Gauhati High Court
Page No.# 1/2 vs Food Corporation Of India And 3 Ors on 11 November, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/21
GAHC010110772020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3314/2020
NARESH SAHANI AND 21 ORS.
S/O. NOONU LAL SAHANI, R/O. ANAD NAGAR, BAMUNIMAIDAM, PIN-
781021.
2: JOY PRAKASH KEOT
3: RAJO SAHANI
4: SHAYAM LAL PASWAN
5: RAJ KUMAR SAHANI
6: RAM CHLITRA SAHANI
7: RAMA SHANKAR RAY
8: ASHOK SAHANI
9: BABLU SAHANI
10: RAJU CHAUDHURY
11: MD. SUKURULLAH ALI
Page No.# 2/21
12: KRISHNA RAM NEOG
13: HARI DAS
14: DIMBESWAR BARMAN
15: AJIT KUMAR NAYAK
16: CHATRADHARI CHOUBEY
17: DILIP BORA
18: DAYA DEKA
19: BIDHAN DAS
20: BIDYA DEKA
21: DINESH MALAKAR
22: RABIN KALIT
VERSUS
FOOD CORPORATION OF INDIA AND 3 ORS.
16-20, BARAKKHAMBA LANE, NEW DELHI-110001 REP. BY ITS MANAGING
DIRECTOR.
2:ASSTT. GENERAL MANAGER (IR-L)
3:DEPOT IN CHARGE FOOD CORPORATION OF INDIA
Page No.# 3/21
4:UNION OF INDI
Advocate for the Petitioner : MR A DASGUPTA
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : WP(C)/3381/2020
BINDESWARI SINGH AND 18 ORS
Address:S/O JHARI LAL SINGH
R/O KARBI NAGAR
HOUSE N. 10
BAMUNIMAIDAM
GUWAHATI-21
2: NAWAL SAH
Address:S/O LT. KAMLA SAH
R/O VILL. SUNCHALI
BILLPAR
HOUSE NO. 46
NOONMATI
GUWAHATI-20
3: RADHE MAHATO
Address:S/O BAJRANGI MAHATO
R/O SANKAR NAGAR
LAST GATE
HOUSE NO. 2
P.O. NOONMATI
DIST. KAMRUP
GUWAHATI-20
ASSAM
4: RAM CHALITRA YADAV
Address:S/O SHIV NANDAN YADAY
R/O BISHNU RAVA NAGAR
HOUSE NO. 5
NOONMATI
GUWAHATI-781020
5: JIBACH SAHANI
Address:S/O PRADIP SAHANI
R/O GANESHMANDIR
Page No.# 4/21
SHIVAM PATH
BY LANE NO. 3
HOUSE NO. 9
PO. NOONMATI
GUWAHATI-781020
6: SULENDRA KR. SAHANI
Address:S/O LT. ANANDI SAHANI
R/O BISHNU RAVA NAGAR
HOUSE NO. 18
P.O. NOONMATI
DIST. KAMRUP
GUWAHATI-781020
ASSAM
7: RAM ISWAR KUMAR
Address:S/O RADHE RAI
R/O JANATA NAGAR
HOUSE NO. 51
P.O NOONMATI
DIST. KAMRUP
GUWAHATI-781020
ASSAM
8: ARBIND KUMAR SAHANI
Address:S/O ANUP LAL SAHANI
R/O 6 NO. RAILWAY GATE
HOUSE NO. 144
P.O. BAMNIMAIDAM
DIST. KAMRUP
GUWAHATI-781021
ASSAM
9: DIPLAL SAH
Address:S/O LT. MAHINDRA SAH
R/O BISHNU RAVA NAGAR
HOUSE NO. 22
P.O. NOONMATI
DIST. KAMRUP
GUWAHATI-781020
ASSAM
10: RANJIT KUMAR RAY
Address:S/O RAMEO RAY
R/O GANESH MANDIR PATH
BY LANE 3
SHIVAM PATH
HOUSE NO. 30
Page No.# 5/21
P.O NOONMATI
DIST. KAMRUP
GUWAHATI-781020
ASSAM
11: SIV SANKAR SHARMA
Address:S/O MATUKORO SHARMA
R/O VILL. SHANKAR NAGAR
HOUSE NO. 33
P.O. NOONMATI
DIST. KAMRUP
GUWAHATI-781020
ASSAM
12: DILIP KUMAR YADAV
Address:S/O RAMU YADAV
R/O BISHNU RAVA NAGAR
NOONMATI
GUWAHATI-781020
ASSAM
13: SRI CHANDRESHWAR DAS
