Bombay High Court
Union Of India, Sr. Divsnl Commercial ... vs The Gen. Secty., Parcel Porter ... on 28 September, 2021
Author: A.S. Chandurkar
Bench: A.S. Chandurkar, G.A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.304 OF 2010
IN
WRIT PETITION NO.4472 OF 2008
(Decided on 14.10.2009)
Union of India,
Senior Divisional Commercial Manager,
South East Central Railway,
Nagpur. ... Appellant/
Original Petitioner
Versus
The General Secretary,
Parcel Porter Sanghatan,
S.E. Railway, Nagpur Division,
Motibag, Nagpur. ... Respondent/
Original Respondent
Shri S.V. Purohit, Advocate for Appellant.
Shri N.W. Almelkar, Advocate for Respondent.
CORAM : A.S. CHANDURKAR & G.A. SANAP, JJ.
Date of Reserving the Judgment : 27th August, 2021
Date of Pronouncing the Judgment : 28th September, 2021
JUDGMENT (Per A.S. CHANDURKAR, J.) :
1. The challenge raised in this Letters Patent Appeal is to the judgment of the learned Single Judge in Writ Petition No.4472 of ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 2 lpa 304 of 2010 (J).odt 2008 dated 14-10-2009. By that judgment, the learned Single Judge was pleased to record a finding that the members of the respondent-Union engaged as Parcel Porters were 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, 'the said Act'). Further directions were given while remanding the proceedings to the Central Government Industrial Tribunal to examine the entitlement of the members of the Union to any relief consequent upon the aforesaid adjudication.
2. The facts in brief are that on a dispute being made to the Central Government by the respondent- Parcel Porter Sanghtana- Union as regards the status of Parcel Porters engaged by the Railways, the Central Government under the provisions of Section 10(1)(d) and sub-section (2A) of the said Act made a reference to the Central Government Industrial Tribunal to decide the question as to whether the Parcel Porters engaged by the Divisional Manager were 'workmen' under the provision of Section 2(s) of the said Act, and if so, the relief to which they were entitled. It may be stated that there were two reference orders raising a similar question as made on 28-8-1998 and 16-8-1999. Both the proceedings were decided together. The parties to the dispute led evidence and after considering the same, the learned Presiding Officer by his award dated 28-3-2008 ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 3 lpa 304 of 2010 (J).odt was pleased to answer both the references by recording a finding that the Parcel Porters engaged by the Railways were 'workmen' and that they were entitled to regular pay and salary along with increments from the date of their respective appointments. The Senior Divisional Commercial Manager, South East Central Railway, Nagpur, being aggrieved by the aforesaid adjudication, preferred Writ Petition No.4472 of 2008. As stated above, the learned Single Judge, after considering the pleadings of the parties and the material on record, held that the Parcel Porters engaged by the Railways were 'workmen'. However, as it was found that the relevant documentary material had not been appropriately brought on record by both the parties, the proceedings were remanded to the Tribunal for a fresh adjudication by observing that the question as to whether the members of the Union were 'workmen' or not, would not be tried by the Tribunal. This adjudication has given rise to the present appeal.
