UNION OF INDIA Vs. GENERAL SECRETARY

JUDGEMENT

(1.) The challenge raised in this Letters Patent Appeal is to the judgment of the learned Single Judge in Writ Petition No.4472 of 2008 dated 14-10-2009. By that judgment, the learned Single Judge was pleased to record a finding that the members of the respondent-Union engaged as Parcel Porters were 'workmen ' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, 'the said Act '). Further directions were given while remanding the proceedings to the Central Government Industrial Tribunal to examine the entitlement of the members of the Union to any relief consequent upon the aforesaid adjudication.

(2.) The facts in brief are that on a dispute being made to the Central Government by the respondent- Parcel Porter SanghtanaUnion as regards the status of Parcel Porters engaged by the Railways, the Central Government under the provisions of Section 10(1)(d) and sub-section (2A) of the said Act made a reference to the Central Government Industrial Tribunal to decide the question as to whether the Parcel Porters engaged by the Divisional Manager were 'workmen ' under the provision of Section 2(s) of the said Act, and if so, the relief to which they were entitled. It may be stated that there were two reference orders raising a similar question as made on 28-8-1998 and 16-8-1999. Both the proceedings were decided together. The parties to the dispute led evidence and after considering the same, the learned Presiding Officer by his award dated 28-3-2008 was pleased to answer both the references by recording a finding that the Parcel Porters engaged by the Railways were 'workmen ' and that they were entitled to regular pay and salary along with increments from the date of their respective appointments. The Senior Divisional Commercial Manager, South East Central Railway, Nagpur, being aggrieved by the aforesaid adjudication, preferred Writ Petition No.4472 of 2008. As stated above, the learned Single Judge, after considering the pleadings of the parties and the material on record, held that the Parcel Porters engaged by the Railways were 'workmen '. However, as it was found that the relevant documentary material had not been appropriately brought on record by both the parties, the proceedings were remanded to the Tribunal for a fresh adjudication by observing that the question as to whether the members of the Union were 'workmen ' or not, would not be tried by the Tribunal. This adjudication has given rise to the present appeal.

(3.) Shri S.V. Purohit, learned counsel for the appellant, submitted that the material on record was insufficient to record a finding that the members of the Union, as named in the Schedule, were 'workmen ' under Section 2(s) of the said Act. The documents placed on record by the Union had not been proved in accordance with law. On finding that the documentary material was insufficient, the learned Single Judge ought to have allowed the Writ Petition by setting aside the order of the Tribunal. Instead the proceedings were remanded to the Tribunal which gave an opportunity to the Union to fill in the lacuna, which was not permissible. In that regard, the learned counsel referred to the decisions of the Hon 'ble Supreme Court in Hameed (Dead) By LRs. and others Vs. Kummottummal Kunhi P.P. Amma (Dead) by LRs. and others, reported in (2008) 15 SCC 155 and J. Balaji Singh Vs. Diwakar Cole and others, reported in (2017) 14 SCC 207. It was then submitted that the members of the Union, who were claiming to be working as Parcel Porters, had in fact been selected by the Screening Committee as Licensed Porters. This selection was pursuant to the notification dated 4-7-1994 and after the proceedings of the Screening Committee were held on 19-7-1994, about 186 Licensed Porters had been selected. Those selected had executed agreements and the terms and conditions mentioned therein were applicable to them. Merely on the basis of the statement made by the members of the Union that they were assisting the Railway Authorities on certain occasions in lifting parcels, a finding had been recorded that they were in fact Parcel Porters and hence 'workmen ', as contended. The learned counsel referred to the material on record in the form of affidavits and the receipt issued showing payment of licence fees. It was then contended that the members of the Union were not entitled to the relief of regularization and payment as per the prescribed pay scales. The procedure for recruitment for Parcel Porters was distinct and without undergoing that procedure, the services of the members of the Union could not have been considered for regularization. For said purpose, the learned counsel referred to the decisions of this Court in Pune Municipal Corporation and others Vs. Dhananjay Prabhakar Gokhale, reported in 2006(4) Mh.L.J. 66; State of Maharashtra and others Vs. Indira General Kamagar Sanghatana and others, reported in 2015(6) Mh.L.J. 658; and of Hon 'ble Supreme Court in Oil and Natural Gas Corporation Vs. Krishan Gopal and others, reported in 2020 (3) SCALE 272. On the basis of the aforesaid, it was submitted that on a proper consideration of the entire material on record, the judgment of the learned Single Judge was liable to be set aside.