Damodar Valley Corporation Vs. Goutam Sinha and ors. - Court Judgment

Tapen Sen, J.

1. This Appeal has been filed challenging the Judgment and Order dated 7.5.2003 passed in W.P. 6063 (W) of 2002 Goutam Sinha and Ors. v. D.V.C. and Ors. whereby and whereunder a learned Single Judge of this Court directed that the Writ Petitioners/workmen/Private Respondents (hereinafter referred to for the sake of brevity as the Private Respondents) be included in the panel in terms of Annexures- P14 and P15 (brought on record by the Appellants through their supplementary Paper book) for purposes of absorption in accordance with the prevalent Schemes by treating as if their names had appeared in the panel right from the very beginning.

2. The facts of this case, as gathered from the Paper Book, are that the Private Respondents filed the Writ Petition which was registered as W.P. No. 6063 (W) of 2002 wherein, while referring to the Office Circular dated 15.9.1977 and 25.5.1996 as well as other Circulars, they inter alia prayed for the issuance of a Writ of or in the nature of a Writ of Mandamus directing the Appellant and its Officers (who were arrayed as Respondents therein) to prepare a Panel of Casual Employees working in the colony beautification work at the Durgapur Thermal Power Station and, after preparation of the said panel, a further Writ be issued directing their absorption on permanent basis on Group 'D' posts in the said Durgapur Thermal Power Station with immediate effect.

3. Mr. Arunava Ghosh, learned Counsel appearing for the Appellant, has submitted that the impugned Order is totally erroneous and unless set aside, the same will cause serious complications to all concerned including other empanelled workmen. He challenged the impugned Order by submitting that the direction to include the names of the Private Respondents by treating them as already empanelled right from the beginning would have a disastrous effect to all those persons who were already in the Panel and who had been so empanelled after they had applied in terms of the Circular dated 15.9.1977 but who were not even Parties before the Court. He then submitted that if the Private Respondents are included in the Panel, it would affect those persons and this would have serious complications.

His further submission was that the Circular (Annexure-P11) dated 15.9.1977 as included in the Supplementary Paper-book which was filed pursuant to leave having been granted on 19.2.2008, had laid down certain norms and procedure to be followed for purposes of recruitment to Class-III Posts and this Circular, in effect, was a Scheme which inter alia laid down that the appointment to Class-III Posts including temporary/casual employees, could be made through the usual process of interview/test after their names had been received pursuant to Applications having been invited and routed through the concerned Employment Exchange where the names of these candidates were registered. He submitted that such a procedure having been set out under Clause 3A read with Clause 3B of the said Circular dated 15.9.1977, the same was followed in the case of other candidates but so far as the Private Respondents were concerned, they had neither appeared in any Interview nor had they sat for any Test and therefore, if the Order of the learned Single Judge had to be implemented, the same would, in fact be in violation of the said Circulars.

4. Let it be recorded that Annexure-P14 and P15 (referred to in the impugned Order/Judgment) have been brought on record by the Appellants in their Supplementary Paper-book which they have filed pursuant to leave having been granted on 19.2.2008. We have gone through Annexure-P14 and we find that it is an Office Memorandum dated 15.2.1992 and it notifies the direction given to all appointing authorities of Group 'C' posts to prepare a Panel of casual employees who had worked for more than 240 days and a supplementary list of all casual workers who had worked for 180 days or more but less than 240 days and then, to send those lists to the Corporation. It was further directed that while sending the panel, it should be ensured that the empanelled candidates included the names of only those casual employees who had worked in the Corporation's Installations before 6.4.1990. We have also gone through the contents of Annexure-P15 which is an Office Memorandum dated 7.2.1995 in which, while referring to another Office Memorandum dated 12.2.1992 (Annexure-P12), it says that the Corporation had fixed a certain percentage of revised quota for different categories of empanelled persons for appointment on Group 'C' Posts. Mr. Arunava Ghosh then submitted that at the relevant time however, the Office Memorandum which was in force was the one which was issued on 15.9.1977 (Annexure-P11 to the Supplementary Paper book) and Clauses 3(A) and 3(B) thereof which, according to him are relevant, read as follows:

(3) For implementation of the above (illegible) the following procedure will be adopted:

(A) Every project will prepare panels of the candidates for appointment in Class III posts (excluding Security Guards) in respect of each of the following categories separately through the usual process of interview/test as the case may be:

i) retrenched employees

ii) compassionate causes

iii) DVC trained apprentices who have successfully passed the ITI

iv) Temporary/Casual employees

v) Sons/daughters of Class III employees, retiring or retired from now on.

vi) Displaced person of the project after due interview and verification of documents, certificates, etc.

