Anil & Anr. vs U.O.I.

Heard learned counsel for the petitioner, Sri Suryabhan Pandey, learned A.S.G. of India assisted by Sri Varun Pandey, learned counsel for the respondent No. 1 and Sri Dhirendra Singh, learned counsel for the respondent Nos. 2 to 5.

The writ petitions have been filed for the following main reliefs, based on similar pleadings:-

"(i) Issue a writ of Mandamus directing the Secretary of the concerned (i.e. Respondent No. 1) to settle the controversy of this Hon'ble Court may itself settle the same after taking the reply of the all concerned respondents.

(ii) Issue a writ order or direction in the nature of Certiorari to kindly quash the order dated 23.12.2010 issued by the Assistant General Manager (IRL) regional Office, F.C.I. U.P., i.e. respondent No. 5 i.e. Annexure No. 1."

All the above noted writ petitions are similar and as such are being decided by this judgment.

It is stated that the petitioners were engaged as contract labourers through contractor by the Food Corporation of India (in short "Corporation")/respondent Nos. 2 to 5 and they are entitled for regularization in view of the Circular issued by the Corporation dated 11.06.1991.

It is also stated that after the Circular dated 11.06.1991 issued for the purposes of regularization of the contract labourers engaged by the Corporation, the competent Authority of Corporation concerned issued the Circular/order dated 23.12.2010. It was issued after the Notification dated 23.04.2010 issued by the Government of India, Ministry of Labour under the Contract Labour (Regulation and Abolition) Act, 1970.

Earlier, the Circular dated 23.12.2010 was in issue before this Court by means of the Writ Petition No. 1010 (S/S) of 2012 (Bhartiya Khadya Nigam Mazdoor Union Thr.Its President v. Union Of India Thr.Its Secy.Min.For Labour & Employment &Ors), which was dismissed vide order dated 01.04.2013. The order dated 01.04.2013 on reproduction reads as under:-

"Heard learned counsel for the parties.

The petitioner has filed this writ petition with the prayer that petitioner's union and other similarly situated persons' case may be considered for regularization in accordance with the Head quarter Circular dated 11.6.1991 and the seniority list be prepared in pursuance to the said circular.

The grievance of the petitioner appears to be is in respect of the circular dated 23.12.2010, wherein it has been said that seniority list of the workers will be prepared on the basis of actual number of days work done by each labour during last three years in concerned depot with the contractor.

Submission of counsel for the petitioner is that criteria fixed by the Head Quarter has been watered down by the circular dated 23.12.2010, which has been issued in pursuance to the circular dated 11.6.1991 issued by the Head Quarter. He further submits that the circular issued by the Head Quarter is binding on all the zonal as well as district offices and the list of eligible workers for regularization has to be prepared in accordance with the guidelines provided in the circular dated 11.6.1991. It is submitted that by changing the criteria, various persons were excluded from the zone of consideration and identification though they were qualified under law for being considered as they have been working in the department since long.

Counsel for the Food Corporation of India has submitted that the petitioners have never worked in the Depot and they have no locus to file the writ petition. She further submits that all such types of cases are being heard by the National Industrial Tribunal, Bombay, therefore, no interference by this Court is warranted.

Counsel for the opposite parties no.7 and 8 submits that identification process is going on at the Chief Labour Commissioner, Central Government, New Delhi and any order passed in this writ petition may not affect the process of identification, which is going on. He further submits that opposite parties no.7 and 8 are the persons, who have been working continuously with the department and the contract labour system has been abolished in respect of 456 labourers.

The main question which remains for consideration is as to whether the criteria of three years as laid down by the Assistant General Manager, Food Corporation of India would affect the provisions of the circular dated 11.6.1991. The circular dated 11.6.1991 was issued in pursuance to the agreement signed with Food Corporation of India Workers Union on 12.4.1991 in respect of 99 Depots in the wake of prohibition of contract labour and in pursuance thereof, a letter of even number dated 9.5.1991 was addressed to Zonal Manager to implement the said agreement. Certain criteria were laid down and in clause 3.1(g) the criteria for identifying the labourers working in the depot has been fixed and one along with many other criteria in 3.1(g) says that the list of contractors for each depot has to be scrutinized and specifically those contractors who had been with the Food Corporation of India for the last ten years could be contacted for availing of the documents mentioned in para 3.1. It was also said that "the contractor would have preserved the last 10 years records for their income-tax purposes. This ten years period has been made the sheet anchor of the argument of counsel for the petitioner. The aforesaid criteria of ten years records of income tax with the contractor is altogether in different context as compared to the notification issued on 23.12.2010, wherein a criteria has been laid down for identification and preparation of seniority list of workers selected after identification and physical fitness is to be prepared for each FCI owned depot separately of handling labour and ancillary labour on the basis of actual number of days work done by each labour during last three years in concerned depot with the contractor. By virtue of the above criteria, only three years period has been prescribed for the purposes of identification of having worked with the contractor in the depot, but the criteria of ten years has been laid down in the circular dated 11.6.1991 in reference to the income-tax records of the contractor for the purposes of verification. The minimum criteria of working of three years as fixed by the Assistant General Manager to be verified with the contractor of the concerned depot, does not seem to be in any way contrary or against the circular dated 11.6.1991. After all, some reasonable criteria has to be fixed for the purposes of identification and absorption. The criteria which has been fixed by the Assistant General Manager, has been fixed in a reasonable manner with sound reasoning, as such the same cannot be said to be arbitrary in any manner.

