Board Of Trustees For Pt.Of Cal.& Ors vs Avijit Kumar Ray & Ors.Etc

Board of Trustees for Port of Calcutta & Ors. ... Appellants

Versus

Avijit Kumar Ray & Ors. etc. ... Respondents

JUDGMENT

AFTAB ALAM,J.

1. Heard counsel for the parties

2. Leave granted 2

3. In times of fast shrinking employment opportunities, trade

apprentices who have completed their training staked their claim on an old

practice, long discontinued, under which the Calcutta Port Trust in the

port's Mechanical Engineering department used to make recruitment of

trained apprentices and wards of employees dying in harness in the ratio of

1:1.

4. Three hundred and twenty one trained apprentices (respondents

before this Court; hereinafter referred to as `the trained apprentices') joined

together and approached the Calcutta High Court in WP No. 21877(W)/99.

They made the grievance that in disregard of the practice earlier followed,

the Calcutta Port Trust was giving appointments only on compassionate

grounds to the wards of their employees dying in harness and had

completely stopped the recruitment of trained apprentices. They sought

appropriate directions from the High Court asking the Calcutta Port Trust to

appoint trained apprentices equal in number to those appointed on

compassionate basis during the past many years so as to restore the 1:1 ratio

between the two groups. At that stage the High Court did not pass any

positive order in the matter but disposed of the writ petition directing the

Chairman, Calcutta Port Trust to examine the claim of the trained 3

apprentices and to dispose of their representation after giving them an

opportunity of hearing.

5. In compliance with the order of the Court the Chairman, Calcutta Port

Trust heard representatives of the trained apprentices and examined their

claim. He turned down the claim by a reasoned order dated July 5, 2000.

From the order it appears that the trained apprentices raised three

grievances/demands before him. One, the Calcutta Port Trust should not fill

up the vacancies of Firemen in the Marine department by transfer of

unskilled labourers from the Mechanical Engineering department. Two, the

Port Trust should maintain a list of trade apprentices who completed the

apprenticeship course in the Port for consideration for employment against

future vacancies and three, the vacancies of unskilled labourers in the

Mechanical Engineering department should be filled up by the dependents

of employees dying in harness and trained apprentices in 1:1 ratio. In regard

to the third demand the trained apprentices further claimed that during the

last 20 years the ratio was not properly maintained and in order to restore it

trained apprentices should be appointed in equal numbers to those

appointed on compassionate basis. The Chairman noted that the posts of

Fireman in the Marine department were never filled up by transfer of

unskilled labourers from the Mechanical Engineering department; hence, 4

the first grievance/ demand of the trained apprentices was quite unfounded.

As regards maintenance of list of trade apprentices for appointment as

Firemen the Chairman noted that the Trust was passing through great

financial stringency and was burdened with surplus workforce. As a result,

the Trust was not in a position to take in any more unskilled labourers or to

make appointments on other posts. He further noted that there was already a

list of about 1200 persons, dependents of the employees who died in

harness. Similarly, a list of trained apprentices was already maintained by

the Trust in light of the Central Government instructions and the decisions

of this Court for giving preference to them in the matter of direct

recruitment to the post(s), matching their skills and qualifications. As per

the instructions, being followed by the Trust, a trained apprentice is not

required to get his name sponsored by any employment exchange and he is

also given relaxation of age bar to the extent of the period of training. Thus

there was no occasion to maintain any other list of trained apprentices for

filling up only the vacancies in the Marine department. In conclusion the

Chairman passed the following order:

"Notwithstanding anything contained hereinabove it is reiterated that if any occasion arises to fill up the posts of USL under Mechanical Engineering department by Direct recruitment the passed out Trade apprentices may also be considered."

5 6. The trained apprentices once again went to the High Court in WP No.

9259 (W) of 2001 re-agitating their claims and challenging the order of the

Chairman, Calcutta Port Trust.

