Case: KANDLA PORT WORKERS UNION Vs. FCI

15 employees. He submitted that learned Single Judge is right in allowing the Writ Petition by holding that the work charge employees cannot be discriminated in the grant of the benefit extended to only 15 regular employees. Mr. Goel supported the conclusion of the learned Single Judge that the Tribunal was right in holding that the work charge employees have to be treated to be in service prior to 01.01.1973. Mr. Goel criticized the judgment of the Division Bench by arguing that reliance could not have been placed on the operative portion of the award of the Industrial Tribunal which was restricted only to 15 employees. 9. Mr. N.K. Kaul, learned Senior Counsel appearing for Respondent No.1 submitted that the work charge employees were appointed in the FCI w.e.f. 01.01.1973 and were governed by the FCI Regulations. No grievance was raised by them till the year 1996 when the benefit of the award dated 05.08.1991 of the Industrial Tribunal was granted to the regular employees. He submitted that no parity can be claimed by the work charge employees and they should not have complained as they could have been retrenched in 1973 itself. They agreed to be bound by the FCI Regulations and all of them have retired from the FCI after working continuously from 01.01.1973. The Office Order dated 18.09.1973 clearly mentions that the employees would be governed by the FCI CPF Regulations. He commended for our consideration the approval of the judgment of the Division Bench. 10. The nub of the dispute revolves around the entitlement of the work charge employees to the relief that was granted to the 15 regular employees. The Office Order of the FCI dated 18.09.1973 was issued under Clause XIX of the Agreement dated 08.04.1965 entered into between the President of India and the Trustees of the Port of Kandla. A clear distinction was made in the Office Order between regular employees and work charge employees. The regular employees were taken over as confirmed in their appropriate posts and they would be subject to the FCI (Staff) Regulations, 1971 regarding service conditions. According to the said agreement, the work charge employees were also taken over as regular employees from 01.01.1973 and would be bound by the FCI (Staff) Regulations, 1971. The award dated 05.08.1991 of the Industrial Tribunal requires to be considered in a detailed manner. The reference pertains to the demand regarding the extension of option to select revised pay scales to the 15 workmen of the Vacuvator Division of KPT who were taken over by the FCI. 11. As noted above, the first question before the Tribunal pertained to the dispute regarding the pay scales of 15 workmen of Vacuvator Division who were switched over from KPT to FCI w.e.f. 01.01.1973. The second question related to the regularization of the CPF/ GRP subscription and contribution from 1965 to March, 1973 in respect of the workmen switched over from KPT to FCI from CPF to CPP scheme. While answering question No.2, the Tribunal held that the pensionery liability and CPF liability of the staff taken over by the FCI would commence from 01.03.1965 and the service of the members of the staff shall be treated as continuous from 01.03.1965. The Tribunal held that the members of the staff had subscribed to the GRP scheme and they were entitled to the pensionery benefits. The unilateral action on the part of the FCI in shifting them from GPF to CPF was found fault with by the Tribunal. Admittedly, the work charge employees were governed by the GPF scheme prior to their joining the FCI and they were switched over to the CPF scheme, which was held to be arbitrary by the Tribunal. The Tribunal further held that the transfer must necessarily be governed by Section 12A of the FCI Act. On the basis of the above findings, the Tribunal was of the opinion that there was substance in the demand made by the Appellant-Union. However, the operative portion of the award pertains only to the grant of the relief that was claimed by the 15 workmen. 12. The order dated 09.05.1996 was passed by the Government of India granting the relief of transfer of the 15 employees to the FCI w.e.f. 01.01.1973. This was in compliance with the direction issued by the Industrial Tribunal by its award dated 05.08.1991. 13. The distinction between a regular employee and a work charge employee cannot be ignored. The questions raised in the reference before the Industrial Tribunal also deals with the regular employees and work charge employees separately. The ultimate relief that was granted by the Tribunal is also restricted to the 15 workmen who were regular employees. There is no doubt that the findings recorded by the Industrial Tribunal pertaining to the arbitrary or unilateral change of Respondent No.1 from GPF to CPF are qua the work charge employees. 14. The Office Order dated 18.09.1973 by which all the employees who were working in the Vacuvator Division of the KPT were employed in the FCI also shows that regular employees and work charge employees were treated differently. Even assuming that the work charge employees also had a right to be appointed in the FCI, they cannot claim parity with the regular employees, that too in 1996. After having accepted the appointment in FCI as per the Office Order dated 18.09.1973, it is not open to the Appellant-Union to take up the cause of the work charge employees and claim on their behalf benefits similar to those granted to the regular employees. 15. The Division Bench of the High Court directed that Respondent No.1-FCI shall make payment of gratuity to those employees who shall give details, such as the dates of their joining in the KPT, by treating them as employees of the FCI. 16. Though, we are not in agreement with the judgment of the Division Bench that the award of the Industrial Tribunal did not deal with question No.2 in the reference made to it,

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. The nub of the dispute revolves around the entitlement of the work charge employees to the relief that was granted to the 15 regular employees. The Office Order of the FCI dated 18.09.1973 was issued under Clause XIX of the Agreement dated 08.04.1965 entered into between the President of India and the Trustees of the Port of Kandla. A clear distinction was made in the Office Order between regular employees and work charge employees. The regular employees were taken over as confirmed in their appropriate posts and they would be subject to the FCI (Staff) Regulations, 1971 regarding service conditions. According to the said agreement, the work charge employees were also taken over as regular employees from 01.01.1973 and would be bound by the FCI (Staff) Regulations, 1971. The award dated 05.08.1991 of the Industrial Tribunal requires to be considered in a detailed manner. The reference pertains to the demand regarding the extension of option to select revised pay scales to the 15 workmen of the Vacuvator Division of KPT who were taken over by the FCI13. The distinction between a regular employee and a work charge employee cannot be ignored. The questions raised in the reference before the Industrial Tribunal also deals with the regular employees and work charge employees separately. The ultimate relief that was granted by the Tribunal is also restricted to the 15 workmen who were regular employees. There is no doubt that the findings recorded by the Industrial Tribunal pertaining to the arbitrary or unilateral change of Respondent No.1 from GPF to CPF are qua the work charge employees14. The Office Order dated 18.09.1973 by which all the employees who were working in the Vacuvator Division of the KPT were employed in the FCI also shows that regular employees and work charge employees were treated differently. Even assuming that the work charge employees also had a right to be appointed in the FCI, they cannot claim parity with the regular employees, that too in 1996. After having accepted the appointment in FCI as per the Office Order dated 18.09.1973, it is not open to the Appellant-Union to take up the cause of the work charge employees and claim on their behalf benefits similar to those granted to the regular employees15. The Division Bench of the High Court directed that Respondent No.1-FCI shall make payment of gratuity to those employees who shall give details, such as the dates of their joining in the KPT, by treating them as employees of the FCI16. Though, we are not in agreement with the judgment of the Division Bench that the award of the Industrial Tribunal did not deal with question No.2 in the reference made to it