  Ltd.,   were  given   the  work   under   agreement No.3/489/BI/CONTRACT/HANDLING/NH/94     dated      22.11.94. Therefore,  there   was  already  a  society  of  which  the respondents happened to be members and being the members and M/S Bandel  handling Porters  Cooperative Society  Ltd., the contractor supplied  them for  doing  the  work  of  Eastern Railways. As indicted earlier there is no denial on the part of the appellant Nos. 1 to 5 that the work which respondents have been  doing it  of prennial  nature. Even otherwise the directions issued  by the  CAT in  the order dated 13.3.1997 have given  enough discretion  to the  Eastern  Railways  to absorb them is regular Group D employees bearing in mind the quantum of  work available  on prennial basis and subject to their fitness.  In our  opinion the  directions contained in the order  dated 13.3.1997  passed by the CAT are quite fair in the  facts and  circumstances off  the case and it is for this reason  we are  not  inclined  to  interfere  with  the impugned order in exercise of our jurisdiction under Article

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136 of the Constitution. (10) This order  is being  passed in  the peculiar facts and circumstances of  the case  and leaving  the question of law open. (11) For the aforesaid conclusions we do not find any reason to interfere  with the  order dated 13.3.1997 passed in D.A. NO. 1045  of 1997  by the  CAT. We  accordingly dismiss this appeal but however there will be no order as to costs.