ORDER
Arun Kumar Mitra, J.
1. In this writ petition there are 263 petitioners. Admitted back ground in moving this writ petition is, inter alia, as follows:
2. The writ petition appeared as Listed Motion before the Hon'ble Mr. Justice AMITAVA LALA on April 9, 2003. As it appears from the records Mr. Uttam Kr. Mazumder, advocate entered appearance on behalf of the Union of India. However, on that day His Lordship after hearing the submissions of both sides refused to grant any Interim order of injunction. His Lordship, however, passed two clear and specific orders. One is that the petitioners will have to deposit Court Fees for 362 petitioners out of 363 and the second is that the respondents will have to file affidavit-in-opposition by April 23, 2003 and the affidavit-in-reply by April 30, 2003 and thereafter the matter to appear being marked as for orders in May, 2003.
3, As it appears from Office Note dated April 30, 2003, Court fees as per the direction of His Lordship was not deposited and affidavits were not also filed. Subsequently, however, affidavit- in-opposition (sic) was filed by the respondents and affidavit-in-reply was filed by the petitioners. On April 9, 2003 when passing the Order His Lordship the Hon'ble Justice LALA made clear and specific observations which is as follows:
'However, this order will be operative subject to payment of Court fees by the petitioners excepting the petitioner No. 1 within a period of seven days from date.'
4. It further appears from records that Court fee was not deposited and an application being CAN No. 4316/2003 was filed on September 28, 2003 with a prayer to modify the Order dated April 9, 2003 in W.P. No. 5448 (W) of 2003 in respect of exemption from Stamp duty of 362 petitioners in terms of prayer made in the paragraphs 5-A and B. This 5-A and B as quoted in the application is as follows:
'5-A. That the petitioners will deposit the requisite Court fees after the final disposal of the main writ applications except the petitioner No. 1' And
'B. Exemption from depositing Stamp duty is hereby given to the petitioners except petitioner No. 1 in respect of the above writ application.'
5. This application also remained pending and after completion of affidavit in the main writ petition, the main matter along with this application was taken up for hearing on the joint prayer of learned Advocate for the parties.
6. Now, let me come to the prayers and or averments made out in the writ petition. The prayers as made out in the writ petitions are quoted hereinbelow:
'A) to issue a writ of and/or in the nature of Mandamus commanding the Respondents-
i) to act and proceed in accordance with law.
ii) to pass an appropriate order directing upon the Respondents authority to consider the case of the present petitioners for absorption in regular group 'D' post in light of the observation given by the Hon'ble Apex Court as well as the order of the Hon'ble High Court at Calcutta dated September 10, 1998 passed by the Hon'ble Justice ALTAMAS KABIR in W.P. No. 14693 (W) of 1998 and the order dated February 9, 2001 and order dated September 14, 2001 passed by this Hon'ble High Court.
iii) to pass an appropriate order directing upon the Respondents' authority to give other consequential benefits to the present petitioners at the time of regular absorption with effect from the date of your petitioners are entitled to get permanent status in group-D post.
B) to issue a writ in the nature of Certiorari commanding the Respondents, their officers subordinates and agents to certify and transmit to this Hon'ble Court all records relating to the instant case in terms of prayer (a) above.
C) to issue a writ in the nature of prohibition prohibiting the Respondents from proceeding any further to fill up the vacancy without considering your present petitioners till the disposal of this writ application.
D) Rule NISI in terms of prayers (a), (b) & (c) above.
E) ad-interim order of injunction do issue directing the Respondents to allow the present petitioners to appear before the screening Committee for purpose of absorption in Group-D post which is going on for regularisation of contractor labour in regular Group D vacancy.
F) ad-interim order of injunction do issue directing upon the respondents not to fill up the vacancy in respect of Group-D post without considering the present petitioners for absorption in group-D vacancy.
G) to issue a rule upon the Respondents to show cause as to why the writ or order, direction or directions as prayed for should not be issued and on hearing the cause that may be shown to make a rule absolute.'
7. The petitioners have made Union of India as respondent No. 1, Chief Personnel Officer, Eastern Railway as respondent No. 2, respondent Nos. 3, 4 and 5 are also the officers of the Eastern Railway, Sealdah Division and the respondent No. 6 is Loco Foreman, Naihati, Eastern Railway, Sealdah Division. According to the petitioner they are the contract labourers engaged as Coal and Ash Handling Contract employees under Loco Foreman, Naihati Eastern Railway Division under the overall administrative control and management of the Divisional Mechanical Engineer (Power), one of the respondents herein since 1972 to 1989. The petitioners have annexed two xerox copies of list claiming to be the listed workers of the Coal and Ash Handling Labour Contract under Loco Foreman Naihati. The Annexure P-1 appears to be the representation addressed to the Divisional Mechanical Engineer of March 4, 1986 and April 2, 1986.