Address:S/O LT. SANTLAL DAS
R/O RAILWAY GATE BAMUNIMAIDAM
GUWAHATI-7810201
14: RAMSABHA RAJBHAR
Address:S/O LT. RAM ASHAK RAJBHOR
R/O HOUE NO. 82
NOONMATI
GUWAHATI-20
15: TUNTUN MAHATO
Address:S/O LT. CHALITRA MAHATO
R/O ANAND NAGAR PATH
BAMUNIMAIDAM
GUWAHATI-781021
16: KAPILDEO SINGH
Address:S/O LT. BRAHMADA SINGH
R/O ANAND NAGAR
PARAG DAS PATH
HOUSE NO. 45
P.O. BAMUNIMAIDAM
GUWAHATI-781021
17: PRALAY BHOWMICK
Address:S/O LT. PRAFULLA BHOWMICK
Page No.# 6/21
R/O BAMUNIMAIDAM RAILWAY COLONY
QUARTER NO. 103A
BAMUNIMAIDAM
GUWAHATI-781021
18: DEBENDRA PASWAN
Address:S/O HRIDAY PASWAN
R/O BISHNU RAVA NAGAR
NOONMATI
GUWAHATI-781020
ASSAM
19: NANDAN YADAV
Address:S/O GUNESWAR YADAV
R/O NEPALI CHOWK
PUNYA NAGAR
NOONMATI
GUWAHATI-781020
ASSAM
VERSUS
FOOD CORPORATION OF INDIA AND 3 ORS
Address:16-20 BARAKKHAMBA LANE
NEW DELHI-110001 REP. BY ITS MANAGIBG DIRECTOR
2:ASSISTANT GENERAL MANAGER (IR-L)
Address:FOOD CORPORATION OF INDIA
REGIONAL OFFICE ASSAM
REGION
G
S. ROAD
GUWAHATI
PALTAN BAZAR-781008
3:DEPOT IN CHARGE FOOD CORPORATION OF INDIA
Address:HOJAI DISTRICT NAGAON
PIN-782435
4:UNION OF INDIA
Address:MINISTRY OF FOOD
CONSUMER AFFAIRS AND PUBLIC DISTRIBUTION
KRISHI BHAWAN
NEW DELHI-110001
------------
Advocate for : MR A DASGUPTA Advocate for : SC F C I appearing for FOOD CORPORATION OF INDIA AND 3 ORS: Advocate , , Page No.# 7/21 , appearing for 2, 3, 4, respectively.
BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT AND ORDER (CAV) Date : 11-11-2020 In both these writ petitions filed under Article 226 of the Constitution of India, an office order dated 12.08.2020 issued under the hand of the respondent no. 2 has been put to challenge. By the said office order dated 12.08.2020, the petitioners in the two writ petitions along with others have been transferred from Food Storage Depot (FSD, for short), New Guwahati under the Divisional Office, Food Corporation of India (FCI) to either FSD, Hojai or FSD, Senchowa, as the case may be, on the grounds that there are excess labour at FSD, New Guwahati and deficit labour at FSD, Hojai and FSD, Senchowa in terms of the volume of works.
2. There are 22 writ petitioners in W.P.(C) no. 3314/2020 and 19 writ petitioners in W.P.(C) no. 3381/2020. All these petitioners are regular employees of FCI and are engaged in loading and unloading works at the FSD. In a depot of FCI, labourers are divided in different groups. In the FCI parlance, each group is called departmental labourers gang and each such gang usually comprises of 14 (fourteen) members - 1 (one) Sardar, 1 (one) Mandal and 12 (twelve) labourers.
