Orissa High Court
Brundaban Sethy And Others vs Chairman Paradip Port Trust And Another on 21 December, 2016
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK In the matter of an application under Article 226 of the Constitution of India. ----------- OJC No.6746 of 1998 Brundaban Sethy & others .... Petitioners Versus Chairman, Paradip Port Trust & another .... Opposite parties For Petitioners ... Mr. A.K Mohanty-A, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.8824 of 1996 Brajabandhu Sahoo & another .... Petitioners Versus Paradip Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.12149 of 1996 Trinath Harichandan & others .... Petitioners Versus Chairman, Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. D.K. Mohanta, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.14764 of 1996 Gagan Bihari Rout .... Petitioner Versus Paradeep Port Trust & another .... Opposite parties 2 For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.9543 of 1997 Sudarshana Barik .... Petitioner Versus Chairman, Paradeep Port Trust & others .... Opposite parties For Petitioners ... Mr. A.K Mohanty-A, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.10845 of 1997 Charan Nayak & & others .... Petitioners Versus Paradip Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.12365 of 1997 Brahmananda Samal & others .... Petitioners Versus Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.13191 of 1997 Rabindranath Biswal .... Petitioner Versus Chairman, Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate 3 For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.15266 of 1997 Chandramani Pradhan & others .... Petitioners Versus Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.15723 of 1997 Yudhisthir Pal & others .... Petitioners Versus Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.16954 of 1997 Satrughana Swain .... Petitioner Versus Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.17023 of 1997 Binod Pradhan .... Petitioner Versus Chairman, Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate 4 OJC No.17590 of 1997 Krushna Chandra Sahoo & others .... Petitioners Versus Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.5468 of 1998 Utkal Port & Dock Workers Union .... Petitioner Versus Paradip Port Trust & another .... Opposite parties For Petitioners ... Mr. J. Jethy, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate OJC No.14099 of 1998 Parsuram Swain & others .... Petitioners Versus Chairman, Paradeep Port Trust & another .... Opposite parties For Petitioners ... Mr. D.K. Mohanta, Advocate For Opp. Parties ... Mr. S.K. Padhi, Sr. Advocate & Mr. A.P. Das, Advocate JUDGMENT PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH Date of hearing: 21.11.2016 : Date of judgment: 21.12.2016 Dr. A.K.Rath, J The present batch of writ petitions raise identical questions of law and facts concerning inclusion of the petitioners in the Paradip Cargo Handling Workers (Regulation of Employment) 5 Scheme, 1994. Since issues in all the petitions are same, they were heard together and are disposed of by this common judgment. 2. Paradip is a major port. The Paradip Port is governed by the Major Port Trusts Act, 1963 (hereinafter referred to as "the Act"). Section 42 of the Act casts a duty on the major Port to undertake and perform services mentioned therein. At Paradip, cargo handling operations on the board of vessels, handling of all cargo on shore in the course of landing or shipment and inter-port transportation are handled by the cargo-handling workers listed in the Paradip Cargo Handling Workers (Regulation of Employment) Scheme, 1979 (hereinafter referred to as "1979 Scheme"), which came into operation with effect from 16.2.1980. The said scheme was framed in exercise of the powers conferred under Section 42 of the Act by the Board of Trustees of Paradip Port. As per clause 2 of the said scheme, the Paradip Port had to undertake the supply of cargo handling workers to the licensed stevedores and to the trade for all operations on the board of vessels and for bagging, stitching and sealing operations on berth respectively. Clause 18 of the said Scheme prescribed composition of gangs of workers to be entrusted with the task. Sub- clause (iii) of the said clause related to stevedoring gang and sub- clause (iv) related to shore gang. In accordance with the scheme, two lists of workers were prepared - (1) main list and (2) subsidiary/standby list. Under the 1979 Scheme, the Paradip Port undertook the following services to facilitate the movement of cargo, outward and inward, at the Port. The said services comprised of the following categories: (a) Handling of all cargoes on shore (including cargo in bulk) in the course of handling or shipment; (b) Intra-port transportation; and (c) Any other operations, directly connected with landing and shipment of cargo but not including bagging, stitching and sealing. 6 3. The 1979 Scheme applies to seven categories of cargo- handling workers. They are mentioned in Schedule-II of the Scheme, which are as under: (a) Winch man (b) Signal man (c) Gang Leader (d) Mazdoor (e) Tally Clerk (f) Supervisor (g) Deck Foreman 4. The subsidiary list of workers are employed in case the workers of the main list are not sufficient or available for cargo handling work. The workers in the main list are eligible for benefits of minimum guaranteed wages, attendance allowance and other benefits. But then, the workers in the subsidiary list are eligible for wages for their days of work only and weekly-off day with wages, if they work for six days consequently. 5. While the matter stood thus, Paradip Port and Dock Mazdoor Union raised various issues regarding clearing and forwarding workers with Paradip Port Trust. They related to payment of wages, variable dearness allowance, ex gratia in lieu of bonus, paid holidays, allotment of land for housing, three shift booking, issue of identity cards to 332 workers, etc. The two issues raised by the Union were that all the unlisted workers in the private pool ought to be listed and given all the benefits being extended to the Port's own cargo - handling workers and fixation of a datum for clearing and forwarding workers. On 10.9.1985, the Chief Minister of Orissa convened a meeting with the Chairman, Paradip Port Trust and the President, Paradip Port and Dock Mazdoor Union as well as Chief Secretary, Home Secretary, Regional Labour Commissioner (C) and some other Senior Officers of the State Government. As regards two 7 issues viz., listing of all unlisted workers in the private pool with all benefits as admissible to the Port's own cargo handling workers and fixation of datum for clearing and forwarding workers, the following consensus was reached:- "Regarding the points at (2) and (6) in para 2 above, Chief Minister indicated that the question of listing all the unlisted workers is linked with the decision regarding the optimum work force. A decision on the Datum is a pre- requisite before a decision is taken on the optimum work force. It was found that at one stage the C&F workers and the C&F agents had both agreed to refer the question of fixing a Datum to the arbitration by C.L.C, but C.L.C had expressed his inability to take up the arbitration on this issue in a communication issued to the Union. It was decided that the Chairman, PPT, would take up the matter with the C.L.C and request him to take up arbitration on this point expeditiously so that the question of Datum is settled once for all. Thereafter, a Committee may be appointed to go into the question of fixing the optimum work force and the issue of listing the unlisted workers finalised." 6. In pursuance of the above decision, the Chairman, Paradip Port Trust wrote to the Chief Labour Commissioner to agree to be the arbitrator in the matter, but his attempt did not succeed. 7. Thereafter, Paradip Port and Dock Mazdoor Union had filed a writ petition being OJC No.2639 of 1985 before this Court seeking a direction to the Chairman of Port Trust to implement the decision taken by the Chief Minister in the meeting held on 10.9.1985
, impleading Paradip Port Trust, Clearing, Forwarding and Handling Agents and State of Odisha. On 19.12.1986, this Court disposed of the writ petition with the following directions:-
"(i) The Committee under the Chairmanship of the Chairman, Paradip Port Trust shall go into the question of settling the datum, ascertaining the optimum work force and determining the number of unlisted workers to be brought to the listed category. It would be open to the Chairman to take assistance of any other officers of the Port Trust, if he feels the necessity for it.8
(ii) The Committee shall include the President of the petitioner-Union, a representative of the Chief Labour Commissioner (Central), New Delhi. Opp. Parties 4 to 12 may send one representative each to the committee. To cut short delay, we would direct that opposite parties 4 to 12 shall intimate the names of their representatives, if any, to the Chairman of the Paradeep Port Trust within two weeks from today. If the intimation from any of the said opposite parties is not received in the office of the Chairman within this period, it would be open to the Chairman to convene the first meeting of the Committee on any convenient date within two weeks without waiting for the intimation."
8. Aggrieved by and dissatisfied with the judgment and order passed by this Court, Paradip Port Trust filed Civil Appeal No.1422 of 1990 in the Hon'ble Supreme Court on various grounds, which, inter alia, included that fixing of datum was a highly complicated factor necessitating technical appraisal of diverse type of cargo which cannot possibly be done by a Committee as indicated in the judgment.
9. It is apt to state here that prior to filing of OJC No.2639 of 1985, another writ petition being OJC No.2276 of 1985 was filed by the workers included in the standby list of the registered dock workers. The workers therein sought for a direction to the Port Trust for enlisting them in the main list of the dock workers and not to include any other workers from outside or unlisted clearing and forwarding cargo handling workers until the standby list is completely exhausted. Paradip Port Trust conceded that claim and this Court directed that the Paradip Port Trust shall not enlist any other workers in the main list until the standby list in question is exhausted. The workers in that case had another grievance. They complained that no sufficient work was given to them. This Court directed that preference would be given for allotting work to the workers in the standby list, if there is sufficient work beyond the 9 capacity of the regular workers in the main list. The order in this respect was made by this Court on May 7, 1987 and it has not been appealed against.
10. During the course of hearing of Civil Appeal No.1422 of 1990, the Hon'ble Supreme Court permitted two other Unions, namely, Utkal Port and Dock Workers Union representing the standby workmen and Paradip Port Trust Workers Union representing those working at the shore to ship and at clearing and forwarding, as parties to the appeal. The Hon'ble Supreme Court observed that there was no dispute that datum shall be fixed for the purpose of listing the unlisted workers or for what is termed as decasualisation of the workers. The dispute pertains to the category of workers to be considered for enlisting and the composition of the Committee to determine the question. It was observed that the Committee constituted by the High Court appeared to be inadequate, if not, ill equipped and it would be better to constitute a High Power Committee with technical Members on it. The Hon'ble Supreme Court, accordingly, constituted a High Power Committee with Mr. Justice H.R. Khanna, retired Judge of the Hon'ble Supreme Court as the Chairman with an expert in Port management and a representative of the Ministry of Surface Transport as members. The operative part of the judgment is quoted hereunder:
"10. We therefore, constitute a High Power Committee with Justice H.R. Khanna, retired Judge of the Supreme Court as the Chairman. The Committee shall have two other members to be nominated by the Government of India; (i) A representative of the Ministry of Surface and Transport; and (ii) an expert in Port Management. The Government of India shall nominate the two members within two weeks from today.
11. This Committee will decide the question of listing the unlisted workers in the light of the recommendations under paras 13.2 to 13.8 of the Abraham Committee Report and in accordance with the 10 Paradip Cargo Handling (Regulation of Employment) Scheme, 1979. The Committee will afford reasonable opportunity to representatives of the aforesaid workers Unions and also the Port Trust. The Committee may also work out a scheme to mitigate the unemployment of surplus workers.
12. The Committee will have the liberty to have its sittings at Paradip and/or at New Delhi. It may submit an interim report. The Port Trust must provide all facilities for the deliberations of the Committee and meet all expenses and fees.
13. The reasonable fees of the respective counsel of the aforesaid three workers' Unions, as certified by the Chairman of the Committee shall also be paid by the Port Trust. We make this direction despite the objection from counsel for Union of India, so that the interests of the workers may not be prejudiced or impaired for want of proper representation before the Committee. The workers who are the weaker sections should not be handicapped by deficient or ineffective assistance on their legitimate claim for decasualisation.
14. The Port Trust shall implement the decision of the Committee within two months from the date of submitting the report thereof."
