(C. Nagappan and Rohinton Fali Nariman, JJ.)
Bharat Singh & Ors. ________________________________ Petitioner(s)
v.
Union of India & Ors. _____________________________ Respondent(s)
Writ Petition (C) No. 140 of 2009, decided on September 6, 2016
The Order of the court was delivered by
Order
1. This writ petition is filed under Article 32 of the Constitution of India and the petitioners seek a direction to the respondents to regularize their services from the date of their appointment, as scheduled in Annexure P1.
2. The case of the petitioners is that they were working as Parcel-Porters of Eastern Railways and they filed a writ petition, being Writ Petition (C) No. 385 of 2002 on the file of this Court seeking regularization of their services as Parcel-Porters and this Court was pleased to allow the writ petition on 29.08.2003 in terms of the decision in All India Railway Parcel & Goods Porters’ Union v. Union of India, reported in (2003) 11 SCC 590, wherein this Court issued certain directions enumerated as (1) to (11) in Paragraph 34 of the Judgment and as per Direction No. 2, the respondents should absorb them permanently and regularize their services and the same was not done.
3. According to the petitioners, they filed contempt petition against the respondents on 05.09.2005 and this Court had granted them liberty to move the Labour Commissioner in the first instance and seek appropriate remedy in the event, if they are aggrieved by the order of the Labour Commissioner.
4. An enquiry was conducted by the Regional Labour Commissioner, Patna as per the directions of this Court in the Judgment referred to above and he declined either to regularize or absorb the petitioners on regular basis by his order dated 27.03.2008.
5. It is the contention of the petitioners that the Regional Labour Commissioner’s order was based on the decision of this Court in Secretary, State of Karnataka v. Umadevi, reported in (2006) 4 SCC 1 and the said decision is inapplicable and hence, they have filed the present writ petition.
6. We have heard Ms. Santosh Singh, learned counsel appearing for the petitioners as well as Ms. Kiran Suri, learned senior counsel appearing for the respondents.
7. We are unable to appreciate the contention of Ms. Kiran Suri for the reason that the direction issued by this Court in the decision referred to above, is one to absorb the petitioners permanently and regularize their services and the only leverage that was given, was to make such appointment being limited to the quantum of work which may become available to them on a perennial basis. For better appreciation, the relevant directions in Paragraph 34 of the All India Railway Parcel & Goods Porter’s Union case (supra) are extracted below:-
“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, 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.”
8. As per the first direction referred to above, the Assistant Labour Commissioner, Lucknow was directed to scrutinize the records and arrive at a conclusion in regard to genuineness and authenticity of each and every claimant for regularization. Inasmuch as that exercise is concerned, the Regional Labour Commissioner, in his order dated 27.03.2008, has concluded that the claim of the petitioners was genuine on the basis of evidence adduced by them. Having arrived at that conclusion, it is not open to the authorities to refuse regularization, basing reliance on the decision in Uma Devi’s case (supra), which is subsequent in point of time. The right of the petitioners has already been adjudicated by this Court in the year 2003 and directions have also been issued to absorb and regularize them.
9. In our considered view, the order dated 27.03.2008 declining to regularize or absorb the petitioners on regular basis is unsustainable in law and liable to be set aside. In this context, it is also relevant to point out that this Court in the decision in Uma Devi’s case (supra), at Paragraph 53, has clearly held that the matters which have reached finality, need not be reopened.
10. We are also of the view that the writ petitioners are entitled to be regularized from 27.03.2008, the date on which their claim came to be illegally rejected by the authorities.
11. Consequently, the writ petition is allowed and the respondents are directed to regularize the services of the petitioners with effect from 27.03.2008 onwards with full back wages and in the event of any of the petitioners having attained the age of superannuation, they shall be entitled to all back wages.
Writ Petition(s)(Civil) No(s). 140/2009
Bharat Singh & Ors _______________________________ Petitioner(s)
v.
Union of India & Ors _____________________________ Respondent(s)
Date: 06/09/2016 This petition was called on for hearing today.
(Before C. Nagappan and Rohinton Fali Nariman, JJ.)
For Petitioner(s) Mrs. Santosh Singh, Adv.
Mr. Rakesh K. Mudgal, Adv.
Ms. Shashi Singh, Adv.
Ms. Ranjana Vohra, Adv.
Mr. Kailash Mudgal, Adv.
Mr. Dinesh K. Mudgal, Adv.
Ms. Alpana Malik, Adv.
Ms. Richa Verma, Adv.
For Respondent(s) Ms. Kiran Suri, Sr. Adv.
Mr. Bharat Singh, Adv.
Mr. Amit Sharma, Adv.
Mr. Raj Bahadur, Adv.
for Mr. Shreekant N. Terdal, Adv.
UPON hearing counsel the Court made the following
Order
12. The Writ Petition is allowed in terms of the signed order.
13. Pending interlocutory applications, if any, are disposed of.
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