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PETITIONER: TRINATH HARICHANDAN & ORS.

       Vs.

RESPONDENT: CHAIRMAN, PARADEEP FORT TRUST& ORS.

DATE OF JUDGMENT:       05/02/1998

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                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.                       J U D G M E N T      The following Judgment of the Court was delivered: S.B.  Majmudar, J.      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.

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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

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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

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    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."

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    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

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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

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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

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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

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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,

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    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-

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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

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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

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(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." <sle> 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

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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

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    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

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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

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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.