Court No. - 36
Case :- WRIT - C No. - 62751 of 2017 Petitioner :- General Manager, Food Corporation Of India, Lucknow & Anr.
Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Santosh Kumar Mishra Counsel for Respondent :- A.S.G.I.,Gyan Prakash
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties.
The present petition is directed against the order dated 29.8.2017 passed by the Deputy Labour Commissioner (C), Kanpur, on an application moved by the respondent No. 3 namely, Letter No. K.37 (Misc. 3)/2017/C.I. in Application under Rule 25(2)(v)(a) of the CL (R&A) Rule, 1971.
The order passed by the Deputy Labour Commissioner containing the direction to treat the employees, allegedly engaged for carrying out work of loading and unloading in Food Storage Depot Sonughat, Deoria, as regular employees of the Food Corporation of India, giving them benefit of basic pay+DA and other allowances, is under challenge in the present petition.
Specific stand has been taken in Paragraph No. 24 of the writ petition to challenge the order impugned that the Food Corporation of India has no Food Storage Depot or godown in Sonughat, Deoria and as such there was no question of engagement of any contractor for providing any man power for the work of loading and unloading of food grains. No payment had ever been made to any contractor. This specific assertion made in Paragraph Nos. '24' and '25' of the petition in this regard has been replied in Paragraph No. 35, in the manner as follows:-
"35. That the contents of paragraph no. 24 and 25 of the writ petition are not admitted as stated hence denied, in reply the it is respectfully submitted that the respondent no. 2-Deputy Chief Labour Commissioner (C) Kanpur passed the order after heard both the parties and from bare pursing the records as well as evidences on the facts and law which is just and proper under Rules 25(2)(V)(a) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, there is not any irregularities in the order, passed by the Deputy Chief Labour Commissioner Central Kanpur."
It is, thus, sought to be contended by the respondent No. 4 in the counter affidavit filed before this Court that whatever be the dispute being raised by the petitioner, had been addressed by the Deputy Labour Commissioner after perusal of the records and evidences led by both the parties, both on facts and law, which order is just and proper in the light of Rule 25(2)(v)(a) of the Contract Labour (Regulation &Abolition) Central Rules, 1971. The order passed by the Deputy Labour Commissioner Central, Kanpur cannot be said to suffer from any error of facts and law.
Learned counsel for the respondent No. 4 had further asserted that the depot in District Deoria is operational, inasmuch as, there is a mention of the depot of Food Corporation of India existing in district Deoria in the notification 6.7.2016 issued under Section 31 of the Contract Labour (Regulation and Abolition) Act, 1970.
This submission of learned counsel for the petitioner cannot be accepted in view of the categorical stand taken by the petitioner in its objection filed before the Deputy Labour Commissioner and the consequential findings returned by the Deputy Labour Commissioner on the same.
The specific assertions made by the petitioner-Food Corporation of India in its objection filed before the Deputy Labour Commissioner, (Central), Kanpur read as under:
"A- That Sri Mohd. Hasim has moved the present application allegedly dated 2.12.2016 under Section 25(2)(v)(a) and (b) of Contract Labour (Regulation and Abolition) (Central) Rules 1971 for a direction to take work from the members of applicant Union and provide them the same facilities as availed by workers on direct payment system. In this connection it is submitted that Mohd.
Hasim has filed this application in respect of 100 claimants mentioned in application are factious persons as they have never worked as contract labour under Ashok Kumar Bagarhria contractor. In fact Mohd. Hashim along with others is running gang of skulduggery.
It is submitted that there are Rackets of thugs (Bxh) who are befooling and cheating the unemployed and innocent person by assuring innocent persons for giving employment in Food Corporation of India and are cheating huge money from them. Such persons are also taking help from the Government machinery of Labour department by misusing the process of law to show that they are doing something for them, while in fact alleged claimants have never worked in Deoria depot. Few of such thugs have been arrested by the police and have been sent to jail, applicant is also one of them. He had been arrested for cheating and thugi and he is on bail.
In view of the above the present application is not maintainable under Rule 25(2)(v)(a) and (b) of Contract Labour (Regulation and Abolition) (Central) Rules 1971 as such is liable to be rejected out rightly.
B- That Shri Ashok Kumar Bagahria the contractor was doing work in Deoria Depot (Deoria Depot is not in existence since 29.7.2011) with 7/8 labours only). Therefore, contract labour (R&A) Act 1970 and Central Rules 1971 does not apply upon the contractor or ex-Contractor Deoria Depot of Food Corporation of India. Therefore, the contractor has not taken licence from the Licensing Officer labour department Central, Lucknow. In view of the above the present application is not maintainable and is liable to be rejected.
