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Wednesday, July 15, 2015

“ … the petitioner Corporation’s case before the courts below was that the respondent-workmen were members of the Food Handling Co-operative Society. The case of the respondents was that they were working in the godown of the FCI in different capacities such as Dusting Operators, Pickers, Assistant Analysers and Analysers. The workmen also appear to have produced material in the form of payment sheet for the period 01.04.1991 to 16.04.1991 before the Industrial Tribunal to demonstrate that they were being paid their wages directly by the Assistant Manager (D) FCI. Before us also the Corporation insists that the respondents had no privity of contract with the Corporation and that they were at all material times engaged by and working for the cooperative society mentioned above. The Industrial Tribunal and the High Court have no doubt appraised the evidence and recorded a finding that the respondents were working as casual labourers with the appellant-Corporation but the material available on record prima facie appears to have deficient to support any such finding. Mr. Piyush K. Roy, learned counsel for the respondents fairly conceded that the only evidence which appears to have been relied upon before the Labour Court to establish a privity of contract between the respondents and the Corporation is the alleged payment sheet for the period 01.04.1991 to 16.04.1991. In the circumstances it may be difficult to sustain the findings recorded by the Industrial Tribunal and the High Court that the respondents were indeed working as casual labourers with the Corporation. That is especially so when the High Court has directed their regularization as Dusting Operators which posts according to Mr. Roy learned counsel appearing for the respondents is a promotional post to be filled up by promotion out of those working as Pickers. In that view we direct the appellant-Corporation to place on record the following: (i) Rules that suggest appointment in the cadre of Dusting Operators is permissible only by promotion out of Pickers and others working in the Food Corporation; (ii) Material to suggest whether any payment was ever made by the FCI directly to the respondents if so the period for which such payments has been made; (iii) material to show as to when the respondents were employed, by whom they were employed and when were their services actually terminated. The above is necessary because the respondents do not appear to be in active service of the Corporation for the past 10 years. The respondent shall also simultaneously file the following documents: (a) copies of engagement/ appointment order if any issued in their favour, whether in the name of the appellant-Corporation or the Food Handling Labour Co-operative Society; (b) material to show that they were actually working as casual labourers with the Corporation and that their presence/attendance was marked by the Corporation or by the Corporation authorities; (c) Termination /Retrenchments order or any other material shall also be filed by the respondents…….” 7. Pursuant to the above Order, appellant-Corporation has filed an affidavit dated 24.12.2014 along with various annexures. Insofar as the direction regarding the appointment in the cadre of Dusting Operators, appellant-Corporation has referred to the provisions of Clause 1 of Regulation 7 read with the table set out in Appendix 1 to the FCI Staff Regulations 1971 that the post of Dusting Operator could be filled up 100% by way of promotion and also referred to various provisos to Clause 9 of the Regulation. 8. Per contra, the respondents rely upon Clause 7(3)(c) of FCI Staff Regulations which provides for appointment in the Corporation on a purely temporary basis. Further, clause 7(2)(c) empowers the Board to relax any of the provisions of recruitment rules contained in Appendix 1. It has been contended that the said post of Dusting Operator can also be filled up by direct recruitment in the event of non-availability of suitable candidates for the said post. Respondents have also relied upon Circular dated 06.05.1987 issued by FCI pursuant to the meeting of Board of Directors dated 24.02.1987 thereby all casual labourers who had 90 days service on and before 02.05.1986 were proposed to be regularized according to the classification against Class III and IV posts. Further, according to the respondents, similar circular for regularization of casual employees was issued on 09.09.1996 by the FCI and many other similarly placed employees were regularized and only the case of the respondents was ignored by FCI. 9. We do not propose to go into the merits of the rival contentions raised by the parties in the additional affidavits and the documents filed pursuant to this Court’s Order dated 03.11.2014. Without expressing any opinion on the merits of the matter, we set aside the impugned order of the High Court and remit the matter back to the High Court for consideration of the matter afresh in the light of the fresh material adduced by the parties. The Division Bench of the Calcutta High Court shall afford an opportunity to both the parties and consider the matter afresh in accordance with law. 10. With the above observations, the appeal is disposed of. No order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  5079  OF 2015
               (Arising out of S.L.P. (Civil) No. 36226/2011)