3. By the impugned order of transfer dated 12.08.2020, the departmental labourers gangs identified as Gang no. 11, Gang no. 12, Gang no. 13 and Gang no. TNL-1 (also known as Gang no. 14) of which the writ petitioners are members, have been transferred. In W.P.(C) no. 3314/2020, the petitioner nos. 1 - 11 are members of Gang no. 13 whereas the petitioner nos. 12 - 22 are members of Gang no. 14 (Gang no. TNL-1). In W.P.(C) no. 3381/2020, the petitioner nos. 1 - 12 are members of Gang no. 11 and the petitioners nos. 13 - 19 are Page No.# 8/21 members of Gang no. 12.
4. By the impugned order dated 12.08.2020, the Gang no. 11 and Gang no. 12 have been transferred from FSD, New Guwahati to FSD, Senchowa. By the same order, Gang no. 13 and Gang no. 14 (Gang no. TNL-1) have been transferred from FSD, New Guwahati to FSD, Hojai.
5. Heard Mr. A. Dasgupta, learned Senior counsel assisted by Ms. B. Das, learned counsel for the petitioners in both the writ petitions. Also heard Mr. P.K. Roy, learned Standing counsel, FCI for respondent nos. 1, 2 & 3 and Mr. A.K. Dutta, learned Central Government Counsel for respondent no. 4.
6. At the outset, learned Senior counsel for the petitioners and learned Standing counsel, FCI have conjointly submitted that the petitioner nos. 12 - 22 in W.P.(C) no. 3314/2020 who are members of Gang no. 14 (Gang no. TNL-1), have already joined at FSD, Hojai in deference to the order dated 12.08.2020. Similarly, the petitioner no. 14 and the petitioner no. 18 in W.P.(C) No. 3381/2020 have joined at FSD, Senchowa on 28.08.2020 in compliance of the order dated 12.08.2020.
7. Mr. Dasgupta, learned Senior counsel appearing for the petitioners has submitted that though the petitioners are regular employees of FCI and members of departmental labourers gangs, such gang transfer of labourers is in violation of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the Industrial Disputes Act, 1947. He has submitted that in effecting the transfers, the authorities have resorted to unfair labour practice. In view of the notifications issued under the Contract Labour (Regulation and Abolition) Act, 1970, employment of contract labour is permitted at FSD, New Guwahati; FSD, Hojai and FSD, Senchowa. Similarly, FCI has one FSD at Changshari where contract labourers are engaged. It is his further contention that a major part of the works (loading/unloading) had been shifted from FSD, New Guwahati to FSD, Changshari which, in turn, had resulted in lesser works at FSD, New Guwahati and on that pretext of reduction of works at FSD, New Guwahati the petitioners terming them as excess labour, have been transferred from FSD, New Guwahati. Elaborating further, he has submitted that it is an unfair labour practice in view of Section 2 Page No.# 9/21 (ra) r/w Item no. 6 in the Fifth Schedule to the Industrial Disputes Act, 1947. It is further submitted by him that the impugned transfer order is in violation of the transfer policy of the FCI as the respondent authorities have not followed any rationale in choosing the gangs in question. He, thus, submits that as the impugned order of transfer is an outcome of unfair labour practice, it is malafide. By referring to a circular being Circular no. 9/2016 dated 07.08.2016, it is submitted by him that transfer of labourers should not be made to far flung areas beyond 100 Kms. At the end, Mr. Dasgupta has submitted that as such transfer of the petitioners would result in their dislocation, the respondent authorities in view of the present prevailing situation can allow the deputation of the petitioners through tour programme to perform their duties through daily journeys from Guwahati to the transferred places in view of lack of residential accommodation therein.
8. Mr. Roy, learned Standing counsel has strenuously resisted the submissions made on behalf of the petitioners. By referring to the policy embodied in the Guidelines issued by the FCI on 12.07.2016 with regard to rationalization of existing manpower, he has submitted that the impugned transfer order has been issued in due adherence to the policy in force. The order of transfer of the petitioners which are in the nature of inter-region transfer, are made between FSDs which are de-notified depots and which are exempted under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. As regards the possibility of transfer the petitioners' departmental labourer gangs to FSD, Changsari is concerned, Mr. Roy has submitted that as per the policy formulated and followed by the respondent FCI, if in a particular depot/godown, the works (loading/unloading) are being done by the departmental labourers then labourers of other categories are not engaged in that depot/godown and the same is followed in order to avoid any sense of disparity and hostility. He has submitted that in such view of the matter, since FSD, Changsari is managed through the contract labourers the question of transferring the departmental labourers gangs in which the petitioners are members, does not arise. He has further submitted that it has already been held by the Hon'ble Bombay High Court in P.I.L. no. 84 of 2014 that departmental labourers can be transferred from one depot to another. The Hon'ble Supreme Court of India had, by its order dated 31.07.2017, dismissed the Special Leave to Appeal preferred against the judgment and order passed in P.I.L. no. 84 of 2014. It is further submitted by him that the transfer order Page No.# 10/21 was passed after a detailed workload analysis depot-wise and by adopting the criteria that the last gang should be transferred first. He has submitted that in view of such fact situation, the writ petitions are devoid of any merits considering the fact that transfer is an incidence of service and there are no violations of any statutory transfer policy.