11. Pursuant to the judgment of the Hon'ble Supreme Court in the case of Paradeep Port Trust and another v. Paradeep Port and Dock Mazdoor Union and others, AIR 1990 SC 1125, a committee was constituted under the Chairmanship of Justice H.R. Khanna with two members. The High Power Committee considered the rival claims of the different Unions and submitted an exhaustive report in July, 1993. The Committee rendered the findings on demand of listing of CF&H workers in Chapter-XV. The relevant portions of the report of the committee are quoted hereunder;
"15.20 It may be seen from Chapter III on the Genesis of the Dispute that Paradip Port and Dock Mazdoor Union raised two issues during the year 1985, namely, i) clearing and forwarding workers numbering about 1479 in the pool should be given the benefits as admissible to the listed workers under the scheme of 1979; and ii) group of 332 workmen from among this category having not been issued identity cards should also be issued 11 identity cards for entry into the Port and be considered for regularisation. The dispute which arose out of these two demands led to the appointment of this Committee. Regarding the claim with respect to 332 workers, we find that Shri Bhaskar Barik and 64 others belonging to Paradip Port and Dock Mazdoor Union filed a Writ Petition OJC No.4190 of 1992 in the High Court of Orissa against any introduction of mechanical process for cargo handling work. In their preliminary counter affidavit, Paradip Port Trust made reference, inter alia, to about 332 workers. The averments made by Paradip Port Trust and the documents produced with the counter affidavit reveal the following about 332 workers. According to the practice in vogue in 1981, Paradip Port Trust was issuing passes to the C&F workers on the recommendations of the Clearing, Forwarding and Handling Agents. The passes were issued to the employers by specifying the number of workers, but not their names. During 1983, the system for issue of passes was changed and passes were issued directly to individual workers on the recommendations of C&F Agents with a view to checking engagement of bogus workers. Since the Port Trust had no record about the details of C&F workers engaged by the C&F Agents, Port Trust had to rely on the list of workers recommended by the C&F Agents. But, Paradip Port Trust imposed the condition that the actual issue of passes would be only after the identity of person was established beyond doubt. To obviate the possibility of bogus claims being put-forth at a later date, Paradip Port Trust found it necessary to lay down a dead line by which date these passes were to be collected after observing due formalities. Accordingly, Paradip Port Trust issued a notification on 29.1.1983 inviting the workers to collect the passes by 25.3.83 and it was specified therein that if the passes were not collected by 25.3.1983, it would be treated that either the names of the workers furnished by the employers were not genuine or the workers concerned were not interested in working in the Port. Two more notices were issued by Paradip Port Trust on 21.2.1983 and 19.3.1983. Despite three notices and nearly two months' period, 816 workers (out of 980 workers for bulk cargo) and 545 workers (out of 713 bag and bale cargo) collected passes by the stipulated date. The remaining 332 workers (164 workers in bulk cargo and 168 workers in bag and bale cargo) did not collect the passes within the stipulated date. The union however continued to represent for issue of passes for 332 workers. The dispute was taken up in conciliation by the Chief Labour 12 Commissioner (C), New Delhi on 4.12.1984 and a settlement was arrived at between Paradip Port Trust and Paradip Port and Dock Mazdoor Union. According to the settlement, the Union was to prepare and furnish the names and other relevant particulars about 332 workers for identity cards within 15 days to the Chairman, Paradip Port Trust, which would then be examined with reference to the names of the workers already recommended by C&F Agents. In respect of those whose names tally, Port authorities were to issue identity cards to them within a month. 19th December, 1984 was the last date agreed to in the settlement for the Union to furnish names of 332 workers. The Union did not produce the list by 19.12.1984, but produced it on 24.1.1985 more than a month thereafter. Paradip Port Trust did not agree to issue passes as the names were furnished after the agreed date. The settlement dated 4.12.1984 was a last chance given by the Port Trust as a gesture of goodwill. It would therefore appear that 332 workers did not turn up for collecting passes in 1983 despite three notices during a period of nearly two months. It is further noteworthy that the Union which had been espousing the cause of 332 workers could not produce their names and particulars to Paradip Port Trust within the stipulated date. In the absence of any supporting records with the Port Trust, Paradip Port Trust had obviously set the dead line to prevent the possibility of bogus claims. There was in our opinion nothing wrong in the procedure then adopted by the Port Trust. The position as it now emerges is that these workers have admittedly not been working in the Port since 1983. After a lapse of ten years, the workers cannot claim any lien on any employment in the Port on the ground that they were working under the MMTC Contractors or other C&F agents prior to mechanisation of iron ore loading. This apart after passage of so many years, there are obvious difficulties to verify such claims with any degree of certainty. The Committee is not therefore inclined to consider the demand of the 332 workers for meeting additional requirements under the proposed Scheme. In para 15.19, claims have also been raised by the same Union as well as by other Unions on behalf of a number of workers for meeting the additional requirement of labour. As in the previous case, the claims of any of these groups also cannot be verified as they have not been working in the Port since 1983. The Committee is therefore not considering the claims of any of these lists of additional 13 workmen submitted by the Unions to meet the additional requirement of labour.
15.21. The question from which source should the workers be taken for being enlisted for C&F work when the existing strength of workers actually engaged in this type of work is found to be inadequate is not without difficulty. As has been indicated earlier, the different Unions have espoused the cause of certain workers. As regards the claim made on the ground that those workers worked in Paradip Port before 1984, we are of the opinion that this fact would not entitle them to claim some kind of lien to justify their claim for being included in the list of those workers who are now being enlisted for C&F operations. This apart, as mentioned earlier, there are obvious difficulties in verifying the veracity of such claim with any degree of certainty after a long lapse of nine years. As has been indicated earlier, there is a list of 504 Mazdoors belonging to the standby category. The High Court of Orissa has passed an order that in case there are not enough workers in the main list to do the work specified in 1979 scheme, these workers in the standby list would have a prior claim to be engaged for that work. As things, however, so transpired that the number of workers enlisted in the main list was far in excess of the requirements of the work contemplated by 1979 Scheme, the workers in the standby list consequently never got any practical benefit from the order made by the High Court for securing priority for being engaged for work contemplated by 1979 Scheme. Any expectation of these workers in the standby list in this respect thus remained more or less a tantalising illusion. Question then arises as to whether the workers in the standby list should make up the shortage of additional workers now being enlisted for C&F work. No doubt the work for which the order was made by the High Court regarding the workers in the standby list related to the work being done by the workers covered by 1979 Scheme. Yet, the fact remains that these workers were having foothold in the Port since 1980 when identity cards were issued to them by the Port Trust authorities. Photo passes were also issued to them in 1984 and registration cards were issued to them in 1987-88. In our opinion the workers in the standby list have more weighty claim compared to the claims of other workers. We are also of the view that in considering the claims of various categories of workers in this regard we should consider the claims on merits and not on the basis of their affiliation or membership of a particular Union. At the same time it needs to be clarified that if these workers 14 in the standby list want to be included in the list of workers now being enlisted for C&F work they shall have to give up their claim as constituents of Standby list. It is, therefore, necessary that all the Mazdoors in the standby list should be given an option to indicate their unequivocal willingness in writing to give up any entitlement present or future as constituent of Standby List for work under 1979 Scheme and agree to work as C&F workers under the proposed Scheme on the terms and conditions that will be stipulated by the concerned authorities. Such of the Standby List workers, who give such an option can be considered for meeting the additional requirement of C&F workers. If the number of workers opting to come over to the C&F section is more than the requirement, selection should be made on the basis of their inter se seniority among the standby List workers. In the absence of record of seniority, the authorities concerned may select from out of the willing Mazdoors in the standby List on the basis of test and interview to adjudge their suitability for the jobs to be entrusted to them.
15.22 The question as to upon whom should the financial burden of the scheme relating to C&F workers fall is of considerable importance. In this respect, we find that Paradip Port Trust has taken an unequivocal stand that it was not prepared to take over any financial liability in this respect. It has also been pointed out on its behalf that in most of the other Ports, the Port Trusts have not undertaken such liability. It may also be mentioned that at the time when this Committee, on the application of Paradip Port and Dock Mazdoor Union, decided to issue notice to C&F Agents, the Committee in the course of its order noted that any financial burden which may accrue as a result of the report or decision of this Committee would fall on the Clearing and Forwarding Agents. Also the remuneration of C&F workers is so far being paid by C&F Agents through the pool office. The C&F Agents during the course of proceedings before this Committee have also proceeded on the assumption that it would be they who would have to bear the financial burden for C&F operations and have accordingly made their submissions in respect of the workers engaged in that work. The 1979 Scheme, as has been indicated earlier, does not relate to C&F work. The said Scheme can however operate as some kind of a model for the Scheme which would now come into existence as a result of this report and which, as would be indicated subsequently, would have to be looked 15 after by a Management Committee headed by an officer of the Port Trust.
15.23 As a result of the above we direct that even though the 1979 Scheme would not apply to the workers who would be enlisted for C&F work, the said Scheme can operate as some kind of a model scheme for working the Scheme for C&F work. The financial liability of working the proposed Scheme shall however be borne by C&F Agents and not by the Port Trust. For the smooth and effective working of the Scheme, it is essential that it should be operated by a Management Committee consisting of three representatives of employers and three representatives of workers. The Committee should be headed by a whole time Chairman who shall also have the right to vote. In addition to this, the Committee shall have also a whole time Secretary. Both the Chairman and the Secretary shall be officers of Paradip Port Trust and shall draw their pay and allowances from Paradip Port Trust. All decisions in regard to the administration of the proposed Scheme shall be taken by the Management Committee. The Management Committee should frame scheme on the lines of Paradip Port Cargo Handling Workers (Regulation of Employment) Scheme, 1979, looking to the requirements of C&F work. The Committee will collect wages, levy or administrative charges and welfare charges as determined in the Management Committee from time to time for the Supervisors and Mazdoors supplied to the C&F Agents. The Scheme should be a self-financing Scheme and the entire financial liabilities on account of these workers, shall have to be borne by the CF&H Agents. Suitable provisions for listing of CF&H workers, appropriate qualifications, medical examination, age restriction and selection for Mazdoors and supervisors will be incorporated in the Scheme. Such of the Mazdoors and supervisors, who do not fulfil the qualifications or conditions prescribed for listing will be retrenched by the present pool management after following necessary procedure and payment of terminal benefits as contemplated by law. The proposed scheme should provide for the obligations of workers, disciplinary procedure, appeal provision, retirement age etc. as has been done in the Scheme of 1979.
15.24 We are also of the view that normally a worker should have to work in one shift. There is a point beyond which it will be straining the physical capacity of the workman, and would not be good for his health, that he should overstrain himself. Undoubtedly working in a second shift would hold the allurement of earning more.
16Yet, in our opinion, it would not be desirable to allow conditions of such temptations to prevail and for workers to succumb to such temptations at the cost of their health. The fact that most of these workers have hitherto been accustomed to work in two shifts in a day without much detriment to their health was due to a great deal to the fact that they were working not for the full hours of the shift. This would not show that working in two shifts would not have adverse effect on their health when in each shift they would have to adhere to full prescribed time of the shift. We would, therefore, apply the same conditions as are there in clause 17 of the 1979 Scheme according to which "(iii) a worker shall not ordinarily be employed in 2 consecutive shifts or shall a worker be employed in two consecutive shifts on each of the two successive days; in no case shall a worker be employed in three consecutive shifts. (iv) A worker shall not ordinarily be employed for more than 6 shifts in a week or 27 shifts a month; (v) in special circumstances the authority concerned may relax temporarily the restriction under item (iii) and (iv) to the extent necessary."