The identification process as undertaken by the opposite parties, will go on and will not be affected in any manner by this order.

I do not find any merit in this petition. It is accordingly dismissed."

Subsequently, Review Petition No. 185 of 2013 (Bhartiya Khadya Nigam Mazdoor Union 1010(S/S)2012 v. Union Of India Throu. Its Secy.For Ministry For Labour & Ors) was also filed before this Court, which was also dismissed by means of the order dated 08.04.2013. The same reads as under:-

"Heard learned counsel for the review-petitioner and learned counsel for the opposite parties.

The main grievance of the review-petitioner appears to be that the prayer made by the petitioner in the writ petition has not been appreciated correctly and in fact the prayer was to the effect that the Circular dated 22.12.2010 may be quashed.

The order in question was passed considering the arguments of the respective parties, but so far the validity of the aforesaid circular is concerned, the validity of the same has been considered in the judgment and has been decided. The grievance of the petitioner, therefore, stands redressed from the judgment itself. Even if the prayer of the petitioner has not been considered to certain extent, that will not make any difference on the merit of the order, after the issue in question as argued in the writ petition, has been dealt with and decided by this court.

Therefore, I do not find any merit in the review petition. It is accordingly dismissed."

It is further stated that the orders dated 08.04.2013, passed in Review Petition No. 185 of 2013 and the judgment dated 01.04.2013, passed in the Writ Petition No. 1010 (S/S) of 2012 were challenged before this Court by means of the Special Appeal No. 227 of 2013 (Bhartiya Khadya Nigam Mazdoor Union 1010(S/S)12 [185(Revp)13 v. Union Of India Throu Its Secy.For Ministry For Labour & Ors.) and the Division Bench of this Court and after considering the Circular dated 11.06.1991 so as the order dated 23.12.2010, disposed of the Special Appeal on 29.04.2013, with the following observations:-

"Learned counsel for the appellant,thus, submitted that in compliance of the order dated 25.2.2013, the officer concerned did not file the affidavit to explain the direction issued on 23.12.2010 by him, which appears to be in derogation of the circular dated 11.6.1991.

On the other hand, learned counsel for the Food Corporation of India, Miss Veena Sinha, tried to justify the circular while arguing that it is in accordance with the circular issued by the Head Quarters at Delhi.  Shri Satish Kumar Mishra, learned counsel appearing for opposite parties no. 7 and 8  submitted that they have raised the issue which is now pending before the Chief Labour Commissioner (Central) New Delhi.

On due consideration of rival submissions, we are of the opinion that the Regional Office should not have diluted the directions of the circular issued by the Head Quarters dated 11.6.1991 which laid down a detailed procedure for identification of the labourers. We also notice that the representation dated 25.7.2011 submitted in this regard to the Regional Office at Lucknow was not responded to.

In the aforesaid premises, we dispose of the Special Appeal while modifying the order passed by the learned Single Judge to the extent that the Managing Director of the Food Corporation of India shall personally look into the matter and resolve the issue by clarifying the position.

The Special Appeal stands disposed of."

Learned counsel for the petitioner while pressing the reliefs sought in the writ petitions submitted that the judgment dated 29.04.2013 has not been complied with by the Authority concerned of the Corporation and as such, the interference of this Court is required.

Per contra, Sri Suryabhan Pandey, learned A.S.G. of India as well as Sri Dhirendra Singh, learned counsel for the respondent Nos. 2 to 5 submitted that the instant petitions for the reliefs sought are not maintainable in view of the fact that in earlier proceedings, the Circular dated 23.12.2010 was challenged before this Court but the same was neither interfered by the Writ Court while deciding the Writ Petition No. 1010 (S/S) of 2012 nor by the Division Bench of this Court while deciding the Special Appeal No. 227 of 2013. The Division Bench of this Court only modified the order of the Single Judge to the extent that the Managing Director of the Food Corporation of Inda shall personally look into the matter and resolve the issue by clarifying the position.

It is further stated that in compliance of the judgment and order dated 29.04.2013 passed by the Division Bench of this Court, the Managing Director of the Corporation considered the entire matter and passed a reasoned order dated 17.12.2013 and the same has not been challenged in the instant writ petition.

In view of the above, the prayer is to dismiss the writ petitions.

Heard the submissions advanced by the learned counsel for the parties and perused the record.