In preparation of the above panels, proper reservations for Scheduled Castes and Scheduled tribes as prescribed under Govt. of India orders, which is 14% for SC and 9% for ST...illegible...and 20% for SC and 6% for ST for establishments situated in the State of West Bengal, shall be ensured.

(B) While inviting applications from the candidates, it should be mentioned that the candidates should be registered with the Employment Exchange and they must quote their registration number. The candidates registration should be verified at the time of interview.

(Quoted but emphasis by bold fonts is by this Court)

5. Learned Counsel then submitted that apart from the aforesaid, the Private Respondents had filed the 1st Writ Petition which was registered as Civil Order No. 14709 (W) of 1989 after a delay of 12 years from the aforesaid 1977 Circular (i.e. Annexure-P11 to the Supplementary Paper-book referred to above) and therefore, they were not entitled to any relief because in that Writ Petition, the Private Respondents had moved through their Union (D.V.C. Contractors workers Union) praying for their absorption. They could not succeed as the said Writ Petition was dismissed on 12.6.1996 with the observations that since they had never worked as casual workers directly under the D.V.C., there was no question of giving a direction upon the said D.V.C. to absorb them. The Order dated 12.6.1996 dismissing the Writ Petition has been placed at Page 62 of the Paper-book. He submitted that the said Judgment dated 12.6.1996 could not have been bypassed by the learned Single Judge who did not consider any of these points while passing the impugned Order.

6. We are unable to accept the contentions and/or submissions of Mr. Ghosh for the reasons which will appear from the paragraphs appearing hereinafter, but before we give our reasons, it would be necessary to briefly advert to the facts of the case (as gathered from the Paper-book).

7. According to the case of the Private Respondents, the Director of Soil Conservation of M/s. D.V.C. (Proforma Respondent No. 48) had engaged them in the Durgarpur Thermal Power Station for afforestation as well as for colony beautification in different sites in and around the said Thermal Power Station. According to the Private Respondents, they were performing the said job directly under the control of the Superintending Engineer (Civil), Durgapur Thermal Power Station, D.V.C. and were rendering their services since 1975. In support of these contentions, the Private Respondents brought on record various documents including their Identity Cards etc. We notice, at the risk of repitition, that the Damodar Valley Contractors and workers' Union had espoused the cause of the Private Respondents by filing a Writ Petition under Article 226 of the Constitution of India before this Court which was registered as Civil Order No. 14709 (W) of 1989. The same came up for final hearing on 12.6.1996 when, it was Dismissed. Upon a perusal of the said Order (brought on record at Page 62 of the Paper- book), we find that in that case an Affidavit-in-Opposition had been filed by the Appellants in which it was categorically stated that the Private Respondents were never appointed by the D.V.C. and that they were working under Contractors who were given job contracts for beautification and for certain other jobs necessary for nursery.

The learned Single Judge, while Dismissing the Writ Petition, observed that since the pleading to the effect that the 41 persons had been appointed by D.V.C. was not correct as was evident from the Affidavit- in-Opposition, and since they never worked under D.V.C. directly, there was therefore no question of directing the D.V.C. to absorb them as permanent employees. The Writ Petition was accordingly dismissed.

The said Order is necessary to be quoted and the same reads as follows:

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

The 12th day of June, 1996

Present

The Hon'ble Mr. Tarun Chatterjee

One of the judges of this Court.

Civil Order No. 14709 (W) of 1989 issued by this Court. In the matter of an Application under Article 226 of the Constitution of India.

And in the matter of an order, directions and/or Writ in the nature of Mandamus, Certiorari and/or Prohibition.

And in the matter of any other appropriate order, direction and/or writ.

And in the matter of an application under Article 14 and 16 of the Constitution of India.