7. This time a learned Single Judge of the Court allowed the writ

petition by judgment and order dated June 11, 2004, giving the following

directions to the Calcutta Port Trust:

"For the above reasons the writ petition should succeed. Accordingly, I allow the writ petition. The order impugned is hereby set aside. The respondents are hereby directed to consider the cases of the petitioners in accordance with the decisions that the respondent Port Trust had taken for giving employment to its trade apprentice in the ratio 1:1 to be maintained with the candidates from the died in harness category. Since the respondent Port Trust has already given employment to the died in harness category candidates in excess of the quota available to such category, the respondents are hereby directed to take immediate steps for rectifying the situation and restoring the balance in the quota meant for the two categories. For implementing this order the respondent shall immediately frame a scheme on the basis of such scheme they shall consider the case of the petitioners. The scheme shall be prepared and the names of the petitioners shall be placed in an appropriate panel within a period of four weeks from the date of receipt of a copy of this judgment and order by them. After preparing the scheme and the panel, the respondents shall consider the cases of the petitioners according to the scheme and panel against the available vacancies, in terms of the government order issued in the year 1983 and their own decisions as quoted hereinbefore."

6 8. Against the judgment of the single Judge the appellant, Calcutta Port

Trust preferred an appeal (MAT 2601 of 2004) before the Division Bench of

the High Court. The appeal was dismissed by judgment and order dated

May 10, 2007 and confirming the order of the single judge the Division

Bench made the following observations and directions:

"In the aforesaid circumstances, we are of the considered view that the learned Single Judge has rightly issued appropriate directions for considering the cases of the writ petitioners and giving employment as ex-trade Apprentices along with the died-in-harness category candidates in the ratio of 1:1 in the matter of giving employment in the Kolkata Port trust pursuant to the promise given on behalf of the said appellants and as mentioned in the written communication of Labour Advisor dated 4th January, 1985 and further considering the guidelines issued by the Government of India and mentioned in the circular dated 21st April, 1983."

9. The appellant has brought the matter in appeal to this Court.

10. Mr. G. Vahanvati, learned Solicitor General appearing on behalf of

the appellants submitted that the orders passed by the High Court were quite

bad and illegal. The High Court clearly exceeded its jurisdiction in directing

the appellant to give employment to three hundred and twenty one writ

petitioners without any consideration of the appellant's requirements, its

financial position and other similar issues. Moreover, the High Court

arrived at its conclusions on a complete misreading and misinterpretation of 7

the relevant government guidelines and circulars and communications

issued by the Port Trust. The Solicitor General emphasised that there was

never ever any promise made by the appellant to absorb the trained

apprentices in employment and the High Court completely misread the

communication of the Labour Advisor of the Trust dated January 4, 1985

and the guidelines contained in the circular dated April 21, 1983 issued by

the Government of India.

11. The Solicitor General stated that in the 1970s the Calcutta Port Trust

indeed followed the practice of making recruitment of unskilled labour in

the Mechanical Engineering department of the Port from amongst the

dependents of employees dying in harness and trained apprentices in the

ratio of 1:1. He, however, made it clear that the practice was based neither

on any statutory provision nor on agreement(s) of any binding nature; it was

followed by the Trust unilaterally having regard to the circumstances

obtaining at that time. He further clarified that this practice was confined

only to the Mechanical Engineering department while the other departments

had their own recruitment policy, depending upon their respective

requirements. He then took us, one by one to the circulars, decisions,

communications etc. relied upon by the High Court for making the

impugned directions.

8

12. First in the series is a circular bearing no. D.O. DECT-1-83/AP dated

April 21, 1983 issued by the Ministry of Labour and Rehabilitation

(Department of Labour), Government of India. By this circular all the

ministries were urged to endeavour to ensure that 50% of the total semi-

skilled and skilled categories of jobs in the establishment under them should

be filled by direct recruitment. Further, that 50% of the vacancies available

for direct recruitment should be filled by trained apprentices and first

preference be given to apprentices completing the training course under that

establishment. Para.2.2 of the circular read as follows:

"50% of the direct recruitment vacancies may be filled by trained apprentices first preference being given to the apprentices trained by the said establishment and thereafter to those trained by other establishment."

