The main legal point established in the judgment is that workmen engaged against permanent vacancies are entitled to be regularized as permanent employees, and engaging workmen as temporary, casual, or badli for an extended period may constitute 'Unfair Labour Practice' under the Industrial Disputes Act.

JUDGMENT :

Rajasekhar Mantha, J.

1. The two writ petitions have been filed challenging an award dated 1st August 2019 passed by the Central Government Industrial Tribunal, Kolkata, in reference No. 19 of 2006.

Facts of the Case

2. The brief facts of the case leading to the award are that the Shyama Prasad Mookerjee Port Trust (formerly known as Kolkata Post Trust), had a list of 350 persons who were called for recruitment in the year 1995. The recruitment was for Group/Grade IV posts in different departments. The said list comprised of persons who were in the died-in-harness category or were legal heirs of employees who died in service and were found entitled to compassionate employment.

3. 264 of such persons were permanently employed. The remaining 86 persons were initially engaged temporarily against permanent vacant posts. Such vacancies are stated to have arisen due to leave obtained by the permanent employees and those who left employment. Out of the said 86 employees, 42 persons were soon engaged and permanently absorbed in sanctioned Class-IV posts in the Marine Department. The rest of the 44 employees thus remained and continued to be engaged temporarily against permanent vacant posts from 1995 till date. Out of the said 44, 5 employees died and 39 remain.

4. Around the same time, at the request of the Port Trust, for the purpose of recruitment, 52 candidates sponsored by the local employment exchange, applied for group IV posts. 35 out of the 52 workmen were permanently absorbed and appointed against sanctioned posts. Eventually, 14 candidates survived after the death of 3 persons.

5. The said remaining 61 odd, employees (said workmen), continued to work for well over 38 years and are still working as on date (except those who have died and or superannuated during the pendency of the Reference and these proceedings). They were the applicants before the Industrial Tribunal represented by their trade union. The said trade union is the petitioner in the W.P. 8919 of 2019.

6. Some of the said workmen received quarters, some were provided uniforms. All of them were provided casual, medical, and annual leaves. They were also given bonuses from time to time. They obtained treatment at the medical facilities of the Port Trust.

7. The said workmen are stated to have been engaged contractually, by the Port Trust. Curiously there was an artificial break for one day after 41 days of continuous engagement of the said workmen.

8. The 61 employees who were not permanently absorbed, applied before the Port Trust through their trade union for permanent absorption and demanded equal pay and benefits with their permanent counterparts.

9. On 21st December 2008, the Chairman of the Port Trust addressed a letter to the Secretary of the Ministry of Shipping of the Central Government stating that 61 persons were continuously working as temporary hands and were required to be absorbed permanently and adjusted against regular vacancies. A list of 107 vacancies in permanent posts of Lascar, Bhandari, Masalchi, Topaz, and Firemen was admitted. It was further indicated that after absorbing the 61 workmen in permanent posts in the Marine Department against sanctioned vacancies, there would remain 30 more vacant posts in the class IV category of the Marine Department. Reference was made to directions of the Calcutta High Court in three different writ petitions.

10. The Central Government did not accord sanction and in fact, imposed a ban on any permanent recruitment in Kolkata Port Trust. The Chairman of the Port Trust, in the letter dated 4th July 2006 had also requested a temporary lifting of such ban.

Proceedings before the Industrial Tribunal

11. On failure of the Port Trust to permanently absorb the said 61 workmen, conciliation proceedings were initiated under the provisions of the Industrial Dispute Act 1947. Upon failure of said proceedings, the Central Government referred the following questions to the Central Government Industrial Tribunal at Kolkata