CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY Vs. AJIT KUMAR MAJUMDAR

JUDGEMENT

(1.) The writ petitioners are contract labourers who have been working under the respondent, Calcutta Metropolitan Development Authority (CMDA for short) as Security personnel in the Howrah sub-way under direction and control of Assistant Engineer and Executive Engineer since 1975. During this period he filed a writ petition claiming absorption in the employment of CMDA in the respective posts along with fitment in proper scales as CMDA is their real owner as the Duty Roster, Medical Leave and Leave Register, Bills are prepared by the Executive Engineer. Their work was supervised by CMDA and disbursed wages through the petitioner. The contractor is only a little man. The CMDA on the other hand have asserted that the writ petitioners are the employees of Secret Information and Detective Services at 72/4, S.N. Banerjee Road, Calcutta (SIDS for short) who are acting as contractors. The petitioners worked under the direct control and supervision of the SIDS appointed by the CMDA. The CMDA only oversees the work of the petitioners as per stipulation of contract entered into between the CMDA and the contractor of SIDS, CMDA from time to time appointed contractor on the basis of its selection procedure based on invitation of tenders/quotations and the privity of contract is between CMDA and the contractor. Moreover the particular project in connection with which the contractor was engaged has really come to an end. In view of the pendency of the interim order by this High Court, CMDA was not able to terminate the contract even though the services of the said contractor are no longer required.

(2.) The learned trial Judge held that regularisation or absorption can be done even if the nature of the job is perennial and there is no contrary provision with the recruitment rules for engagement/appointment. According to him, the relationship of master and servant can only be said to have been existing when the master is paying the salary to the employee, the master is having each and every moment supervisory and administrative control in the performance of the duty of the employee. On such findings a writ of mandamus was issued directing "The CMDA Authority to regularise and/or absorb the petitioners in its regular cadre removing the so-called existence of the contractor who is in no way having any dominant role to stand in between the CMDA, principal employer and the writ petitioners."

(3.) The present appeal against the order of the learned writ Court is under challenge. The only question that has been raised before us is whether the learned writ Judge in the facts and circumstances of this case has jurisdiction to direct the respondent to regularise and absorb the writ petitioners in its regular cadre instead of relegating the writ petitioners to the appropriate Government for issuing notification under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970.