9. Mr. Dutta, learned Central Government counsel has adopted the submissions advanced by the learned Standing counsel for the respondent FCI authorities.
10. I have considered the submissions advanced by the learned counsel for the parties and also perused the materials brought on record by way of pleadings.
11. It is an admitted position that the petitioners are departmental labourers in FCI and are part of different departmental labourers gangs, mentioned above. The main purport and object of the Contract Labour (Regulation and Abolition) Act, 1970 is to regulate the employment of contract labour in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith. Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 has provided that notwithstanding anything contained in the Act, the appropriate Government may prohibit, by notification in the official gazette, employment of the contract labour in any process, operation or other work in any establishment. It transpires that the Government of India issued a number of notifications in respect of various depots of FCI for prohibition of employment of contract labourers under the Contract Labour (Regulation and Abolition) Act, 1970. Four different systems - Departmental Labour System (DLS), Contract Labour System (CLS), Direct Payment System (DPS) and No Work No Pay System (NWNPS) - are in existence for loading and unloading works in the Food Storage Depots of FCI located in various parts of the Country.
12. Noticing huge disparity in the matter of payment to the labourers under the above- mentioned systems, though similarly circumstanced, and earning of huge incentives by the departmental labourers in clandestine manners, the Nagpur Bench of the Bombay High Court registered a public interest litigation being P.I.L. no. 84 of 2014, on its own motion, on the basis of a newspaper report published in the newspaper, the Times of India wherein it was Page No.# 11/21 reported that some of the departmental labourers of FCI were earning to the extent of Rs. 4,00,000/- per month. During the course of the proceedings of P.I.L. no. 84 of 2014 before the Bombay High Court, it came to the notice of the Court that there were surplus labourers at various depots of FCI on one hand and on the other hand, there were deficit labourers at some other depots. It was projected on behalf of FCI that attempt to transfer the departmental labourers from one depot to another was resisted by the departmental labourers on the ground that the same amounted to change in the condition of service. After considering a report of the experts and a report of a High Level Committee, the Bombay High Court was of the view that the Government of India ought to have taken necessary steps for de-notifying the depots of FCI which were covered under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 which, in turn, would enable FCI to remove several functional inefficiencies and to run a more efficient system of food grains management. The Division Bench of the Bombay High Court had also observed that since transfer is an incidence of service and when wages and all other service conditions of departmental labourers working at different depots were identical, there was no reason as to why their services could not be transferred from one depot to another. Having considered the entire aspects, P.I.L. no. 84 of 2014 was disposed of by judgment and order dated 20.11.2015 with the following directions :
"30. In that view of the matter, we dispose of the present Public Interest Litigation by passing the following order.
(i) The Government of India is directed to decide the representation made by the Food Corporation of India for grant of exemption under the provisions of Section 31 of the said Act within a period of one month from today, in the light of observations made by us hereinabove within a period of one month from today.
(ii) The Government of India shall decide the issue regarding de-notification of the depots of the Food Corporation of India, in respect of which notification is issued u/s.
10 of the said Act, within a period of six months from today, in the light of observations made by us hereinabove and the report of M/s. Deloitt Consultancy and the report of High Level Committee appointed by the Government of India itself.
(iii) We clarify that the respondent/Food Corporation of India would be entitled to Page No.# 12/21 transfer the services of departmental labourers from one depot to another subject to protecting their salary and all other service conditions.
(iv) We also clarify that the respondent/Corporation would be at liberty to implement its policy of change in the Scheme of incentives.
