Central Administrative Tribunal - Kolkata
Eastern Railway vs E Rly Contractors Workers Union on 21 February, 2019
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r CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
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rT.1 M.A.No.350/915/2018
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M. A. No. 350/59/2019
Arising out of
CPC.350/31/2015
(O.A.827/2010) Date of order: 2.| *0^'
Coram : Hon'ble Mrs. Bidisha Banerjee, Judicial Member
Hon'ble Dr.(Ms) Nandita Chatterjee, Administrative Member UNION OF INDIA & OTHERS (R.K. GUPTA & OTHERS) VS. .
1EASTERN RAILWAY CONTRACTOR & W&RKERS UNION '/Ns\!///,Av ;• '•v'-v * X:
A \ For the applicants r-
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Forthe Opposite party-A A.Mr, KNMishra, counsel' X*
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Mr. S. Bosercounsel ;
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Bidisha Baneriee. Judicial Member
Non compliance/violation of the order dated 25.07.2014 in O.A.827/2010 has been alleged in CPC.
.. The order passed in O.A.827/2010 is as under[Extracted to the extent relevant &nd germane]
"2. The case of the applicants is as follows:
The members of the applicant Union belongs to Scheduled Caste, Scheduled Tribe and other Backward Class Communities xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx / 2 A large number of them have been working at different railway stations under various divisions of the Eastern Railway continuously for more than a decade for changing of rail lines, through packing of Rail lines, servicing works of rail lines and repair works of railway platform and over <>' bridge for passengers within the Eastern Zone of Indian Railways.
They have been working continuously for more than 15 years without any break.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxThese works are claimed to be perennial in nature and they are indispensible to ensure safety and security of the railway passengers and good transporation and are required to be done by regular workman in other divisions of Indian Railways in the State of Bihar. It is claimed that the works required employment of sufficient number of whole time workmen and they are entitled to get permanent establishment in the Eastern Railway after being satisfied with the conditions as prescribed under Section 10(2) of the Contract Labour(Regulation & Abolition)Act, 1970.
S.xxxxxxxxxxxxxxxx the Eastern Railway and/or the Indian Railways Administration, have been exploiting the said contract labourers by engaging them to work on thetbqsispf-dqily wages @ Rs.25 to 35 which is much below these stattiiory minimum ^wqge dnd without providing the amenities, facilities ds-^well asf^Sdldt-y. benefits^and advantages available to them under the law. xxxxxxkxxxxxxxkxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Union approache^fthe'ljpJM^fgj/jCod0lin a w^it^1petition numbered as WP 4693{W)199j8fwith fa-pm^^t^jrecuSie MiQlst\y of Labour to issue notification b/ abpjishin'^^^ft^^sysft'k in respect of those workmen.
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xxxxxxxxxxxxxxx^xxx^xxxxkx^xxxxxxxxxxx it was directed to the UOI to consult with the pentfdl'&dvisory Boqrfl/as^requined under Section 10(1) of the Contract LabouffRegulation and-iboVtionfAct, 1970 on the question of abolition of Contrqct<pbouns-AHithinti'specifip/time for the completion of that process, xxxxxxxxxxxxx'xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx the advocate appearing oriKbehaif of ~(JOI had filed a notification dated 28.6.2000 issued by Ministry of Labour, Govt, of India, published in the Gazette of India abolishing employment of contract labor in the works specified in the schedule of the said notification.