And in the matter of Memo No. 1700-Emp/30-27/78 dated Calcutta 3rd August, 1979, issued by the Chief Secretary, Government of West Bengal, Labour Department, Laying down the principles for absorption of casual and other categories of workers in perennial type of works.

And in the matter of Memorandum No. 1650- Emp/Emp/3C5/ 80 dated Calcutta, the 28th August, 1980 issued by the Chief Secretary to the Government of West Bengal, Labour Department.

And in the matter of Non-Consideratioin of the charter of demands placed by the petitioner on several occasions. And in the matter of Refusal of the Respondents to absorb the mazdoors, members of the petitioner on regular basis at the Forest Department of Damodar Valley Corporation, Durgapur Thermal Power Station at Maithan and Panchet.

And in the matter of Damodar Valley Corporation Contractors Workers Union through the Secretary of the said Union DTPS Unit, Durgapur-7..Petitioner.

-Versus-

1. The State of West Bengal, service through the Deputy Secretary, Department of Labour, Writers' Buildings, Calcutta-700001.

1 (a). Damodar Valley Corporation through the General Manager Bhabani Bhawan, Alipore, Calcutta-700027.

2. The Director of Soil Conservation, Soil Conservation Department, Damodar Valley, Corporation Hazaribagh.

3. The Labour Commissioner, Government of West Bengal, New Secretariat Building, Calcutta- 700001.

4. The Deputy Labour Commissioner, City Centre, Durgapur-16.

5. The General Manager, Damodar Valley Corporation, Bhowani Bhawan, Alipore, Calcutta- 700027.

6. The Director of Personnel, Damodar Valley Corporation, Bhowani Bhawan, Alipore, Calcutta- 700027.

7. The Chief Engineer, Damodar Valley Corporation, Durgapur Thermal Power Station, Durgapur-7.

8. The Forest Officer (Forest Department) Damodar Valley Corporation, Hazaribagh, Bihar.

9. The Assistant Ranger, Durgapur Thermal Power Station, Damodar Valley Corporation, Durgapur-7..Respondent

None appears...for the petitioner.

Mr. Ashim Kumar Ghosh...for Respondent

D.V.C.

I am unable to grant any relief to the writ petitioner in view of the admitted facts stated in it.

The writ petitioner is the D.V.C. Contractors and workers' Union and the same has been moved in this Court through the Secretary of the said Union. The said union has moved this writ petition to ventilate the grievance of fortyone persons who are sought to be absorbed in the employment of Damodar Valley Corporation. In the writ application it has categorically stated that these persons were appointed by D.V.C. an affidavit-in-opposition has been used in which it has been categorically stated that the said persons were never appointed by D.V.C. nor they ever worked under the direct appointment of D.V.C. even as casual workers. From the affidavit-in-opposition filed on behalf of D.V.C. it is now evident that these persons were really working under the Contractors who were given some job contracts for beautification and also to execute certain necessary jobs of nursery work. Since in the writ application it has been pleaded that the aforesaid forty-one persons were appointed by D.V.C. which is not correct, as would be evident from the affidavit-in-opposition, I am of the view that since the aforesaid forty one persons never worked under D.V.C. directly as casual employees, there is no question for this Court to give a direction upon the D.V.C. authorities to absorb the said forty one persons in the employment of the said Corporation. Since the Union on behalf of the aforesaid forty-one persons could not satisfy me that they have get any legal right to move this writ petition against the D.V.C. I do not feel that any relief can be granted to the writ petitioners. Accordingly, this writ petition is rejected.

Interim order, if there be any, also stands vacated.

This order, however, shall not prevent the writ petitioners from making a fresh representation before the authorities of D.V.C. and to pray for their absorption in the employment of D.V.C. if any application is made to that effect it is needless to say that the authorities of the D.V.C. shall decide the same in accordance with law.

There will be no order as to costs.

The 12-06-96

Sd/-

Tarun Chatterjee, J.

(Quoted but emphasis by bold fonts is by this Court)

8. It appears that thereafter, and perhaps because the Appellants had taken a stand that the Private Respondents were Contract Labourers, that the Private Respondents therefore filed an Application on 24.9.1998 before the appropriate Government under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, praying for abolition of the system of Contract Labourers being engaged/employed in the Durgapur Thermal Power Station for performing jobs that were perennial in nature.

