Calcutta High Court (Appellete Side)
Sri Ashim Kumar Chakraborty & Ors vs Union Of India & Ors on 27 July, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present: The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P.No.10007 (W) of 2011
Sri Ashim Kumar Chakraborty & Ors.
v.
Union of India & Ors.
Mr. Pratap Chatterjee
Mr. Jaydip Kar
Mr. Kishore Dutta
Mr. Sirsanya Bandopadhyay ... for the petitioners
Mr. Pradip Kumar Dutta
Mr. Partha Basu
Mr. Nikhil Kumar Roy ...for the third & fourth respondents
Mr. P.S. Sengupta Mr. Debnath Ghosh Mr. Shounak Mitra ...for the sixth-eighth respondents Heard on: July 27, 2011 Judgment on: July 27, 2011 The Court: The thirty petitioners in this art.226 petition dated June 22,2011 are seeking the following principal relief:
"(d) A writ of and/or in the nature of Mandamus do issue directing the respondents more particularly the respondent no.3, their men, agents, servants, subordinates and assigns to insert a clause in the Notice Inviting Tender of May 2011 issued by the Eastern Coal-fields Limited that the successful bidder would have mandatory obligation to engage the petitioners and other 120 similarly situated workers at Chinakuri Thermal Power Plant before engaging others."
The notice inviting tender seeking insertion of a clause in which this petition has been brought has not been produced with the petition. It has been stated in para.10 of the petition that Eastern Coalfields Limited (in short ECL) has issued the notice in or around May 2011.
2In para.11 of the petition the following has been stated:
"11. That the bid documents for leasing of 3 X 10 MW capacity Thermal Power Station published by ECL contains the instruction towards the prospective bidders, wherein a condition regarding employment of local labour has been discussed. Article 32(1) of the said Bid Documents published by ECL state that " Contractors are to employ, to the extent possible only local project affected people and pay wages not less than the minimum wages fixed by the local Government."
The case stated in para.12 of the petition is as follows:
"12. That the petitioners state that on perusal of the said bid document, it is evident that no provision has been made to protect the interest of the petitioners and other workers working at the Chinakuri Thermal Power Plant. The terms relating to the workers as has been laid down in the bid document, do not take into its ambit the petitioners and other workers therein."
The petitioners say that they are aggrieved by the notice issued by ECL for the reason that though ECL was under an obligation to protect their interest, no clause has been inserted in the notice requiring the prospective successful tenderer to engage them in connection with the work of Chinakuri Thermal Power Station where they, having been engaged by the existing lessee, Dishergarh Power Supply Company Limited(in short DPSCL), have been working without any break for around last twenty years.
The question is whether the petitioners are entitled to call upon ECL to insert a clause in its tender notice requiring the prospective successful tenderer to continue to engage them in the work of the power plant.
DPSCL is an existing company within the meaning of the Companies Act, 1956 and it has been executing the jobs concerning the power plant under the terms and conditions of a lease dated March 31,1993. The term of the lease expired in March 2011. ECL has extended the lease for one more year on an ad hoc basis and in the mean time it has issued the notice putting the work out to tender.
Referring to the terms and conditions the lease and relying on the decisions in Hussainbhai v. The Alath Factory Thezhilali Union, Kozhikode & Ors.,(1978) 4 SCC 257 and Steel Authority of India Ltd. & Ors. v. National Union Waterfront Workers & Ors; (2001) 7 SCC 1, Mr. Chatterjee appearing for the petitioners has argued that since the 3 terms of the lease clearly show that the petitioners engaged by DPSCL, ECL's contractor, have been actually working for ECL, they are entitled to be treated as ECL's employees.
He has said that since in case of a notification under s.10 of the Contract Labour (Regulation and Abolition) Act,1970 the petitioners will acquire a prior right to absorption in the employment of ECL, unless an appropriate clause is inserted in the tender notice requiring the prospective successful tenderer to continue to engage them in the work of the power plant, they will definitely lose their employment.