13. Next is a letter of January 4, 1985 from the Labour Adviser &

Industrial Relations Officer of the Port Trust to the Joint General Secretary

of the Calcutta Port Shramik Union. The letter is on the subject of

recruitment of the ex-trade apprentices and refers to some discussion held in

that regard. As this letter is the mainstay of the High Court judgments it is

reproduced below in full.

"Subject: Recruitment of Ex-Trade Apprentices

Dear Sir, 9

Kindly recall the discussion held in Chairman's room on 3.1.1985 on the above subject.

Ex-Trade Apprentices were being recruited along with the died in harness candidates in the ratio of 1:1. This is now been stopped in view of the ban imposed by Government on direct recruitment. Ex-Trade Apprentices will be recruited again as and when the ban is lifted and their quota will be restored."

It is this letter that is mainly relied on by the High Court to hold that the

Port Trust was bound by its promise to recruit the trained apprentices in the

same ratio as dependents of employees dying in harness. The Solicitor

General submitted that it is quite unreasonable to read this letter as an

unqualified promise of recruitment of trained apprentices in all future times.

The letter simply said the ex-trade apprentices would be recruited and their

quota would be restored again as and when the ban on direct recruitment

was lifted. He pointed out that in the order of the Chairman, Calcutta Port

Trust that came under challenge before the High Court it was likewise stated

that the Trust was not in a position to provide employment opportunity to

the trained apprentices on account of the twin problems of actuate financial

distress and surplus workforce but as and when the need arises to induct

unskilled labour in the Mechanical Engineering department the trained

apprentices would also be considered for recruitment. There is thus no 10

change in the stand of the Trust and there is no question of enforcement of

any unconditional promise made by the Trust.

14. The Solicitor General referred to the decision in U.P. State Road

Transport Corporation & Anr. Vs. U.P. Parivahan Nigam Shishukhs

Berozgar Sangh & Ors. (1995) 2 SCC 1 and submitted that on similar facts

this Court held that the High Court was wrong in giving direction to give

employment to the trainees. In regard to enforcement of promise the Court,

in paragraph 10 of the decision, observed and held as follows:

"For a promise to be enforceable, the same has, however, to be clear and unequivocal. We do not read any such promise in the aforesaid three documents and we, therefore, hold that at the call of promissory estoppel, the direction in question could not have been given by the High Court. But then, we are left in no doubt that the Government of India did desire that preference should be given to the trained apprentices and it is because of this that the State Government stated in its letter No.735/38-6-16(T)-79 dated 12-11-1979 that where such apprentices are available, direct recruitment should not be made. Indeed, the Government of India in its letter dated 23-3-1983 even desired reservation of 50 per cent vacancies for apprentice trainees."

(emphasis added)

15. Proceeding then to examine the rights of the ex-trade apprentices

under the Apprentices Act, 1961 the Court, in paragraph 12 of the decision,

laid down as follows:

"In the background of what has been noted above, we state that the following would be kept in mind while 11

dealing with the claim of trainees to get employment after successful completion of their training:

(1) Other things being equal, a trained apprentice should be given preference over direct recruits. (2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India vs. N. Hargopal would permit this.

(3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the service rule concerned. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given.

(4) The training institute concerned would maintain a list of the persons trained year-wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior."

16. The Solicitor General submitted that in light of the decision in U.P.

State Road Transport Corporation, other things being equal, the ex-trade

apprentices were entitled to preference in the ways indicated in that

decision. The decision made it clear that the establishment where the

apprentices had completed their training was under no obligation to absorb

them in employment regardless of availability of any vacancies or other

considerations. The trust was scrupulously following the directions of the

Supreme Court in U.P. State Road Transport Corporation in the matter of

recruitment of trained apprentices.

12

17. The Solicitor General stated that after this Court's decision in U.P.

State Road Transport Corporation the Government of India also slightly

modified its policy on the matter. He referred to the letter DO NO. CGET 23

(3) dated 15 October 1996 issued under the hand of the Secretary, Ministry

of Labour, Government of India. In paragraph 5 of the letter it is stated as

follows:

"5. I am taking this opportunity to share with you our concern about the seriousness of the problem and find practical solutions so that the trained apprentices can get regular employment either within the establishments where they have been trained or in other Government/Private sector establishment. I shall be grateful if suitable steps are initiated by your Ministry to:

(a) fill up the seats located by engaging apprentices under the Apprenticeship Act for utilization of existing training facilities to the fullest extent;

(b) improve the quality of training by closer monitoring of the scheme at the scheme at the shop floor level; and

(c) ensure that preference is given to passed out apprentices for recruitment in regular jobs matching their skills and qualifications.

