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2000 Supreme(Cal) 410

High Court Of Calcutta
Bhaskar Bhattacharya
SUJAN BANERJEE - Appellant
Versus
UNION OF INDIA (UOI) - Respondent
W. P.  12326  Of  2000
Decided On : 08/16/2000

Advocates Appeared:
B.R.BHATTACHARJEE, DILIP CHATTERJI, GAUTAM BRAHMA, MINTU GOSWAMI, P.S.SENGUPTA, R.K.MUKHERJEE, SHUKLA HAZARI, Shukla Kabir Sinha, Z.REHMAN

A writ application under Article 226 of the Constitution of India is premature if the cause of action for grant of Mandamus has not arisen.

Headnote:

CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970 - SECTION 10 - STATUS QUO - WRIT APPLICATION - PREMATURE - APPLICATION FOR MANDAMUS - CAUSE OF ACTION - MANDAMUS - APPROPRIATE GOVERNMENT - NOTIFICATION - CONTRACT LABOUR - PERENNIAL NATURE OF WORK - TRANSFER OF EMPLOYEES - SERVICE CONDITIONS - INTERIM ORDERS - VACATED.

Fact of the Case:

Petitioners, appointed as Data Entry Operators and Peon at the International Air Cargo Complex, Calcutta Customs, challenged their transfer to another location and sought regularization of their services. They relied on the Contract Labour (Regulation and Abolition) Act, 1970 (Act) and a previous High Court decision, Sheikh Jahangir Ali and Ors. v. Calcutta Port Trust and Ors., to support their claims.

Finding of the Court:

The court held that the writ application was premature since the petitioners had not yet made a demand for justice from the appropriate Government under Section 10 of the Act. The court also noted that the petitioners had not fulfilled the requirement of stating whether a demand for justice had been made, as per the Calcutta High Court Rules.

Issues: 1. Whether the writ application was premature? 2. Whether the petitioners were entitled to a status quo order? 3. Whether the petitioners were entitled to regularization of their services?

Ratio Decidendi: 1. A writ application is premature if the cause of action for grant of Mandamus has not arisen. A cause of action arises when the concerned respondent, despite a demand for justice, has not responded. 2. A status quo order cannot be granted in favor of the petitioners if the main reliefs claimed in the writ application are not maintainable. 3. The petitioners were not entitled to regularization of their services since a notification under Section 10 of the Act had not been issued.

Final Decision: The court dismissed the writ application as premature and vacated all interim orders granted earlier.

BHASKAR BHATTACHARYA, J.

( 1 ) THE writ petitioners are sixteen in number. Their case as made out in this application is that the respondent No. 6 initially appointed petitioner Nos. 1 to 15 as Data Entry Operators and petitioner No. 16 as Peon and deployed them as such in the International Air Cargo Complex (Import and Export Division) of Calcutta Customs at the Netaji Subhas Chandra Bose International Airport ("nscbi") on December 18, 1998 after execution of an agreement of sub-contract between the respondent No. 4 and the said respondent No. 6. However no appointment letter was issued in their favour by the said respondent No 6.

( 2 ) SUBSEQUENTLY, the said sub-contract was terminated and a new sub-contract was given to respondent No. 5. After the creation of such new "sub-contract, the respondent No. 5 assigned the same job to the petitioners with the difference that appointment letters were issued to the petitioners on April 26, 2000. Thereafter, the respondent No. 6 issued order of transfer of the petitioner Nos. 1 to 4 on June 23, 2000 asking them to join Chinchura checkpost from July 1, 2000. In the meantime on May 27, 2000 the petitioners gave a representation to the respondent No. 5 requesting the said respondent not to transfer them to any other place but inspite of such representation, the respondent No. 5 not only transferred the petitioner Nos. 1 to 4 but by subsequent letter dated July 18, 2000 threatened to initiate disciplinary proceeding for not joining at the place on transfer.

( 3 ) UNDER such circumstances, the petitioners came forward with this writ application claiming the following reliefs:"a) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding and/or directing the respondents authorities to regularise and/or absorb the petitioners in the service of the customs authorities for the post of Data Entry Operators in respect of the petitioners No. 1 to 15 and peon in the case of petitioner No. 16 and to act in accordance with law;b) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding and/or directing the respondents No. 1 and 2 to consult with the Central Board under the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 for prohibition of employment of contract labour in the job undertaken by the petitioners which is of perennial nature in the establishment of the respondent No. 3, by notification in the Official Gazette and to direct for regularisation and/or absorption of the petitioners in the service of the respondent No. 3 following the decision of the Hon'ble Supreme Court reported in Air India Statutory Corporation v. United Labour Union and Ors. , followed by the decision reported in Secretary, Haryana State Electricity Board v. Suresh and Ors. and to act in accordance with law;c) A writ of and/or order and/or direction in the nature of Certiorari do issue commanding and/or directing the respondents and each of them their servants and/or agents to transmit and/or certify the record relating to the instant case so that conscionable justice may be rendered;d) An appropriate writ or direction do issue for production of all the relevant records and/or protection of all the rights of the petitioners and for granting the petitioners such reliefs as in the circumstances shall be just;e) Rule NISI in terms of prayers (a) to (d) above. f) Injunction to issue restraining the respondents No. 4 and 5 and each of them their servants and/or agents from transferring the petitioners Nos. 1 and 4 to elsewhere in the terms of the transfer orders dated June 23, 2000 being Annexure E-5 hereof and taking any action in terms of letter dated July 18, 2000 in Annexure P-6 hereof till the disposal of the application. g) An injunction do issue restraining the respondents and each of them their servants and/or agents from in any manner terminating and dispensing with the service of the petitioners till the disposal of the










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