He has submitted that in para.24 the petitioners have stated that they are apprehending loss of employment in the absence of a clause inserted by ECL in the tender notice placing the prospective successful tender under an obligation to engage them in the work of the power plant. His submission is that by not inserting a clause protecting the petitioners' interest ECL has infringed their fundamental rights guaranteed under arts.14 and 21.
Mr. Sengupta appearing for DPSCL has said that while DPSCL has no reason to support or oppose the petitioners' case, it will certainly support the proposition that if applying the principles stated in the two decisions it is found that the petitioners are actually the employees of ECL, then ECL is under an obligation to incorporate a suitable clause in the tender notice with a view to protecting their future engagement in the work of the power plant by the prospective successful tenderer.
Both Mr. Chatterjee and Mr. Sengupta have submitted that while ECL mindlessly incorporated in the tender notice a useless clause for protecting non-existent interest of project affected local people, it remained totally unmindful of the interest of the petitioners even after its attention was drawn to the precarious situation in which the petitioners are going to find themselves with the change in the contractor engaged for running the power plant.
4Relying on the decisions in Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation & Ors., (2000) 5 SCC 287, Directorate of Education & Ors. v. Educomp Datamatics Ltd. & Ors., AIR 2004 SC 1962 and Global Energy Ltd. & Anr. v. M/s. Adani Exports Ltd. & Ors., AIR 2005 SC 2653, Mr. Dutta appearing for ECL has submitted that the apprehension of loss of employment expressed by the petitioners is absolutely baseless, for it is evident from the appointment letters produced with the petition that they are permanent employees of DPSCL.
He has said that for protecting interest of permanent employees of DPSCL, ECL cannot incorporate a clause in the tender notice it has issued for selecting a new lessee to run the power plant; and that, in any case, the petitioners have no right to call upon ECL to incorporate a clause in its tender notice creating an obligation of the prospective successful tenderer to continue to engage them in the work of the power plant.
Case stated by the petitioners in para.24 of the petition is as follows:
"24. That the petitioners are still working in the said Chinakuri Thermal Power Plant. The petitioners apprehend that on the expiry of the lease with DPSCL the services of the petitioners and the other 110 similarly situated workers would dispensed with and they would not be provided with employment."
The real question is whether with the change in the lessee to run the power plant the petitioners are likely to lose their employment. If they are likely to lose their employment, then the question will be whether ECL is under any obligation to insert a clause in its tender notice creating an obligation of the future lessee to continue to engage them in or in connection with the work of the power plant.
The appointment letters produced with the petition cearly show that the petitioners were appointed by DPSCL on a permanent basis stating, inter alia, as follows:
"12. PLACE OF WORK: Although your service will initially be at Chinakuri Power Station, it is a condition of your employment that you may, at any time, be transferred to any of the Company's installations or offices at the discretion of Management. However, your all other conditions of service will remain unaltered and in no case, such transfer will prejudice your total remuneration."5
It is inconceivable how the prospective successful tenderer can be asked to employ permanent employees of DPSCL. Even if the employment of contract labour in connection with work of the power plant is prohibited, the petitioners will not lose employment in DPSCL, and hence they will not acquire a prior right to absorption in ECL's employment. DPSCL's permanent employees, as the petitioners are, cannot be appointed by ECL or by its new lessee under any circumstances.
Incorporation of a clause creating an obligation of the prospective successful tenderer to continue to engage the petitioners may even lead to an absurd situation in that if DPSCL, intending to participate in the process, emerges as the successful tenderer, then it will be compelled to engage its permanent employees under an obligation created by ECL that has absolutely no right to ask it to continue to engage its one set of permanent employees in the work of the power plant.
I am, therefore, unable to accept the argument that ECL was under an obligation to incorporate a suitable clause in its tender notice creating a mandatory obligation of the prospective successful tenderer to continue to engage the petitioners in the work of the power plant.
For these reasons, the petition is dismissed. No costs. Certified xerox.
sh (Jayanta Kumar Biswas, J ) 6