3. Shri S.V. Purohit, learned counsel for the appellant, submitted that the material on record was insufficient to record a finding that the members of the Union, as named in the Schedule, were 'workmen' under Section 2(s) of the said Act. The documents placed on record by the Union had not been proved in accordance with law. On finding that the documentary material ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 4 lpa 304 of 2010 (J).odt was insufficient, the learned Single Judge ought to have allowed the Writ Petition by setting aside the order of the Tribunal. Instead the proceedings were remanded to the Tribunal which gave an opportunity to the Union to fill in the lacuna, which was not permissible. In that regard, the learned counsel referred to the decisions of the Hon'ble Supreme Court in Hameed (Dead) By LRs. and others Vs. Kummottummal Kunhi P.P. Amma (Dead) by LRs. and others, reported in (2008) 15 SCC 155 and J. Balaji Singh Vs. Diwakar Cole and others, reported in (2017) 14 SCC 207. It was then submitted that the members of the Union, who were claiming to be working as Parcel Porters, had in fact been selected by the Screening Committee as Licensed Porters. This selection was pursuant to the notification dated 4-7-1994 and after the proceedings of the Screening Committee were held on 19-7-1994, about 186 Licensed Porters had been selected. Those selected had executed agreements and the terms and conditions mentioned therein were applicable to them. Merely on the basis of the statement made by the members of the Union that they were assisting the Railway Authorities on certain occasions in lifting parcels, a finding had been recorded that they were in fact Parcel Porters and hence 'workmen', as contended. The learned counsel referred to the material on record in the form of affidavits and the receipt issued showing payment of licence fees. It was then contended that the members of the Union were ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 5 lpa 304 of 2010 (J).odt not entitled to the relief of regularization and payment as per the prescribed pay scales. The procedure for recruitment for Parcel Porters was distinct and without undergoing that procedure, the services of the members of the Union could not have been considered for regularization. For said purpose, the learned counsel referred to the decisions of this Court in Pune Municipal Corporation and others Vs. Dhananjay Prabhakar Gokhale, reported in 2006(4) Mh.L.J. 66; State of Maharashtra and others Vs. Indira General Kamagar Sanghatana and others, reported in 2015(6) Mh.L.J. 658; and of Hon'ble Supreme Court in Oil and Natural Gas Corporation Vs. Krishan Gopal and others, reported in 2020 (3) SCALE 272. On the basis of the aforesaid, it was submitted that on a proper consideration of the entire material on record, the judgment of the learned Single Judge was liable to be set aside.
4. Shri N.W. Almelkar, learned counsel for the respondent- Union, supported the judgment of the learned Single Judge. At the outset, he submitted that pursuant to the judgment of the learned Single Judge, the Central Government Industrial Tribunal after remand had considered the matter and on 15-7-2010 passed further award in favour of the members of the Union. That final award was subjected to challenge in another Writ Petition, which was pending. It was his submission that though ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 6 lpa 304 of 2010 (J).odt the present Letters Patent Appeal was filed on 6-4-2010, the appellant did not take any steps to seek interim relief of staying the proceedings before the Tribunal. As a consequence, the Tribunal proceeded with the adjudication and passed award in favour of the Union. He invited attention to the order dated 3-8-2010 that was passed while admitting the Letters Patent Appeal. According to him, as the proceedings have now been decided after remand, the challenge raised in the present Letters Patent Appeal had become infructuous. He sought dismissal of the appeal on that count. It was then submitted that the learned Single Judge was justified in recording a finding that the Parcel Porters engaged by the Railways were 'workmen' under Section 2(s) of the said Act. Inviting attention to the statement of claim and the reply filed thereto, it was submitted that there was substantial material on record to indicate that initially the members of the Union had been engaged for a period of four hours daily, which was thereafter increased to eight hours. It was further submitted that the Railways had been paying minimum wages to these Parcel Porters and identity cards in that regard were also issued to them. The services of some of the Parcel Porters were transferred to other stations and control was exercised by the Railway Administration. According to him, when the orders of reference were not challenged by the Railways, it was not open for them now to contend that the said Parcel ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 7 lpa 304 of 2010 (J).odt Porters were not 'workmen' under the said Act. Each member of the Union claiming relief was examined and the Tribunal thereafter reached to the conclusion that the said members were in fact Parcel Porters. The order of remand was only for the purposes of determining the relief to which the members were entitled after it was found that they were 'workmen'. In support of his submissions, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in The Delhi Cloth and General Mills Co. Ltd. Vs. The Workmen and others, reported in AIR 1967 SC 469; Calcutta Port Sharmik Union Vs. Calcutta River Transport Association and others, reported in 1989 I CLR 71; National Federation of Railway Porters, Vendors and Bearers Vs. Union of india and others, reported in (1995)3 Supp (SCC) 152; Karuna Bhattacharjee Vs. State of West Bengal and others, reported in 2007 II LLJ 424; and of this Court in Chandrashekhar Chintaman Vaidya Vs. National Organic Chemical Industries Ltd., Akola, reported in 2010(3) Mh.L.J. 434. It was thus submitted that there was no reason to interfere with the judgment of the learned Single Judge.