(emphasis added)

The Solicitor General submitted that the policy of the Government of India

is to give preference to the passed out apprentices for recruitment in regular

jobs matching their skills and qualification.

18. The Solicitor General reiterated that in the communication of the

Legal Advisor of the Trust dated January 4, 1985 there was no promise to 13

recruit the trained apprentices. He further submitted that in any event after

the legal position was made absolutely clear by the decision in U.P. State

Road Transport Corporation and following the decision the Government of

India had also modified its policy regarding recruitment of trained

apprentices it was completely unreasonable to make that letter the basis for

the direction to appoint three hundred and twenty one trained apprentices.

He further stated that even though the decision in U.P. State Road

Transport Corporation was brought to the notice of the High Court it

unfortunately persisted in reading the letter dated January 4, 1985 as making

the promise for appointment of trained apprentices.

19. As regards the appointment of trained apprentices in equal number to

appointments on compassionate basis the Solicitor General submitted that

was a practice followed by the Trust at one point of time long ago when

there was adequate employment potential in the port. After more than 25

years and under vastly changed conditions, both in law and in the

circumstances concerning the Calcutta Port, it was no longer possible to

follow the practice and to link up the appointments from two entirely

different categories. The Solicitor General stated that in the past thirty years

though ex-trade apprentices were appointed in substantial numbers,

depending on the exigencies in certain years, the ratio of 1:1 between the 14

two groups was never maintained. In recent years of course, employment

opportunity for every group had practically dried up. In this regard he

brought to our notice the following table giving the break-up of

appointments made as unskilled labourer in the Mechanical Engineering

department from different sources from 1979 till 2000, when this case

started.

Year of By died- By Ex- By By ST By Total in-harness Trade Casual candidate sports Recruitmen candidate Apprentice worker s perso s s s n t 1979 54 98 140 5 X 297 1980 84 82 1 X X 167 1981 31 X X X X 31 1982 71 54 14 X 2 141 1983 6 23 1 X X 30 1984 45 9 X X X 54 l-TOTAL 291 266 156 5 2 720 1985 110 62 1 X X 173 1986 37 39 X X X 76 1987 1 X X X X 1 1988 14 4 X X X 18 1989 11 5 X 20 X 36 1990 X 2 X X 1 3 ll-TOTAL 173 112 1 20 1 307 1991 X 3 X X 3 6 1992 X X X X X X 1993 X X X X X X 1994 X X X X X X lll-TOTAL X 3 X X 3 6 1995 25 X X X X 25 1996 4 X X X X 4 15

1997 9 X X X X 9 1998 2 1 21 X X 24 1999 1 X 8 X X 9 2000 1 X X X X 1 IV- 42 1 29 X X 72

TOTAL TOTAL 506 382 186 25 6 1105 OF I,II,III &IV

20. The Table clearly shows the number of appointments from different

groups tapering off. In the ten years from 1991 to 2000, 42 persons were

employed on compassionate basis and only 4 persons from amongst the ex-

trade apprentices. The Solicitor General stated that appointments on

compassionate basis were made only in dire cases that had the potential of

causing labour unrest creating major problems. He submitted that in present

conditions it is not possible to link-up the recruitments from the two

categories and the High Court was in error in giving the impugned direction.

21. We find much substance in the submissions made by the Solicitor

General. Like the case of U.P. State Road Transport Corporation we find it

difficult to read in the communication of January 4, 1985 any clear,

unequivocal and unqualified promise that may be enforceable after a quarter

of century under vastly different conditions. We are also in agreement that 16

the recruitments from the two categories cannot be linked-up and made

contingent on each other.

