Case: THE WORKMEN THROUGH THE CONVENER FCI LABOUR FEDERATION Vs. RAVUTHAR DAWOOD NASEEM

3. The grievance in these petitions is about non-compliance of direction given to the respondent-Food Corporation of India to regularise and departmentalise the concerned workers who had initiated industrial disputes bearing I.D. No. 39/1992 and I.D. No. 55/1993 before the Industrial Tribunal , Tamil Nadu, Chennai under Section 10(1)(d) of the Industrial Disputes Act, 1947 . The concerned employees were employed at Depots of the Corporation in the Southern Zone of India including the States of Kerala, Andhra Pradesh, Karnataka and Tamil Nadu, as daily- rated labour or casual labour through contract labour cooperative societies or private contractors. They were working in that capacity for quite some time and in some cases, for around 15 to 20 years, and were performing similar work as the regular employees of the Corporation. In I.D. No. 39/1992, following issue was referred to for adjudication: -Whether the action of the management of Food Corporation of India, in denying to regularise 955 contract labourers engaged by management of Food Corporation of India Godown, Avadi through TVK Cooperative Society in respect of names as given in the Annexure is justified? If not to what relief they are entitled to?In I.D. No. 55/1993, reference was made for adjudication of the following issue: -Whether the services of workmen employed in different Food Storage depots in Food Corporation of India in the South where notifications have been issued prohibiting engagement of contract labourers under Section 10(1) of CL (R and A) Act are entitled to be regularised and if so, from which date?During the pendency of these References, an understanding was arrived at between the parties, as recorded in the Minutes of Meeting dated 12.4.1996, the relevant extract whereof is as under:-The Charter of demand submitted by the FCI Workers Union vide their letter dated 12.2.96 was taken do for discussions and decision taken on each of their demands are recorded as under:1. Department allegation of workers and payment of documental wages to the workers in all FCI depots as recommended upto [sic] the Honble Supreme Court of India, and especially in South Sons where the Central Government have notified prohibiting employment of contract labour long before considering the food handling work as perennial in nature (both the food-handling work is still being done in all South Depots) by Labour Cooperative Society as Contractors as well as the Honble High Courts of Kerala and Karnataka have also directed for departmentisation of FCI workers in F.S. DepotsThe Union demanded departmentalization of labour in all the notified depots on the plea that there are other notified depots where departmentalisation has already been done since 1991. As such, these depots may also be extended the benefit of departmentalisation. After having protracted discussions, keeping in view the orders of the Honble Karnataka High Court and the Supreme Court and the scheme submitted for decision between the Karnataka High Court, following decisions were taken:(i) It was decided that in all remaining, notified FCIs own Depots which were running under the Labour Cooperative Societies, or otherwise may be brought under Direct [sic] Payment System with all the benefits under the Direct Payment Scheme w.e.f. 1 st May, 1996(ii) It was also decided that proposal for departmentalization will be sent to the government by 31 st July, 1996 and till decision from the Government or from the concerned courts Direct payment System will continue(iii) It was agreed that in the other notified depots of FCI where labour Cooperative Societies are not functioning, the labour strength will be assessed on the basis of the formula to be evolved in consultation with FCI Workers Union as the Union had mentioned that the formula of assessment of labour being adopted by diving the workload i.e. receipt and issue by 365 is not realistic. The Union suggested that the workload of receipt and issue as well as all operations performed in the depot should be taken into account and the same should be divided by 240 days instead of 365. As regards labour Cooperative Societies, it was decided that the workers already working there during last 3 years and who had worked for nine out of 12 months in the last year and whose PF deductions are being made will be extended benefit of Direct Payment System workers. However the actual requirement of labour for these depots will be assessed as per the norms agreed to with the Union and utilisation of surplus labour including employment elsewhere will be resorted to by the management in consultation with the Union. Regarding norms, the Union expressed resentment about adopting 365 days a year which management agreed to look into and take a final view(iv) As regards notified depots under CWC, separate discussions will be held for a final decision2. Immediate departmentalisation of all the workers of FCI Depots under Direct Payment System, Guaranteed Wages System, No work no pay System and B-Category system. It was agreed that the system as in existence will continue [sic]A list of Depots having Departmental Labour System in March, 2000 is annexed as annexure P-3 in the reply affidavit filed by the