xxxxxxxxxxxxxx in spite of the notification, the Eastern Railway is getting the prohibited job done by contractor. Thus challenging such illegal ■ act and action on the part of the respondent authorities, the present applicants moved this Bench in OA 738/08 which was disposed of with a direction upon the respondent authorities to consider the applicants' case and to pass an appropriate order within time frame. The applicants were also' directed to submit individual apolication-cum-biodata for regular establishment as Group V' staff under Eastern Railway according to contract Labour(Regulation & Abolition) Act, 1970(Annexure A/6). But the Chief Personnel Officer being the respondent No.2, issued a memo being No.E 308/CC/OA 738/08 dated 13.2.09(Annexure A/7) denying their claim for regularisation in the regular establishment, based on the prohibitory notification dated 28.6.2000. They made an appeal on 11.1.2010(Annexure K'-
3A/8) before the respondent authorities for regularising the 'contract Labours' as Group V' staff in Eastern Railway but till date it has not yet been considered nor disposed of
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5. On 2.6.08 the applicants further moved the Hon'ble High Court at Calcutta in WP 1767(W)/2001 on the same issue of appointment as Group 'D' staff in the Eastern Railway, who were the workers under the Railway contractors, and after hearing the same the Court was pleased to dispose of the above matter with a liberty given to the present applicants to file afresh application before the proper forum, emboldened thereby the present O.A. is filed.
6. Xxxxxxxx the respondents have stated that the applicants have no legal right under any statute or rule for absorption in Railways. It has been contended that the constitutional Bench of the Hon'ble Supreme Court in Secretary, State of Karnataka & Ors -vs- Uma Devi xxxxxxxxxxxxxxxxxxxxx ■ v-ti i f r--v Xxxxxxxxxxxxxxxxxxxxxxxxxx'xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx % it is emphasJzkS thqt^^^sia^jSfyQbjects^ahd Reasons of the CLRA Act does not spieakfpf a'u^m^ah^gpsdrp^n^f cop^a^t labour which would show that the .^grliamint^lil^^f^y^dh not^mdke any provision for
---- 3 i 9 XxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxXxXxxXXkxxxxxxxxxXxxxxxxxxxxxxxxxxxxxx The respondetytSshavZ relied upon^fhefogex/iourt ruling, overruling the judgment in Air in^ia's^cgse-pros^ectivelyf in,JSteel Authority of India Limited -vs- Natlonbk^ti^^iSr 'FmmjMoj^rs [2001(1) SCC(L&S)U21] that neither Section 10 df<he~CLHRA^Ac^nof'any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub section(l) of Section 10 prohibiting employment of contract labour.
They have also cited State of Haryana -vs- Piara Singh & Ors.[f1992)3 SCR 826] Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
7. The applicants in their rejoinder and supplementary affidavit have said that there is no denial of the fact that the respondents have not stopped engaging contractors for the type of work prohibited under CLRA notification. They have attached documents which reveal that regular track maintenance work such as through packing, casual renewals and the other day to day maintenance work have been entrusted to the contractors in which regard CLRA phohibition is there. ' r, 4 f ' /■ 8. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx :
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9. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
10. Although much have been said about the right of the applicants to get regularised and to refute their arguments, we note the following :
i) Although the respondents have aileaed non-submission of individual representation, a bunch of receipts have been produced before us depicting receipts with regard to individual bio-data-cum-reoresentation from the applicants as oer order dated 20.11.08 passed in OA 738/08. by Mr. Mukundalal Sarkar, Id. counsel for the applicants. Copies of the individual representations have also been produced annexing working certificates.
ii) We further find that vide notification dt.28.6.2000 under S.10(l) of CLRA Act the prohibition is with regard to the following:
^x oJfRegujd^^^^rgintendnce^such as through packing, ni-
ub) OtheCrnMniendnCe^works Required for day to day •'h-. W . f. |
- ^ 1 whereas by aft order dt i-iSflO j:HeSf6jibyfihg renifydlj and maintenance of line/track wofy has been-^ioft0c(^to^ne^R.K. Construction, which the applicants clairrkto tta&eSefformed and4saboljshed/nder CLRA Act \ V/v, ~ L / Xxxxxxxxxxxxxxxxxxxxxxxxxxxxx^^xxxxygfxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ■ xxxxx V ,7f<' KHZ' The said allotment of work runTcdhtfary to the speaking order.