(v) The Government of India shall also take a decision regarding abolition of system of departmental labourers in a phased manner or absorbing their services in other establishments as recommended by the High Level Committee."
13. As paragraph 27 of the judgment and order dated 20.11.2015 passed in P.I.L. no. 84 of 2014 bears relevance in the context of the issue involved in the present two writ petitions, the same is also reproduced hereunder :
"27. We also fail to understand as to why the departmental labourers should not be transferred from one depot to another depot. As could be seen from the Judgment of the Apex Court in the case of Food Corporation of India Worker's Union vs. Food Corporation of India and Others (Writ Petition (Civil) No. 222 of 1984, dated 20 th July, 1990) reported in 1990-II-LLN-664/1990 (Supp) SCC 296, it was the contention of the said Corporation that there cannot be similar wages at different depots since services of the departmental labourers were not transferable. The said contention has been rejected by Their Lordships of Apex Court. By now it is a settled principle of law that transfer is an incidence of service. When wages and all other service conditions of departmental labourers working at different depots are identical, we see no reason as to why their services could not be transferred from one depot to another. As has been submitted by the Corporation, 1594 departmental labourers are getting salary without any work; whereas at some of the depots, there is huge deficiency of labourers."
14. The aforesaid judgment and order dated 20.11.2015 was challenged before the Hon'ble Supreme Court of India by Food Corporation of India Workers Union in Special Leave to Appeal no. 19218/2016 [Food Corporation of India Workers Union Regd. No. 8219 through its Organizing Secretary vs. Union of India through its Secretary] and others, which were dismissed on 31.07.2017 with the following order :
Page No.# 13/21 "1. We do not see any merit in these special leave petitions, which are hereby dismissed. We make it clear that this order shall not prevent the petitioners - Food Corporation of India Workers Union/Food Corporation of India Shramik Union/FCI Handling Workers Union, to challenge any order, passed in furtherance of the directions issued in the impugned order (dated 20.11.2015), in appropriate proceedings before an appropriate Court.
2. In case, such a challenge is raised by the petitioner(s), in continuation of the liberty granted to the petitioner(s), the claim raised by the petitioner(s) shall be considered in accordance with law, uninfluenced by any observations made by the High Court in the impugned order (dated 20.11.2015)."
15. After the judgment and order dated 20.11.2015, the Government of India in the Ministry of Labour and Employment issued a notification dated 06.07.2016 in exercise of the powers conferred by Section 31 of the Contract Labour (Regulation and Abolition) Act, 1970 whereby the Central Government exempted a number of godowns, depots and railheads of FCI from the prohibition of employment of contract labour in different jobs for a period of two years, limiting the restrictions under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 in respect of only 63 nos. of godowns, depots and railheads of FCI. FSD, New Guwahati; FSD, Hojai and FSD, Senchowa are depots which have fallen under the exempted category. The period of exemption was extended later on and lastly by a notification dated 25.06.2020, the Government of India in the Ministry of Labour and Employment has extended the period of employment of contract labour in different jobs in those exempted godowns, depots and railheads of FCI for a further period of two years w.e.f. 06.07.2020. As the matter of employment of contract labour in FSD, New Guwahati; FSD, Hojai and FSD, Senchowa is not an issue in the present two writ petitions, there is no necessity to dilate further on that aspect.
16. Subsequent to the judgment and order dated 20.11.2015 in P.I.L. no. 84 of 2014 and the notification dated 06.07.2016, the authorities in FCI had issued a circular dated 12.07.2016 on the subject :- "Guidelines for implementation of exemption notification dated 06.07.2016 under Section 31 of Contract Labour (R&A) Act 1970 issued by Ministry of Labour Page No.# 14/21 and Employment, Government of India." On being granted the liberty by the judgment and order dated 20.11.2015 to reorganize and rationalize deployment of existing DLS/DPS/NWNPS workers for their gainful utilization by pooling them into a fewer depots as per operational requirements so that optimum number of workers are deployed for carry out FCI operations in most efficient manner, a number of steps have been laid down to reorganize and rationalize the existing manpower, which are to the following effect :
"(i) The pooling of the departmentalized labourers in fewer depots may be done by making inter-depot, inter-district, inter-region and inter-zone (in exceptional cases) transfers from one depot to the other depots operative under the same labour system.