petitioner to the counter affidavit of the respondent in Contempt Petition (Civil) No. 404/20194. In I.D. No. 39/1992, after due consideration of the rival submissions, the Tribunal vide award dated 19.12.1997, noted the point for its consideration as follows: -7. The point for our consideration is: whether the action of the management of FCI (respondent) in denying to regularise 955 contract labourers engaged by the management of FCI godown at Avadi through Thiru VI. Ka. Labour Contract Cooperative Society is justifiedAfter detailed analysis and reference to other decisions between the workmen and the Corporation, the Tribunal came to issue the following direction: -14. In the result award is passed holding that action of the respondent management in denying to regularise the 955 contract labourers engaged through Thiru. VI. Ka. Cooperative Society as not justified and the management is directed to regularise and departmentalise these 955 workmen from the date of notification Ex. W 4 with regard to Avadi depot i.e. 28.02.1990 with all attendant benefits. No Costs5. Similarly, the Tribunal while disposing of I.D. No. 55/1993 vide award dated 29.7.1998, issued following directions: -… Therefore, the services of workmen employed in different food storage depots of the Food Corporation of India in South India where notification have been issued prohibiting engagement of contract labour u/s 10(1) of the Contract Labour (Regulation and Abolition) Act, are entitled to be regularised, from the date of notification concerning each depot. Award passed. No costsThe aforementioned awards were subject matter of challenge before the High Court of Judicature at Madras in Writ Petition Nos. 11416/1999 and 12416/1999. The learned single Judge vide judgment and order dated 14.8.2003, dismissed the writ petitions on the finding that the awards passed by the Tribunal were just and proper, and thus affirmed the same6. Feeling aggrieved, the Corporation carried the matter before the Division Bench of the Madras High Court by way of Writ Appeal Nos. 3382/2003 and 3383/2003. The Division Bench dismissed the said writ appeals vide judgment and order dated 13.12.2006 having agreed with the conclusion arrived at by the Tribunal in passing awards and the reasoning of the learned single Judge in confirming the same. The Corporation filed special leave petitions before this Court, which were converted into Civil Appeal Nos. 10499/2011 and 10511/2011. Both appeals have been dismissed by a common judgment and order dated 20.8.2018 upholding the view taken by the Tribunal and the Madras High Court7. Contempt Petition (Civil) No. 754/2019 is in reference to a separate judgment and order of the same date (i.e. 20.8.2018) passed by this Court in Civil Appeal No. 7961/2014 in respect of writ petition instituted by the contempt petitioners (Thrissur Jilla General Mazdoor Sangh and others) before the High Court of Kerala at Ernakulam 5 being Writ Petition No. 14786/2013, praying for the following reliefs:(i) A writ of mandamus directing the 5 th respondent to take effective steps for implementing Exhibit P1;(ii) Declare that the DPS workers in the depot of FCI at Mulakunnathukavu, Thrissur, are entitled to be regularised and are entitled to the pay and other service benefits of departmental labourer…The stated writ petition was dismissed by the learned single Judge vide judgment and order dated 4.9.2013 on the finding that there was substantial compliance of directions issued by the Tribunal. It also noted that there was no indication in the award that the workers were required to be engaged in the godowns in Kerala, departmentally. Feeling aggrieved, the contempt petitioners filed Writ Appeal No. 1746/2013 before the Kerala High Court, which came to be allowed in terms of the directions issued in O.P. No. 14360/1999 as affirmed in Writ Appeal No. 2491/2009. The relied upon order in O.P. No. 14360/1999 was passed by the Kerala High Court in a petition filed by Head Load 5 For short, the Kerala High Court Labour Congress for implementation of the award passed by the Tribunal. The reliefs claimed in the said writ petition read thus: -a) a writ of mandamus directing the 2 nd respondent to take effective steps for implementing Exhibit P1b) hold that all godowns and depots of FCI, especially in Kerala, the workers should be regularised and brought under direct payment system forthwithThe above writ petition came to be allowed vide judgment and order dated 22.9.2009. Feeling aggrieved, the respondent- Corporation had filed Writ Appeal No. 2491/2009 before the Kerala High Court, which was dismissed vide judgment and order dated 15.2.2010. Against the said decision, the Corporation had filed special leave petition before this Court, which was converted into Civil Appeal No. 10530/2011 and came to be dismissed by a common judgment and order dated 20.8.2018 of this Court alongwith Civil Appeal No. 7961/2014, referred to above8. Despite the dismissal of the appeals and confirmation of the award passed by the Tribunal including the writ issued by the Kerala High Court to implement the award, the respondent Corporation took no initiative, which prompted the contempt petitioners to approach this Court for initiating contempt action against the respondent Corporation and its officers.