Hi) The Railways are conspicuous by their silence on the allegation leveled against them by the applicants that they are persistently engaging contract labourers for prohibited jobs under CLRA.
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iv) We also note that the CPO in his speaking order dt.13.2.09 has flatiy stated that Though no individual representations have been received from the contract labour, however, in order to honour the Hon'ble Tribunal's order in true spirit i have examined the OA and the documents annexed with the OA in absence of any other papers. It is seen that the ■V ?/■ 7.' 5 h petitioners hove claimed to work for more than a decade for changing of rail lines, through packing, of rail fines, servicing works of rail lines and repair works of railway T, platform and over bridge pet passengers. Ate&to 5/* individual names of contract labour, areas of working, periods of working etc. are mentioned nor any supporting documents are furnished in support of that claim. The petitioners have floated the claim, which is without any cogent basis."
Whereas we find that most of the applicants submitted their documents before the authorities on the same dt i.e. 13.2.09 which goes a Iona wav to show that without perusing the voluminous documents submitted by the applicants the speaking order was issued hastily, whereas the authorities were directed to pass an order within four months from the date of receipt of the representations. However, we also find that some of the applicants have submitted their documents after the*speaking order was issued, on 26.3.2010.
11. In such view "of the matter, orrthe^suggestion of counsel for both sides, we^irect tJte tfuitiQfi'ties to dehyelqto the representations, documents cfynexeejfbnihfiJsJindividual ordersjn terms of OA738/08 from whichdfie right^&l^mhSeFd^omemafifieb."
12. . u ww \ / ■ .0) ■ •( On being satisfied with^jJ|^a^that^m0st^§pthp applicants submitted their documents before the authorities, on-or-before 13.2.09, which would go a long ■ -V'X/ way to show that without perusing the'volu'mjnotfs documents submitted by the applicants the speaking order dated 13.02.2009 was issued hastily without application of mind and that having noted that "some of the applicants have submitted their documents after the speaking order was issued, on 26.3.2010", the directions were issued to the respondents on 25.07.2014 to examine their . claim in accordance with order passed in O.A.738/2008.
3. The order dated 25.07.2014 passed in the O.A.827/2010 was assailed by the respondent railways, before the Hon'ble High Court in WPCT.12 of 2015, but they lost. On 29.01.2015 the WPCT/15 was dismissed.
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4. Aggrieved with the speaking order dated 24.02.2015 issued thereafter, ?
which was not in conformity with this TribunaTs order-dated 25.07.2014 rather a replica of earlier speaking order dated 13.02.2009 which stood already quashed in later 0.A.No.870/2010, present CPC was preferred.
The speaking order issued by CPO on 25.02.2015 to one Abdul Kader is extracted below for better understanding:-
......in obedience to the Hon'ble Tribunal's order, I have examined the representation dated 07.09.2012 of Mr. Abdul Kader, s/o Abdul Rob and the annexure thereto. Mr. Kader has annexed a copy of his Transfer Certificate of Class VIII passed issued by Aral Anchalik Aharchandi Vidyapith and a copy of Union Membership Identity Card under SI. No.357 of Eastern Railway Contractors Workers UpipnLof Sealdah Division & Howrah Division issued on 01.01.2005. the^aforesaid Wr/dbcdments do not speak that the claimant has worked^ds?contraet?labour in Railways. In the representation, apart from his personal inf0ma\iorn!fik^date ofiijirtyi, address, religion, sex etc, Mr. Kader hds mentiohedSyaOhe^workedIfor 18 ,vrs in different Divns/ER and at-presen1^dt^Ho^MMDivnfwfthoutxrhehtioninQ particulars of job being performed by liJm^in^o'sefdifferent spellsCbf working.