The authorities competent to permit such transfers are indicated as under
Area of Transfer Competent Authority to make transfer Inter-depot transfer within district Area Manager Inter-District transfer GM (Region) Inter-Region ED (Zone) Inter-Zone FCI, Hqrs
(ii) The requirement of labour in the heavily operated depots may be calculated on current average work load of preceding three financial years by the formula given below :-
No. of Handling Labour Required = Average Annual work load of three preceding Financial year /135 *240 No. of Ancillary Labour Required = 4 Ancillary Labour against the storage capacity of 5000 M.T. After calculating the requirement of the heavily operated depots by applying the above formula labourers from the depot having scanty handling operation may be shifted to nearby depots so that there is least disturbance to the workers. In case of the departmental labour pooling should be made taking into consideration zero incentive on datum i.e. the labour is sufficient enough to manage the work within the norms and there are minimum occasions for payment of incentive on number of bags handled in a day.
(iii) The depots are to be prioritized in descending order on the basis of requirement Page No.# 15/21 for distributing the workers, in the pooling exercise. Pooling should be maximum work load depots first so that idle wages are also minimized in case of departmental and DPS workers.
(iv) Deployment of labourers in the main depots may be done in such manner that the workers can be deployed to undertake loading/unloading operation is nearby depots on need basis, when there is no availability of work load in main depot. Mechanism should be developed in such a manner that workers are required to travel minimum distance and deployment on tour is manageable from their place of posting with least disturbance.
(v) The objective rationalization of the labour strength is to curtail the cost of incentive wages, therefore the pooling should be done in such a manner that output per day of a handling labour will remain ordinarily between 135-150 bags on the peak day of loading/unloading of rakes.
(vi) All the FCI workers currently working in CWC & SWC godowns/hired depots/Railheads need to be pooled into FCI's own depots and contract labour be deployed in their place in case godowns are to be retained.
(vii) As per existing instructions, workers under Departmental and DPS category on their transfer by FCI, in the interest of administration, are entitled to get weightage of seniority at the new place. It has been decided that till further order, seniority position of group of the workers of the gang transferred from one depot to other, will not be disturbed and separate identity of such workers will be maintained in the incoming depot so that it does not jeopardize promotional avenues of the workers already working such depots.
(viii) The surplus workers of one Region can be adjusted in the depots of other regions of the Zone.
(ix) In case option is given by the surplus workers of a Region for transfer to the other Regions within the Zone, the same should be carefully considered by Zone and shifting them to shortfall depots may be adhered under intimation to IR-L division of FCI Hqrs.
(x) Individual depot should have single labour system and in no case labour of more than one system be engaged in one depot.
(xi) Subsequent to pooling of labourers, handling contractors be deployed in vacant depots following due process."
Page No.# 16/21
17. In order to examine and ascertain the actual requirement of departmental labourers at FSD, New Guwahati and to advise the next course of action to be taken in the matter of rationalization of departmental labourers to different depots in Assam region to fill the requirement of depots in case of shortages, a Committee was constituted by FCI vide an office order dated 19.02.2020. The Committee examined and analyzed storage capacities, volumes handled in three financial years, strength of departmental labourers, volumes handled by a departmental labourers, etc. in FSD, New Guwahati; FSD, Hojai; FSD, Senchowa and FSD, Cinamara taking into account the guidelines embodied in the circular dated 12.07.2016 and had made the following observations/recommendations in its report submitted on 13.03.2020 :
"1) From the depot wise workload analysis it is clear that presently at FSD, New Guwahati 106 handling labourers are in excess. Out of 106 nos. of excess handling labourers, 31 nos. handling labourers will be superannuation from service in 2020 to 2022. Hence 6 (six) gangs may be transferred from FSD, New Guwahati to FSD, Senchowa and FSD, Hojai to avoid idle wages at FSD, New Guwahati.
2) It is very much clear that labour posted at FSD, New Guwahati is getting idle wage which is main reasons for high handling cost.
3) At FSD Hojai 120 handling labour are working. Keeping in the view of daily operation and CMR receipt during procurement in FSD, Hojai 2 more gangs are required in addition. Gang 15 and Gang 16 of FSD, New Guwahati may be considered for transfer to FSD, Hojai.