[Note: In clause (v) we have substituted the words 'authority concerned' instead of the words 'Additional Traffic Manager'] 15.25 The Scheme will operate prospectively and all the benefits will also flow from the Scheme prospectively. As regards the number of minimum working days for which wages should be guaranteed to CH&F workers now being listed, we find that in the case of workers already working in the main list, 12 days minimum guaranteed wages were initially allowed. It was thereafter gradually increased by stages to the present level of 21 days. In our opinion, it would be appropriate that CF&H workers now proposed to be enlisted should be guaranteed 12 days minimum guaranteed wages at the initial stage. This apart we find, as has been noted elsewhere, that as a result of guaranteed wage for a minimum of 21 days, the situation as it now exists is that by working for about 12 days in a month, those workers get 27 or 28 days wages. The consequence of that is that the urge to work also gets diminished. This is plainly not in national interest nor conducive to a healthy work culture. Hence, the Committee recommends that the listed C&F workers should be allowed 12 days minimum guaranteed wages at the initial stage. However, they may be allowed Attendance Allowance at 1/60th of the monthly wage, weekly off with wages and productivity linked bonus subject to the fulfilment of the conditions prescribed for 17 such benefits. The workers are already covered by the Contributory Provident Fund Scheme. Suitable Scheme for payment of gratuity may be evolved and the benefits extended from the prospective date of the operation of the Scheme.
15.26 As the proposed Scheme will have prospective effect, the Management Committee should ensure that all past liabilities on account of workers, unpaid wages, unpaid CPF contribution, if any, and any other dues should be discharged in full and final settlement of the past service of these workers. The proposed mechanisation of thermal coal handling is not far off. This is likely to be commissioned in 1996. Even if its commissioning is delayed by a year or two, the stark reality remains that all the workers in thermal coal section would be rendered surplus and their services will not be required after the mechanisation. Hence, their present employment would have to end and in order to meet the expenditure on terminal benefits and any other dues, required by law, payable at that stage, the Management Committee should commence building up a separate fund from the CF&H Agents by means of a separate levy. This seems to be necessary as otherwise it would not be possible for the CF&H Agents to meet the entire expenditure at one stroke. It is easy to build up the funds in an equitable manner from all the employers in instalments and as such the requisite amount should be suitably assessed and collection started from the employers in right earnest from the day the proposed Scheme comes into force.
15.27 Under the existing arrangements, the workers are working in a compartmentalised manner in 5 different Groups. It appears that Groups have been formed depending upon the allegiance to a particular Union coupled with nature of work, without interchangeability. This apart, it has come to our notice that there is no inter-changeability between the group of workers handling bag and bale cargo and the groups unloading iron ore and chrome ore from truck and those handling iron and steel, even though they all belong to the same Union. This has led to a situation wherein one section of workers get more employment opportunities as compared to those in other Sections. It cannot be gainsaid that interchangeability among different groups of workers will optimise the utilisation of the available man-power. Such interchangeability would prevent shortage in one Section and the workers remaining idle without work in another Section. The Committee would, therefore, prefer the 18 introduction of interchangeability among the C&F workers. But the rigidity that has developed on the basis of the Union allegiance among different Sections and the expected termination of employment in one Section as a result of mechanisation have led the committee not to force interchangeability in the proposed Scheme. The Management Committee may, however, at appropriate time in future take necessary action in this direction.
CHAPTER XVI GENERAL 16.1 In the Report of the Study Group for ports and Docks appointed by the National Commission on Labour, 1969, "productivity has been defined as the product of technology developments and employees' job performance." As regards the need for increasing productivity in the port industry, it is plain that if per capita production in the ports goes up, the cost to handle cargo would come down and thus bring the goods to the market at the attractive prices to the consumers. It would like wise help the export drive also. In order to achieve good results by optimum performance, it is essential that there should be both technical developments as well as employees' job performance.
16.2 It goes without saying that a well-looked after work force constitutes a valuable asset for the port industry. The basic requirements such as drinking water, toilet and washing facilities at the worksites have to be ensured. In this connection, the Committee likes to draw the attention of the Port authorities to the complaints made by the workers regarding inadequate drinking water facilities close to the works pot and worksites. 16.3 We also feel that remedial steps should be taken to tackle air pollution in the port area .This may be due to a variety of factors including the work of loading and unloading of thermal coal and other similar cargo such as ores/cooking coal. The pollution as it exits at present in Paradip Port Trust is ex facie injurious and harmful to the health not only of the workmen, but all others working in the port area. This apart we find that it is the stand of Paradip Port Trust itself that the pollution in the port area because of loading and unloading of thermal coal and other such cargo acts as a deterrent factor in the import and export of food grains and fertilizers. It would therefore be in the interest of Paradip Port Trust and its economy that requisite steps are taken to minimise the pollution wherever it exits.
1916.4 The Committee is aware that the Main List workers included under the 1979 Scheme are provided with the following protective equipment:-
a) Gloves - 2 pairs in a year
b) Nose Mask/ Guard - 1 piece in a year
c) Shoes - 1 pair in two years
d) Helmet - 1 piece in five years
e) Raincoat - 1 piece in three years
But the Committee did not notice any worker using the protective equipment. Port authorities, employers, Unions and Dock Safety Inspectorate should educate the workers in use of the protective equipment for their safety and welfare and should ensure they are actually used. The question of supply of gum-boots may also be taken up depending on the nature of work and cargo handled. 16.5 The Committee observed the handling of fertilizers by C&F workers with uncovered hands with their bare legs going one foot deep into the fertilizer heap. Protective equipment for them is necessary. So far as the clearing and forwarding workers are concerned, Management Committee should take steps to provide such protective equipment as gloves, gum-boots, Nose Mask/guard, shoes, raincoat etc., as may be essential looking to the nature of the work done by a group of workers. Provision of First Aid Boxes at all worksites may also be ensured. We are also of the view that a dispensary to provide outdoor medical facilities for CF&H workers, their spouses, children and parents should be opened. Port Trust should provide suitable accommodation for this purpose on a nominal rent. The entire expenditure on account of provision of drinking water and washing facilities, First Aid Boxes, protective equipment and free outdoor medical facilities to the clearing and forwarding workers should be met by the Clearing and Forwarding Agents. After the listing of clearing and forwarding workers, a separate welfare levy should be collected from the Clearing and Forwarding Agents for defraying all these expenditure.
16.6 An accident benefit scheme namely Group Janata Personal Accident Insurance was introduced for the Listed Cargo Handling Workers in 1983. In case of death of worker by accident, a sum of Rs.25,000/- is paid to the legal heir of the deceased under the Scheme; the premium is paid by the Port Trust in advance and is recovered from the workers in monthly instalments. The Committee recommends that a similar scheme may be introduced for the C&F workers and the premium be paid 20 in advance from the welfare fund collected from the C&F Agents and then recovered from the workers in monthly instalments."
12. The main highlight of the Khanna Committee Report is;
"(a) The main list of the cargo handling scheme by itself has a surplus of about 403 workers and the question of inclusion of standby workers any further in the main list does not arise.
(b) The standby workers are totally surplus and cannot be included in the main list.
(c) In the CFH Scheme which has previously administered by a Governing Body is to be administered by the Management Committee consisting of the three representatives of employers, i.e., the CFH agents and three representatives of the workers and with a full time Chairman who shall be an officer of the Paradip Port Trust and also a full time Secretary who shall bean officer of the Paradip Port Trust.
(d) That the Management Committee should frame a Scheme with suitable provisions for listing of workers, appropriate qualifications, medical examination, age restriction and selection is to be incorporated to the Scheme. The Scheme will also provide provisions for obligation of workers, disciplinary procedure, appeal provision, retirement age etc.
(e) There is scope of taking 395 additional workers in the CFH Scheme to meet the additional requirement of work force owing to introduction of single shift booking of workers.
(f) The standby workers shall be given preference for joining in the aforesaid vacancies of CFH Scheme and they should be allowed to join subject to the condition that the standby workers
(i) give an unequivocal willingness to join in the Scheme.
(ii) Subject to medical examination and antecedent verification.
(g) That the workers need to be retired after mechanization and the ADB Project is implemented."
13. Pursuant to the recommendation of Khanna Commission, a new Scheme, namely, Paradip Cargo Handling Workers (Regulation of Employment) Scheme, 1994 was formulated. After Khanna Committee submitted its report, a group of workers, out of 332 21 workers, who claimed that they were working in the CFH operations earlier and had put-forth their claims before the Khanna Committee had approached this Court. After being unsuccessful, they approached the Hon'ble Supreme Court in SLP No.13490 of 1994. The Hon'ble Supreme Court of India directed as follows:
"We accept the finding given by the High Power Committee in its report and we do not think that any interference thereunder is called for. However, the question is whether the petitioners who claim to be some of the alleged 332 workmen to whom reference has been made in paragraphs 15.20 and 15.21 of the Report, can be enrolled as fresh applicants under the new Scheme. Hence, issue notice to respondent no.1 Port Trust."
14. The Special Leave Petition (Civil) was finally disposed of on 31.1.1995 with the following order;
"The respondents will give preference, if the vacancies that may be available with them, to the standby workers first. If there are more vacancies or vacancies which are not filled in by the standby workers, the respondents will go according to their record, and give preference to the other workmen found to have worked with them as per their record including the petitioners and the members of the other Unions. The jobs should be given strictly according to seniority. These proceedings stand closed."
15. While the matter stood thus, a provisional list of 437 standby workers was published by the Management Committee on 5.12.1994. Subsequently another additional list of 22 standby workers was published on 30.12.1994, 5.1.1995 and 29.4.1995 respectively.
16. Pursuant to the recommendation of the High Power Committee, the Management Committee published a notice directing standby workers for appearing in the medical test on various dates between 29.3.1995 and 6.4.1995. On the date fixed, sixty-eight numbers of standby workers appeared in the medical examination. On 19.4.1995, the Management Committee decided to give another 22 chance for medical examination. On 23.4.1995, another notice was published fixing the date of extended medical examination between 6.5.1995 and 20.5.1995. Thereafter, thirty-nine numbers of standby workers appeared in the medical examination. On 27.5.1995, the Management Committee decided to extend the medical examination of standby workers upto 5th June, 1995. On 30.05.1995, the Secretary of the Management Committee issued a notice intimating all the standby workers about the extension of medical examination upto 5th June, 1995. In spite of several opportunities granted for medical examination, 125 standby workers out of 437 applicants of standby workers appeared in the medical test. The remaining 312 standby workers did not appear for the medical test. After this Court's order dated 26.2.1997, an additional 114 standby workers joined the scheme.
17. In the meeting of the Management Committee held on 31.08.1995, a memorandum was placed in which, it was stated that notices were issued from time to time for medical examination and out of 437 standby workers, 312 standby workers absented from appearing for medical examination for which, the names of these 312 standby workers should be taken out from provisional list of CFH Scheme. The memorandum was approved by the Management Committee meeting held on 31.8.1995. On 3.1.1996, the Management Committee decided to close the list of standby Mazdoors. Thereafter, the General Secretary, Utkal Port and Dock Workers Union filed a writ application being OJC No.674 of 1996 before this Court challenging the aforesaid decision of the Management Committee. On 26.4.1996, this Court disposed of the writ application with the following observation;
"Since only four persons have filed affidavits standing by the stand of Utkal Port and Dock Workers Union in spite of direction given by this Court that 23 affidavits of all the persons whose cause is supposed to be espoused by the petitioner-Union, we do not entertain this writ application filed on behalf of the Union.
The writ application is disposed of accordingly."