8. According to the petitioners, they have worked more than 240 days and they have claimed that Railway Rules provided that the persons who have rendered more than 240 days service continuously are entitled to permanent status in respect of their services. The petitioners further claimed that the Railway Administration has not taken any step in respect of the present petitioners for absorbing them in regular Group-D posts and the Department concerned also violated the Railway Board Circular. According to the petitioners, on June 13, 1990 a Notice was given by the learned Advocate for the petitioners to the Divisional Railway Manager, Eastern Railway, Sealdah Division for regular absorption of the petitioners.
9. The petitioners then referred to one judgment and order passed by the Hon'ble Apex Court in Civil Appeal No. 1358 of 1986 (Biswanath Saha v. Union of India) in the month of April, 1997 (Reported in 1999 (82) FLR 601 (SC).) and the petitioners have annexed two letters written by one learned Advocate addressed to Divisional Railway Manager communicating some order passed by the Hon'ble Apex Court. The petitioners have also annexed a xerox copy of another communication of an order passed by the 'Hon'ble Justice KABIR in W.P. No. 14693 (W) of 1998 which has been made Annexure P-4 to the writ petition. Another order (xerox copy) has been annexed by the petitioners which is an order passed by the Hon'ble Division Bench on December 19, 2000 in MAT No. 518 of 1999. The petitioners also annexed letters of learned Advocate for the petitioners demanding justice and two others passed by the two other Hon'ble Judges of this High Court.
10. However, the whole claim of the petitioners if comprehended, it appears that the petitioners pray for their absorption as Group-D staff under Eastern Railway though at the time of submission the learned Advocate for the petitioner submitted that they are not directly praying for absorption but they are only praying for consideration of their cases for the purpose of screening test to be held by the Railway Authority and if on screening they are found suitable then they may be appointed by the Authority concerned. According to the learned Advocate for the petitioners, whatever may be their prayer in the writ petition they want to appear before a selection board for the purpose of screening test and that order should be passed by this Court. In support of his claim and contention the learned counsel relied on the decision referred to above given by different Courts in different matters. According to the learned Advocate for the petitioners, his clients/petitioners are covered by these decisions.
11. The respondents filed their affidavit-in-opposition (sic) and the said affidavit-in-opposition has been affirmed by the respondent No. 5 of the writ petition. In the affidavit-in-opposition it has been stated that the petitioners admittedly were entrusted with Coal and Ash Handling job under the contractor. Those Coal and Ash Handling Contract Labourers due to change of traction from Steam Loco to Diesel Loco have lost their jobs and under the contractor was disengaged with effect from 1985-86 since utilisation of Steam Loco was stopped thereto. Naihati Steam Loco Shed at that time was finally closed down. The writ petition has been filed long after 17 years without any reasonable explanation for delay. The Railway Board, however, in their letter No. 96440/1 dated October 29, 1999 turned down proposal for absorption of erstwhile contract labourers. The respondent in the affidavit-in-opposition also stated that as per system existing Coal and Ash Handling (sic) (See Copy 7) (sic) Contractor who engaged required labour to execute the contractual work. Therefore, the Railway never went with any contract with the petitioners nor the petitioners were under Loco Foreman, Naihati or under Administrative Control of DME (P), Sealdah. It has further been stated that the contract labourers were engaged by Coal and Ash Handling Contractor and they worked purely under the Administrative Control of the contractor and they were never the Railway employees. In the affidavit-in-opposition the Railway Authorities have annexed two letters written by Deputy Director, Mechanical Engineering (Fuel), Railway Board addressed to the General Manager (Mechanical), All India Railways. In the affidavit-in-opposition the respondents have annexed a copy of the judgment and order dated June 12, 2002 passed in W.P. No. 17505 (W) of 2002 with W. P. No. 26027 (W) of 2002 passed by the Hon'ble Justice BARIN GHOSH in indentical matters. According to learned counsel for the respondent in this judgment Hon'ble Justice BARIN GHOSH clearly observed that the petitioners therein have no right to be absorbed.
12. In the affidavit-in-opposition the respondent also stated that scrutiny committee was formed as per the directive of the Hon'ble High Court as well as written representation of all the petitioners were scrutinised by one scrutiny committee comprising of three officers while the committee found no eligibility in the petitioners. Accordingly claim of the petitioners were rejected. In paragraph 14 of the affidavit-in-opposition it has been categorically stated that the utilisation of the private contractor had been stopped since 1985 because of Steam Loco being withdrawn. The respondent in their opposition denied all other allegations made by the petitioners in the writ petition and in paragraph 17 the respondents have given reference of four writ petitions which according to them are identical in nature and have been dismissed by this High Court.