From Pages 74 and 88 of the Paper-book, it appears that before however moving the appropriate Government, the Private Respondents had filed a second Writ Petition being W.P. No. 2186 (W) of 1999 in which, claiming themselves to be contract labourers, they had prayed for a direction upon the Central Government to issue a Notification under Section 10(1) of the Contract, Labour (Regulation & Abolition) Act, 1970 with a further prayer for their absorption in the regular establishment.

This Writ Petition was taken up on 16.2.1999 (Page 87 of the Paper book) and the same was disposed of after noticing that an Application under Section 10(1) of the said Act was already pending decision by the Central Government. Accordingly, a direction was made upon the Central Government to consider and dispose of the said pending Application within three months after giving reasonable opportunity of hearing to all concerned. It was also observed that in the event the Central Government was satisfied that a Notification was required under the provisions of the aforesaid Act, then the Private Respondents would be entitled to the benefits of such a Notification provided they were able to establish that they were functioning as contract labourers on that date.

Thereafter, the matter was taken up for consideration in the 45th Meeting of the Central Advisory Contract Labour Board on 29/30.6.2000. It was stated in Para 18 of the instant Writ Petition (W.P. No. 6063 (W) of 2002) that at the time of consideration, the Private Respondents as well as the Authorities of the D.V.C. submitted a Settlement before the said Board and requested for the disposal of the said proceedings in terms of the said Settlement.

9. Upon a perusal of the Minutes of the 45th Meeting (the same has been brought on record between pages 153 to 174 of the Paper book) we find that Agenda No. 11 related to the consideration of the Report of the Committee to go into the question of abolition of contract labour system in colony beautification in the establishment of D.V.C. We find that the Board considered the question as to whether, the Union of the Private Respondents should be allowed to withdraw their request for abolition of contract labour consequent upon the Settlement arrived at with the Management Initially, there was a difference of opinion but the Board finally decided to go by the majority opinion and agreed that the Union should be allowed to withdraw their request for abolition of contract labour in the aforementioned establishment of D.V.C. and accordingly recommended the said proposal to the Government.

The relevant portions of the Minutes of the 45th Meeting referred to above are to be found at Pages 153, 161 and 163 of the Paper book and they read as follows:

MINUTES OF THE 45TH OF THE CENTRAL ADVISORY CONTRACT LABOUR BOARD HELD ON 29TH-30TH JUNE, 2000 Item No. 11: Consideration of the Report of the committee to go into the question of abolition of Contract labour system in colony beautification in the establishment of Damodar Valley Corporation.

The Board observed that in these items, the issue under reconsideration it whether the Union should be allowed to withdraw their request for abolition. Consequent upon a settlement arrived at with the respective management. The board was divided in its opinion whether the settlement should be upheld and the union allowed to withdraw their request for abolition.

Shri C.K. Desai, Member was of the view that as Section 10 contemplates abolition of the nature of process and improved wages and benefits are not a condition precedent for action under Section 10, the agreement arrived at by the parties does not forbid the board from making its recommendation under Section 10. Further the board is not aware whether the settlement is fair and just and not the result of any coercive measure.

DG (LW) and Shri S. Saha Members were broadly in agreement with Shri Desai, Shri V.S. Rao, Member was of the view that as the board had decided to look into the question of abolition under Section 10, the matter should be taken to its logical conclusion. Chief Labour Commissioner (C) was of the view that if it is a direction of the court, the same should be settled by the parties in court and the process by law cannot be.... The representative from C.P.W.D. was of the opinion that once the union had withdrawn their request, there is no point in pursuing it further.

The Chairman was of the view that issue is not withdrawn a point of principle should be established but how best to solve the problem. Section 10 of the Act is not declaratory in nature and it mandates that the working conditions and benefits afforded to contract labour has to be seen. The committee deferred its study because the impending settlement. Settlements have been sanctified by the Supreme Court also over awards of tribunals. It would be an act of prudence to allow the union to withdraw its request in view of the settlement. S/Shri L.R. Singh V. Balasubramaniam, Nagrath, Bahmani and T.S. Tiwari agreed with the Chairman.