18. Thereafter, on 7.3.1996, the Management Committee decided as follows:
"The list furnished by the employers for meeting the additional requirement of workers for introduction of single booking to 816 group of workers, i.e., for the workers who had earlier worked for CFH operations was received on 21.12.1995 and 22.12.1995 and the Management Committee in its meeting held on 3.1.1996, appointed a Sub-Committee to verify the list and accordingly, the Sub-Committee had verified the list after obtaining certain clarifications in the meeting held on 28.2.1996. The Sub-Committee, after verification of the lists, has found out that 176 workers are in the common list but 31 names contain several variations including non-availability of father's name, title not tallying etc. For the purpose of verification of the list, it was decided that the names of Supervisors and Sardars included in the list should be excluded as the vacancies against which the casual engagement is being considered at present is against Mazdoors only. The legal aspect specially in view of pendency of two writ petitions was also discussed by the committee and it was agreed that the booking of the workers from out of the list should be limited to 145 number persons for time being subject to further verification by the Sub-Committee for the differences for remaining individual workers. It was also decided that the Sub-Committee will be assisted by Sri A. Ranahandol, Member to expedite the verification. It was further decided that booking to 145 workers + other workers as may be recommended by the Sub-Committee shall be offered purely on casual basis only with a view to carry on day to day work and that no workers shall have any right or claim on the basis of present casual engagement for the future. This will also be subject to the result of the two writ petitions pending before the Orissa High Court.
The question with regard to booking of 125 workers who had attended to the medical examination and booking of 41 steel gang workers in the coal wagon unloading/bulk handling operations was also discussed and it was agreed that the booking should be given to them immediately and the booking pattern that shall be followed for engagement of such workers would be that 24 125 workers along with 41 workers of steel gang will stand merged with 816 group of workers except than 41 steel gang workers shall have the right to be booked for handling of steel as and when there is need for the same. For the purpose of handling of steel cargoes, they shall be booked according to the practice in vogue. The requirement for unloading of coal wagons, if any, thereafter shall be met from out of the casual list. If after engagement of casual workers, there is further need, 816 group of workers could be offered second booking as per the existing procedure. The workers booked on causal basis shall be entitled to minimum wages in the scale applicable to Mazdoors without any other benefits enjoyed by applicable to CFH workers. It was further agreed that the casual workers shall be issued with the daily passes as and when they engaged for the work."
19. On 19.4.1996, the Management Committee decided that 176 workers (out of 332 workers who are the petitioners in OJC No.12149 of 1996) be offered casual booking. The case of 138 workers (petitioners in OJC No.6746 of 1998) was decided as follows:
"(i) Case of 138 workers The Committee was informed that the Paradip Port Workers Union has submitted a list of 138 workers with a request to consider their engagement under the Management Committee. A claim also has been made that this set of workers are senior workers and should be considered for meeting the additional requirement of workers. The Committee was informed that a reference has already been made to CISF to indicate, if at any stage, passes were issued to them, whereafter the matter will be placed before the Committee.
(ii) Since records were not readily available with CISF, PPT and the evidence produced by the Union was only relating to work for 3 months for some of the workers during the year 1980, and the workers do not appear to have worked thereafter, the question of seniority has not been established. Since these workers claim that they were working for iron ore and chrome ore trucks, and inclusion of additional workers is being considered for unloading of coal wagons and the petitioner Union does not support interchangeabilty, the matter was discussed in the meeting of the Committee on 18.10.1996 and it was decided that the matter be placed before Orissa High Court along with other issues."25
20. The relevant portion of the proceeding is extracted below:
"(b)(iii) Consideration of the case of 138 workers : Since the issue of engagement of 138 workers only relate to unloading of iron ore and chrome ore trucks and interchangeabilty amongst the workers has not been agreed to by the Unions, this matter shall be placed before the Orissa High Court along with other issues as per the decision of the Committee in the foregoing paragraphs."
(iii) Apart from above, it may be seen that the petitioners have not filed any writ petition with an independent prayer and hence their case should not come for any consideration at this stage."
21. Thereafter OJC Nos.3308 of 1995, 4188 of 1996, 5476 of 1996, 10857 of 1996, 11618 of 1996, 11900 of 1996, 12149 of 1996, 12714 of 1996 and 12575 of 1996 had been filed before this Court seeking almost identical reliefs. In all the writ petitions, except standby workers, prayers were made to engage them in the CFH Scheme.
22. The writ applications were disposed of on 26.2.1997. The claims of all writ applicants had been rejected except the claim of the standby workers. Direction was issued to provide an opportunity to the standby workers.
23. A Special Leave Petition was filed before the Hon'ble Supreme Court against the common judgment of this Court. The judgment rendered in OJC No.12149 of 1996 was challenged in Civil Appeal Nos.623 and 624 of 1998, which were disposed of by the Hon'ble Supreme Court (Trinath Harichandan and others v. Chairman, Paradip Port Trust and others, (1998) 3 SCC 113). The Special Leave Petition filed against the judgment in OJC No.3308 of 1999 was dismissed. In exercise of power under Article 142 of the Constitution of India, Hon'ble Supreme Court directed that all writ petitions pending in the High Court pertaining to the claims of rival claimants to be included in the CFH Scheme, 1994 for getting regular 26 employment under the Scheme for working in the Paradip Port as clearing, forwarding and handling workers, shall be decided by the High Court along with other writ petitions. A direction was issued not to entertain any more writ petitions pertaining to the Scheme and the date of judgment shall be taken as cut off date beyond which no new writ petitions in this connection shall be entertained. The Hon'ble Supreme Court further directed as follows;
"It is of course true that the proposal put forward in the said preliminary affidavit by the employer of these CFH workmen would require an extension of the coverage permitted by the High Power Committee whose report is accepted by this Court. In this connection we must observe that as the report of the High Power Committee which had taken great pains spread over more than three years in trying to resolve the conflict and in deciding the rival claims so that the working in the Paradeep Port Trust could go on more peacefully and efficiently and as the said report is accepted by this Court it has to be accepted as comprehensive and fully binding on all concerned and cannot be tinkered with in connection with its basic recommendation. However, so far as the limited question of increase of vacancies is concerned, necessary modification regarding re-designation of workmen concerned can be made by consent of all the contesting parties. If this is done by consent of all the rival claimants for employment in CFH Scheme, the basis of the scheme will not get adversely affected. We are happy to know that all the learned counsel representing different groups of workmen claiming to be included in the CFH Scheme and who are the rival claimants in the writ petitions which are now to be decided by the High Court pursuant to the present order have agreed that a limited exercise for increasing the balance of available vacancies which would obviously be beneficial to all rival claimants may be undertaken by their consent. All the contesting unions of workmen were agreeable to the said exercise as submitted by their respective counsel before us. Learned senior counsel Shri Banerjee appearing for the Management Committee, Respondent No.2 herein, fairly left that question to us. His only rider was that the report of the High Power Committee as accepted by this Court and which is a product of immense pain and efforts put forward by learned Judge Shri H.R. Khanna and his 27 colleagues should not be in any way adversely affected. We entirely agree with him and make it clear that we are seeking to extend the coverage of the said report for the benefit of all workmen concerned by their consent. We also make it clear that our present exercise is confined only to the question of ascertaining available vacancies as on date and nothing more and nothing less. We have already seen earlier that as per the additional affidavit of Respondent no.2 the remaining vacancies are 155. As per the aforesaid preliminary affidavit of the employer of these CFH workmen if the gang is to consist of 8 mazdoor plus one supervisor, total 9 instead of 8 mazdoors plus one supervisor for three gangs, that is, 8.33 persons per gang as recommended by the High Power Committee and as earlier accepted by this Court more mazdoors will get accommodated. Hence, 127 sardars of standby workmen will now be treated as re-designated Supervisors Grade - II with the result that they will release 127 vacancies in the mazdoors quota and these many more vacancies will be added to the vacancies of mazdoors. They will, therefore, work out to 155 + 127 vacancies, in all 282. We grant this much modification in the report of High Power Committee and consequently in the CFH Scheme by consent of all the parties and direct re-designation of 127 sardars as Supervisors Grade-II. Thus the coverage of the High Power Committee Report will stand extended keeping in tact the said report in all other aspects and will remain binding and operative at the Paradeep Port Trust while it works out the CFH Scheme of 1994. It is also made clear as agreed to between the contesting parties that 127 sardars redesignated as Supervisors Grade-II will be continued to be employed on the same terms and conditions and on same wages by the employer, namely, the Paradeep Port Clearing, Forwarding and Handling Agents' Association as agreed to by them in their affidavit. The net result is that the available vacancies of mazdoors for being covered under the CFH Scheme of 1994 will be 155 + 127 = 282 as on date. These available vacancies will, of course, further get enlarged by 15 vacancies more if ultimately the writ petitions filled by the 15 left-out standby workmen get rejected by the High Court. In that eventuality the available vacancies as on date will be treated as 282 + 15 = 297 and if the writ petitions of these 15 standby workmen are granted by the High Court then obviously the cake of the residuary vacancies for distribution amongst the eligible claimants will be confined to 282. It is for these ascertained vacancies as existing on date that 28 the High Court will undertake the exercise of finding out the eligible claimants whose writ petitions will be examined by the High Court as per the present order and in the light of their vis-a-vis inter se seniority their claim for being appointed as regular employees under the CFH Scheme will be worked out qua these available vacancies. In short, once these available vacancies are ascertained and if the High Court is not apprised of any further increase or decrease in the vacancies by the parties concerned due to any future contingencies then on the basis of these 282 available vacancies as on date, the rival claims of the contesting claimants in the pending writ petitions and in the writ petitions that will be placed before the High Court for consideration pursuant to the present order, will have to be examined and decided by the High Court." (emphasis laid)
24. With this factual scenario, these writ applications have been filed seeking the following reliefs;
OJC No.8824 of 1996In the aforesaid circumstances, the petitioners respectfully prays that this Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for the petitioners, issue any appropriate writ, order or direction and:
i) Direct the Management Committee opposite party no.2 to enlist the petitioners in the Paradeep Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 as Mazdoor.
ii) And/or grant such other relief as deemed fit and proper in the interest of justice;OJC No.12149 of 1996
Under the circumstances stated above, the petitioners most respectfully pray that this Hon'ble Court may be graciously pleased to issue a writ or writs in the nature of writ of mandamus directing the Opp. Parties to declare the present petitioners as listed 1994 Scheme workers.
And pass any other such order/orders as would be deemed fit and proper under the facts and circumstances of the instant case.
OJC No.14764 of 1996In the aforesaid circumstances, the petitioner respectfully prays that the Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for 29 the petitioner, issue any appropriate writ, order or direction to the effect that:
i) The Opp. Party should allow the petitioner to appear for medical test.
ii) The Management Committee, Opp. Party no.2 should give effect to the advise given by the legal advisor in Annexure-
iii) To act in accordance with the observations given by the lordships of Supreme Court which is as follows:-
"The respondent will give preference in the vacancies that may be available with them, to the stand-by workers first. If there are more vacancies or vacancies which are not filled in by the stand-by worker, the respondents will go according to their record, and give preference to other workmen found to have worked them as per their record, including the petitioners and the members of the other Unions. The job should be given strictly according to seniority. These proceedings stand closed."OJC No.9543 of 1997
It is prayed therefore that this Hon'ble Court may be graciously pleased to
a) Admit the writ application;
b) Call for the records;
c) Issue rule Nisi, calling upon the O.P No.1 to 3 to show cause as to why the letter of the Deputy Traffic Manager dt.19.3.93 under Annexur-6 shall not be quashed and the petitioner shall not be included in the cargo handling scheme and if opp. party no.1 to 4 do not show cause or do not show insufficient cause the letter of the Deputy Traffic Manager dt.19.3.93 under Annexure-6 be quashed by issuing a writ of certiorari and a writ of mandamus be issued to the O.P No.1 to 3 to include the petitioner under the cargo handling scheme and further issue a writ of mandamus or any other appropriate writ/writs directing the O.P No.1 to 3 for medical verification of the petitioner within the reasonable time to be stipulated by this Hon'ble Court.
