Calcutta High Court (Appellete Side)
Sk. Akram Ali & Ors vs The Deputy Chairman on 19 July, 2011
Author: Tapen Sen
Bench: Tapen Sen
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 12456 (W) of 2000
with
CAN 5832 of 2003
Sk. Akram Ali & Ors.
Vs.
The Deputy Chairman, Haldia Dock Complex,
Calcutta Port Trust & Others
CORAM : Hon'ble Mr. Justice Tapen Sen
For the Petitioners : Mr. Milan Chandra Bhattacharyya
Ms. Ipsita Chaudhury
Ms. Sulagna Bhattacharyya
For the Respondents : Mr. Joydeep Kar,
Mr. Ashok Kumar Jana Heard on : 14.3.11, 22.3.11, 29.3.11 C.A.V. on : 29.3.2011 Judgment delivered on : 19th July, 2011 Tapen Sen, J.: In this Writ Petition, the Petitioners, who are 5 (five) in number have prayed for the issuance of a writ of Mandamus commanding upon the Respondents to permanently absorb them as departmental employees of the Haldia Dock Complex together with all service benefits as all are admissible to Lift Operators.
The Petitioners further pray for the issuance of a writ of Prohibition prohibiting the Respondents from treating the Petitioner as contract labourers under M/s. I.B. Ghosh Pvt. Ltd., Engineers and Contractors, 3, C.R. Avenue, Kolkata- 700072 (Respondent No. 7). They have also prayed for an ad 2 interim order of injunction restraining the Respondents from interfering with their services till disposal of the Writ Petition.
2. The Petitioners have stated that they are trained Lift Operators and all have the academic qualification of having passed Class-VIII. The Haldia Dock Complex has been built for handling various types of cargo and other merchandise navigated through the river Hooghly. The entire complex has been built by the Calcutta Port Trust for convenience of internal trade as well as for international trade and commerce. A number of high-rise buildings have been constructed to accommodate various offices of the Dock complex. There are altogether five lifts/escalators- one operating in the operation building at Chiranjibpur; two operating in the new annexe building of Jawahar Tower and two operating in the main building of Jawahar Tower of the said Dock complex. Over and above the said five lifts, there is another lift operating at the new annexe building of Jawahar Tower. The five lifts/escalators are manually operated for which, there are altogether, five liftmen. The lifts were installed by the aforesaid contractors (Respondent No. 7) and after installation, the lifts were handed over to the Haldia Dock complex authorities in or about the year 1987.
The authorities of the Haldia Dock Complex did not appoint any liftmen for operating the lifts and instead, they awarded a contract to the Respondent No. 7 for hiring five lift operators, initially on a monthly remuneration of Rs. 2200/- per lift operator. The remuneration was enhanced from time to time as and when fresh contracts were awarded to the Respondent No. 7. Although the contract was initially awarded for the period of six 3 months in 1986, but the same was systematically extended as a matter of course till date -- with enhanced remunerations. In support of such a contention, the Petitioners have relied upon Annexures A and B which are photocopies of Letters dated 19.2.1988 and 5.3.1990. Both the letters have been issued to the Respondent No. 7 and they are documents to show that the contracts were in relation to hiring of one lift operator.
It is the further case of the Petitioner that pursuant to such contracts, the services of the Petitioners were taken on hire by the Respondent No. 7 for operating the lifts installed by it and at the behest of the Dock Complex Authorities. They have stated that the Petitioner No. 1 has been rendering services since 1986; the Petitioner No. 2 -since 1997; the Petitioner No. 3- since 1997; the Petitioner No. 4-since 1997; and the Petitioner No. 5, since 4.4.2000. They have all been given free accommodation by the authorities of the Complex at the Anchorage Camp, Haldia Township, Midnapore on the request of the Respondent No. 7. The Petitioners have relied upon a specimen copy of the daily attendance register (Annexure-C, Pages-28-36) to say that their attendance is recorded on the said register which is not only provided by the Dock authorities, but also, counter-signed by them.
They have also relied on a photocopy of a chart/statement (Annexure-D) to say that even extra duty hours performed by each operator are duly authenticated and counter-signed by an Officer of Dock Complex.
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It is the further case of the Petitioners that they are paid monthly remuneration including overtime allowances on the basis of attendance registers and the chart/statement of extra duty hours against vouchers which are signed individually by the Petitioners as a token of acceptance of their monthly remunerations. They have also stated that the Respondent No. 7 does not pay the full rate as awarded by the contract but what is actually paid is almost 1/3rd of the amount/rate fixed by the Haldia Dock Complex for each individual lift operator on a monthly basis. They have further made a grievance that even their overtime allowance of Rs. 25 (Rupees twenty five) per hour is also slashed by the Respondent No. 7 and these are instances to show that the said Respondent not only exploits them but also makes wrongful gain out of such exploitation and that too, with the knowledge of both the Dock as well as the Port authorities.
