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Judgment
P.K. Misra, J.—These two writ petitions have been filed on behalf of the Food Corporation of India (hereinafter referred to as FCI) against
the awards dated 29.07.1998 in I.D. No. 55 of 1993 and dated 09.12.1997 in I.D. No. 39 of 1992 respectively, directing the FCI to regularise
the services of the workmen emloyed in different storage depots of FCI in South India where notifications have been issued prohibiting the
engagements of contract labourer u/s 10(1) of the Contract Labour (Regulations and Abolition) Act (hereinafter called as ''the Act'')
The award in I.D. No. 39 of 1992 impugned in W.P. No. 12416 of 1999 is confined to regularisation of contract labourers engaged through the
Co-operative Society in respect of Avadi Depot whereas the award in I.D. No. 55 of 1993 impugned in W.P. No. 11416 of 1999 is for
regularisation of workmen employed in different depots of the FCI in South India. As a matter of fact the latter award in I.D. No. 55 of 1993 is
more less based on the award in I.D. No. 39 of 1992.
The facts and circumstances and the question of law in both the matters being similar and both the writ petitions, both the matters which were
heard together shall be disosed of by this Common Order.
It is necessary to notice the facts and circusmtances of the in both the cases. W.P. No. 12416 of 1999 relates to direction regaring
regularisation of labourers employed through the Co-operative society in FCI Godown at Avadi. Before 1975, the labourers in the said concern
were being engaged through different contactors. However, since 1975 the workmen formed the workers'' Co-operative society named Thiru Vi.
ka. And such labourers were being employed in the depot and the payments were being made to the Co-operative society. In course of time,
various notifications were issued by the Central Government abolishing the emloyment of labourers through contract labourer system in all parts of
India including FCI godown/ depot in South India. On the abolition of the aforesaid system, the labourers raised demands regarding their
regularisation and ultimately reference was made and numbered as I.D.N. 39 of 1992. On behalf of the Union, one claim statement was filed
indicating about the continuous engagement of various labourers for more than 15 years. The reference in the said case was to the following effect:
Whether the action of the management of Food Corporation of India, in denying to regularise 955 contract labourers engaged by management of
Food Corporation of India Godown, Avadi through TVK Cooperative Society in respect of names as given in the Annexure is justified? If not to
what relief they are entitled to?
Even though counter was filed on behalf of the management in the same I.D. No. 39 of 1992, the basic allegations that the workmen had
continued to work for a long period was not disputed. The management claimed that since the workman had formed co-oeprative society and it
cannot be said that such workmen were directly employed under the FCI in the connected W.P. No. 11416 of 1999, reference was to the
following effect:
''Whether the services of workmen employed in different Food Storage depots in Food Corporation of India in the south where notifications have
been issued prohibiting enagement of contract labourers u/s 10(1) of CL (R & A) Act are entitled to be regularised and if so, from which date?''
In the said reference similar averment had been made on behalf of the workmen indicating that persons had been employed for more than 15
years on abolition of contract labourer system such person also continued, it was also indicated that the labourers engaged through contractors in
many other godowns/depots in India had been regularised. On the basis of the decision of the Supreme Court reported in Air India Statutory
Corporation, etc. Vs. United Labour Union and others [overruled], , the claim was made by the workmen that on abolition of contract labourers
system such labourers should be treated as direct employment. No counter had been filed for the said I.D. No. 55 of 1993.
In I.D. No. 39 of 1992, two witnesses were examined on behalf of the workmen and several documents were marked including the judgments
of Karnataka and Kerala High Courts wherein in similar circusmtances a direction had been issued for regularisation of the concerned workmen.
The Industrial Tribunal, on considering the facts and circumstances in the industrial dispute, after referring to the various materials on record, found
that the labourers had been engaged through other contractors prior to 1975 and subsequently they have formed a society and they were being
engaged through such society. It was further found that after the notification, abolishing the contract labour system, there was no further contract
with the society and yet the labourers were continued to be employed and direct payment was being made. It was also found that in other parts of
the country such labourers engaged through contractors or society had been regularised and direction for regularisation had been issued under
similar circumstances in Kerala and Karnataka in respect of the depots/godowns of FCI in those States. It was also found that there was inter
changeability among the labourers and some transfer orders had been passed. After noticing all these features, the Tribunal on the basis of the
decision of the Supreme Court in Air India cases, gave a direction for regularisation of the concerned labourers.
