The court ruled that an artificial break in service constitutes unfair labor practice, warranting regularization of workmen from the date of reference despite contractual employment.

JUDGMENT :

Tapabrata Chakraborty, J.

1. Board of Major Port Authority for Syama Prasad Mookerjee Port, Kolkata and its functionary had preferred the above appeals challenging the judgment dated 18^th March, 2024 passed by the learned Single Judge in two writ petitions being WPA 8919 of 2021 and WPA 10267 of 2021. By the said judgment, the former writ petition preferred by the workmen was disposed of and the later writ petition preferred by the appellants was dismissed.

2. The records would reveal that the Government of India, Ministry of Labour in exercise of its powers under section 10(1)(d) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 (hereinafter referred as the ID Act) referred the following dispute for adjudication:

‘Whether the action of the management of Kolkata Port Trust, Kolkata in non-regularising the services of 61 workmen (as per list attached as Annexure-1) engaged on temporary basis, on the permanent posts as mentioned against each name in the list, is legal and justified? If not, to what relief they are entitled for?’

3. Upon exchange of pleadings and the evidence tendered, the learned Tribunal delivered the Award on 1st August, 2019 observing, inter alia, that the management had failed to show as to how even after expiry of terms of contract, the workmen were continued to work as casual workers and that the object of the management was to deprive them of the status of permanent employees, who were forced to take one day put off after every 41 days of work and that such break in service was an instance of unfair labour practice and that those workmen are entitled for absorption, who are presently working with the appellant, earlier known as Board of Trustees of the Port of Kolkata (hereinafter referred to as KPT). However, the learned Tribunal directed regularization with effect from the date of publication of the Award as there was nothing on record to show the workmen concerned were appointed against substantive vacancies and as regularization from a back date would disturb the seniority of the regularly appointed employees in the cadre.

4. In the judgment impugned dated 18^th March, 2024, the learned Judge disagreeing with the finding of the learned Tribunal that the workmen had not been engaged against substantive vacancies observed that each of the workmen were part of the regular process of recruitment either under the died-in-harness (compassionate employment) category or sponsored by the employment exchange and that a majority of persons who joined along with the workmen herein had already been absorbed in permanent post and that as such the workmen were in fact engaged temporarily against permanent sanctioned posts. The learned Judge also affirmed the finding of the learned Tribunal that the break in service of a single day was an artificial put off and was an instance of unfair labour practice.

5. Mr. Kishore Datta, learned senior advocate appearing for the appellants argues that the learned Court erred in law in directing that the workmen shall be entitled to permanent absorption without adhering to the settled legal position that absorption is not a mode of appointment and that the direction to regularize on the logic of social justice principle is not sustainable in law. The learned Court glossed over the fact that the workmen were engaged on contractual basis and were never appointed against substantive vacancies. Having thus not been engaged in substantive vacancies, the workmen could not have claimed absorption.

6. He argues that the learned Tribunal travelled outside the scope of reference embarking upon an enquiry on the question of unfair labour practice failing to note that in the reference there was no allusion to unfair labour practice. The Award is a nullity in the eye of law and is not acceptable since the learned Tribunal had travelled beyond the reference. In support of such contention reliance has been placed upon the judgment delivered in the case of Sinclairs Hotels