It is the further case of the Petitioners that although their services have been placed by the Respondent No. 7 on the basis of contracts and at the behest of the Haldia Dock Complex since 1986 but, for all practical purposes, their services are controlled and monitored by the Haldia Dock Authority inasmuch as:-
a) Their working hours have been fixed by the Haldia Dock authority as would be evident from Annexure-A;
b) Their working hours have been fixed by the Haldia Dock authority as would be evident from Annexure-A;5
c) Their working hours have been fixed by the Haldia Dock authority as would be evident from Annexure-A;
d) Their monthly remunerations have been fixed by the said authority;
e) The mode of payment has been determined by the same authority;
f) The allotment of duties is determined by the same authority;
g) The daily attendance registers are maintained by the same authority and on the basis of the said registers, monthly remunerations are paid;
h) The attendance registers provided by the Dock authorities are checked, verified and authenticated by the Plant Engineer (Electrical), Ship Electrical Maintenance Office of the Haldia Dock Complex;
i) Residential accommodation of the lift operators has been provided free of cost by the Dock Authorities;
j) The Financial Control regarding payment of remuneration, overtime allowances etc. are in the hands of the Dock authorities;
k) The lift keys, tool boxes for emergency, cotton rags etc. are all supplied by the Dock Authorities;
l) In the event any leave is prayed for, the same has to be sanctioned by the said authority;
m) Transfer of any liftman from one location to another is controlled by the said authority; and
n) Each individual liftman is obliged to follow disciplinary regulations imposed by the Dock Authorities.6
3. The Petitioners have stated in paragraphs 17 and 18 that they are rendering services since 1986 without any break as lift operators under the control and management of the Haldia Dock Authority and therefore, they have a right to be absorbed as departmental employees. The Calcutta Port Trust being a statutory authority and its functions being regulated by the Department of Surface Transport, Govt. of India in accordance with the Major Port Trusts Act, cannot frustrate the rights of the Petitioners since, in any case, they require permanent lift operators for the lifts and which is a perennial activity. The have stated that way back in the year 1989, the Manager of the Complex by his Report dated 16.6.1989 (Annexure-E) had written to the Deputy Chairman recommending the creation of the post of lift drivers. Till October 1990, the Port Trust Authorities or the Dock Complex Authorities did not take any decision and therefore on 24.10.1990, the Manger (P &E) Haldia Dock Complex placed a fresh proposal to the General Manager (Operation) proposing the post of lift drivers and also proposing the scales of pay (Annexure-F). Again, nothing was done and therefore the Manager (P &IR) sent another proposal dated 10.11.1990 for creating the post of two lift drivers and sought for the approval of the Deputy Chairman (Annexure-G).
It is stated that neither the Calcutta Port Trust nor the Haldia Dock Authority took any action thereby leaving the Petitioners to suffer as contract labourers although their services were regulated by the said authorities. 7
Being aggrieved, the Petitioners filed a Representation before the Deputy Chairman, Haldia Dock complex on 1.6.1999 praying for absorption (Annexure-H).
The Junior Assistant Manager (P & IR), on the basis of the aforementioned Representation, requested the Administration, by his note dated 4.10.1999 (Annexure-I) to take a decision on the question of departmentalisation of the lift operators and their absorption.
On another Application/Representation having been made, the said Junior Assistant Manager, by his Office note dated 16.3.2000, again requested the authorities to departmentalise the five contract labourers (Annexure-J).
4. It is the grievance of the Petitioners that nothing has been done and that the authorities have only neglected and ignored the matter pertaining to taking a decision in spite of the fact that each one of them are entitled to be absorbed. Based on the aforementioned facts, the Writ Petition has been filed.
5. An Affidavit-in-opposition has been filed by the Respondent Nos. 1 to 5 and it has been sworn by one Jaydip Ghosh Dastidar, Junior Assistant Manager of the Calcutta Port Trust, Haldia Dock Complex. He has stated that all the five lifts at Jawahar Tower complex and Chiranjibpur Operational Building are automatic machines under the Haldia Dock Complex and they do not require continuous involvement of any lift operators and 8 therefore, the contentions of the Petitioners that these lifts are manually operated, is not correct.