13. The petitioners have submitted reply to the affidavit-in-opposition and placed reliance on the judgments and orders annexed by them in their writ petitions and the petitioners reiterated their stand for absorptions as Group-D staff under the Railways.
14. Heard the learned counsel for the parties. Considered their respective submissions and considered the averments made in the writ petition, affidavit-in-opposition and affidavit-in-reply. Firstly, it is to be noted that the petitioners annexed alleged working statements (assuming those are correct) of 1985/86. The petitioners have also annexed two letters written in the year of March and April, 1986 which they claim to contain the list of the contract labourers. Nowhere from the petition or the annexures or the reply or any other records it appeared that the petitioners are working as on date.
15. Now, let me discuss the judgment and/or decision relied on by the petitioners and/or the case made out in the writ petition in this regard. In paragraph 7 of the writ petition the petitioners have quoted one order of the Hon'ble Apex Court. In this order the Hon'ble Apex Court, ultimately observed that it would be of the concerned Railway to take such measures as they may consider appropriate in this regard, therefore, in this case, the Hon'ble Apex Court did not issue any direction for absorption. The order of another case which has been quoted in paragraph 8 being the order of Hon'ble Justice KABIR passed on September 10, 1998 in W.P. No. 14693 (W) of 1998. In this order also the Hon'ble Justice KABIR directed the Railway authorities to scrutinise the matter and did not direct any absorption of the petitioners. That apart, it is not clear from the order or the averments that the facts of the cases are identical inasmuch as the petitioners could not produce any document of their working till date after 1985/86. The next order which has been relied upon being annexure to the writ petition has been passed by the Hon'ble Justice ASOK KH, GANGULY as Presiding Judge in a Division Bench of this High Court. Here also Hon'ble Justice GANGULY directed that the petitioner will make their detailed factual representation before the committee after it is constituted and the petitioners are entitled to make oral representation also before the said committee and the committee will consider and hear the representation. From this judgment also it appears that Hon'ble Justice GANGULY directed the committee to be framed by the Railway for the purpose of scrutiny and the said committee to consider the claim of the petitioners and the Division Bench dismissed the appeal. Now, the order passed by the Hon'ble Justice A.K. CHAKRABORTY in W.P. No. 12566 (W) of 2001 has been relied upon by the petitioner. The order was passed on September 14, 2001. In this order also Hon'ble Justice CHAKRABORTY directed the Railway authorities to consider the claim of the petitioners after granting opportunity in the light of the order passed W.P. No. 14693 (W) of 1998.
16. From any document or in any manner whatsoever the petitioners could not establish that they have been continuing with their jobs as on today. The petitioners also could not establish that the judgments and orders relied upon by them tend to give mandatory direction for the purpose of absorption.
17. The petitioners also could not establish that they have got locus standi or right to be absorbed. Neither the petitioners have made the contractor a party respondent so that the working details as claimed by them are proved to be factually correct, nor the petitioners could establish that they are in the main stream through their jobs which are perennial in nature and actually they are in the pay role of the Railway Authority and not the contractor. In fact, the learned counsel for the petitioners pray for formation of a selection committee and to make a scrutiny test and they be allowed to face the scrutiny test.
18. In my view firstly the petitioners are to establish that they have got legal right then the question of consideration of their prayer comes. Even if the Hon'ble Division Bench in MAT No. 518 of 1999 dismissed the appeal and directed the authority to consider the case of the writ petitioners therein. However, the orders referred to or quoted are only the ordering portion and the petitioners could not establish through any document that the facts arc identical in all the cases referred to and/or, relied upon in the writ petition. The petitioners in the reply also could not answer the assertion made on behalf of the respondents authorities that the term of the contractor under whom they were working ended in the year 1985. The reason for delay in filing this writ petition which is of 17 years has been explained nowhere in the writ petition. That apart, already the respondents took a screening test in pursuance of the Order passed by the Court and on consideration the Selection Committee have rejected their claim and as such the petitioner cannot agitate the same claim once again after such a long period.
19. Relevantly provision of Contract Labour (Regulation and Abolition) Act, 1970 may be referred to Section 10 of the said Act is quoted hereinbelow:
'10. Prohibition of employment of contract labour -
(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or as the case may be, a State Board, prohibit, by notification in the official gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to me conditions of work and benefits provided for the contract labour to that establishment and other relevant factors, such as -
(a) Whether the process, operation or other work is incidental to, or necessary for the Industry, trade, business, manufacture or occupation that is carried on in the establishment.