In the subsequent I.D. No. 55 of 1993 no counter had been filed by the management to rebut the claim made by the workman. By the time the
said dispute was taken up for decision, the award in I.D. No. 39 of 1992 had already been passed. The Tribunal after referring to the decision in
Air India case and mainly relying upon the earlier award in I.D. No. 39 of 1992, issued a direction for regularisation of all workmen employed in
different food depot of FCI South India wherein notifications u/s 10(1) of the Contract Labour (Regulation and Abolition) Act had been issued.
Learned counsel appearing for the petitioner has submitted with more optimism and less conviction, that the awards in both the disputes were
primarily based on the ratio on the decision of the Supreme Court in Air India case and since such decision of the Supreme Court has been
overruled in the mean time in the decision reported in Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers
and Others etc. etc., both the awards should be quashed and if necessary, the matter may be remanded for further consideration. He has further
submitted that on abolition of contract labour system u/s 10(1), the erstwhile labourers do not become direct employees under the employer as has
already held by the Supreme Court in the later case. Therefore, the direction for regularisation should not have been issued. It has been further
submitted by him that in the present case there is no allegation that the contract between the management and the Co-oprative societies through
whom the labourers were employed was sham and therefore, the question of regularisation would not arise as such the labourers were employed
by the co-operative society.
Eventhough such submission of learned counsel appearing for the petitioners in both the writ petitions is prima facie attractive, on close scrutiny
I am not inclined to accept such submissions, keeping in view the facts and circumstances of the present case, it is of course true that the Tribunal
in award in I.D. No. 39/1992 has referred to the decision of the Supreme Court in Air India case and therefore a part of the reasoning may appear
to be non-existent in view of the subsequent over-ruling of the said decision, the other findings recorded by the Tribunal are tell-tale and the award
can be sustained on the basis of those findings. The Tribunal has catagorically found that even though the labourers were engaged through the co-
operative society from 1975 till 1990 after 1991 when the notification u/s 10(1) of the Act was issued there was no involvement of contractor and
yet the labourers were continued to be employed. The Tribunal has further found that thereafter there was direct payment to the labourers and
even on some occasions the labourers were transferred. It has been further found that the work was parrennial in nature. In view of these findings
which are sufficient to justify the award regarding regularisation, I am not inclined to accept the submission that the matter is required to be
reconsidered in the light of the subsequent decision of the Supreme Court in SAIL case. The basic findings are available on record. The dispute is
continuing since more than a decade in such circumstances it would be a travesity of justice to prolong the matter further.
In this context it has to be remembered that except the godowns/depots in Tamilnadu, the labourers engaged in similar capacity in other parts
the country have been departmentalised or regularised and even in Tamilnadu in respect of Egmore and Port godowns of FCI the labourers have
been deparmentalised. As already noticed, the Tribunal has also relied upon the decisions of the Kerala and Karnataka High Courts where similar
labourers have been regularised. FCI is a Corporation having transactions throughout India. Since the labourers in other parts of India have been
regularised under similar circumstances, it would be most improper and unjust to deny such benefit to the concerned workmen.
Learned counsel appearing for the petitioners has vehemently contended that the Tribunal had gone beyond the scope of reference and as such
the award is unsustainable. The law is well settled that a reference need not be considered in a pedantic manner by the Tribunal. In the present
case, the Tribunal has considered the relevant circumstances and even though it has placed reliance upon the decision of the Supreme Court in AIR
INDIA case which has been subsequently overruled, the reasoning given by the Tribunal justify the direction regarding the regularisation even
applying the standard laid down by the Supreme Court in SAIL case.
Learned counsel appearing for the petitioners also submitted that even after the abolition of contract labour system, the question of regular
absorption is a matter of discretion of the management. Even if such submission is prima facie acceptable, it is to be noticed that in the present
case, the direction regarding the regularisation is based on various relevant circumstances. Moreover, as already indicated when the labourers
engaged in godowns/deposits in similar capacity in other parts of the country had been regularised by FCI, it would not be proper on the part of
the management to seek refuge under a technical plea.
In the result, for the aforesaid reasons, I do not find any merit in these writ petitions and they are accordingly dismissed. Consequently, connected
pending W.M.P and W.P.M.Ps. are also dismissed.