5. We have heard the learned counsel for the parties at length and we have perused the material placed on record before the Tribunal. The learned Single Judge after considering the aforesaid material found on the basis of the statement of claim and the reply filed by the Railways that the members of the ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 8 lpa 304 of 2010 (J).odt Union were performing activities that were otherwise being discharged by Parcel Porters and hence on the basis of said material, the question as to whether the members of the Union were 'workmen' or not could be answered. After noticing the nature of activities undertaken by the Railways and the fact that even according to the Railways itself the services of the Licensed Porters were utilized to perform the work of Parcel Porters initially for a period of four hours and thereafter for eight hours under the directions of the Railway Authorities, it was held that the members of the Union were 'workmen'. After perusing the statement of claim and the reply as filed along with the material in the form of affidavits, we do not find any reason for taking a different view that the members of the Union were discharging work as Parcel Porters and hence were 'workmen' under the provision of Section 2(s) of the said Act.
6. On a perusal of the statement of claim as filed and especially the contents of Paragraphs 17 to 20, it can be seen that it was the specific case of the members of the Union that they were appointed by the Railway Administration and they were working under the administrative control of the Railway Authorities. They were initially given work for four hours daily, which was subsequently increased to eight hours. On that basis, they were initially paid minimum wages as prescribed by the ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 9 lpa 304 of 2010 (J).odt State Government and subsequently they were paid minimum wages at the rates fixed by the Central Government. In the written statement filed by the Railways, it was admitted while replying to Paragraphs 20 and 21 that the members of the Union were initially given work assigned to Parcel Porters for four hours daily, which was subsequently increased to eight hours. It was also admitted that the wages were being paid to these Licensed Porters as per the notification issued by the Ministry of Labour. The record indicates that the members of the Union were examined in support of the statement of claim and this material has been taken into consideration by the learned Single Judge. A perusal of the deposition of the Assistant Commercial Manager engaged by the Railways indicates that he was not in a position to point out as to which Licensed Porters out of 186 candidates selected had been issued licences. On the contrary, in his cross-examination, it was admitted that a policy decision was taken in 1994 with a view to give more work to Licensed Porters for shifting of parcels. The said witness could not identify the names of the persons who had paid licence fees. He also admitted that the work of coolies while carrying the luggage of the passengers was not supervised by the Railways, but the Railways used to supervise the work of the said Licensed Porters while moving the parcels. The names of the members of the Union were appearing in the muster roll and some of them had ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 10 lpa 304 of 2010 (J).odt been transferred from one station to another. The said witness also admitted that the members of the Union had filed proceedings under the Minimum Wages Act, 1948 and the Railways had been directed to pay such wages to the members of the Union, which order was maintained by the High Court.
The Railways also examined the Assistant Personnel Officer, who was member of the Screening Committee. He admitted that while no muster roll had been maintained for Licensed Porters, the names of the Parcel Porters were recorded in the muster roll. The Parcel Porters were paid by the Railways as per the provisions of the Minimum Wages Act, 1948.