The Board finally decided to go by majority opinion and agreed that the petitioner/union may be allowed to withdraw their requests for abolition. It recommends to the Government accordingly.

(Quoted but emphasis by bold fonts is by this Court)

10. Mr. Malay Kumar Basu, learned Senior Counsel appearing for the Private Respondents, has submitted that thus, on two occasions it was at the instance of the Appellants D.V.C. that the Private Respondents were made to lose their claims. According to him, they first made a wrong statement before the 1st Writ Court to the effect that the Private Respondents were contractors' labourers and then, when the matter went up to the Central Advisory Contract Labour Board, they (D.V.C.) frustrated even those Proceedings on the basis of a Settlement arrived at between the Parties. The said Memorandum of settlement has been brought on record between Pages 148 to 151 of the Paper book and the same reads as follows:

Memorandum of Settlement between the forestry workers engaged in colony beautification work at DTPS and DVC management in presence of the Regional Labour Commissioner (Central), Govt. of India, Asansol.

1. A seniority list of all the workers working in DTPS colony beautification work will be prepared by constituting a committee for the same. The committee so constituted will have a representative from the colony beautification workers. The committee will submit its report within one month. In case of any differences of opinion in determining their seniority, the decision of the Regional Labour Commissioner (C), Government of India, Asansol will be final and binding to both the parties.

2. 15% of the vacancies, occurring in the regular scale of pay in the Civil Division, DTPS in Group-D categories will be filled up from and amongst the colony beautification workers whose seniority list will be prepared and will be appointed under Group-D categories in Civil Division. However, this quota may be changed if the Corporation's policy regarding quota for recruitment under Group-D category is changed.

3. The workers will be entitled for the minimum wages fixed and notified by the Government of West Bengal from time to time including DA thereupon, if so notified. They will also be paid an adhoc amount for Rs. 150/- per month in addition to the minimum wages which will be payable from the date of agreement between the parties.

4. House Rent Allowance will be admissible Rs. 5% per worker on the minimum wages if no accommodation is provided to them. However, efforts will be made to provide them non- type accommodation, if available in the project.

5. They will be paid Rs. 50/- per month per worker as medical allowance in addition to the outdoor medical facilities.

6. Washing allowance @ Rs. 20/-per month per worker will be admissible to them.

7. These workers will be entitled for Bonus @ Rs. 8.33% on the basis of the minimum rate of wages paid to them.

8. In addition to above these workers will be given the following facilities:

a) Earned Leave- Maximum 15 days in a calender year depending upon the number of days actually worked and it may be reduced on prorata basis.

b) Casual Leave- 8 days in a calender year.

c) Medical Leave- upto 10 days in a calender year.

d) Holidays- the number of holidays notified will be admissible to them which will include National Holidays also.

e) Leaves so admissible are to be availed within the calender year in which the same is due and Medical Leave will be granted on production of Medical Certificate.

If any indisciplined behaviour is made by any worker disciplinary action will be taken by the Corporation.

Signature of the Representatives of the Forestry Workers, DTPS:

1) Sd/- Goutam Sinha 2. Sd/- Chandra Kanta Sinha Roy 3) Sd/- Sisir Chakraborty 4. Sd/- Banku Bouri

Witness: Sd/- Mintu Kumar Goswami, Advocates

Signature of the Management's representatives:

1.

2.

3.

4.

Signature of the Regional Labour:

Commissioner (Central), Govt. of India, Asansol.

(Quoted)

11. Mr. Basu submitted that when the matter was taken up for consideration by the Central Advisory Contract Labour Board, the authorities of the D.V.C. themselves submitted a copy of the aforesaid Settlement before the Board and requested that in view of the same, the matter be disposed of in terms thereof. Since, by reason of the said Settlement, the D.V.C. had agreed to provide absorption to the Private Respondents, the Board accordingly recommended withdrawal of the Proceedings. This would be evident upon reading Paras (f), (g) and (h) of the impugned Order dated 7.5.2003 itself and which read as follows:

(f) The said matter was taken up for consideration by the Central Advisory Contract Labour Board when petitioner No. 1, contractors DVC and additional Director, DVC were present and at the time of consideration of the said matter the petitioners as well as DVC authority submitted a copy of the settlement before the Board and requested the Board to dispose of the said proceeding in terms of the said settlement;

(g) As DVC agreed to provide absorption of the petitioners in those posts along with all other benefits, the Central Advisory Contract Labour Board recommended withdrawal of the said proceeding;

(h) Thereafter, the petitioners made application on February 02, 2002 to the DVC authority praying for absorption in the posts as well as for release all the benefits as per settlement arrived at between the parties before the Central Advisory Contract Labour Board.

