Neena Ranjan, Member (A)
1. By virtue of this OA, applicants impugn action of respondent No. 1 whereby they have not issued a circular/instruction in respect of verification of services of the parcel porters through the concerned Assistant Labour Commissioner, Lucknow for absorption in Railway Department by way of extending them the benefit of Hon’ble Supreme Court in rem in the case of A.I. Railway Parcel and Goods Porters Union v. Union of India and Ors. .
2. Facts, in brief, are that all three applicants were engaged in year 1994 and are presently working as Parcel Porters at West Central Railway Station Hindaun City in Kota Division. The work which applicants perform includes loading and unloading of luggage, parcels and goods from the railway vans and wagons and carrying the luggage and parcel to the railway vans and wagons from the parcel booking offices and goods sheds etc.
3. During the year 1997-98 a number of OAs were filed by Parcel Porters working in the Bikaner and other divisions and all these OAs were disposed of with a direction to consider the cases of Parcel Porters in the light of the judgment of the Apex Court in the case of A.I. Railway Parcel and Goods Porters Union v. Union of India and Ors. wherein following directions were given:
35. We have carefully examined the report of the Assistant Labour Commissioner, the findings recorded therein and the counter affidavits, reply affidavits and rejoinder filed by the respective parties. The facts disclosed in the report and the findings recorded in regard to the perennial nature of work cannot be overruled. Though we have heard at length both the parties, the learned Additional Solicitor General appearing for the Railway Administration was not able to point out to us any valid reason as to why the present writ petitions not be allowed in terms of the orders dated 15.04.1991 made by this Court in similar Writ Petition No. 277 of 1988 particularly when in the matter of absorption of contract labour by a public undertaking on a permanent regular basis. We feel, therefore, it is just and appropriate to issue the following directions to the respondent Union of India and the Railway Administration Units:
1. The Assistant Labour Commissioner, Lucknow is directed to again scrutinize all the records already placed by the petitioners and also the records to be placed by the respective contractors and the railway administration and discuss and deliberate with all parties and ultimately arrive at a conclusion in regard to the genuineness and authenticity of each and every claimant for regularization. This exercise shall be done within six months from the date of receipt of this judgment.
2. Subject to the outcome of the fresh enquiry and the report to be submitted by the Assistant Labour Commissioner, the Railway Administration should absorb them permanently and regularize their services. The persons to be so appointed being limited to the quantum of work which may become available to them on a perennial basis. The employees so appointed on permanent basis shall be entitled to get from the dates of their absorption, the minimum scale of pay or wages and other service benefits which the regularly appointed railway parcel porters are already getting.
3. The Units of Railway Administration may absorb on permanent basis only such of those Railway Parcel Porters (petitioners in this batch) working in the respective railway stations concerned on contract labour who have not completed the age of superannuation.
4. The Units of Railway Administration are not required to absorb on permanent basis such of the contract labour Railway Parcel Porters who are not found medically fit/unsuitable for such employment.
5. The absorption of the eligible petitioners in the writ petitions on a regular and permanent basis by the Railway Administration as Railway Parcel Porters does not disable the Railway Administration from utilizing their services for any other manual work of the Railways depending upon its needs.
6. In the matter of absorption of Railway Parcel Porters on contract labour as permanent and regular Railway Parcel Porters, the persons who have worked for longer periods as contract labour shall be preferred to those who have put in shorter period of work.
7. The report to be submitted by the Assistant Labour Commissioner should be made the basis in deciding the period of contract labour work done by them in the railway stations. The report shall be finalized and submitted after discussions and deliberations with the railway administration and the contractors and all the representatives of the writ petitioners or writ petitioners themselves.
8. While absorbing them as regular employees their inter se seniority shall be determined department/job-wise on the basis of their continuous employment.
9. After absorption, the contract labourers will be governed exclusively by the terms and conditions prescribed by the railway administration for its own employees irrespective or any existing contract or agreement between the respondent and the contractors. No claim shall be made by the contractors against the railway administration for premature termination of their contracts in respect of the contract labourers.
10. The railway administration shall be at liberty to retrench the workmen so absorbed in accordance with law. This order shall not be pleaded as a bar to such retrenchment.
11. This judgment does not relate to the persons who have already been absorbed.
4. In view of the above directions, ALC Lucknow started an enquiry into working of all the Parcel Porters in different railways but the respondents sent the record of only those parcel porters who approached the Hon’ble Supreme Court. Applicants in the present OA requested for sending their names/record for verification to the ALC Lucknow but the same was rejected.
5. It is argued that in view of the judgment delivered in OA No. 365/2004 on 23.12.2004 wherein it was directed to frame a scheme for Parcel Porters and in compliance of the said judgments, names of all the applicants who had filed that OA were forwarded by respondent No.3 to the ALC, Lucknow. As such, non issuance of instructions/guidelines for verification of the service record of the Parcel Porters through concerned ALC for absorption in Railway Department is illegal, arbitrary and against the principles of natural justice and is also violative of Articles 14 and 16 of the Constitution of India and hence following reliefs are prayed for:
(i) That the Hon’ble Tribunal may graciously be pleased to pass an order directing the respondent No. 1 to issue the instructions or guidelines for extending the benefits of Hon’ble supreme Court judgment (Annexure-A) regarding to conduct an enquiry or verification through the Assistant Labour Commissioner, for absorption of the services of Parcel Porters.
(ii) That the Hon’ble Tribunal may graciously be pleased to pass an order directing the respondents to verified or to conduct an enquiry through ALC or any other competent authority regarding the working period of applicants and consider the cases of the applicants for their absorption as Parcel Porters or any other posts by way of extending the benefit of Hon’ble Supreme Court judgment dated 22.8.2003.
6. Respondents by filing counter reply rebutted above arguments and submitted that this OA is not maintainable as the applicants are working under a contractor and the Railway administration is not involved. The directions given by the apex court for scrutinizing the record by the Assistant Labour Commissioner (Central), Lucknow was only in respect of those petitioners and present applicants cannot claim that they are also similarly circumstanced.
7. Respondents also contend that applicants are working at Kota Division, West Central Railway with its head office at Jabalpur. So the OA ought to have been filed at Jabalpur through the General Manager of that Railway and the Railway Board is an unnecessary a party.
8. We have heard the learned Counsel for the parties and perused the judgments.
9. Before going into the merits of the case we may mention that a Bench of the Tribunal in the case of OA No. 1087/2004 in the case of National Federation of Railway Porters and Anr. v. Union of India and Ors. has held as follows:
10. In the result, for the foregoing reasons, except the cases of Parcel Porters who had already been referred to ALC, Lucknow and were engaged thereupon, in rest of the cases respondents are directed to forward the cases for authenticity and verification of their working to the ALC, Lucknow in tune with the decision of the Apex Court in Railway Parcel Porters Union’s case (supra) and thereafter to consider them for screening, engagement and regularization, within a period of three months from the date of receipt of a copy of this order.
10. In view of the above, applicants case is fully covered by the above judgment. Accordingly, the OA is allowed with a direction to the respondents to forward the cases for authenticity and verification of their working to the ALC, Lucknow in tune with the decision of the Apex Court in Railway Parcel Porters Union’s case (supra) and thereafter to consider them for screening, engagement and regularization etc. within a period of three months from the date of receipt of a copy of this order, as per the guidelines formulated in the said court order.
11. With the above directions, OA stands disposed of. No costs.