OJC No.10845 of 1997In the aforesaid circumstances, the petitioners respectfully prays that the Hon'ble Court may be graciously be pleased to admit this petition and after hearing the counsel for the petitioners, issue any appropriate writ, order or direction to the effect that:
i) The Opp. Party should allow the petitioners to appear for medical test.30
ii) The Management Committee, Opp. Party no.2 should give effect to the advise given by the legal advisor in Annexure-4.
iii) To act in accordance with the observations given by the lordships of Supreme Court which is as follows:-
"The respondent will give preference in the vacancies that may be available with them, to the stand-by workers first. If there are more vacancies or vacancies which are not filled in by the stand-by worker, the respondents will go according to other workmen found to have worked them as per their record, including the petitioners and the members of the other Unions. The job should be given strictly according to seniority. These proceedings stand closed."OJC No.12365 of 1997
In the aforesaid circumstances, the petitioners respectfully pray that this Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for the petitioners, issue any appropriate writ, order or direction and:
i) Quash the Annexure-3 issued by opposite party no.2.
ii) Direct the Management Committee opposite party no.2 to enlist the petitioners in the Paradeep Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 as Mazdoor.
iii) And/or grant such other relief as deemed fit and proper in the interest of justice;OJC No.13191 of 1997
In the aforesaid circumstances, the petitioner respectfully prays that the Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for the petitioner, issue any appropriate writ, order or direction to the effect that:
i) Direct the Management Committee, O.P No.2 to enlist the petitioner in the Paradip Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 as Mazdoor.OJC No.15266 of 1997
In the aforesaid circumstances, the petitioners respectfully prays that the Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for the petitioners, issue any appropriate writ, order or direction and;
31i) Direct the Management Committee, opposite party No.2 to enlist the petitioners in the Paradeep Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 as Mazdoor.
ii) And/or grant such other relief as deemed fit and proper in the interest of justice;
OJC No.15723 of 1997In the aforesaid circumstances, the petitioners respectfully prays that the Hon'ble Court may be graciously pleased to admit this petition and after hearing the counsel for the petitioner, issue any appropriate writ, order or direction to the effect that:
i) The Opp. Party should allow the petitioners to appear for medical test.
ii) The Management Committee, Opp. Party no.2 should give effect to the advise given by the legal advisor.
iii) To act in accordance with the observations given by the lordships of Supreme Court which is as follows:-
"The respondent will give preference in the vacancies that may be available with them, to the stand-by workers first. If there are more vacancies or vacancies which are not filled in by the stand-by worker, the respondents will go according to other workmen found to have worked them as per their record, including the petitioners and the members of the other Unions. The job should be given strictly according to seniority. These proceedings stand closed."OJC No.16954 of 1997
In the aforesaid circumstances, the petitioner respectfully prays that the Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for the petitioner, issue any appropriate writ, order or direction and;
i) direct the Management Committee, opposite party No.2 to enlist the petitioner in the Paradeep Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 as Mazdoor.
ii) And/or grant such other relief as deemed fit and proper in the interest of justice;
OJC No.17023 of 1997In the aforesaid circumstances, the petitioner respectfully prays that the Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for 32 the petitioner, issue any appropriate writ, order or direction to the effect that;
i) direct the Management Committee, O.P No.2 to enlist the petitioner in the Paradip Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 as Mazdoor.
OJC No.17590 of 1997In the aforesaid circumstances, the petitioners respectfully prays that this Hon'ble Court may graciously be pleased to admit this petition and after hearing the counsel for the petitioners, issue any appropriate writ, order or direction and;
i) Direct the Management Committee, opposite party no.2 to enlist the petitioners in the Paradeep Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 as Mazdoor.
ii) And/or grant such other relief as deemed fit and proper in the interest of justice;
OJC No.5468 of 1998On the above facts and circumstance, the petitioner humbly prays that your honour may be graciously pleased to;
i) Direct the Paradeep Port Trust to absorb the present 77 Mazdoors/Sardars in Clearing, Forwarding and Handling Scheme, 1994 as Mazdoor who are in the standby list in the pending vacancies in view of Hon'ble Supreme Court direction;
ii) Alternatively the 77 Mazdoors who were designated as Sardars by Paradip Port Trust may be treated as Sardars under the said scheme be promoted as Assistant Supervisor as done in the case of other C.F.H Sardars.
iii) And be further pleased to pass any other order/orders as deem fit and proper.
OJC No. 6746 of 1998Under these facts and circumstances of the case it is prayed therefore, that this Hon'ble Court may graciously be pleased to:
"i) Admit the writ application,
ii) Call for records;
iii) This Hon'ble Court may be pleased to declare that these petitioners are senior to the workmen in the CF&H operation;
iv) Issue a writ of mandamus or any other appropriate writ/s directing the opposite parties to list them under the CF&H Scheme, 1994 forthwith taking 33 into consideration their seniority and experience in the field of truck unloading works within a reasonable time to be stipulated by this Hon'ble Court;
v) Further, be pleased to direct the Opposite Parties to book these 137 petitioners in the field of Bulk Cargo Truck unloading operation on priority basis and if the work load in the field of truck unloading work is not sufficient for these 137 workers for any day then they may be employed/engaged in other field of bulk cargo operation on alternative arrangement;
vi) Further, be pleased to direct the Opposite parties to book these 138 group of workers (petitioners) after booking of 33 + 22 group of workers in the field of Truck unloading works;
vii) Further, be pleased to direct that 15 supervisors be selected from amongst 137 workers on the basis of their qualification, age and experience after their inclusion in the CF&H Operation, 1994;
viii) Further be pleased to pleased to pass any other appropriate order/orders, Writ/Writs, direction/ directions as this Hon'ble Court deems fit and proper for the interest of justice."OJC No.14099 of 1998
Under such circumstances, it is prayed that this Hon'ble Court may be graciously pleased to issue rule nisi calling upon the opp. parties to show cause as to why the opposite parties shall not be directed to absorb the petitioners as regular Mazdoors under the 1994 Scheme.
25. In the additional affidavit filed by the Paradip Port Trust on 31.8.2016, it is stated that the Ministry of Shipping, Government of India vide letter dated 22nd March, 2016 conveyed "No objection" of the competent authority to the proposal of Special Severance Package ("SSP", in short) for Clearing, Forwarding & Handling (CF&H) Workers of PPT with a direction that Paradip Port Trust to sanction Rs.49 crores as one time grant to the Management Committee for giving SSP to the 320 CF&H worker who opted for the same. The remaining 740 CFH workers can also be extended with package for which the package will be kept open for a period of one year as recommended by PPT Trustees Sub-Committee, Paradip Port to grant 127 crores, i.e., 34 maximum amount estimated by Sub-Committee for grant of SSP to the balance workers & staff, towards SSP for the remaining workers by keeping the SSP open for a period of 12 months in order to consider the same as and when applied by the balance workers and staff. It is further stated that pursuant to the direction of the Ministry of Shipping, Government of India dated 22.3.2016, an agreement has been arrived at between Paradip Port Trust and Members of the Management Committee on 5.5.2016 to ensure that the idle IOHP equipment (tippler etc.) is used immediately by the mechanisation. By virtue of the agreement, mechanized operation of Thermal Coal rakes in Box-N wagons, Iron Ore Pellet and Iron Ore has already been kick- started from 6th May, 2016. It is further stated that 492 workers have already availed SSP in phased manner in addition to 72 workers who have retired/died. Thus the existing strength of workers and staff under the Management Committee has been reduced significantly to 548 numbers from the strength of 1112 numbers. It is further stated that now the scenario has undergone a drastic change as new technology has been introduced in all spheres of activities, which is the key to survival of any industry and hence Ports are no exception. Manual operation cannot be sustained for long in the present competitive environment especially in Port Sector. Paradip Port is facing intense competition from the nearby private Ports. Therefore, the Port has to mechanise and improve its efficiency to survive in the present condition and manual operation has to be phased out in due course. Besides this, environment pollution has become a big concern for Port Sector as manual operation is prone to pollution as compared to mechanical handling of cargo, which is almost pollution free. It is further stated that the manual handling is 35 more costlier than mechanised operation. Moreover, the shippers have to incur an additional cost for shifting the manually unloaded cargo from the railway siding to the Stack Yard of Iron Ore Handling Plant or Mechanised Coal Handling Plant depending on whether it is Iron Ore or Thermal Coal. Thus there is a huge cost difference between manual and mechanised handling where mechanized handling is cheaper by approximately Rs.180/- per tone of Thermal Coal and Iron Ore. Therefore, in the long run, manual operation in the today's competitive world is not viable. Keeping in view these developments, Paradip Port has already commissioned mechanical coal handling plant way back in September, 2001. There is also proposal to mechanise number of berths for shipment of thermal coal. Paradip Port is also planning to mechanise CQ-I and CQ-II berths for unloading of dry bulk cargo apart from development of three new berths for mechanised coal unloading, mechanized iron ore handling and mechanised berth for handling of clean cargo as well as containers. The total investment plan for such mechanised operations at old and new berths at PPT is pegged at a whopping of Rs.3484 crores in coming three years. Apart from that under the Sargamala Project, initiatives of Government of India and outer Harbour for Thermal Coal and import of other coal is stated to be ready by 2021-22 with an additional investment of Rs.8767 crores. All these projects are being taken up for modernization of the Port in line with the directives received from Ministry of Shipping, Government of India. As per the current policy of the Government, all these projects are taken up for implementation in PPP mode rather than making investment from the internal source. It is further stated that as per the present policy and in view of the recent agreement for mechanised handling of iron ore, Thermal Coal and Iron Ore 36 Pellet, manual operation is being get substantially reduced. It will be difficult for Management Committee to keep the balance workers at present without sufficient engagement for them. Therefore, in terms of VRS under SSP for entire CF&H workers recommended to the Ministry for consideration is kept open for one year. i.e., till 21.3.2017 with financial benefits for the workers so opting. Hence listing of any additional work force under Management Committee is neither necessary nor viable.
26. Heard Mr. A.K. Mohanty, Mr.D.K Mohanta and Mr.J.N. Jethy, learned counsel for the petitioners and Mr.S.K. Padhi, learned Senior Advocate along with Mr.A.P Das, learned counsel for the opposite parties.