.si In respect, of contractual sf&Sfn of work/it is stated that there are so many contractuaiworkspre b^ing doneJn thO^Rpilyays in different ancillary works of non<ore^type^ which^dre-nqt\at ail'perennial in nature on need basis as and when hegulred^as jwefUas'ip/areas where no prohibitory notification for empioymeht-of^cpptrm-t labours has been imposed by the appropriate Govt. As far as construction of railway lines is concerned, this is carried out for opening of new rail lines doubling or remodelling etc. and are treated as project work and end on commissioning of the project.
Ministry of Labour, Govt, of Indio had issued a prohibitory notification dated 28.6.2000 wherein employment of contract labour has been ' V •' prohibited in the works of regular track maintenance such as through packing, casual renewals and other maintenance works required for day to da)/ maintenance. Directives of the said notification are being followed strictly so far as mattes of day to day track maintenance is concerned.
Through packing, casual renewal associated with day to day maintenance activities etc. are being done with departmental strength and with the help of track machines. Other maintenance works required for day to day maintenance necessitating constant and regular vigil daily on track parameters for safe passage of trains as per safety rules for preventing wear and tear out of daily movement of trains etc. are being done by departmental staff. This Railway has been strictly following the said 7 / ' f-
notification. Other activities relating to track renewal which are mainly changing of rails, changing of sleepers, deep screening, changing of points V, and crossings etc. based on criteria of age, condition, importance of route f etc. are planned works and are being done depending upon ammbttey* 9 of fund granted for a particular year. These planned works and special emergency works, connected with safe operation of train movement are being done through the contractor since it is not a perennial work in nature. In this context, it is clarified that work assigned to one M/s P.K. Construction vide LOA dated 02.8.2010 is for renewal of points and crossings, which is a critical component of track including through packing, being related & essential with renewal of points & crossings of tracks, as assigned, and those works are not coming in the purview of prohibitory notification i.e. relating to day to day maintenance activities.
Ministry of Labour, Govt, of India issued a prohibitory notification under Section 10 of the Contract Labour(R&A) Act, 1970 does not in anyway enjoin upon the Railways to absorb contract labours in the regular establishment. Also, absorption of contract labourers in Railways whether on issue of prohibitory notification or not, is not required or mandated under any statute including.theiGLRA'Act. Hon'ble Supreme Court vide its different judgments cleaffffield that neifhfer>section 10 of the CLRA Act nor onv other provision ih?the ActeDnovideMor automatic absorption of Contract labour on issuing prohibit<fiv«tfo$fic6ti()n%v. the appropriate government. It is settled law tha^iheretj^n^^ndgmentaf righ&in 'those who have been employed on dally wages^or^feh^ppfgfiiy^ofl oh cgptfactual basis to claim that they have ^ right^^S^bs6tbe^ln! regular service since regular appointment cofjlijf be mddje^onlyibyKmaWng appimnljnents in consistence with the requiiiements^of^^{pJ^^^^it^A-6f>of the Constitution. Hon'ble Supreme Court'vlso^vi.d^^)fere7}t ]udgm^nts^lidye ^mphasized that public employment in .d''-sove/elgr^socjgiistje(Culaf<dem^Cratic republic has to be governed by terms dnd'-Qofiditigpts$i$-jSet-'dpvfn fiy the Constitution and the laws made thereunder. .. ^ v--^.
In the fact & circumstances, stated above} it is very clear that the applicant does not have any claim of right for absorption in the Railways arising out of the prohibitory notification dated 28.6.2000 or otherwise. Thus the representation of Mr. Abdul Kader, s/o Abdul Rob is disposed of as per direction of the Hon'bel Central Admn. Tribunal, Calcutta."
5. .. A bare perusal of the aforesaid would exemplify and demonstrate that the speakingbrder was a replica of the one quashed in O.A.870/2010. The CPO chose j ■ to flout the direction of this Tribunal "to delve into the representations, documents annexed and pass individual orders in terms of O.A.No.738/2008 from which the right of consideration emanates" and rejected the case on the same ground as in earlier round.