He has denied the statement of the Petitioners to the effect that the Respondent No. 7 had installed the five lifts. He has stated that out of the five lifts, three were installed by OTIS Elevators Company of India Ltd. in the year 1997 and 1998. He has also stated that the contract was awarded to the Respondent No. 7 for maintenance and repairing the lifts. The said contract was renewed from time to time and the last of such contract is still in existence.
This deponent has also, while referring to Annexures A and B, stated that upon a perusal of these documents it will be evident that the Port authorities have neither appointed the Petitioners nor have they paid any salary directly to the Petitioners. He has also denied the statements to the effect that the Petitioners were given out on hire by the Respondent No. 7 to the Dock Authorities for operating the lifts. They have further stated that so far as the Contract Labour (Regulation and Abolition) Act, 1970 is concerned, the Central Government has not yet abolished the contract Labour system in the Calcutta Port Trust. He has further stated that the Port authorities, from time to time, have awarded contract to the Respondent No. 7 in connection with the lifts and it was the said company which supplied the lift operators at the rate mentioned in the Contract and it was their discretion as to who would be engaged or not, but the port authorities had no control over the engagement of contract labourers. He has also stated that admittedly, quarter was allotted but such quarter was to the contractor and not directly to any employee of the contractor. Other statements 9 made by the Petitioners, have been denied and disputed but the gist of the Affidavit-in-opposition is that all payments were made by the contractor to its own employees over which the port authorities have no control and that the Petitioners were all contract labourers and they were never directly appointed by the Port authorities and that there was no employer-employee relationship.
A reply has been filed by the Petitioners repeating and reiterating the statements made in the Writ Petition.
6. Mr. Milan Chandra Bhattacharyya, learned Counsel for the Petitioner has submitted that the contract is a sham contract and behind the veil, lurks the mask of the employer namely the Port authorities. He has referred to the case of General Manager, (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal and anr. reported in (2011) 1 SCC 635. He has submitted that in order to determine as to whether a contract labourer is a direct employee of the principal employer, two well-recognised tests are as to whether (i) the principal employer pays salary and (ii) whether the principal employer actually controls and supervises the work of the employee. He submits that in this case, the facts would clearly establish and specially Annexures-A to D that the work was supervised by the port authorities and not by the contractor and therefore it must be deemed that the Petitioners are direct employees of the Respondent authorities.
Mr. Bhattacharyya then relied upon the case of Baleshwar Rajbashi and Ors. Vs. Board of Trustees for the Port Trust of Calcutta & Ors. reported in (2010) 1 SCC 116. He referred to para-12 but in the 10 facts and circumstances of this case, the said judgment has no application because the said case was in the context of an Order passed by the Division Bench of the Calcutta High Court directing the Calcutta Port Trust to approach the Ministry of Labour to take a decision in the matter pertaining to issuance of a notification under Section 10 of the said Act .
Mr. Milan Chandra Bhattacharyya then submitted that the contract itself was sham and a camouflage.
Having heard the submissions of the parties, this Court notices that in the instant case, there is not a single document to establish that the Petitioners were, in any way, appointed by the Respondent authorities. Annexures A and B are merely instructions to the Respondent No. 7 informing them that one lift operator may be provided on a monthly remuneration etc. Annexure-B is in the matter pertaining to the price for quotation of the hire period of one lift operator. These letters cannot be said to be letters establishing that five lift operators namely the Petitioners were being taken on hire at the instance of the Respondent authorities. They cannot also establish the appointment of the Petitioners.
Apart from all these, the stumbling block which comes in the way of granting any relief to the Petitioners is the famous case of Secretary, State of Karnataka & Ors. vs. Uma Devi (3) & Ors. reported in (2006) 4 SCC 1. The Supreme Court has categorically stated and directed that High Courts should not issue directions for regularisation/absorption unless the recruitment itself was made regularly and in terms of any constitutionally valid scheme. The 11 Supreme Court has further observed that merely because and even if an employee had continued under cover of an Order of the Court, he would still not be entitled to any right to be absorbed or made permanent in service.
Considering the aforementioned facts and circumstances, this Court is of the view that the Petitioners cannot maintain a claim for absorption and even if they have continued to work under an Order of status quo passed by this Court on 14.8.2000, even then they cannot be granted the reliefs that they have sought for in this Writ Petition.
For the foregoing reasons, this Court holds that there is no merit in this Writ Petition. It is accordingly dismissed.
As a consequence of this Judgment, the interim Order granted earlier is vacated and as such, CAN 5832 of 2003 which was filed for vacating the Order of Stay is allowed.
Upon appropriate Application(s) being made, urgent Xeroxed Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.
(Tapen Sen, J.) ...............July, 2011 S.B A.F.R/N.A.F.R.