27. Mr.Mohanty, learned counsel for the petitioners, submitted that as per the judgment of the Hon'ble Supreme Court in the case of Trinath Harichandan and others v. Chairman, Paradip Port Trust and others, (1998) 3 SCC 113, the vacancies are assessed as 282 and if 15 standby workers are allowed to be included by this Court, the vacancies will be enlarged to 282+15=297. He further submitted that the stand of the opposite party no.2 is that there is reduction of vacancies. The cause of reduction of vacancies is mechanisation and illegal retention of 814 workers. The stand taken by the opposite party No.2 in its affidavit dated 17.02.2016 that the existing 1043 numbers of workers are hardly engaged for 6-10 duties, is contrary to HPC report. He further submitted that CF&H workers now proposed to be enlisted should be guaranteed for 12 days minimum guaranteed wages. There are 814 workers who have been illegally allowed to continue in 1994 Scheme by opposite party No.2 which is contrary to the HPC report. The mechanisation has already been introduced, but reasons best known to the Management 37 Committee to retain them in spite of the report of the HPC, though opposite party no.2 took the plea that there is no work load and employees in 1994 Scheme are surplus. He further submitted that in the event the case of 814 is dealt with as per the HPC report, 138 petitioners can easily be listed in the 1994 Scheme. The HPC in its report at Para-1.1 in Chapter 1 has specifically directed that 1994 Scheme will be prepared in accordance with 1979 Scheme. The 1979 Scheme was as per circular of the Chairman dated 26.12.1979. Six categories of workmen can be listed under the 1994 Scheme. The writ petitioners belong to category No. 4, i.e., "In the common list of OSCTC & CISF". The OSCTC and CISF both had issued passes in favour of the petitioners. The Manager (P.C) of OSCTC had written to the Chairman for verification of their names for enlistment. Opposite Party No.2 has stated in Paragraph-22 of its preliminary counter dated 10.11.1998 that the cause of 138 group of workers is based on record. It is further stated that in the absence of any supporting records with PPT, PPT has set a dead-line to prevent the possibilities of bogus claims. So their claim was bogus as per HPC report. The HPC observed that the workers are not working in the Port since 1983. After lapse of 10 years, they cannot claim any lien on any employment in the Port on the ground that they were working under MMTC contractors or other C&F agents prior to mechanisation of iron ore loading. The HPC, therefore, did not incline to consider the demand of 332 workers for meeting the additional requirements under the prepared Scheme. The HPC referred the case of 138 group of workers and has not given any specific adverse finding against them. He further submitted that the HPC in its report observed that the Committee did not consider the claims of any of these unions to meet the additional 38 requirement. He further submitted that these 332 workmen have never made any demand for their enlistment in the 1994 Scheme on the basis of their past experiences or working as labourers in the post in C.F.H operation prior to 1994. They only claim that they may be issued gate passes. 176 workers out of 332 groups have been illegally engaged by the opposite party no.2 without adopting due procedure or verification of records. It was submitted before the Hon'ble Supreme Court that the Management Committee while considering the seniority of 170 workmen, had merely given ad hoc appointments as ad hoc casual workmen and consequently they cannot be permitted to steal march over the other claimants without undertaking a comprehensive exercise of finding out relevant seniority of these rival claimants for being accommodated in the remaining available vacancies in the PPT as per 1994 Scheme. Due to illegal and arbitrary action of the opposite party no.2, the petitioners have been illegally deprived of their livelihood. He further submitted that the opposite party no.2 has filed affidavit dated 17.02.2016 stating that it has written to Central Government to regularize 121 workers of 332 group. Admittedly, the appointment of 121 workers from 332 group is contrary to HPC report and the opposite party no.2 has shown undue favour to them. He further submitted that this Court has appointed One Man Commission for ascertaining the seniority of the workmen working or continuing prior to introduction of the Scheme or continuing after the introduction of the Scheme, but the Commission has given report that neither 138 nor 332 were working in the port. So far as 138 group of workers are concerned, they had produced a series of documents in their support, but the Commission did not give any finding to the same. The Commission submitted a 39 perfunctory report. The Commission was oblivious of the fact that the HPC at page-172 in para-15.16 has held in case of standby workers that if there is no seniority, selection may be made by screening test or interview to adjudge their suitability. The report of the Commission is contrary to HPC report and direction of this Court. In the case of 138 group of workers they have produced photo copies of gate passes issued by PPT with a condition that to return the same after expiry of its validity. The passes were also issued to them by CISF from time to time. So the original having been taken back at the time of renewal, it is well neigh impossible for workmen to produce the originals before the Commission. The Commission could have accepted the same being old records of more than 30 years as the PPT has deliberately destroyed the same after 1989. The petitioners have relied on the gate passes issued by PPT, CISF, OSCTC authorities from the year 1978 to 1983. The dispute started in the year 1984 and the HPC was set up in 1993. There is no rhyme or reason to destroy the records by the PPT during Khanna Commission or during pendency of dispute. He further submitted that the PPT in order to show undue favour to one group deliberately destroyed the records. The PPT has not disputed the fact in their preliminary affidavit filed before this Court of gate passes to the petitioners. The petitioners, having documents in their favour, are deserved to be included in the 1994 Scheme and till the list is finalised, they may be allowed to work on casual basis like 170 workers of 332 group who having no records are getting Rs.20,000/- or above salary per month and now going to retire on VRS with sumptuous financial benefits by ignoring the claim of the 138 workmen.
28. Mr. Mohanta, learned counsel for the petitioners, submitted that in 1973-74, to bring in regularity in receiving and 40 despatching the cargoes, the particular area was declared as prohibited area for which, the PPT has introduced photo gate entry passes. In 1979, a scheme was framed in exercise of power under Section 42 of the Major Port Trusts Act, 1963 bringing within its fold the categories of workers engaged by the stevedores from ship to shore and shore to ship. Two lists, namely, main list and subsidiary list of workers were prepared. On the demand of the workers engaged from loading and unloading point upto the shore and vice versa for their inclusion in the scheme, a meeting was held on 5.5.1984, wherein it was decided for formation of a 'Pool' headed by one representative of the Port Trust as an observer to streamline the work force working under the Clearing, Forwarding and Handling Agents (in short, "CF&H' Agents"). For enlistment of CF&H workers, the list of workers engaged by CF&H agents and Unions were called for and a list of total number of 2973 workers was submitted. After scrutiny, a final list of 1811 workers was found to be correct by all concerned and was decided to issue photo gate entry passes in their favour. Out of 1811 workers, 1479 workers could collect their photo gate entry passes within the prescribed time limit; but 332 workers could not collect their passes within the prescribed time limit. The present petitioners and the petitioners in OJC No.14099 of 1998 belong to the said 332 group. He further submitted that the issue of photo gate entry passes to the said left out group of 332 workers was point no.2 in the High Level Meeting dated 10.9.1985. As there was no recommendation in the report of HPC, the petitioners approached this Court in OJC No.1810 of 1994. Being aggrieved by the order passed by this Court, they approached the Hon'ble Supreme Court in SLP No.13490 of 1994. The Hon'ble Supreme Court accepted the findings of the High Power Committee.
41Direction was issued to the respondents to give preference in the vacancies that may be available with them, to the standby workers. It was observed that if there are more vacancy or vacancies which are not filed in by the standby workers, respondent will go according to their record and give preference to the other workmen found to have worked with them as per the record including the petitioners and the members of other unions. The job should be given according to seniority. He further submitted that on 3.1.1996 the opposite party no.2 constituted a sub-committee to verify the claim of 332 group of workers for filing up the vacancies in the 1994 Scheme. Finally, on 20/25.3.1996, the opposite party no.2 resolved and requested the Traffic Department of Paradip Port Trust for issuance of gate passes in favour of the petitioners in OJC No.12149 of 1996. Presently 100 workers out of 176 are in employment. He further submitted that on scrutiny and verification by opposite party no.2 in consonance with the order of the Hon'ble Supreme Court, the petitioners in OJC No.12149 of 1996 have been found eligible for being included in the 1994 Scheme. Since they are discharging the duties alike the Scheme Workers, they are entitled to all the benefits provided under the 1994 Scheme. But on the plea of pendency of the present batch of writ applications, denial of those benefits as Scheme Workers by opposite party no.2 is not fair. The continuance of the petitioners as casual workers is not justified. He further submitted that the authenticity of the documents relied upon by 138 group of workers have been disputed by opposite party no.2 on following grounds;
a) Certificate under Annexure-8 have not been certified by CISF;
42b) No information was with the Commandant CISF in respect of 138 group of workers as per Annxure-A/2 of the counter affidavit of OP No.2.
c) The Union representing the petitioners in OJC No.6746 of 1998 was a member of the Private Pool constituted on 07.05.1984 for authenticating the list of 1811 from out of the list of 2973 workers. The name of 138 group of workers was not in the list.
d) The said 138 group of workers for their inclusion in the list of 1811 workers filed a suit being Title Suit No.202 of 1987 in the court of the learned Civil Judge (Senior Division), Jagatsinghpur, wherein the Port Trust in its written statement have contended that "Port entry permits are issued to the workers only at the request of their employers. No request was received by the Port Trust for the issue of entry permits to workers mentioned in the plaint at the time of formation of Paradip Port Trust, Clearing, Forwarding and Handling Workers Pool."
e) In Civil Appeal Nos.623 and 624 of 1998 (AIR 1998 SC 1138) to the application for intervention by 138 group of workers, the Stevedores and CF&H Agents had filed affidavit contending the following :-
"In respect of the 138 group of workers neither there is any recommendation by the HPC, nor any direction is there by the High Court of Orissa in their respect, nor any record is available with Port Trust as to their engagement at any point of time in the Prohibited Area of the Port Trust."
He further submitted that the seniority amongst 332 group, 138 group can only be ascertained from the date of establishment of the Private Pool and on scrutiny of the list submitted by different Unions and the CF&H Agents. So far as the 332 group is concerned, the list of 1811 workers has been submitted by the Port Trust before the One Man Commission where the name of 332 group of workers finds place, but the name of 138 group does not find place. The same justifies the stand of 332 group of workers that prior to coming into force of 1994 Scheme, they were working and as such are senior to other claimants. In view of the same, the prayer of the petitioners for their enlistment in 1994 43 Scheme with all consequential service benefits including the differential wages from the date of their engagement pursuant to the order of the Hon'ble Supreme Court needs to be granted.