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6. Incidentally, while disposing of 0.A.738/2008, this Tribunal had ordered as under:-
"3. In the interest of justice, we direct that the applicants shall file individual representation along with other relevant materials to the competent authority forthwith who, on receipt of such representation, shall consider and dispose of the same within four months from the date of receipt of such representation. The O.A. is accordingly disposed of,"
7. Therefore, the documents that were already available with the applicants had also to be looked into to dispose of the representations in accordance with O.A.738/2008 to redress the grievance of the applicant suitably.
8. Pursuant to such directions the then CPO, A.K. Brahmo issued the speaking order dated 13.02.2009 which is extracted'hecein belowV V X "2 Though nq^dividuaLt^pndsedtations\ have^been received from the contract labour, 'tfpn'&le • Tribunal's order in true spirit, I have?examiried'the*0& drfd'the^documentsjannexed with the OA in absence an% StBer pap'&rXJt fs fceefy tyfii the petitioners have claimed to work for more than through packing of rail lines, servicing vvprksspff'aifyines and repair $pfrks df railway platform and over bridge for passengers. . ''Neither "individual pomes of contract labour. areas of working, periods- of working etc. are mentioned nor any supporting :• documents are furnished- in support of that claim. The petitioners have floated the claim, which is without any cogent basis.
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5. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The petitioners have annexed d copy of the prohibitory notification : -dated 28.6.2000 issued by Ministry of Labour, Government of India. In the ■:said notification employment of contract labour was prohibited in the works of regular track maintenance such as through packing, casual renewals and other maintenance works required for day-to-day maintenance. This Railway has been strictly following the said notification and contracts are ■ not awarded in these areas of work. With the issue of the said notification under Section 10 of the Contract Labour(R&A) Act, 1970 it does not in anyway enjoin upon the Railways to absorb Contract Labourers. In the instant case, the areas where prohibitory notification has been issued only departmental labour i.e. trackmen are utilized. There are several other areas where the work is of non-perennial & sporadic nature, in which /1 r 1 9 Contract Labourers are still employed by the Contractors. Therefore, the Contract Labourers are still engaged on such work & the prohibitory notification has not led to Contract Labourers being thrown out of ebhttettuui ompmymeHt. toem* id m h* MHHwm itf Contract Labourers in the regular establishment.
In the fact and circumstances stated above it is very clear that the claim of the petitioners for regularisation in the regular establishment, based on the prohibitory notification dated28/6/00, is not tenable."
9. As already stated earlier, we noticed, while hearing the CPC, that the speaking order dated 25,02.2015 is a replica of the earlier speaking order dated 13.02.2009. Inasmuch as the CPO has refused to consider the applicants on the basis of their certificates once again on the ground that the job they had discharged under Railways cam^eVufideY^the, purview of a job prohibited under CLRA, which contention sitood already examined ' in>,earlier roundjssurng the / X \ speaking order identica'Lto the^ojne^whieh^already stoopl quashed, and that too tr • r*. 1 deliberately and consciously constituted fa clear case of contempt.
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10. Hence this Tribunal'. once:- agaih' allowed'.the respondents to purge \ vx.x \ '""'V/ •" // themselves by explainingHhe'ir conduct^ why,they repeatedly refused to look into ■'v the particulars, documents, certificates of the applicants.
11. Repeatedly the respondents failed to satisfy this Tribunal. Lastly the CPO was directed to be personally present.
12. : The CPO had presented herself on 01.02.2019 but she showed her reluctance to examine the documents/certificates as were: required to be f examined in accordance with the orders passed in O.As earlier. She flatly refused to comply with the directions of this Tribunal on the ground that having issued speaking order on 25.02.2015 she was not required to go into the engagement details of the applicants and even reminded this Tribunal that in contempt / i > 10 r• jurisdiction it was travelling beyond its limits to issue directions to look into the certificates of the applicants which direction was not there in the Q.A, which as enumerated hereinabove is not a fact. .