C- That Deoria Depot was in a hired premises. The same has been dehired in the year 2011 and no depot exists since than Deoria (letter dated 16.07.2011 regarding dehiring is enclosed as Annexure-4). The prayer in the application to take work from 100 persons mentioned in application is beyond the scope and ambit of 25(2) (v)(a) and (b) of Contract Labour (Regulation and Abolition (Central) Rules 1971 for issuing a direction to take work from the aforesaid fictitious applicants in a depot which does not exist. Therefore, the present application is not maintainable and is liable to be rejected."
The said objection has also been taken note of in the impugned order dated 29.8.2017. The observations made therein with regard to the objections of the petitioners are extracted as under:
"The non applicant filed written statement to the claim of the applicant and mentioned that Sri Mohd. Hasim has moved the present application allegedly dated 02.12.2016 under Section 25(2) (v)(a) and (b) of Contract Labour (Regulation and Abolition (Central) Rules 1971 for a direction to take work from the members of applicant Union and provide them the same facilities as availed by workers on directed payment system. In this connection it is submitted that Mohd. Hasim has filed this application in respect of 100 claimants mentioned in application are factious persons as they have never worked as contract labour under Ashok Kumar Bagadia contractor. It is submitted that the representation dated 02.12.2016 was filed before this authority by Sri Mohd. Hasim in December 2016 and no notice was issued by your authority to the respondent corporation deliberately to given time to Mohd. Hasim to go to High Court for filing writ petition and obtain such order so that such order i.e. a direction to decide the case of you. This was manipulation to favor Mohd. Hasim. Sri Mohd. Hasim then filed Writ Petition and obtained an order from the Hon'ble High Court. It is also submitted that there had been no FSD in Deoria. There was hired premises in Deoria which had already been de- hired in the year 2011. Since then there exist no depot in Deoria. Therefore the claim of the applicants and the relief sought in the application are redundant and baseless and cannot be even liable for any consideration. Therefore the application is liable to be rejected. That averments made of the application that member of applicant of union are not being paid the rate of 50 paisa per bag for loading and unloading of food grains and other facilities like medical facilities, EPF, issue of identity cards etc are wrong, baseless and misleading. Non applicant also quoted that since there exist no depot in Deoria since 2011 therefore the question of any DPS labour being employed in Deoria Depot does not arise. Similarly neither is any contractor of Food Corporation of Indian in Deoria nor are the claimants of members of the applicant union working in Deoria. Therefore the question of payment of 50 paisa per beg or facilities like medical, EPF issue of identity cards does not arise. The applicant's story is concocted and false. In fact the claimant's members of the applicant union are fictitious persons. They are trying back door entry into the employment of Food Corporation of India through Litigation.”
While recording findings, the averments of respondent no. 4 as noted by the Deputy Labour Commissioner on the said objection is only in one line which reads as under :-
“The applicant submitted that Food Storage Depot Sonu Ghat Distt. Deoria work is continuously taken by the labourers, part of work is taken at Food Storage Depot Sonu Ghat Deoria and work is also taken at S.W.C.
Deoria Work.”
Further, a careful reading of the findings returned by the Deputy Labour Commissioner make it evident that he had proceeded on the assumption that there exists a Food Storage Depot District Deoria, with respect to which, dispute has been raised. The specific assertion of the petitioner regarding there being no depot as on the date of filing of the application has not been addressed at all.
The specific stand of the petitioner before the Deputy Labour Commissioner was that the Deoria Depot was in a hired premises. The same has been dehired in the year 2011 and no depot exists since thereafter in Deoria. The letter dated 16.7.2011 regarding dehiring of the depot had been enclosed with the objection of the petitioner.
In view of the said facts evident from the records, this Court is of the considered view that the Deputy Labour Commissioner could not have proceeded to determine the claim of the applicant/respondent No. 5 without satisfying itself about the facts as to whether there exists a depot of Food Corporation of India in District Deoria or Sonughat District Deoria. The specific finding was required to be returned by the Deputy Labour Commissioner after making necessary inquiry in view of the specific objection taken by the petitioner regarding existence of depot. As this has not been done, the order impugned proceeding to decide the fate of the labourers allegedly hired through the contractor and being represented through the applicant respondent No. 4 could not have been determined by the Deputy Labour Commissioner.
The findings on the merits of the claim of the applicant namely, respondent No. 5 are, therefore, perverse. The finding recorded by the Deputy Labour Commissioner that the work is being continuously being taken from the labourers at the FSD Depot Deoria suffers from apparent error of law on the face of the record.
The work slips etc. of the year 2010 which have been acknowledged by the Deputy Labour Commissioner in the order impugned, therefore, could not have been entertained.
For the aforesaid, the order impugned dated 29.8.2017 passed in Application No. K.37 (Misc. 3)/2017/ C.I. is hereby set aside.
It goes without saying that the respondent union would be at liberty to raise an industrial dispute, in accordance with law.
The present petition is, accordingly, allowed.
Order Date :- 31.10.2018 Kamar (Sunita Agarwal, J.)