29. Mr. Jethi, learned counsel for the petitioners, submitted that under the Scheme, the Paradip Port Trust prepared two lists of workers, namely, main list and standby list. The 1979 Scheme came into force with effect from January, 1980. The petitioners were listed in the standby list in the year 1980, but no work was provided to them till date. The Hon'ble Supreme Court has constituted a HPC headed by Hon'ble Justice H.R. Khanna, retired Judge of the Hon'ble Supreme Court. The said Committee submitted its report on 8th July, 1993 for enlistment of clearing and forwarding workers. The HPC, while considering the enlistment of clearing and forwarding workers, took notice of 504 standby mazdoors, whose names were included in the standby list on the basis of 504 registration cards collected till December, 1988. Keeping in view the recommendation of the HPC, Paradip Port Trust prepared a Scheme known as 1994 Scheme for enlistment of clearing and forwarding workers and standby workers. The HPC assessed the additional requirement of 395 workers in 1994 Scheme which should be filled up from the standby workers/mazdoors. The HPC recommended in its report that standby list mazdoors have more weighty compared to the claims of the other workers. The Management Committee called the petitioners to appear in the medical test, which was held on 28.3.1995, 1.4.1995 and 6.4.1995. But taking advantage of the innocence of the petitioners, some influential union leaders prevented the petitioners from appearing before the Medical Board by giving an impression that if the petitioners would join under 1994 Scheme, it would not at all be beneficial for them and, as 44 such, it would be better for them to continue as standby workers. As the petitioners were in the list for more than 15 years, rosy promises made to them by the leaders that they would be absorbed as permanent workers and get back wages. The petitioners believing the assurance of the leaders did not appear before the Medical Board. Thereafter, they came to know the ulterior motive of the leaders to include the names of their own workers in the provisional list. Finding no other way out, they approached the Management Committee and expressed reasons for not appearing in the medical test. They requested the Management Committee to give them another chance to appear in the Medical Board. In the case of Trinath Harichandan (supra), the Hon'ble Supreme Court, while assessing the vacancy, observed that the existing vacancies are 155 after accommodating 114 standby workers, who have joined the C.F.H Scheme. It was further observed that the respondent No.2 has also added 15 cases of standby workmen, who have claimed medical and judicial clearance and whose writ petitions are pending in the High Court as on date and which will also have to be examined by the High Court as indicated in the present order. It is obvious that in the event the writ petitions of 15 standby workmen are allowed, the vacancies would remain 155; as for these 15 persons there is already a provision made by respondent no.2 in the aforesaid affidavit and their vacancies are already treated being allotted to them subject to result of the writ petition. Thus claim of these 15 standby workmen has been taken care of while computing these 155 vacancies. In the event the claim of these 15 standby workmen is rejected, then the remaining vacancies would naturally increase to 170. The Hon'ble Supreme Court observed that the respondents shall give preference to the standby workers 45 first in the vacancies that may be available with them. If there is more vacancy or vacancies which are not filled up by standby workers, the respondents will go according to their record and give preference to the other workmen found to have worked under them as per their record, including the petitioners and the members of the other Unions. The job should be given strictly according to seniority. He further submitted that in OJC No.16954 of 1997, the petitioner was enlisted in the standby list in the year 1980 in 1979 Scheme. The petitioner was allotted standby Sl. No.889 and accordingly the identity card and registration card were issued to him. Pursuant to the recommendation of HPC, Paradip Port Trust prepared another 1994 Scheme. The HPC ascertained 504 standby Mazdoors including the petitioners to be enlisted in the said Scheme. The Management Committee called for options and applications from the standby workers on 23.9.1993 for provisional enlistment in 1994 Scheme. Though the petitioner is eligible but he could not exercise his option and submitted the application form because he was out of Paradip to eke out livelihood. When he came to know about the same, he requested the Management Committee explaining the reason of his non-exercise of his option to go in 1994 Scheme. He further submitted that the petitioners in OJC Nos.13191 and 17023 of 1997 were listed in the standby list. They were not provided with the work. They were allotted standby Sl. Nos.841 and 146 respectively. The petitioners could not collect the identity card and registration card by December, 1988; thus both the petitioners' name were not included in 504 standby mazdoors as ascertained by the HPC. Under the above circumstances, both the petitioners could not exercise their options for enlistment in 1994 Scheme. He further submitted that 46 as per the judgment of the Hon'ble Supreme Court in Trinath Harichandan (supra), the vacancies were assessed as 282 and opposite party no.2 states that there is reduction of vacancies and no additional requirements of workers. The cause of reduction of vacancies is mechanisation and retention of 814 group of workers, who are allowed to work, is contrary to report of HPC. Besides that, there are 100 vacancies and casual workers are working on the said vacancies. They cannot claim any preference over the standby workers. He further submitted that all the petitioners were initially listed as standby mazdoors under the 1979 Scheme. Few mazdoors from the standby list including the petitioners were assigned the engagement under designation of sardars at the time of booking of the mazdoors with same wages as mazdoors. From the report of the HPC, it is evident that 403 workers in the main list and the entire standby list of 504 mazdoors, 77 sardars are surplus in 1979 Scheme and there is shortage of 395 mazdoors in 1994 Scheme. The HPC has opined that the case of 504 mazdoors belonging to the standby list of 1979 Scheme can be considered for meeting the additional requirement of workers in 1994 Scheme. The standby sardars have been inadvertently left over by the HPC. He further submitted that the petitioner Union moved before the Hon'ble Supreme Court in the case of Trinath Harichandan (supra) wherein the petitioner prayed for enlistment of 77 standby sardars in 1994 Scheme as mazdoors. The Hon'ble Supreme Court observed that it will be for the High Court to decide the question in accordance with law. The Hon'ble Supreme Court further held that whether 77 sardars of standby workers can be bracketed with and treated as mazdoors falling in the category of standby workers i.e. a question which has to be finally examined 47 by this Court. He further submitted that 77 standby sardars were listed in the year 1980 as standby mazdoors along with other mazdoors under the 1979 Scheme. The sardars on the standby list, in essence, are also mazdoors who lead the gang of mazdoors and are therefore covered within the standby list of mazdoors. The sardars were listed as mazdoors in the subsidiary list prepared by the Paradip Port Trust in the year 1980. The engagements of mazdoors are done on gang basis. Each gang consists of 8 mazdoors and one sardar. The sardar is selected from the listed mazdoors on the consideration of senior experienced mazdoors. All the names of 77 standby sardars appear in the subsidiary list of workers (mazdoors). Hence 77 standby sardars in subsidiary list, in essence, are standby mazdoors. The nature of works of the sardars is to lead the gang of mazdoors, taking/booking for the gang, giving instructions and assistance to the mazdoors for efficient works. Each gangs work under the direct supervision of the supervisors. Hence they are required to be given preferential employment in the 1994 Scheme. He further submitted that the HPC allowed the clearing, forwarding sardars to exercise their option to work as mazdoors. Thus there is no justification to deprive the standby sardars to exercise their option to work as mazdoors. Since there is no basis of change of nature of work between sardar and mazdoor, the HPC allowed the clearing forwarding sardars to exercise their option to work as mazdoor. He further submitted that even otherwise in terms of the aforesaid order they would be entitled to preferential employment by virtue of their seniority over all other claimants for vacancy in CF&H Scheme. Hence the petitioners prayed to direct the Paradip Port Trust to absorb the present 77 sardars in 1994 Scheme as mazdoors.
4830. Mr. Padhi, learned Senior Advocate appearing for the Management Committee, submitted that OJC No.6746 of 1998 has been filed by Sri Brundaban Sethy and 136 others to be included in the 1994 Scheme. No recommendations have been made in their favour by the HPC. In view of the fact that there is no necessity of additional work force and the Management Committee has already adopted VRS, the petitioners have no right to claim to be included in the 1994 Scheme. He further submitted that OJC No.10105 of 1999 has been filed by the Union to absorb subsidiary listed workers in the main list of the 1979 Scheme. This prayer is identical with OJC No.3308 of 1995, which was dismissed. The judgement of this Court has been confirmed by the Hon'ble Supreme Court. The Hon'ble Supreme Court had given a cut off date for filling of writ petitions. OJC Nos.8824 and 14764 of 1996, OJC Nos.10845, 5296, 15266, 17590, 15723, 13191, 17023, 16954 and 12365 of 1997 have been filed by standby workers/sardars/mazodoors for inclusion in the CFH Scheme. They had been given sufficient opportunity to be included in the scheme, which they had not availed. This Court dismissed similar petitions earlier filed by the Union. Another group of workers had approached this Court and this Court allowed the standby workers as a last chance to appear in the medical test. Recommendation was made in their favour by the HPC. As they did not join the Scheme in spite of sufficient opportunity given to them, they are no more entitled to be included in the Scheme especially in the changed scenario that there is no necessity of having any additional work force. He further submitted that OJC No.9543 of 1997 has been filed by one NMR worker to be included in the CFH Scheme and there was no recommendation in his favour by the HPC. OJC No.5468 of 49 1998 has been filed by the Union espousing the cause of 77 sardars to be included in the CFH Scheme. OJC No.14099 of 1998 has been filed by 121 persons, who are part of 332 group of workers, who want to be included in the 1994 Scheme. In view of the fact that there is no need for any additional workers, their claim does not merit consideration. OJC No.12149 of 1996 has been filed by 174 workers, who have been working as casual workers from 1996. The claim of the petitioners was that they may be declared as listed 1994 Scheme workers. They were petitioners in the common judgement of this Court, which was rendered on 26.01.1997 and their claims were disallowed by this Court. Against the said order, they approached the Hon'ble Supreme Court in the case of Trinath Harichandan. In the additional affidavit filed by the Management Committee, it has been stated that there is no need for these workers and the HPC had also considered their case, but had not made any recommendation in their favour. The Hon'ble Supreme Court had directed that the claims of different petitioners should be considered by this Court on the existing vacancy of 282 and this Court was to examine the eligibility and rival claims. He further submitted that the need of workforce has to be determined by the employer, which may vary from time to time depending upon several factors including the volume of traffic, mechanization, etc. The HPC had visualized that after mechanization, there would be shortage of work and even the existing workforce may be required to be retrenched. He further submitted that the Paradip Port Trust has invested more than 400 crores for mechanization since September, 2001. Consequently, on 4.4.2002 and 8.5.2003, the Management Committee has already introduced VRS and under the afforded scheme, 238 workers have availed the same. Since 50 the Management Committee had assessed that the existing workers would be surplus, the workers had been offered more than 3.5 lakhs each for availing VRS and 238 workers have already availed VRS. Since there is great surplus of workers, the VRS was introduced. The Management Committee does not have any need of any additional workforce. He submitted that several cases are pending before this Court from the remaining subsidiary list workers, who were not taken into the Management Committee for some reason or the other. Seventy seven sardars of the subsidiary list have also raised claim before this Court for enlistment under the committee. He further submitted that 816 group of bulk handling workers continue to be with the Management Committee for undertaking clearing forwarding work including manual unloading of thermal coal from Box-N wagons. In the year 2001, the Management Committee faced a peculiar problem of surplus work in respect of 816 group of workers. Virtually there was no work for 545 group of workers. The committee, after examining the relevant recommendations of the HPC and taking into account the ground realities, decided vide order dated 31.01.2002 to introduce rotational booking in respect of 816, 125, 114, 63, 545 and 176 group of workers. This was done as per the recommendations of the HPC. After introduction of rotational booking, the average engagement of workers has improved and it has provided equal opportunity to all workers except two small groups of 33 and 22. On 25th April, 2005, a meeting was held with the President and other members of the Paradip Port & Dock Mazdoor Union in which, the issue of shifting manual thermal coal operations to mechanised system was discussed. Despite assurance given by the Paradip Port Trust that the earnings of the workers will not be affected, the Union did 51 not agree to the above proposal. However, the Paradip Port Trust has already started unloading at least one iron ore/chrome ore rake every day in the manual system with effect from 1st May 2005. The sooner the thermal coal unloading is shifted to the Mechanical Coal Handling Plant, the better will be the utilisation of the Port facilities. He further submitted that the Management Committee is not contemplating at present to retrench 816 bulk handling workers since other bulk cargoes have emerged in the Port such as iron ore, chrome ore etc. by rail and road for exports; which require manual unloading though the HPC had observed for their retrenchment in paragraph 15.26 of its report. He further submitted that in the financial year 2004-2005, the Paradip Port Trust handled 30.10 million tonnes, out of which, about 18 million tonnes was mechanised cargo and balance 12 million tonnes constituted cargo to be handled in the manual stream. Thus 176 group of casual workers are no more required by it since thermal coal manual unloading operations will be discontinued soon. He further submitted that the claim of other workers such as 138 workers, 77 sardars of the subsidiary list and 197 workers are no more tenable keeping in view the spread of mechanisation in Port operations. The Management Committee, which has successfully managed its operations for the last 10 years with the existing work force does not need any additional work force especially in view of introduction of ADB Project and increasing mechanisation in the Port. Out of 1800 workers initially enlisted under the Management Committee, there are 1494 workers under the rolls of the Management Committee including 145 workers of 176 group. Since workers are in surplus, VRS scheme was introduced and hence the question of engaging any further workers is not necessary. He further 52 submitted that in SLP No.13490 of 1994, the Hon'ble Supreme Court vide order dated 31.1.1995 disposed of the petition with a direction that the respondents will give preference in the vacancies that may be available with them to the standby workers first. If there are more vacancies which are not filled up by the standby workers, the respondents will go according to their record and give preference to the other workmen found to have worked with them as per their record including the petitioners and the members of the other unions. The jobs should be given strictly according to seniority. He further submitted that there were several writ petitions filed before this Court for enlistment under 1994 Scheme, which were disposed of by a common judgment. The matter was carried out to the Hon'ble Supreme Court in the case of Trinath Harichandan (supra) and the Hon'ble Supreme Court directed that it is for these ascertained vacancies as existing on date that the High Court will undertake the exercise of finding out the eligible claimants whose writ petitions will be examined by the High Court as per the present order and in the light of their vis-à-vis inter se seniority their claim for being appointed as regular employees under the CFH Scheme will be worked out qua these available vacancies. In short, once these available vacancies are ascertained and if the High Court is not apprised of any further increase or decrease in the vacancies by the parties concerned due to any future contingencies then on the basis of these 282 available vacancies as on date, the rival claims of the contesting claimants in the pending writ petitions and in the writ petitions that will be placed before the High Court for consideration pursuant to the present order, will have to be examined and decided by the High Court. He further submitted that after the aforesaid direction of this Court, the one-man 53 commission conducted hearing and after perusal of the records submitted its report before this Court. He further submitted that as per the orders of the Hon'ble Supreme Court, the entire exercise was to find out the eligibility and seniority of the rival group of workers for the ascertained 282 vacancies unless this Court is intimated and apprised about any future increase or decrease in the vacancies. In this connection, the Management Committee has filed several affidavits before this Court with regard to reduction of posts on account of recent developments taken place and ongoing mechanization. He further submitted that the Management Committee by way of filling of the affidavits informed to this Court that in view of the introduction of mechanical devices to unload the bulk cargo from trucks and wagons, the possibility of deployment of CF&H workers is reducing day by day, which ultimately helps the Port to handle more cargo. Hence it is clear that in the changed scenario, it is imperative that the Management Committee is left with no other alternative but to downsize the existing workers. Keeping in view the present scenario, it is certain that the existing work-force will be more than adequate to cater to the future needs in CFH operations. He further submitted that keeping in mind the change in trends and global slowdown, it can be safely stated that neither there is any vacancy at present nor is there any need to induct any additional workforce under the Management Committee. In view of the above backdrop, the existing workers of 1043 numbers who are hardly engaged for 6-10 duties in a month, any addition to the present workforce is not required as the existing workforce do not have any adequate work. He further submitted that any addition to the work force is neither necessary nor desirable as 54 the existing work force does not have any adequate work and it would only tinker with the existing industrial climate.
