Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5079  OF 2015 (Arising out of S.L.P. (Civil) No. 36226/2011)

FOOD CORPORATION OF INDIA      ....Appellant

Versus

SANKAR GHOSH & ORS.   ..Respondents

J U D G M E N T

R. BANUMATHI, J  .

Leave granted.

2. This  appeal  has  been  filed  by  the  appellant-Food

Corporation of India challenging the judgment and order dated

16.09.2011 of the High Court of Calcutta in F.M.A. No.1172 of

2010,  in  and  by  which,  direction  has  been  given  to  the

appellant-Corporation  to  consider  the  claim  of  respondent

Nos.1 to 12 for regularization of their services by treating them

as casual  employees  appointed in  an irregular  manner  and

1

Page 2

granting  liberty  to  the  appellant-Corporation  to  absorb  the

said respondents in any available vacant posts.  

3. Brief facts of the case are that the Food Corporation

of  India  (FCI)  awarded  contract  to  the  Food  Handling

Co-operative Society in the year 1982 for execution of various

operational works in its depots at C.S.D. Dubguri and Siliguri.

The Food Handling Co-operative Society executed the works

for  two  years  from  10.11.1982  to  09.11.1984  and  then

continued to work up to 30.04.1995.  The respondents took

part  in  such  operational  works  as  ‘Analyser’,  ‘Picker’ and

‘Dusting  Operators’ from 01.01.1983.   There  was  a  dispute

with  regard  to  mode  of  engagement  of  respondents  in  the

aforesaid posts.  According to the FCI, the respondents worked

under  the above contractor.   However,  respondents claimed

that they were engaged directly by FCI as casual workers. The

respondents raised an industrial  dispute and the same was

referred to Central Government Industrial Tribunal, Calcutta

by  the  Government  of  India,  Ministry  of  Labour  on

15.09.1994.  The  Central Government Industrial Tribunal at

Calcutta  in  Reference  No.31/1994  vide  its  award  dated

2

Page 3

06.10.1997 directed FCI to regularize the respondents in the

post of  Dusting Operators with effect from 09.01.1983 on the

basis of doctrine of ‘equal pay for equal work’.  Aggrieved by

the same, the appellant filed writ petition being Writ Petition

No.16519(W)/98 challenging the said award dated 06.10.1997

and the same was dismissed by the single Judge of the High

Court  of  Calcutta  vide  Order  dated  20.11.1998.  Being

aggrieved,  the  appellant-FCI  preferred  appeal  being  M.A.T.

No.4130/1998.   By an interim order  dated 22.03.1999,  the

Division  Bench  of  the  High  Court  directed  the

appellant-Corporation  to  engage  the  respondents  subject  to

the  result  of  the  appeal  in  M.A.T.  No.4130/1998.  On

23.04.2004, the appeal was allowed and the impugned award

dated  6.10.1997  was  set  aside.  Consequent  thereupon,  the

services of  the respondents were disengaged by FCI on and

from 18.05.2004.

4. Contention of the appellant-Corporation is that the

respondents  are  merely  contractual  labourers  and were  not

engaged in accordance with any of the provisions of the FCI

Recruitment Rules 1971 and for the aforesaid work, contract

3

Page 4

was  given  to  the  Labour  Co-operative  Society  of  which

respondents  were  members.  Contention  of  the

appellant-Corporation is that in compliance with the interim

order  of  the  High  Court  dated  22.03.1999,

appellant-Corporation  had  given  appointment  letters  to  the

respondents which were subject to the final order of the High

Court in the appeal and by final order dated 23.04.2004, the

High Court allowed the appeal and quashed the award of the

tribunal  and consequently the respondents were disengaged

with  effect  from  18.05.2004.  Further,  contention  of  the

appellant-Corporation is that the post of  Dusting Operator is

not a direct recruitment post and is a promotional post to be

filled up in 100% by way of promotion and therefore there is

no scope for  their  regularization merely because of  the fact

that the respondents had served for considerable time and the

Division Bench erred in directing the appellant-Corporation to

consider the claim of the respondents.   

5. Per  contra,  the  respondents-workmen  contentions

are that they had been appointed by the District Manager of

FCI  on  09.01.1983  on  Class  III  and  IV  posts  of  Dusting

4

Page 5

Operator,  Picker and  Analyser and  were  working  under  the

supervision  and  control  of  Food  Corporation  of  India  by

discharging  their  duties  as  a  regular  employees  of  the

Corporation  since  their  appointment  in  the  year  1983.  The

respondents have contended that they are duly qualified and

served the Corporation for more than ten years without the

intervention  of  the  Court  or  the  Tribunal  and  hence  are

entitled to be regularized.        