Reasoning: Suffice it to observe that to constitute civil contempt, it must be established that disobedience of the order is wilful, deliberate and with full knowledge of consequences flowing therefrom. For reaching that conclusion, it is essential to notice the scope of References before the Tribunal and direction issued therein, which has been affirmed upto this Court. Going by the plain text, the issue(s) referred to for adjudication (reproduced in paragraph 3 above) is merely for regularisation. However, the point-in-issue considered by the Tribunal coupled with the operative part of the award (which has been reproduced in the earlier part of this judgment), it would at best be a case of directing the respondent Corporation to regularise and departmentalise the concerned workmen, who were party to the stated References13. As noted earlier, the Corporation operates four systems of labour. The Departmental Labour System is one such system of engagement. The other is Direct Payment System (DPS). The third is No-Work-No-Pay System and fourth, the Mate System. Neither the relief in the References was specific for regularisation in Departmental Labour System only nor the Tribunal, the Madras High Court/Kerala High Court or this Court was called upon to deal with that issue specifically. The claim set up by the petitioner-Union(s) was simpliciter for regularisation of workmen who were named in the annexure(s) to the References. The Tribunal did issue direction to regularise and departmentalise those workmen. It is axiomatic that departmentalisation could also be an engagement in a Department, which could be a separate part or branch/section of the whole Organisation. Departmentalisation is dividing an organisation into different departments or structuring it in a manner, which perform tasks according to the specialisations in the organisation. It may include departments such as functional, product, process, geographical locations, customer, divisional, matrix, planning task force etc14. As it is indisputable that the Corporation has four systems of labour engagement including the Direct Payment System (DPS), the petitioner-Union(s) ought to have sought specific relief against the Corporation in that regard. Significantly, the petitioners have assumed that the Direct Payment System (DPS) commenced only from 1.5.1996, whereas it is noticed from the decision of this Court in Workmen of the Food Corporation of India (supra) that the Direct Payment System (DPS) is in existence from 1973. It is not a new set up created by the Corporation pursuant to the minutes recorded on 12.4.1996 as such. Concededly, the subject References, as well as, the direction issued by the Tribunal, which has been upheld upto this Court is silent about the system in which the concerned workers have to be regularised and departmentalised. It is incomprehensible as to how it would be a case of disobedience, much less wilful disobedience, so as to entail in contemptuous conduct of the concerned officers of the Corporation especially when the eligible enlisted workers have already been regularised under the Direct Payment System (DPS) as per the applicable policy of 1991. Notably, the writ petition filed before the Kerala High Court for implementation of the stated award also sought direction (reproduced in paragraph 7 above) to regularise the concerned workmen under the Direct Payment System (DPS). If that be the position, it is unfathomable as to how the respondent Corporation can be proceeded against for having committed contempt of this CourtIn the relied upon cases, the Tribunal did not advert to the policy of the respondent Corporation to engage the concerned employees after abolition of the contract labour system only under the Direct Payment System (DPS) and which was being strictly adhered to since 1991. Pertinently, there was specific direction by the Tribunal/Court in those cases to regularise the concerned workmen under the Departmental Labour System, which is not so in the present caseBe that as it may, in the present case, neither any discussion is noticed about the efficacy of policy of the Corporation effective since 1991 regarding regularising the concerned workmen after abolition of contract labour system only under the Direct Payment System (DPS) nor a clear direction has been given by the Tribunal to the respondent Corporation to regularise the concerned workmen only under the Departmental Labour System. Similarly, the learned single Judge has merely upheld the direction as given by the Tribunal. Indeed, the impression gathered from the discussion in the judgment of the learned single Judge does indicate that the Corporation being an instrumentality of the State cannot be heard to discriminate between its different employees working at different Depots. As noted earlier, it is not as if the workmen involved in subject References alone were being considered for regularisation in the Direct Payment System (DPS). There are 19427 others who have been so appointed and working as on 31.12.2019. Moreover, those who were working as contract labour engaged through cooperative societies or private contractors came to be regularised in the Direct Payment System (DPS) as per the policy of 1991. The fact remains that even the learned single Judge had not issued specific direction to the respondent Corporation to regularise the concerned workmen under the Departmental Labour System and not under the Direct Payment System (DPS) as such. Similarly, the Division Bench proceeded to consider the matter as to whether the direction issued by the