22. Mr. Krishnamani, learned counsel appearing for the respondents, the

trained apprentices supported the judgments of the High Court. He

submitted that the High Court rightly held that the letter of the Legal

Advisor dated January 4, 1985 made the promise of recruitment of the

trained apprentices and restoration of the ratio between the two groups as

and when the ban on direct recruitment imposed by the Central Government

was lifted. Mr. Krishnamani further submitted that the ban on recruitment of

ex-trade apprentices was lifted by letter dated July 30, 1986 addressed by

the Secretary of the Trust to the Joint General Secretary, Calcutta Port

Shramik Union and with the lifting of the ban the promise made in the

earlier letter of January 4, 1985 became enforceable and binding. The letter

of July 30, 1986 referred to by Mr. Krishnamani is as follows:

"Dear Sir,

"Subject: Absorption of the Trade Apprentices under the S.R.C. (ex.C.H.E.'s Deptt.)

Reference your letter No.C/8/645 dated the 16th June, 1986.

2. The case has been considered by the Chairman. It has been decided to resume recruitment or ex-Trade Apprentices, as per their quota against the available vacancies of U.S.L. subject to work requirement and on observance of SC/ST 17

reservation orders. The General Manager (Ship Repair Complex) is being suitably advised in the matter."

This letter is of July 30, 1986 and a reference to the table giving year-wise

appointments would show that in the year 1986, 39 ex-trade apprentices

were appointed against 37 persons appointed under the scheme of

compassionate appointments. Thus the Trust did exactly what was stated in

this letter.

23. We are unable to accept that this letter on its own or read along with

the earlier communication dated January 4, 1985 constitutes an unqualified,

enforceable promise or lays down a mode of recruitment on a permanent

basis or creates any rights in favour of the trained apprentices.

24. Moreover, the letter does not answer the main question in the case,

i.e., how could the High Court give direction for appointment of over three

hundred trained apprentices regardless of the vacancy position and the other

relevant considerations. Confronted with the question Mr. Krishnamani

submitted that the order of the High Court should not be understood to mean

that all the respondents must be appointed forthwith. The High Court asked

the Trust to evolve a scheme for their absorption in a phased manner. When

pointed out that if the directions of the High Court are to be understood in

the way suggested by him then their will not be much difference between 18

the High Court order and the order passed by the Chairman, Calcutta Port

Trust, Mr. Krishnamani submitted the vital difference between the two was

that the order of the Chairman, Port Trust sought to do away with the parity

between the two groups in the matter of recruitment. He further submitted

that the respondents' main claim was to adhere to and restore the parity

between the ex-trade apprentices and those covered by the scheme of

compassionate appointments in the matter of recruitment. We are entirely

unable to accept the claim of the respondents. As stated by the Solicitor

General the ex-trade apprentices were at one time appointed in equal

numbers to those appointed under the compassionate appointments scheme

but the practice was not on the basis of any statutory provision or any

agreement between the Trust and the workmen. We are equally unable to

see any rational basis for such parity between the two groups. It might have

served the interests of a certain group in the past and it may appear to the

present respondents as a handy bargaining point but in the long term it will

be fair neither to ex-trade apprentices nor to those coming under the scheme

of compassionate appointments. There is no comprehensible connection

between the two groups nor is there any rational basis for parity between the

two in the matter of recruitment.

25. On a consideration of the materials on record and the rival

submissions we are of the view that the orders passed by High Court are 19

plainly unsustainable. We accordingly set aside the orders of the High Court

and dismiss the writ petitions.

26. Before parting with the records of the case we may, however, observe

that though the number of appointments has gone down very low, no

uniform policy of recruitment is discernible. For example three trained

apprentices were recruited in 1993 and one in 1998. It is not clear under

what policy those recruitments were made or for that matter what policy the

Trust is following in the matter of compassionate appointments. The Trust

should frame clear policies of recruitment from these categories and give

them due publicity to avoid any scope of abuse and unfair labour practice.

27. In the result, the appeal is allowed subject to the aforesaid

observations and directions. There shall be no order as to costs.

.................................J.

[Tarun Chatterjee]

.................................J.

[Aftab Alam]

New Delhi,

November 25, 2008.