4) At FSD, Senchowa 87 handling labour are working. Keeping in the view of daily operation and CMR receipt during procurement in FSD, Senchowa 4 more gangs are required in addition. Gang 11 to 14 of FSD, New Guwahati may be considered for transfer to FSD, Senchowa.
5) At the time of rake placement at particular depot handling labourers may be deputed from another depot to handle the work to reduce the high handling cost and incentive."
18. It is in the aforesaid background fact situation, the impugned office order dated 12.08.2020 has come to be passed whereby the petitioners in the two writ petitions have Page No.# 17/21 been transferred, as noted above, citing excess labour at FSD, New Guwahati and deficit labour at FSD, Hojai and FSD, Senchowa respectively in terms of volumes of work. It has been mentioned that as the departmental labourers gangs are being transferred on administrative requirement, need basis, normal TA/DA are admissible as per rules.
19. It has been asserted by the respondent FCI authorities in their affidavit that transfer of departmental labourers are being made by FCI regularly since 2016 following the judgment and order dated 20.11.2015. It has been further stated that inter-depot, inter-district, inter- region and inter-zone transfers are in prevalence since 2007 when by a notification issued by FCI dated 27.11.2007, it was provided that the concerned FCI authorities should ensure that the junior most handling gang and/or ancillary labour may be transferred and adjusted. It has also been asserted that there was altogether 16 labour gangs of FCI at FSD, New Guwahati at one point of time, prior to issuance of transfer orders in respect of six gangs in descending order. It has been stated, by annexing an earlier office order dated 26.06.2020, that initially, Gang no. 15 and Gang no. 16 (also known as Gang no. T-2 (Tangla) and Gang no. B-1 (Bongaigaon)) were transferred from FSD, New Guwahati to FSD, Senchowa by the said office order dated 26.06.2020 and the said two departmental labourer gangs i.e. Gang no. 15 and Gang no. 16 had already joined in their new place of posting. It was only after transfer of those two gangs i.e. Gang no. 15 and Gang no. 16, the remaining gangs - Gang no. 11, Gang no. 12, Gang no. 13 and Gang no. 14 - comprising partly of the petitioners have been transferred, maintaining the policy of transferring the last gang first. Projecting as above, the respondent authorities have asserted that in effecting transfer of departmental labourer gangs, a consistence policy has been followed.
20. The aforesaid assertions made by the respondent FCI authorities in their affidavit have not been controverted on behalf of the petitioners in any manner by way of filing any rejoinder affidavit. The petitioners have not challenged the steps formulated by FCI in its circular dated 12.07.2016 whereby reorganization and rationalization in respect of deployment of existing DLS/DPS/NWNPS workers for their gainful utilization as per operational requirements of FCI have been envisaged. The petitioners have not also, in any manner, controverted the observations/recommendations made by the Committee in its report (supra) Page No.# 18/21 submitted on 13.03.2020. There is no denial to the fact that Gang no. 15 and Gang no. 16 were transferred at an earlier point of time from FSD, New Guwahati to FSD, Senchowa on 26.06.2020 than Gang no. 11, Gang no. 12, Gang no. 13 and Gang no. 14 of which the petitioners are members. Thus, it is clearly discernible that the respondent FCI authorities while effecting transfers, have adopted a consistent approach in that the gangs are being transferred in descending order.
21. It has emerged from the report dated 13.03.2020 of the Committee on the basis of depot-wise workload analysis that there is excess labourers in FSD, New Guwahati and six gangs could be transferred from FSD, New Guwahati to FSD, Hojai and FSD, Senchowa to avoid idle wages at FSD, New Guwahati. The Committee has further observed that there were requirements of two more gangs at FSD, Hojai and four more gangs at FSD, Senchowa as there was shortfall of labourers in those two FSDs and deployment of such gangs would be in the best interests of FCI to cope up with the day-to-day operation and for smooth procurement operations which would, in turn, reduce high handling costs and idle wages. Adoption of such approach by the respondent FCI authorities in transferring its excess departmental labourers from one FSD to another FSD where there is deficit departmental labourers in the particular order, as has been claimed, cannot be said to be unjust and arbitrary.
