FOOD CORPORATION OF INDIAversusSANKAR GHOSH & ORS.

                    [2015] 8 S.C.R. 345


             FOOD CORPORATION OF INDIA                          A
                            . v.
                 SANKAR GHOSH & ORS.

              (Civil Appeal No. 5079 of 2015)
                                                                B
                        JULY8,2015

           [T.S. THAKUR, R.K. AGRAWAL AND
                   R. BANUMATHI, JJ.]

     Labour Jaw - Regularisation of casual labourers -
                                                                c
Direction by High Court to the employer to consider the claim
of the respondent-labourers for regularization of their setVices
by treating them as casual employees appointed in an
irregular manner and to absorb them in available vacant post    o
- On appeal, in view of rival contentions, direction to the
parties to furnish certain details - Held: In view of the fresh
material adduced by the parties, matter remitted to High
Court to consider the matter afresh in the light of the fresh
material.                                                        E
   Disposing of the appeal, remitting it back to High
Court, the Court

     HELD: Without expressing any opinion on the merits F
of the matter, the impugned order of the High Court is
set aside and the matter is remitted back to the High Court
for consideration of the matter afresh in the light of the
fresh material adduced by the parties. The Division
Bench of the High Court shall afford an opportunity to G
both the parties and consider the matter afresh in
accordance with law. [para 9) [351-E]

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
                             345                                H
346         SUPREME COURT REPORTS                    [2015) 8 S.C.R.


A     5079 of 2015

         From the Judgment and Orderdated 16.09.2011 in F.M.A.
      No.1172/2010ofthe HighCourtofCalcutta

          Y. Prabhakara Rao for the Appellant.
B
         Pijush K. Roy, Kakali Roy, Mithilesh Kumar Singh forthe
      Respondents.

          The Judgment of the Court was delivered by
c         R. BANUMATHI, J. 1. Leave granted.

          2. This appeal has been filed by the appellant-Food
      Corporation of India challenging the judgment and order dated
      16.09.2011 of the High Court of Calcutta in F.M.A. No.1172 of
0
      2010, in and by which, direction has been given to the
      appellant-Corporation to consider the claim of respondent
      Nos.1 to 12 for regularization of their services by treating them
      as casual employees appointed in an irregular manner and
E     granting liberty to the appellant-Corporation to absorb the said
      respondents in any available vacant posts.

       3. Brief facts of the case are that the Food Corporation of
  India (FCI) awarded contract to the Food Handling Co-
  operative Society in the year 1982 for execution of various
F operational works in its depots at C.S.D. Dubguri and Siliguri.
  The Food Handling Co-operative Society executed the works
  for two years from 10.11.1982 to 09.11.1984 and then
  continued to work up to 30.04.1995. The respondents took
G part in such operational works as 'Analyser', 'Picker' and
  'Dusting Operators' from 01.01.1983. There was a dispute
  with regard to mode of engagement of respondents in the
  aforesaid posts. According to the FCI, the respondents worked
  under the above contractor. However, respondents claimed
H
               FCI v. SANKAR GHOSH & ORS.                           347
                        [R. BANUMATHI, J.]

 that they were engaged directly by FCI as casual workers. The       A
  respondents raised an industrial dispute and the same was
  referred to Central Government Industrial Tribunal, Calcutta by
 the Government of India, Ministry of Labour on 15.09.1994.
 The Central Government Industrial Tribunal at Calcutta in
  Reference No.31/1994 vide its award dated 06.10.1997               B
 directed FCI to regularize the respondents in the post of
  Dusting Operators with effect from 09.01.1983 on the basis
  of doctrine of 'equal pay for equal work'. Aggrieved by the
 same, the appellant filed writ petition being Writ Petition
· No.16519(W)/98 challenging the said award dated 06.10.1997         C
 and the same was dismissed by the single Judge of the High
  Court of Calcutta vide Order dated 20.11.1998. Being
  aggrieved, the appellant-FCI preferred appeal being M.A.T.
  No.4130/1998. By an interim order dated 22.03.1999, the
                                                                     0
  Division Bench of the High Court directed the appellant-
  Corporation to engage the respondents subject to the result
  of the appeal in M.A.T. No.4130/1998. On 23.04.2004, the
  appeal was allowed and the impugned award dated 6.10.1997
  was set aside. Consequent thereupon, the services of the           E
  respondents were disengaged by FCI on and· from
  18.05.2004.

      4. Contention of the appellant-Corporation is that the
respondents are merely contractual labourers and were not F
engaged in accordance with any of the provisions of the FCI
Recruitment Rules 1971 and for the aforesaid work, contract
was given to the Labour Co-operative Society of which
respondt:Jnts were members. Cont.ention of the appellant-
Corporation is that in compliance with the interim order of the G
High Court dated 22.03.1999, appellant-Corporation had given
appointment letters to the respondents which were subject to
the final order of the High Court in the appeal and by final order
dated 23.04.2004, the High Court allowed the appeal. and
quashed the award of the tribunal and consequently the H
348        SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A  respondents were disengaged with effect from 18.05.2004.
   Further, contention of the appellant-Corporation is thatthe post
   of Dusting Operator is not a direct recruitment post and is a
   promotional post to be filled up in 100% by way of promotion
   and therefore there is no scope for their regularization merely
 B because of the fact that the respondents had served for
   considerable time and the Division Bench erred in directing
   the appellant-Corporation to consider the claim of the
   respondents.