FOOD CORPORATION OF INDIA                    ....Appellant

                                   Versus

SANKAR GHOSH & ORS.                            ..Respondents


                               J U D G M E N T


R. BANUMATHI, J.


Leave granted.
2.          This appeal has been filed by the appellant-Food Corporation  of
India challenging the judgment and order dated 16.09.2011 of the High  Court
of Calcutta in F.M.A. No.1172 of 2010, in and by which, direction  has  been
given to the appellant-Corporation  to  consider  the  claim  of  respondent
Nos.1 to 12 for regularization  of  their  services  by  treating  them   as
casual employees appointed in an irregular manner and  granting  liberty  to
the appellant-Corporation to absorb the  said respondents in  any  available
vacant posts.
3.          Brief facts of the case are that the Food Corporation  of  India
(FCI) awarded contract to the Food Handling            Co-operative  Society
in the year 1982 for execution of various operational works  in  its  depots
at C.S.D. Dubguri and Siliguri.   The  Food  Handling  Co-operative  Society
executed the works for two years from  10.11.1982  to  09.11.1984  and  then
continued to work up to 30.04.1995.   The  respondents  took  part  in  such
operational works as  ‘Analyser’,  ‘Picker’  and  ‘Dusting  Operators’  from
01.01.1983.  There was a dispute  with  regard  to  mode  of  engagement  of
respondents in the aforesaid posts.  According to the FCI,  the  respondents
worked under the above contractor.  However, respondents claimed  that  they
were engaged directly by FCI as casual workers. The  respondents  raised  an
industrial  dispute  and  the  same  was  referred  to  Central   Government
Industrial Tribunal, Calcutta  by  the  Government  of  India,  Ministry  of
Labour on  15.09.1994.   The   Central  Government  Industrial  Tribunal  at
Calcutta in Reference No.31/1994 vide its award  dated  06.10.1997  directed
FCI to regularize the respondents in the  post  of  Dusting  Operators  with
effect from 09.01.1983 on the basis of doctrine  of  ‘equal  pay  for  equal
work’.  Aggrieved by the same, the appellant filed writ petition being  Writ
Petition No.16519(W)/98 challenging the said award dated 06.10.1997 and  the
same was dismissed by the single Judge of the High Court  of  Calcutta  vide
Order dated 20.11.1998. Being aggrieved, the appellant-FCI preferred  appeal
being M.A.T. No.4130/1998.   By  an  interim  order  dated  22.03.1999,  the
Division Bench of the  High  Court  directed  the  appellant-Corporation  to
engage the respondents subject  to  the  result  of  the  appeal  in  M.A.T.
No.4130/1998. On 23.04.2004, the appeal was allowed and the  impugned  award
dated 6.10.1997 was set aside. Consequent thereupon,  the  services  of  the
respondents were disengaged by FCI on and from 18.05.2004.
4.          Contention of the appellant-Corporation is that the  respondents
are merely contractual labourers and were not  engaged  in  accordance  with
any of the provisions  of  the  FCI  Recruitment  Rules  1971  and  for  the
aforesaid work, contract was given to the  Labour  Co-operative  Society  of
which respondents were members. Contention of the  appellant-Corporation  is
that  in  compliance  with  the  interim  order  of  the  High  Court  dated
22.03.1999, appellant-Corporation  had  given  appointment  letters  to  the
respondents which were subject to the final order of the High Court  in  the
appeal and by final order dated  23.04.2004,  the  High  Court  allowed  the
appeal  and  quashed  the  award  of  the  tribunal  and  consequently   the
respondents  were  disengaged  with   effect   from   18.05.2004.   Further,
contention  of  the  appellant-Corporation  is  that  the  post  of  Dusting
Operator is not a direct recruitment post and is a promotional  post  to  be
filled up in 100% by way of promotion and therefore there is  no  scope  for
their regularization merely because of the fact  that  the  respondents  had
served for considerable time and the Division Bench erred in  directing  the
appellant-Corporation to consider the claim of the respondents.
5.          Per contra, the respondents-workmen contentions  are  that  they
had been appointed by the District Manager of FCI  on  09.01.1983  on  Class
III and IV posts of Dusting Operator, Picker and Analyser and  were  working
under  the  supervision  and  control  of  Food  Corporation  of  India   by
discharging their duties as a regular employees  of  the  Corporation  since
their appointment in the year 1983.  The  respondents  have  contended  that
they are duly qualified and served the Corporation for more than  ten  years
without the intervention  of  the  Court  or  the  Tribunal  and  hence  are
entitled to be regularized.
6.          Upon consideration of the rival contentions,  vide  Order  dated
03.11.2014, this Court directed the  parties  to  furnish  certain  details.
The relevant extract of the said Order reads thus:-
“     …     the petitioner Corporation’s case before the  courts  below  was
that  the respondent-workmen were members of the Food Handling  Co-operative
Society. The case of the respondents was  that  they  were  working  in  the
godown  of the FCI  in  different  capacities  such  as  Dusting  Operators,
Pickers, Assistant Analysers  and Analysers.  The  workmen  also  appear  to
have produced  material  in  the  form  of  payment  sheet  for  the  period
01.04.1991 to 16.04.1991 before the Industrial Tribunal to demonstrate  that
they were being paid their wages directly by the Assistant Manager (D)  FCI.
 Before us also the Corporation insists that the respondents had no  privity
of contract with the Corporation and that they were at  all  material  times
engaged by and working for the cooperative  society  mentioned  above.   The
Industrial Tribunal and the High Court have no doubt appraised the  evidence
and  recorded  a  finding  that  the  respondents  were  working  as  casual
labourers with the  appellant-Corporation  but  the  material  available  on
record prima facie appears to have deficient  to support any such finding.
      Mr.  Piyush  K.  Roy,  learned  counsel  for  the  respondents  fairly
conceded that the only evidence which  appears  to  have  been  relied  upon
before the Labour Court to establish  a  privity  of  contract  between  the
respondents and the Corporation is the alleged payment sheet for the  period
01.04.1991 to 16.04.1991.  In the  circumstances  it  may  be  difficult  to
sustain the findings recorded by the Industrial Tribunal and the High  Court
that the respondents were  indeed  working  as  casual  labourers  with  the
Corporation.  That is especially so when the High Court has  directed  their
regularization as  Dusting  Operators  which  posts  according  to  Mr.  Roy
learned counsel appearing for the respondents is a promotional  post  to  be
filled up by promotion out of those working as Pickers.   In  that  view  we
direct  the appellant-Corporation to place  on  record  the  following:  (i)
Rules that  suggest appointment   in  the  cadre  of  Dusting  Operators  is
permissible only by promotion out of Pickers and others working in the  Food
Corporation; (ii) Material to suggest whether  any payment was ever made  by
the FCI directly to  the  respondents  if  so  the  period  for  which  such
payments has been made; (iii)  material to  show as to when the  respondents
were employed, by whom they were employed  and  when  were  their   services
actually  terminated. The above is necessary because the respondents do  not
appear to be in active service of the Corporation for the past 10 years.
       The  respondent  shall  also  simultaneously   file   the   following
documents: (a) copies of engagement/ appointment  order  if  any  issued  in
their favour, whether  in the name  of   the  appellant-Corporation  or  the
Food Handling Labour Co-operative Society; (b) material  to show  that  they
were actually working  as casual labourers with  the  Corporation  and  that
their  presence/attendance  was  marked  by  the  Corporation  or   by   the
Corporation authorities; (c) Termination /Retrenchments order or  any  other
material shall also be filed by the respondents…….”