22. The contention advanced on behalf of the petitioners that excess labourers have been found at FSD, New Guwahati because of shifting of works (loading/unloading) from FSD, New Guwahati to FSD, Changsari is not to be countenanced. The matter of shifting of works (loading/unloading) from one FSD to another FSD is within the discretion of the respondent FCI authorities as they are in the best position to arrive at such a decision and to take such steps, what are best for their operational requirements. Except advancing such contention, no further material has been adduced by the petitioners to augment their submission that such decision was arbitrary. It appears to be the part of the policy of transfer, as discernible from the circular dated 12.07.2016, that individual depot should have single labour system. It has been contended by the petitioners themselves, as also admitted by the respondent FCI authorities, that the works at FSD, Changsari are being managed through Contract Labour Page No.# 19/21 System (CLS). In such view of the matter, the reasoning given by the learned Standing Counsel, FCI, as noted above, about not transferring the petitioners' departmental labourers gangs to FSD, Changsari for avoidance of disparity and hostility amongst the members of different labour systems in FCI is found to be reasonable and justified.
23. As per Section 2 (ra) of the Industrial Disputes Act, 1947, "unfair labour practice" means any of the practices specified in the Fifth Schedule. The Fifth Schedule has categorized unfair labour practices into two parts viz. Part I. - On the part of the employers and trade unions of employers &Part II. - On the part of the workmen and trade unions of workmen. As per Mr. Dasgupta, learned Senior Counsel for the petitioners, the impugned transfer specifically falls under Item no. 6 of Part I. But on perusal of Item no. 6 of Part I of the Fifth Schedule, no connecting factor is found as Item no. 6 sets forth an action on the part of the employers to abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike to be an unfair labour practice. Thus, such contention of the petitioners is found incoherent to the issues involved in the two writ petitions. Accordingly, no correlation between unfair labour practice vis-à-vis mala fide is found in the order of transfer at issue.
24. It is settled position that transfer is an incidence of service. Who should be transferred where is a matter for the appropriate authority to decide and the decision to transfer an employee by the employer is made by taking into account several factors including exigencies of management and administration. The scope of judicial review under Article 226 of the Constitution of India in a matter of transfer is also well settled. An order of transfer being a part of the conditions of service of an employee, is not to be interfered with ordinarily by this Court in exercise of its discretionary jurisdiction under Article of 226 of the Constitution of India unless the Court finds that the order is an outcome of a mala fide exercise of power or that the order is violative of any statutory provision (an Act or Rule) prohibiting such transfer or the authority who issued the order is not competent to pass the order. It is held in State of U.P. and others vs. Gobardhan Lal , (2004) 11 SCC 402 that administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the employee concerned to approach his higher authorities for redressal but the same cannot Page No.# 20/21 have the consequence of depriving or denying the competent authority to transfer a particular employee to any place in public interest when found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay, secured emoluments, etc. The Hon'ble Supreme Court of India has further observed that an order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights unless the same is shown to be vitiated by mala fide or is made in violation of any statutory provision.
25. The transfers effected by the impugned office order dated 12.08.2020 are in the nature of inter-region transfer. The impugned order has been shown to be passed by the respondent no. 2 with the approval of the competent authority. No challenge is laid by the petitioners to the effect that the impugned order has been passed by an authority not competent to pass the order. There is even no challenge in respect of transgressing the policy of transfer formulated by the respondent FCI vide the circular dated 12.07.2016. From the discussions made above, it is found that there is neither mala fide exercise of power nor violation of statutory provision in the order of transfer. In view of the impugned order of transfer there is no adverse consequence in respect of the condition of service of the petitioners. The hardship, if any, likely to be caused as a result of their dislocation in view of the transfer is not a ground for this Court to interfere with the order of transfer. In so far as such issues are concerned, it is for the petitioners to represent before the employer and for the employer to consider the grievances of their employees.
26. As a result of the above discussion and in the light of the settled position of law, this Court finds that there is no good and sufficient reason to interfere with the impugned order of transfer dated 12.08.2020. As a consequence, this two writ petitions being devoid of any merits, are dismissed. The interim orders passed earlier stand recalled. There shall, however, be no order as to cost.
JUDGE Page No.# 21/21 Comparing Assistant