C        5. Per contra, .the respondents-workmen contentions are
   that they had been appointed by the District Manager of FCI
   on 09.01.1983 on Class Ill and IV posts of Dusting Operator,
   Picker and Analyser and were working under the supervision
   and control of Food Corporation of India by discharging their
 D duties as a regular employees of the Corporation since their
   appointment in the year 1983. The respondents have
   contended that they are duly qualified and served the
   Corporation for more than ten years without the intervention of
   the Court or the Tribunal and hence are entitled to be
 E regularized.

         6. Upon consideration of the rival contentions, vide Order
   dated 03.11.2014, this Court directed the parties to furnish
   certain details. The relevant extract of the said Order reads
 F thus:-
         "        the petitioner Corporation's case before the
         courts below was that the respondent-workmen
         were members of the Food Handling Co-operative
G        Society. The case of the respondents was that they
         were working in the godown of the FCI in different
         capacities such as Dusting Operators, Pickers,
         Assistant Analysers and Analysers. The workmen
         also appear to have produced material in the form
H        of payment sheet for the period 01.04.1991 to
         FCI v. SANKA~ GHOSH & ORS.                    349
                  [R. BANUMATHI, J.]

16.04.1991 before the Industrial Tribunal to A
demonstrate that they were being paid their wages
directly by the Assistant Manager (D) FCI. Before us
also the Corporation insists that the respondents had
no privity of contract with the Corporation and that
they were at all material times engaged by and B
working for the cooperative society mentioned
above. The Industrial Tribunal and the High Court
have no doubt appraised the evidence and recorded
a finding that the respondents were working as
casual labourers with the appellant-Corporation but C
the material available on record prima facie appears
to have deficient to support any such finding.

   Mr. Piyush K. Roy, learned counsel for the
 respondents fairly conceded that the only evidence     D
which appears to have been relied upon before the
Labour Court to establish a privity of contract
 between the respondents and the Corporation is the
alleged payment sheet for the period 01.04.1991 to
16.04.1991. In the circumstances it may be difficult    E
to sustain the findings recorded by the Industrial
Tribunal and the High Court that the respondents
were indeed working as casual labourers with the
Corporation. That is especially so when the High        F
Court has directed their regularization as Dusting
Operators which posts according to Mr. Roy learned
counsel appearing for the respondents is a
promotional post to be filled up by promotion out of
those working as Pickers. In that view we direct the    G
appellant-Corporation to place on record the
following: (i) Rules that suggest appointment in the
cadre of Dusting Operators is permissible only by
promotion out of Pickers and others working in the
Food Corporation; (ii) Material to suggest whether      H
350       SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A       any payment was ever made by the FCI directly to
        the respondents if so the period for which such
         payments has been made; (iii) material to show as
        to when the respondents were employed, by whom
        they were employed and when were their services
B       actually terminated. The above is necessary
        .because the respondents do not appear to be in
        active service of the Corporation for the past 10
        years.

c          The respondent shall also simultaneously file the
        following documents: (a) copies of engagement/
        appointment order if any issued in their favour,
        whether in the name of the appellant-Corporation
        or the Food Handling Labour Co-operative Society;
D       (b) material to show thatthey were actually working
        as casual labourers with the Corporation and that
        their presence/attendance was marked by the
        Corporation or by the Corporation authorities; (c)
        Termination /Retrenchments order or any other
E       material shall also be filed by the respondents ....... "

       7. Pursuant to the above Order, appellant-Corporation
  has filed an affidavit dated 24.12.2014 along with various
  annexures. Insofar as the direction regarding the appointment
F in the cadre of Dusting Operators, appellant-Corporation has
  referred to the provisions of Clause 1 of Regulation 7 read
  with the ta_ble set out in Appendix 1 to the FCI Staff Regulations
  1971 that the post of Dusting Operator could be filled up 100%
  by way of promotion and also referred to various provisos to
G Clause 9 of the Regulation.

       8. Per contra, the respondents rely upon Clause 7(3)(c)
  of FCI Staff Regulations which provides for appointment in the
  Corporation on a purely temporary basis. Further, clause
H 7(2)(c) empowers the Board to relax any of the provisions of
                 FCI v. SANKAR GHOSH & ORS.                           351
                          [R. BANUMATHI, J.)

  recruitment rules contained in Appendix 1. It has been A
  contended that the said post of Dusting Operator can also be
  filled up by direct recruitment in the event of non-availability of
  suitable candidates for the said post. Respondents have also
· relied upon Circular dated 06.05.1987 issued by FCI pursuant
  to the meeting of Board of Directors dated 24.02.1987 thereby B
  all casual labourers who had 90 days service on and before
  02.05.1986 were proposed to be regularized according to the
  classification against Class Ill and IV posts. Further, according
  to the respondents, similar circular for regularization of casual
  employees was issued on 09.09.1996 by the FCI and many C
  other similarly placed employees were regularized and only
  the case of the respondents was ignored by FCI.

      9. We do not propose to go into the merits of the rival
 contentions raised by the parties in the additional affidavits D
 and the documents filed pursuant to this Court's Order dated
 03.11.2014. Without expressing any opinion on the merits of
 the matter, we set aside the impugned order of the High Court
 and remit the matter back to the High Court for consideration
 of the matter afresh in the light of the fresh materia I adduced E
 by the parties. The Division Bench of the Calcutta High Court
 shall a_fford an opportunity to both the parties and consider the
 matter afresh in accordance with law.

      10. With the above observations, the appeal is disposed          F
 of. No order as to costs.

 Kalpana K. Tripathy                            Appeal disposed of.