7.          Pursuant to the above Order, appellant-Corporation has filed  an
affidavit dated 24.12.2014 along with various  annexures.   Insofar  as  the
direction regarding the appointment  in  the  cadre  of  Dusting  Operators,
appellant-Corporation  has  referred  to  the  provisions  of  Clause  1  of
Regulation 7 read with the table set out in Appendix  1  to  the  FCI  Staff
Regulations 1971 that the post of Dusting Operator could be filled  up  100%
by way of promotion and also referred to various provisos  to  Clause  9  of
the Regulation.
8.          Per contra, the respondents rely upon            Clause  7(3)(c)
of FCI Staff Regulations which provides for appointment in  the  Corporation
on a purely temporary basis.  Further, clause 7(2)(c)  empowers   the  Board
to relax any of the provisions of recruitment rules  contained  in  Appendix
1. It has been contended that the said post of Dusting Operator can also  be
filled up  by  direct  recruitment  in  the  event  of  non-availability  of
suitable candidates for the said post. Respondents  have  also  relied  upon
Circular dated 06.05.1987 issued by FCI pursuant to the meeting of Board  of
Directors dated 24.02.1987 thereby all casual labourers  who  had         90
days service on and  before  02.05.1986  were  proposed  to  be  regularized
according to the classification against Class III and  IV  posts.   Further,
according to the respondents, similar circular for regularization of  casual
employees was issued on 09.09.1996 by  the  FCI  and  many  other  similarly
placed employees were regularized and only the case of the  respondents  was
ignored by FCI.
9.           We  do  not  propose  to  go  into  the  merits  of  the  rival
contentions raised by the parties  in  the  additional  affidavits  and  the
documents filed pursuant to this Court’s Order  dated  03.11.2014.   Without
expressing any opinion on the  merits  of  the  matter,  we  set  aside  the
impugned order of the High Court and remit  the  matter  back  to  the  High
Court for consideration of the matter afresh  in  the  light  of  the  fresh
material adduced by the parties.  The Division Bench of  the  Calcutta  High
Court shall afford an opportunity to  both  the  parties  and  consider  the
matter afresh in accordance with law.
10.         With the above observations,  the appeal  is  disposed  of.   No
order as to costs.

                                                                ……………………….J.
                                (T.S. THAKUR)

                                                                ……………………….J.
                                 (R.K. AGRAWAL)

                                                                ……………………….J.
                                 (R. BANUMATHI)
New Delhi;
July  8, 2015

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