(Quoted as it appears in the paper book)

12. After disposal of the matter on 29/30-6-2000 by the Central Advisory Contract Labour Board in the manner stated above, the Private Respondents thereafter filed an Application on 2.2.2002 before the Appellants wherein they prayed for their absorption and other benefits in terms of the Settlement but the Appellants did nothing in the matter and as a result thereof, the Private Respondents then filed the present Writ Petition [W.P. No. 6063 (W) of 2002] in which the impugned Order was passed on 7.5.2003.

13. Considering these facts and circumstances, the said Writ Petition was finally taken up on 7.5.2003 and was disposed of by directing the Respondents to include the names of the Private Respondents in the Panel and to pass Orders for their absorption as if their names had appeared in the Panel from the very beginning.

14. We have carefully gone through the Order and we do not find any reason to interfere with the same. Upon a perusal and upon consideration of the facts taken note of above, it is evident that the Appellants have deliberately frustrated the attempts of the Private Respondents at two crucial stages. Firstly, they made a totally wrong statement before the 1st Writ Court when they described the Private Respondents as contract labourers and it was on the basis of such a wrong statement of the Appellants that relief was denied to the Private Respondents on 12.6.1996.

15. The Appellants did not stop there. Pursuant to another Order dated 16.2.1999 passed in their 2nd Writ Petition being W.P. No. 2186 (W) of 1998 (taken note of above), when the matter went up to the Central Advisory Contract Labour Board, the Appellants frustrated even that Proceeding by entering into a Settlement with the Private Respondents as a result of which even the Central Advisory Board made the Union withdraw their claim for absorption. The settlement had become binding but even then, the Appellants did nothing in the matter and as a result thereof the Private Respondents were then forced to file the instant Writ Petition being W.P No. 6063 (W) of 2002 in which the impugned Order has been passed.

16. In our opinion, the learned Single Judge rightly observed that a deliberate wrong statement was made by the Appellants before the 1st Court. It is also evident that the learned Single Judge rightly took into consideration that in a subsequent Proceeding, the Appellants took the plea that the Private Respondents were never appointed by Contractors, but they nevertheless give an impression that they had entered into a Settlement with them (the Private Respondents) and it was on that basis, that even the Workers' Union, trusting them, withdrew their claim for absorption.

17. Such conduct, on the part of a Government Corporation not only amounts to violating the Settlement but also amounts to misleading the Courts and other competent authorities at different stages by taking different stands at different Courts only to wriggle out of their liabilities attracting the principles of Qui Approbat Non Reprobat. Such conduct cannot be allowed nor can we allow the Appellants to commit a volte-face and take a plea that the learned Single Judge erred in law. In fact after having gone through the Judgment and the facts noticed above which are involved in this case, we feel that the observations of the learned Single Judge were absolutely correct when he said that the 'fact that the petitioners were all appointed by the respondent could not be disputed by the respondents in this writ application. Therefore, it is apparent that a deliberate wrong statement was made before Chatterjee, J. in the affidavit denying that the petitioners were duly appointed by the respondent and on the basis of such affidavit, His Lordship rejected the previous writ application.' (Quoted)

Therefore, in the facts and circumstances of this case, we are of the view that no interference with the impugned Order is called for. We accordingly uphold the Judgment of the learned Single Judge and as a result, we dismiss this Appeal but without costs.

Upon appropriate Application(s) being made, urgent Xeroxed Certified copy of this Order, may be given/issued expeditiously subject to usual terms and conditions.

Sadhan Kumar Gupta, J.

18. I agree.

Later:

Prayer for stay of this Judgment made by the learned Counsel for the Appellant after delivery thereof, in Court is considered, and refused.