6.  Upon  consideration  of  the  rival  contentions,  vide

Order  dated  03.11.2014,  this  Court  directed  the  parties  to

furnish certain details.  The relevant extract of the said Order

reads thus:-

“     …the  petitioner  Corporation’s  case  before  the  courts below was that  the respondent-workmen were members of the Food  Handling  Co-operative  Society.  The  case  of  the respondents was that they were working in the godown  of the FCI in different capacities such as Dusting Operators, Pickers, Assistant Analysers  and Analysers.  The workmen also appear to have produced material in the form of payment sheet for the  period  01.04.1991  to  16.04.1991  before  the  Industrial Tribunal to demonstrate that they were being paid their wages directly by the Assistant Manager (D) FCI.  Before us also the Corporation  insists  that  the  respondents  had  no  privity  of contract  with  the  Corporation  and  that  they  were  at  all material  times engaged by and working for the cooperative society mentioned above.   The Industrial  Tribunal  and the High  Court  have  no  doubt  appraised  the  evidence  and recorded  a  finding  that  the  respondents  were  working  as casual  labourers  with  the  appellant-Corporation  but  the material  available  on  record  prima  facie  appears  to  have deficient  to support any such finding.

5

Page 6

Mr. Piyush K. Roy, learned counsel for the respondents fairly conceded that the only evidence which appears to have been relied upon before the Labour Court to establish a privity of contract between the respondents and the Corporation is the  alleged  payment  sheet  for  the  period  01.04.1991  to 16.04.1991.   In  the  circumstances  it  may  be  difficult  to sustain the findings recorded by the Industrial Tribunal and the High Court that the respondents were indeed working as casual labourers with the Corporation.  That is especially so when  the  High  Court  has  directed  their  regularization  as Dusting Operators which posts according to Mr. Roy learned counsel appearing for the respondents is a promotional post to be filled up by promotion out of those working as Pickers. In that view we direct  the appellant-Corporation to place on record the following: (i) Rules that  suggest appointment  in the  cadre  of  Dusting  Operators  is  permissible  only  by promotion  out  of  Pickers  and  others  working  in  the  Food Corporation;  (ii)  Material  to suggest  whether   any payment was ever made by the FCI directly to the respondents if so the period for which such payments has been made; (iii)  material to  show as to when the respondents were employed, by whom they were employed and when were their  services actually terminated. The above is necessary because the respondents do not appear to be in active service of the Corporation for the past 10 years.

The  respondent  shall  also  simultaneously  file  the following documents: (a) copies of engagement/ appointment order if any issued in their favour, whether  in the name of the  appellant-Corporation  or  the  Food  Handling  Labour Co-operative Society; (b) material  to show that they  were actually working  as casual labourers with the Corporation and that  their  presence/attendance  was  marked  by  the Corporation or by the Corporation authorities; (c) Termination /Retrenchments order or any other material shall also be filed by the respondents…….”  

7. Pursuant to the above Order, appellant-Corporation

has  filed  an  affidavit  dated  24.12.2014  along  with  various

annexures.  Insofar as the direction regarding the appointment

in the cadre of  Dusting Operators, appellant-Corporation has

referred to the provisions of Clause 1 of Regulation 7 read with

6

Page 7

the table set out in Appendix 1 to the FCI Staff Regulations

1971 that the post of Dusting Operator could be filled up 100%

by way of promotion and also referred to various provisos to

Clause 9 of the Regulation.

8. Per  contra,  the  respondents  rely  upon

Clause  7(3)(c)  of  FCI  Staff  Regulations  which  provides  for

appointment in the Corporation on a purely temporary basis.

Further, clause 7(2)(c) empowers  the Board to relax any of the

provisions of recruitment rules contained in Appendix 1. It has

been contended that the said post of Dusting Operator can also

be  filled  up  by  direct  recruitment  in  the  event  of

non-availability  of  suitable  candidates  for  the  said  post.

Respondents have also relied upon Circular dated 06.05.1987

issued by FCI pursuant to the meeting of Board of Directors

dated  24.02.1987  thereby  all  casual  labourers  who  had

90 days service on and before 02.05.1986 were proposed to be

regularized according to the classification against Class III and

IV  posts.   Further,  according  to  the  respondents,  similar

circular for regularization of casual employees was issued on

09.09.1996  by  the  FCI  and  many  other  similarly  placed

7

Page 8

employees  were  regularized  and  only  the  case  of  the

respondents was ignored by FCI.

9. We do not propose to go into the merits of the rival

contentions raised by the parties in the additional affidavits

and the documents filed pursuant to this Court’s Order dated

03.11.2014.  Without expressing any opinion on the merits of

the matter, we set aside the impugned order of the High Court

and remit the matter back to the High Court for consideration

of the matter afresh in the light of the fresh material adduced

by the parties.  The Division Bench of the Calcutta High Court

shall afford an opportunity to both the parties and consider

the matter afresh in accordance with law.

10. With the above observations,  the appeal is disposed

of.  No order as to costs.   

……………………….J.  (T.S. THAKUR)

……………………….J.    (R.K. AGRAWAL)   

……………………….J.    (R. BANUMATHI)      

New Delhi;    July  8, 2015      

8