(b) Whether it is of perennial nature that is to say, it is so of sufficient duration having regard to the nature of Industry, trade, business or occupation carried on in that establishment,
(c) Whether it is done ordinarily through regular workmen in that establishment or an establishment similarly thereto;
(d) Whether it is sufficient to employ considerable number wholetime workmen.
Explanation
If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final.'
20. This provision of the said Act has been taken into consideration by the Hon'ble Apex Court in the Judgment reported in Steel Authority of India Ltd. v. National Union Water Front Workers, : (2001)IILLJ1087SC . In my opinion after this judgment of the Hon'ble Apex Court there is no scope for absorption of contract labour directly. The relevant paragraphs being paragraphs Nos. 119 and 120 of the Judgment referred to above are quoted hereinbelow at pp. 1131, 1132 of LLJ:
'119. The upshot of the above discussion is outlined thus:
1. (a) Before January 28, 1986, the determination of the question whether the Central Government or the State Government is appropriate Government in relation to an establishment, will depend, in view of the definition of the expression 'appropriate Government' as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled Industry, or the establishment of any railway, cantonment board, major port, mine or oil-field or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government, otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government;
(b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the Central Government company/undertaking concerned or any undertaking concerned is included therein co nominee, or (ii) any industry is carried on
(a) by or under the authority of the Central Government, or (b) by a railway company, or (c) by a specified controlled industry, then the Central Government will be the appropriate Government; otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.
(2)(a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government.
(i) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and
(2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question, and
(ii) other relevant factors including those mentioned in sub-section (2) of Section 10,
(b) Inasmuch as the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this Judgment and subject to the clarification that on the basis of this Judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any Tribunal or Court including a High Court if it has otherwise attained finality and/or it has been implemented.
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any Court including the High Court, for absorption of contract labour following the Judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this Judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislation so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualification.
120. We have used the expression 'industrial adjudicator' by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to Judicial review.
In the result:
C.A. Nos. 6009-10 of 2001 @ SLPs (C) Nos. 12657-58 of 1998.'
In a recent decision reported in A.I. Railway Parcel and Goods Porters Union v. Union of India : (2003)IIILLJ827SC : The Hon'ble Apex Court has observed that the 'burden of proving the claim of continuous working rests on the claimants for which they are required to furnish concrete proof and reliable documents.'
21. Now, let me consider the instant case of the petitioner in the touch-stone of the above two Judgments of the Hon'ble Apex Court.
22. It is admitted position that after the introduction of diesel steam loco the contract of the contractor ended and the services of the petitioners were terminated inasmuch as the petitioners were engaged in the work of Coal and Ash Handling Works and the same was effected in the year 1985-86. In that view of the matter in terms of the judgment reported in (SC) (supra) the petitioners could not prove that they are still working. In fact, the petitioners were disengaged 17 (seventeen) years back.
23. I do not propose to encumber this judgment by referring to several other decisions or judgments in this regard and I come to the conclusion in the manner as follows:-
A) The application being CAN No. 4316 of 2003 is rejected in view of the fact that the Hon'ble Justice LALA entertained the writ petition on condition that the petitioners will deposit Court fees within seven days for 362 petitioners and no appeal was preferred against the said order passed by the Hon'ble Justice LALA. Within seven days Court fees were not deposited, no prayer for extension of time to deposit Court fees was made before Justice LALA and on the contrary after about five months on September 20, 2003 the petitioners filed an application praying for exemption of deposition of Stamp duty and prayed that the petitioners be given liberty to the extent that they will deposit the requisite Court fees after the final disposal of the main writ petition which is an absurd proposition.
B) The petitioners could not satisfy this Court that they have been still working as contract labour and are engaged in the mainstream of job or their jobs are perennial in nature and on the contrary, on their own admission (as made out in paragraph 2 of writ petition) respondents stated that they worked upto 1989. After the change from Steam Engines to Diesel Engines the scope of Ash Handling became over and the contractor went away in the year 1985/86 and in that view also the jobs of the petitioners could not be perennial in nature. The petitioners in paragraph 2 of writ petition averred that they worked from 1972 to 1989.
C) The petitioners though not praying for absorption but through their learned Advocate prayed for formation of a Selection Committee to take a screening test in respect of their claims which is not possible in view of the fact that admittedly one screening test has already been held two years back under Court's order and each and every time the petitioners move a writ petition, they cannot claim formation of a Selection Body for screening his claims.
D) The judgment relied on or the orders cited and are annexed in the writ petition does not go in favour of the petitioners and the petitioners rather could not prove that the cases are identical.
24. The writ petition, therefore, fails and is dismissed. There will be no order as to costs.
25. Urgent xerox certified copy, if applied for, will be supplied to the parties expeditiously.