7. We find from the record that the Divisional Operational Manager, who was Incharge at the relevant time, was examined by issuing a witness summons at the behest of the Union. In his deposition, he stated that about 200 persons were selected and recruited as Parcel Porters. They were recruited for handling the parcels of the Railways and not of the passengers. Initially, such work was got done through a Contractor and after the expiry of the term of that contract, the Divisional Railway Manager decided to engage Parcel Porters on a large basis. It is on the consideration of the aforesaid material that the learned Single Judge was pleased to observe that the same was sufficient to record a finding that the members of the Union though selected ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 11 lpa 304 of 2010 (J).odt as Licensed Porters were engaged for discharging duties as Parcel Porters and hence were 'workmen', as defined by Section 2(s) of the said Act. We find that the aforesaid conclusion is based on the material available on record and there is no reason whatsoever to take a different view of the matter.
8. Coming to the aspect of the necessity for remanding the proceedings in view of the fact that certain documents on record had not been duly proved in accordance with law, we find that this exercise was necessitated as the documentary material sought to be relied upon by the parties had not been duly proved as required. Initially, the Railways did not file any documentary material on record and as the proceedings progressed, such material was sought to be placed on record. Even before the learned Single Judge, additional documents that were not before the Tribunal, were sought to be relied upon. It is found that such exercise of re-considering the relevant documents having a bearing on the proceedings is necessary for determining the nature of relief to which the members of the Union would be entitled, if found necessary. It cannot be said that there was an attempt to fill in the lacuna, as sought to be urged by the learned counsel for the appellant. It has been found that both the parties were responsible for there being insufficient documentary material on record and in that backdrop it was found necessary ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 12 lpa 304 of 2010 (J).odt to remand the proceedings. In the aforesaid background, the decisions relied upon by the learned counsel for the appellant and the ratio thereof cannot be applied to the case in hand.
9. While considering the challenge to the order of remand, we cannot lose sight of the fact that pursuant to the judgment of the learned Single Judge dated 14-10-2009, the parties contested the reference proceedings before the Tribunal. The Union examined about 152 members in support of its stand. In the meanwhile, the proceedings under Section 17B of the said Act were initiated by the members of the Union in view of the interim orders passed and the said proceedings travelled up to the Hon'ble Supreme Court. The present Letters Patent Appeal was filed on 6-4-2010 and the record does not indicate that any attempt was made to make a prayer for staying the proceedings before the Tribunal after remand. As a consequence on 15-7-2010, the Tribunal decided the reference proceedings and passed an award in favour of the members of the Union. This fact was noted by this Court on 3-8-2010 while admitting the Letters Patent Appeal. The events that have occurred after passing of the judgment by the learned Single Judge will therefore have to be kept in mind while considering the challenge to the order of remand. At the same time, the contention raised on behalf of the Union that since the final order was passed after ::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 06:40:13 ::: 13 lpa 304 of 2010 (J).odt the proceedings were remanded, the challenge raised in the present Letters Patent Appeal had become infructuous, cannot be accepted. The Railways were within their rights of challenging the findings recorded by the learned Single Judge that the members of the Union working as Parcel Porters were 'workmen' and merely because the proceedings were subsequently remanded, would not make the challenge to that part of the order infructuous. Reference in that regard can be made to the decisions of the Hon'ble Supreme Court in Union of India and others Vs. Narender Singh, reported in (2005) 6 SCC 106; and Union of India and others Vs. Ram Kumar Thakur, reported in (2009) 1 SCC 122. The challenge therefore has been adjudicated by us on merits.
10. As regards the contention raised that the members of the Union were not entitled to the relief of regularization or that granting the same would result in a backdoor entry in service, we refrain from examining that contention, since the only issue that was required to be adjudicated was whether the members of the Union who were discharging duties as Parcel Porters were workmen or not. The aspect as regards relief to which the members of the Union are entitled therefore is open for being urged at the appropriate stage. We have therefore not considered the decisions relied upon by the learned counsel in that regard.
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11. In the light of the aforesaid discussion, we are satisfied that there is no ground made out to interfere with the judgment of the learned Single Judge. Consequently, the Letters Patent Appeal fails. It is accordingly dismissed, leaving the parties to bear their own costs.
(G.A. Sanap, J.) (A.S. Chandurkar, J.)
Lanjewar
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