Tribunal is acceptable and whether the learned single Judge was right in affirming the said directionIt is thus seen that even the Division Bench did not issue any specific direction to the respondent Corporation to regularise the concerned workmen under the Departmental Labour system and not to do so under the Direct Payment System (DPS) as per the policy of 1991. This Court has merely affirmed the view taken by the Tribunal and the Madras High Court. More importantly, the Departmental Labour System has since been notified as a dying cadre17. To put it differently, the issue as to regularisation of the concerned workmen under particular labour system had not been put in issue before the Tribunal and upto this Court. A general direction came to be issued to regularise and departmentalise them. Resultantly, the respondents were left with the only option to regularise the concerned workmen as per the extant applicable policy of the Organisation, under the Direct Payment System (DPS)18. Reverting to the decision of the Kerala High Court in Writ Petition No. 14360/1999 filed for directing implementation of the award in question, the relief claimed was to regularise the concerned workmen under the Direct Payment System (DPS) forthwith. That relief was already acceded to by the Corporation in the minutes recorded between the parties dated 12.4.1996. For that reason, the Corporation did not participate in the Reference proceedings in I.D. No. 39/1992 and allowed the I.D. No. 55/1993 to proceed ex-parte. Indeed, the Corporation assailed the awards upto this Court on the basic issue of right and entitlement of the concerned workmen to be regularised. The fact whether regularisation should be under the Departmental Labour System or the Direct Payment System (DPS) was not put in issue at any stage including the appeal decided by this Court. The Corporation having lost on the basic issue of regularisation was obliged to give effect to the award as per its extant policy in that regard in force since 199119. Notably, the relief granted by the Division Bench of the Kerala High Court in Writ Appeal No. 2491/2010 was only for regularisation in the Direct Payment System (DPS) as prayed in the writ petition. In the subsequent writ petition filed before the Kerala High Court being Writ Petition No. 14786/2013, against which the appeal came to this Court being Civil Appeal No. 7961/2014, the relief claimed was for regularisation and to give all other service benefits of Departmental Labour system. This writ petition was dismissed by the learned single Judge on the finding that the award in question was already substantially complied with. When the matter went up to the Division Bench by way of writ appeal being Writ Appeal No. 1746/2013, the same was disposed of as per the direction issued in the earlier writ petition being O.P. No. 14360/1999 and Writ Appeal No. 2491/2009 referred to above. The relief granted in these proceedings was, therefore, only regarding regularisation in the Direct Payment System (DPS). If that be so, we fail to understand as to how the writ petitioner(s) therein could ask for relief different than regularisation under the Direct Payment System (DPS)The crucial part, in our opinion is, the latter (highlighted) part, wherein the Court has made it clear that the judgment relied upon was not being taken into account for deciding the appeal22. In West Bengal Food Corporation of India Workmens Union (supra) involving a case arising from the proceedings and order dated 8.3.2001 passed by the High Court of Calcutta in C.R. No. 5498 (W) of 1991, which is extracted in the order passed by this Court, dated 20.7.2017, the Court opined that order in the said case had directed the respondents to frame a scheme or to find ways and means to absorb the concerned workmen. That direction can have no bearing on determination of the matters at hand, being contempt petitions. For the same reason, the subsequent orders passed in contempt petition in the said appeal will have no bearing on the present case. For, these petitions will have to be decided strictly on the basis of the awards passed in the References in question and the judgment of the Madras High Court/Kerala High Court and this Court, being contempt action23. In the present case, as noticed earlier, no specific direction has been given to the Corporation to regularise the concerned workmen only in the Departmental Labour System. Furthermore, the Departmental Labour System is now a dying cadre and the policy of the Corporation at the relevant time entailed regularisation of such workmen only under the Direct Payment System (DPS). Thus understood, no contempt action can be initiated on the basis of general direction to the respondents to regularise and departmentalise the concerned workmen. For, it is not possible to hold that intrinsic in the general direction was to ordain the respondents to regularise and departmentalise the concerned workmen under the Departmental Labour System in the teeth of the extant policy of the Corporation in force since 1991 regarding regularisation against Direct Payment System (DPS)In the present case, it is not a moonshine defence as was the finding recorded in the reported decision25. Suffice it to observe that no case for initiating contempt action against the respondent Corporation and its officers has been made out. We need not, therefore, analyse any other aspect of the matter, which would require rewriting of the judgments on the basis of which this contempt action has been instituted. That cannot be countenanced in contempt proceedings.