The order dated 17.12.2013 passed in compliance of the judgment of the Division Bench of this Court dated 29.04.2013, placed before this Court by the learned counsel for the Corporation and taken on record, is quoted hereunder:-

"ORDER The Hon'ble High Court Allahabad vide Order dated 29.04.2013 passed in Special Appeal No. 227 of 2013 titled Bhartiya Khadya Nigam Mazdoor Union V/s Food Corporation of India and others ordered that "In the aforesaid premises, we dispose of the Special Appeal while modifying the order passed by the learned Single Judge to the extent that the Managing Director of the Food Corporation of India shall personally look into the matter and resolve the issue by clarifying the position."

It is observed that a Writ Petition No. 1010 (S/S) of 2012 had been filed by Shri Idrishi in 2012 wherein following was prayed before the Hon'ble Court by the Petitioner:

a. Issue a writ, order or direction in the nature of Certiorari to kindly quash the letter/order dated 23.12.2010 issued by the Asstt. General Manager (IR-L) i.e. respondent No. 5.

b. Any other writ, order or direction that this Hon'ble Court may deem fit, just and proper in the circumstances of the case, may also be passed favouring the petitioner.

This WP has been dismissed by the Hon'ble Court on 01.04.2013 with the finding "I do not find any merit in this petition. It is accordingly dismissed." Copy of said judgment is annexed and marked as Annexure 'A'.

Against this Single Bench decision, Shri Idrishi filed a Review Petition bearing no. 185 of 2013 which has also been dismissed by the Hon'ble Court on 08.04.2013 (Copy of the said Order is annexed and marked as Annexure 'B'). Thereafter a Special Appeal bearing no. 227 of 2013 was filed by Shri Idrishi and it was also dismissed by the Hon'ble Court with a direction "that the Managing Director of the Food Corporation of India shall personally look into the matter and resolve the issue by clarifying the position."

In compliance of the said order, I have gone through the records, facts and materials presented before me and also gone through the copy of Counter Affidavit, Supplementary Counter Affidavit filed in WP No. 1010(S/S of 2012) and copy of the Petition filed in Review Petition No. 185 of 2013.

a) The main contention of the Petitioner is that the instructions issued by RO, Lucknow vide their letter dated 23.12.2010 is in contravention of HQ letter dated 11.06.1991.

b) I have gone through both the instructions in question and found that instructions dated 11.06.1991 are basically broad Guidelines for identification of the labourers and procedure to be followed for identification of labourers and actual number of labourers required for induction purpose.

c) The induction in FCI Depot where the contract labour is abolished is done on the basis of seniority cum fitness as mentioned in the aforesaid Guidelines dated 11.06.1991 issued by HQ.

d) RQ, Lucknow letter dated 23.12.2010 is in continuation of letter dated 11.06.1991 of HQ and is an extension of HQ instructions just to sensitize Area Managers (UP Region) regarding the induction process to be followed.

e) The contention of the Petitioner regarding 10 years criteria to be followed for induction is misplaced. The criteria of 10 years mentioned in letter dated 11.06.1991 is altogether in different context i.e. for Income tax purpose. Therefore Criteria mentioned in letter dated 23.12.2010 is not in any way contrary or against the Circular dated 11.06.1991.

I have also observed that CLC(C), Delhi had conduced an enquiry with regard to induction of workers at Gonda Depot in pursuance to the judgment given in Writ Petition No. 69218/2012 in the case of application filed by Shri R.N. Singh, another local labour leader. Dy. CLC(C), Kanpur in this regard was furnished various documents like EPF Record, Gate Entry, Register and Wage Bill of the contractor etc. Finally the proceedings before the CLC(C), Delhi were closed without any specific observations.

In view of the above, it is submitted that the instructions dated 23.12.2010 issued by RO, FCI, UP are in accordance with the instructions in vogue and are not contrary to the HQ instructions dated 11.06.1991.

Accordingly, in due compliance of the Hon'ble Court's direction dated 29.04.2013, the instant clarification has been made without prejudice to the interest of Food Corporation of India."

It appears from the order dated 17.12.2013, quoted above, and the judgments passed in earlier proceedings that the Circular dated 23.12.2010 was under challenge before this Court in the Writ Petition No. 1010 (S/S) of 2012. The order dated 17.12.2013 is not in issue.

It further appears from the judgment and order dated 01.04.2013 passed by the Writ Court as well as the judgment and order dated 29.04.2013 passed by the Division Bench of this Court that the Circular dated 23.12.2010 was not interfered by this Court in the earlier proceedings initiated by the Bhartiya Khadya Nigam Mazdoor Union/petitioners.

In view of the aforesaid, in my view, the writ petitions for the reliefs sought, are not maintainable before this Court and is liable to be dismissed. It is in view of the principles envisaged in Chapter XXII Rule 7 of the Rules of Court, 1952.

At this Stage, learned counsel for the petitioners submitted that liberty may be given to the petitioners to approach the competent Authority/Forum/Court for redressal of their grievances.

To the aforesaid prayer of the learned counsel for the petitioners, Sri Dhirendra Singh, learned counsel for the respondent Nos. 2 to 5 has no objection.

In view of the aforesaid, liberty is granted to the petitioners, which is subject to legal so as the factual pleas available to side opposite.

With the aforesaid observations, the writ petitions are dismissed.

No order as to costs.