Back
2003 Supreme(Cal) 353
High Court Of Calcutta
Bhaskar Bhattacharya
BISWANATH DUTTA - Appellant
Versus
FOOD CORPORATION OF INDIA - Respondent
W. P. 5307 Of 2003
Decided On : 07/16/2003
ANIRUDDHA BAGCHI, DIPAK BANERJI, R.BHATTACHARJI
An illegally appointed employee who has been permitted to work for a long period of time may have a right to be considered for absorption, especially if the employer's conduct has created a reasonable expectation of such absorption.
Headnote:
FOOD CORPORATION OF INDIA - EMPLOYEE ABSORPTION - SCHEME FOR ABSORPTION OF CASUAL WORKERS - ILLEGAL APPOINTMENT - RIGHT TO ABSORPTION - COURT'S DIRECTION TO CONSIDER ABSORPTION IN ACCORDANCE WITH SCHEME - CASE OF PETITIONER TO BE TREATED AS IF HE HAD COMPLETED THREE MONTHS ON THE CUT-OFF DATE.
Fact of the Case:
The petitioner, a daily rated Group 'd' staff of Food Corporation of India (FCI), worked continuously from August 10, 1987, to October 3, 2002, for more than 15 years. Despite several letters from the District Manager's Office for post-facto approval of his appointment, no reply was given. The petitioner's case for absorption was sent to the higher authority, but no communication was received about the result of consideration. The petitioner continued to work for more than nine years, and salaries were released in his favor.
Finding of the Court:
The court found that the petitioner's appointment as a casual daily rated employee was illegal as it was made after the cut-off date fixed for regularisation of similar employees appointed before such date. However, the court also found that the FCI's conduct in permitting the petitioner to continue working for more than 15 years, despite knowing about the illegal appointment, created a right to be considered for absorption in the petitioner's favor.
Issues: 1. Whether the petitioner, who was illegally appointed as a casual daily rated employee after the cut-off date, has a right to be considered for absorption in accordance with the scheme framed for employees appointed before the cut-off date? 2. Whether the FCI's conduct in permitting the petitioner to continue working for more than 15 years, despite knowing about the illegal appointment, created a legal obligation to consider the petitioner's case for absorption?
Ratio Decidendi: 1. Where a State appoints a citizen as a casual daily rated employee in violation of its decision not to employ such type of person and takes the service of such citizen for more than fifteen years uninterruptedly with full knowledge of such illegal appointment, it cannot refuse to consider the case of such employee for absorption on the ground that he was appointed after the cut-off date fixed for regularisation of the similar type of employees appointed before such date. 2. The FCI's conduct in permitting the petitioner to continue working for more than 15 years, despite knowing about the illegal appointment, created a right to be considered for absorption in the petitioner's favor.
Final Decision: The court directed the FCI to consider the case of absorption of the petitioner in accordance with the scheme framed for similar types of employees who completed three months on May 2, 1986, by treating the petitioner as if he had completed three months on May 2, 1986. The respondents were also directed to immediately permit the petitioner to perform his duty and pay the arrears salary from October 4, 2002, within a month from the date.
( 1 ) BY this writ application, the writ petitioner, a daily rated employee of Food Corporation of India (hereinafter referred to 'fci'), has prayed for direction upon the respondents to allow him to perform his duty as Group 'd' staff and further direction upon the FCI to absorb him in regular establishment and/or to appoint him on permanent basis to the post of Group 'd' staff.
( 2 ) THE following facts are not in dispute: the District Manager (West), Calcutta FCI issued a memo appointing the petitioner as casual daily rated Group 'd' staff under the FCI on August 10, 1987 and since then he had been working, as such continuously till October 3, 2002. In the meantime on 9th September 1992 the District Manager (West) Calcutta, FCI issued memo to the Senior Regional Manager, West Bengal Region, FCI to regularise the service of the petitioner. On 16th December, 1992 the Regional Manager, West Bengal Region FCI issued a memo asking the District Manager (West), Calcutta to submit a report with facts and working days of daily rated casual workers like petitioner. In terms of the aforesaid memo, the District Manager (West), Calcutta submitted a report to the Senior Regional Manager on 5th February 1993.
( 3 ) ON June 22, 1993 a meeting was held in connection with regularisation of the casual workers. Ultimately, on July 7, 1995 the District Manager, Calcutta FCI submitted a further daily report for regularisation of the casual workers of the FCI like the petitioner.
( 4 ) ON 10th March, 1999 the Senior Regional Manager, FCI issued another memo asking the District Manager to submit a daily report about the daily rated casual workers. In terms of the said memo, the District Manager submitted a daily report regarding regularisation of casual daily rated workers working under FCI which included the name of the petitioner.
( 5 ) LONG thereafter, on June 27, 2002 the District Manager, FCI who was initially the District Manager (West), Calcutta issued memo requesting Senior Regional Manager, FCI for regularisation of the service of the petitioner. All of a sudden, on 4th October 2002, the petitioner was not allowed to perform his usual duty under FCI though no formal order of terminating the service of the petitioner was issued nor was any compensation for retrenchment paid in terms of Industrial Disputes Act.
( 6 ) THE aforesaid admitted facts indicate that from August 10, 1987 till 3rd October 2002, the petitioner continuously worked as daily rated Group 'd' staff under FCI and there was no break of service and it appeared that the petitioner worked much more than 240 days in every year. Under the aforesaid circumstances, the petitioner has prayed that direction may be given to regularise him in the permanent Group 'd' staff and to immediately permit him to join in the service.
( 7 ) THIS application is opposed by FCI by filing affidavit-in-opposition. The defence taken in the affidavit may be summarised thus:a)THE Case BY 0n manual and thus no question of illegal and arbitrary action on the part of respondents for not absorbing the petitioner arises. B)since the petitioner was engaged purely on temporary basis, hence the question of absorbing the petitioner did not arise.
( 8 ) SUBSEQUENTLY, this Court directed the respondents to file supplementary affidavit disclosing whether circulars or guidelines were issued for absorption of the casual Group 'd' employee and pursuant to such direction, a supplementary affidavit was filed and in such supplementary affidavit apart from indicating the fact as per requirement of the Court, the respondent authority had further tried to improve the statements made in the original affidavit. The statements made in the supplementary affidavit may be epitomised thus:a)although the work was not perennial in nature, the writ petitioner was engaged as casual worker for quite some time. B)THERE is a circular being Circular No. 28/86 dated May 2, 1986 wherein the earlier circular No.