31. Before proceeding further, it is apt to state here that in course of hearing of the writ petitions, a Division Bench of this Court on 19.1.2011 appointed Shri K.K Mohanty, a retired District Judge to conduct an enquiry on factual aspect of the case and submit a report. The relevant portion of the order which is quoted hereunder;
"2. After hearing the learned counsel appearing for all the parties at length, the Court felt that for the purpose of disposal of the writ applications, the Court shall have to look into several factual aspects based on documents and the process itself may take days together. The learned counsel appearing for the parties realizing the same, suggested for appointment of a retired District Judge as one-man Commission to conduct an enquiry on the factual aspects of the case and submit a report to the Court. The Court also felt the necessity of appointing a one-man Commission for the above purpose in order to save the Court time. Accordingly, on consent of the learned counsel appearing for all the parties, the Court appoint Shri Khagen Mohanty, a retired District Judge, as one-man Commission to enquire into the factual disputes with reference to the records that may be produced by the parties and submit a report to this Court .
3. In the light of the order of the Hon'ble Supreme Court for the purpose of appointment as regular employees under the CFH Scheme, eligibility of the claimants vis-à-vis their inter se seniority has to be factually determined. The main claimants are a group of 138 employees, who are petitioners in OJC No.6746 of 1998, a group of 332 employees, who are petitioners in OJC No.14099 of 1996 and a group of standby workers, who are petitioners in OJC No.8824 of 1996 apart from other petitioners in the connected writ applications. In order to find out as to who are eligible as per their seniority for appointment on regular basis under the CFH Scheme, the one-man Commission appointed by this Court is required to answer the following queries.
Number of employees working in the CFH prior to coming into force of the CFH Scheme and number of employees working after commencement of the Scheme. While preparing the list, one seniority list of those 55 employees working prior to introduction of the Scheme and continuing after introduction of the Scheme has to be prepared with reference to their date of engagements. Another seniority list is to be prepared for those who were engaged after coming into force of the CFH Scheme with reference to their date of engagements. Another seniority list is to be prepared in respect of standby workers according to their date of engagements. A combined seniority list involving all the three categories of employees is also required to be prepared. For the above purpose, the parties through their Unions and representatives of the Unions shall produce the relevant documents before the Commission. The Commission shall also, if necessary, call upon the Management Committee, Paradip Port to produce all relevant records in this regard to arrive at a correct finding. The report shall be prepared and submitted before this Court by the Commission on or before 30.07.2011. The parties are directed to appear before the Commission on 5.2.2011 at the place arranged by the Management Committee, Paradip Port and the venue of the enquiry for the subsequent dates shall be decided by the Commission in consultation with the parties preferably at Cuttack. Shri S.K. Padhi, the learned Senior Counsel appearing for the Management Committee, Paradip Port submits that a place for holding the enquiry can be arranged by the Paradip Port Trust at Cuttack."
32. Pursuant to the order of this Court, Mr. Mohanty was appointed as one-man Commission. He held several sittings and ultimately recused on the ground that he had been appointed as Chairperson, Permanent Lok Adalat, Khurda at Bhubaneswar. Subsequently, by order dated 23.8.2011 Mr. K.B. Swain, a retired District Judge was appointed as one-man Commission to conduct an enquiry and submit the report. Mr. Swain considered the rival claims of the parties and submitted the report on 19.4.2013. The report reveals that 138 group of workers were not working prior to commencement of CF&H Scheme, 1994 or even thereafter. With regard to 332 group of workers, the commission held that it is not possible to determine the number of workers working prior to introduction of CFH Scheme or the workers working thereafter.
56They could not prove that they had worked prior to introduction of CFH Scheme. It was further held that it was not possible to prepare a list of seniority of workers working before the CFH Scheme introduced and continued to work after introduction of the Scheme. In respect of standby workers, it was held that the seniority of the workers could not be prepared since no material was placed to facilitate the preparation of such list.
33. Pursuant to the judgment of the Hon'ble Supreme Court in the case of Paradeep Port Trust and another v. Paradeep Port and Dock Mazdoor Union and others, AIR 1990 SC 1125, a committee was constituted under the Chairmanship of Justice H.R. Khanna with two members. The High Power Committee (HPC) considered the rival claims of the different Unions and submitted an exhaustive report. In paragraphs 15.20, the HPC considered the case of 332 workmen and came to a finding that these workers have not been working in the Port since 1983. After a lapse of ten years, the workers cannot claim any lien on any employment in the Port on the ground that they were working under the MMTC Contractors or other C&F agents prior to mechanisation of iron ore loading. After passage of so many years, there are obvious difficulties to verify such claims with any degree of certainty. The Committee did not incline to consider the demand of the 332 workers for meeting additional requirements under the proposed Scheme. With regard to standby workers, the committee came to the conclusion that all the Mazdoors in the standby list should be given an option to indicate their unequivocal willingness in writing to give up any entitlement present or future as constituent of Standby List for work under 1979 Scheme and agree to work as C&F workers under the proposed Scheme on the terms and conditions that will be 57 stipulated by the concerned authorities. Such of the Standby List workers, who give such an option can be considered for meeting the additional requirement of C&F workers. If the number of workers opting to come over to the C&F section is more than the requirement, selection should be made on the basis of their inter se seniority among the standby List workers. In the absence of record of seniority, the authorities concerned may select from out of the willing Mazdoors in the standby List on the basis of test and interview to adjudge their suitability for the jobs to be entrusted to them.
34. As the High Power Committee had not recommended the case of 332 workers, some of them approached the Hon'ble Supreme Court in SLP No.13490 of 1994 after having unsuccessfully approached this Court. The Hon'ble Supreme Court upheld the report of the High Power Committee and the scheme framed by the Paradip Port Trust and laid down that the available vacancy must be filled up by the standby workers. After exhausting their claims, if any more vacancy is left, then the Paradip Port Trust will go according to their record and give preference to the other workmen found to have worked as per the record including 332 group of workers and the job should be given strictly according to the seniority.
35. Admittedly the claim of 138 workers had not been recommended by the High Power Committee. The commission appointed by a Division Bench of this Court came to hold that they were not working at any point of time prior to commencement of CFH Scheme or even thereafter. With regard to 332 group of workers, the committee considered their claim and held that it was not possible to determine the number of workers working prior to introduction of CFH Scheme or thereafter and 58 accordingly submitted a report holding that it was not possible to prepare a list of seniority of workers working before the CFH Scheme. The HPC also negatived their claim.
36. In Trinath Harichand (supra), the Hon'ble Supreme Court delved deep into the matter and held that the Court's exercise was confined only to the question of ascertaining the available vacancies as on the said date and nothing more or nothing less. It was further held that the available vacancies of Mazdoors for being covered under CFH Scheme, 1994 were 282 as on the said date. It was further held that in the event available vacancies get enlarged by 15 vacancies more, in that eventuality the available vacancies would be 297. Further, if the writ petitions of 15 standby workers were granted by the High Court, then obviously the cake of the residuary vacancies for distribution amongst the eligible claimants will be confined to 282. For these ascertained vacancies as existing on the date, this Court was directed to undertake the exercise of finding out the eligible claimants whose writ petitions will be examined as per the order and in the light of their vis-à-vis inter se seniority their claim for being appointed as regular employees under the CFH Scheme qua the available vacancies. It was further held that once these available vacancies are ascertained and if the High Court is not apprised of any further increase or decrease in the vacancies by the parties concerned due to any future contingencies, then on the basis of 282 available vacancies, the rival claims of the contesting claimants in the pending writ petitions will have be examined and decided by the High Court.
37. Additional affidavit filed by the Paradip Port Trust reveals that the PPT has introduced SSP for its CFH workers. The Ministry of Shipping, Government of India, vide letter dated 2nd March, 59 2016 conveyed "No objection" to the said package and directed the PPT to sanction Rs.49 crores as one time grant to the Management Committee for giving SSP to the 320 CF&H worker who opted for the same. The remaining 740 CFH workers can also be extended with the package which will be kept open for a period of one year as recommended by PPT Trustees Sub-Committee, Paradip Port to grant 127 crores to the balance workers. Pursuant to the direction of the Ministry of Shipping an agreement has been arrived at between Paradip Port Trust and Members of the Management Committee on 5.5.2016 to ensure that the idle IOHP equipment (tippler etc.) is used immediately by mechanisation. By virtue of the agreement, mechanized operation of Thermal Coal rakes in Box-N wagons, Iron Ore Pellet and Iron Ore has already been kick-started with effect from 6th May, 2016. 492 workers have already availed SSP in phased manner in addition to 72 workers who have retired/died. Thus the existing strength of workers and staff under the Management Committee has been reduced significantly to 548 numbers from the strength of 1112 numbers. The scenario had undergone a drastic change after introduction of new technology in all spheres of activities. The manual operation cannot be sustained for long in the competitive environment. Paradip Port is facing intense competition from the nearby private Ports. Therefore, it has to mechanise and improve its efficiency to survive. Added to it manual operation is prone to pollution as compared to mechanical handling of cargo. The same is costlier than the mechanised operation. The shippers have to incur an additional cost for shifting the manually unloaded cargo from the railway siding to the Stack Yard of Iron Ore Handling Plant or Mechanised Coal Handling Plant. There is a huge cost difference between manual and mechanised handling. In the 60 competitive world, the manual operation is not viable. Keeping in view of the same, SSP scheme was introduced and 492 workers have availed the benefits under the Scheme. Further, the mechanised coal handling plant has been introduced way back in 2001. Furthermore, the case of 138 group of workers have not been recommended and the case of 332 group of workers have not been considered by the High Power Committee. One Man Commission appointed by this Court has submitted the report negativing the claim of the petitioners. In the changed scenario, it is not possible to direct the Paradip Port Trust to consider the case of the standby workers.
38. In the wake of aforesaid, no direction can be issued to the Paradip Port Trust to include the petitioners in the CFH Scheme, 1994. The writ petitions are dismissed. There shall be no order as to costs.
.............................
DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 21st December, 2016/Pradeep.