IMPORTANT POINTS
In case of established unfair labour practice by employer powers of Industrial and Labour Courts in passing appropriate order are not over-ridden by Umadevi’s case.
Unfair labour practice cannot be justified by plea of initial appointment being in violation of Articles 14 and 16 of the Constitution.
Retrenched workmen were entitled to be given preference in fresh employment.
Division Bench of High Court cannot interfere in concurrent judgments of Labour Tribunal and writ Court on a ground not pleaded before courts below.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. This appeal has been preferred by the appellant-Durgapur Casual Workers Union and others (hereinafter referred to as, ‘the workmen’ for short) against the judgment and order dated th February, 2009 passed by the Division Bench of the High Court at Calcutta in F.M.A. No.2345 of 2005 (C.A.N. 8685 of 2007 and C.A.N.4726 of 2008). By the impugned judgment, the High Court allowed the appeal preferred by the respondent-Food Corporation of India (hereinafter referred to as, ‘the Corporation’ for short) and set aside the Award dated 9th June, 1999 passed by the Central Government Industrial Tribunal (hereinafter referred to as, ‘the Tribunal’ for short) as affirmed by the learned Single Judge of the High Court at Calcutta.

3. The factual matrix of the case is as follows:

The Corporation had long back setup a rice mill in the name and style of Modern Rice Mill at Durgapur and it had been handed to successive contractors for running the same. The concerned workmen, forty nine in numbers, had been working as contract labours under the contractors in the rice mill. The last contractor was M/s Civicon. The contract system was terminated and the rice mill was closed in the year 1990-1991. Thereafter, the concerned workmen were directly employed by the Corporation in June, 1991 as casual employees on daily wage basis in the Food Storage Depot at Durgapur for performing the jobs of sweeping godown and wagon floors, putting covers on infested stocks for fumigation purpose, cutting grass, collections and bagging of spillage from godowns/wagons etc.

There being an industrial dispute between the workmen and the Corporation regarding the regularisation of services of the workmen, the Government of India, Ministry of Labour in exercise of powers conferred on them by clause (d) of sub Section (1) and Sub Section (2A) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as, ‘the Act’ for short) referred the following dispute to the Tribunal for adjudication vide Ministry’s order No.L-22012/348/95-IR (C.II) dated 18th July, 1996.

SCHEDULE

“Whether the deman dof Durgapur Casual Workers Union for absorption of 49 casual workmen as per list enclosed by the management of FCI, Durgapur is justified? If not, what relief they are entitled to?”

4. The said reference was registered as Reference No.21 of 1996 before the Tribunal. The Tribunal on appreciation of evidence brought on record by the Management of the Corporation and the workmen and hearing the parties answered the reference in favour of the workmen by Award dated 9th June, 1999 and held that continued casualization of service of workmen amounts to unfair labour practice as defined in item no.10 in part I of the Fifth Schedule of the Act and that social justice principle demands order of absorption and thereby directed the Management to absorb 49 casual workmen as per list.

5. The Corporation being aggrieved preferred a Writ Petition being W.P.No.21368 (W) of 1999 before the High Court at Calcutta. The learned Single Judge of the High Court on hearing the parties and taking into consideration the evidence on record, dismissed the writ petition by judgment and order dated 18th February, 2005 and affirmed the Award passed by the Tribunal.

6. Aggrieved by the aforesaid judgment of the learned Single Judge, the Corporation preferred an appeal before the Division Bench of High Court at Calcutta. One of the grounds taken was that the appointments of the workmen were backdoor appointments. The workmen were working under the contractor whose services as terminated in the year 1990-1991 and thereafter on their demand, the workmen were engaged as casual workmen under the Corporation in June, 1991. It was contended that in view of Constitution Bench judgment of this Court in Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 1 and decisions rendered by this Court in other cases, regularization of service cann