13. The instant M.As have been preferred by the Contemnors/Respondents to seek modification of the order passed by this Tribunal on 20.07.2018 in the aforesaid CPC "as the order passed in contempt case is nothing but modification/re-write of original order of the Hon'bel CAT where no such modalities/procedure regarding verification of claim were directed" and the order dated 16.11.2018 on the ground that Id. counsel Mr. S.K. Das had given his consent without consulting his clients, which fact has not been sworn by the Id. counsel himself.
14. The order dated 20.07.2018 records thus "2. Despite Repeated opportunities £pfexamine the engagement/service particulars of the Prfsiht applicgpts^ho cttfigied%to have served under the contract employees%y the^Bailwqy^the respohdents have repeatedly flouted our directions' b^Jss^in^, b/derJwjthotfl>feJiberating upon such documents. Therefore, y&epfyp^anPtherMndfinal opportunity to the alleged contemnors to e^amineimsl^n^^^lgjm; of each and every applicants, on the basis optheir ^pg^gefn^ni^partifulars 7gs \well, as educational qualification [cekificates^Jn j ba^ches^ upon ^-dje notice to the applicants/petitioners-tppp^iakbhfafeptpfhpetentpfficer of the Railways . for such verification Ipfythe'dpcuments. v' C\V /
3. The alleged conpmnprs/respdndepfs/shall also permit two responsible persons of the'Unio.n..XoMepresehfat the time of verification.
4. That alleged contemnors/respondents shall verify the documents in batches from the list as contained in annexure B of the affidavit filed by the petitioners upon due notice to the petitioners, as well as the Union, at least two weeks in advance intimating them the date of such verification according to their true belief
5. For the purpose of verification of the documents, the petitioners shall ■« I appear along with a copy of the representations and all documents required for such verification, that is, the engagement certificates as well as the educational certificates and present themselves before the deputed officers on the date fixed for such verification in terms of the notice issued to them by the Railway authorities.
6. Upon completion of verifications, the - respondents/alleged contemnors shall prepare a report on the basis of the representations as well as documents and certificates so examined by them and on the basis of their finding on the eligibility of the petitioners for their absorption, place it for our perusal on the next date.
i 2 f 3 11 /' 7. List the matter after 4 months, i.e. on 06.11.2018.
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8. if on the next date the Railways fail to give the report, appropriate personally before this Tribunal."
t That the order was a consent order, was recorded on 16.11.2018, while directing the CPO to be present.
15. In the M.A. the respondents have alleged that "the Hon'ble Tribunal has efred in law by directing to decide the issue bn meritfin contempt proceedings."
That Hon'ble High Court/Allahabad in the case of Hari Raj Kishore Vs. Shib Prasad Dubey, 2007(1)JGLR 639 has held that "The tourt in contempt jurisdiction has to consider only whether the direction of judgment of the court passed in regular ■ ^. s\;s ■ r proceeding has been compliedSbkh nor not. It^chnoot go beyond the directions \ \\ S' contained in the order^isobe-afen&^whefeofis compjahed." and held that ■'Whether the authority-rightffcpassedzth&tirderpOrsuant to. the order passed by " • -.J -- • ... a; ^ ! the Court or procedurel0opted%scqftec'j: is not^the matt'erjo be seen by the court V / dealing with contempt mpptefx^For that puipoSe-f jt^is ppen to the aggrieved « V>v7 person to approach the cbu.rfirifyiflat proceVdlntfs bffiling afresh writ petition 'V. etc."
16. This Tribunal indicated time and again that it was not happy with the ^procedure adopted by the respondents in purported compliance of its directions dn the O.A.No.870 of 2010 and having failed to get its order complied with in true detter and spirit, this Tribunal dismisses the M.As filed to seek modification of the r.
orders passed in CPC, as not maintainable.
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^ (Dr. Nandita Chatterjee) (Bidisha BaWerjee)
Administrative Member Judicial Member
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