Holding

The claimants must prove continuous service with documentary evidence; absent such proof, the Assistant Labour Commissioner must re‑examine records and, based on a fresh report, the Railway must absorb eligible porters as permanent employees.

Summary

The All India Railway Parcel & Goods Porters Union sought the regularisation of parcel porters employed on a contract basis, arguing that the work is permanent and perennial and that earlier Supreme Court directions required their absorption as permanent employees. The Railway Administration contended that the work is seasonal, that the railways face a financial crisis, and that the claimants failed to produce documentary evidence of continuous service. The Court held that the burden of proving continuous employment lies with the claimants and that non‑production of evidence cannot be cured by legal fiction. It directed the Assistant Labour Commissioner to obtain original service records from contractors and the railways, allow cross‑examination, and submit a fresh report within six months. Based on that report, the Railway Administration must absorb eligible porters on a permanent basis, subject to medical fitness, age limits, and work‑availability, while retaining the right to retrench in accordance with law.

Issues considered

The work of parcel handling by contract porters is of a permanent and perennial nature.
Whether the claimants have discharged the burden of proving continuous service without documentary evidence.
Whether the Railway Administration is obligated to regularise the contract porters despite financial constraints.
Whether contractors can claim compensation for premature termination of contracts after absorption.

Legislation cited

Contract Labour (Regulation and Abolition) Act, 1970s. 10

Subjects

contract labourregularisationabsorptionburden of proofperennial workrailway parcel handlingpublic sector undertakingretrenchmentlabour law

Judgment

A
A.I. RAILWAY PARCEL & GOODS PORTERS UNION
v.
UNION OF INDIA AND ORS.

AUGUST 22, 2003
B
[S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND .{
G.P.MATHUR,JJ.]

Labour Laws:
c
Regularisation of services of Porters in Railways-Supreme Court's
earlier direction for abolition of contract system of labour and regularization
of Porters-Assistant Labour Commissioner recommending their claim on the
basis that the work handled by them was ofpermanent and perennial nature-
D Not considered by the Railway Administration on ground of their policy of
downsizing the cadre on economic consideration-Challenge ta-Held: The
Assistant Labour Commissioner has failed to appreciate the preposition of
law that non-production of documentary evidence in opposition would not
support their clajm for absorption-Contractors directed to produce original
records of services of Porters working under them for verification to the
E Assistant Labour Commissioner-An opportunity to cross-examine contractors
should be afforded to the Railways-Assistant Labour Commissioner to
examine genuineness and authenticity of the claimants-The Railway
Administration on the basis of recommendation of the authority should
regularize the services of such Porters who fulfills the eligibility conditions-
Contractor would be having no claim against Railways for premature
F
termination of contract-Railways could retrench the workmen so absorbed
in accordance with law.

The main issue which arose in these writ petitions and appeals was
..
regularization of services of Railway Parcel and Goods .Porters in connection
G with earlier directions of this Court relating to the abolition of contract system
,.
of labour in parcel handling work and to regularize ttieir services.

It was contended for the petitioners/appellants that in spite of the
directions of this Court for the abolition of contract system in parcel handling

H 842
A.I. RAILWAY PARCEL&GOODS PORTERS UNIONv. U.0.1. 843
work and their permanent absorption, the Railways neither abolished the A
parcel handling work nor regularized their services; and that even though
Assistant Labour Commissioner had recommended their claim recording the
finding that the work of parcel handling was permanent and perennial in
nature.

On behalf of the Railways, it was submitted that the parcel handling B
work was seasonal in nature; that the Railway Administration was taking

-- measures for downsizing its cadre on economic consideration due to financial
crisis; and that in view of the huge number of Porters, non-production of
documentary proof by the Porters of having worked continuously, and the
meager parcel handling charges, their regularization was financially not C
viable.

Disposing of the petitions/appeals, the Court

HELD: 1.1. Non-production of evidence in opposition will not support
the claim of the petitioners/appellants even by legal fiction. The Assistant D
Labour Commissioner has failed to appreciate this proposition of law while
recommending the claim of the petitioners/appellants. [855-Fl

1.2. The burden of proving the claim of continuous working rests on
the claimants for which they are required to furnish concrete proof and
reliable document; that an opportunity to cross-examine the claimants and to E
peruse the records produced by them should be afforded to the Railways. Since
the contractors did net produce the original records and the Railways had no
opportunity to cross-examine the contractors also, they are directed to appear
before the Labour Commissioner and to produce the records for the relevant
period and the claim could again be verified. The Labour Commissioner is F
directed to afford an opportunity to the Railway Administration and the
contractors and the petitioners/appellants and verify the authenticity and
genuineness of the claim made by the petitioners with reference to the records
that might be produced by the Railway Administration and the contractors
and submit a report to the Railways. This would resolve the disputed claim.
On the basis of the report, the Railway Administration shouid consider the G
claim of the individual petitioners/appellants. (855-G, H; 856-A-C)

1.3. The facts disclosed in the Assistant Labour Commissioner's report
and the findings recorded in regard to the perennial nature of work cannot
be overruled. (858-A, Bl
H
844 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A 1.4. The Railway Administration should absorb permanently those
Railway Parcel Porters who have not attained the age of superannuation and
found medically fit. The persons to be so appointed could be limited to the
quantum of work which may become available to them on a perennial basis.
1·.<
The employees so appointed on permanent basis shall be entitled to get from
the dates of their absorption, the minimum scale of pay or wages and other
B service benefits which the regularly appointed Railway Parcel Porters were
already getting. (858-E, F)
.-r
1.5. The services of Railway Parcel Porters, on regularization on
permanent basis, could be utilized by the Railway Administration for any other
manual work of the Railways depending upon its needs. [859-BI
c
1.6. In the matter of absorption of Railway Parcel Porters on contract
labour as permanent and regular Railway Parcel Porters, the persons who
have worked for longer period as contract labour shall be preferred to those
who have put in shorter period of work. (859-C]
D
1.7. While absorbing Railway Parcel Porters as regular employees their
inter se seniority shall be determined department/job-wise on the basis of their
continuous employment. (859-El

1.8. After absorption, the contract labourers will be governed exclusively
E by the terms and conditions prescribed by the Railway Administration for its
own employees irrespective of any existing contract or agreement between
the respondent and the contractors. No claim shall be made by the contractors
against the Railway Administration for premature termination of their
contracts in respect of the contract labourers absorbed permanently. [859-F)

F 1.9. The Railway Administration shall be at liberty to retrench the
workmen so absorbed in accordance with law. This order shall not be pleaded
as a bar to such retrenchment. This judgment does not relate to the persons
who have already been absorbed. (859-G, HJ

National Federation of Railway Porters, Vendors and Bearers v. Union
G of India and Ors., (1995) Supp 3 SCC 152; R.K. Panda and Ors. v. Steel
Authority of India and Ors., JT (1994) 4 SC 151 and Gujarat Electricity "
Board, Thermal Power Station, Ukai v. Hind Mazdoor Sabha and Ors., AIR
(1995) SC 1893, referred to.

CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 433of1998.
H
A.I. RAILWAYPARCEL&GOODSPORTERSUNIONv. U.0.1. [LAKSHMANAN,J.] 845
Under Article 32 of the Constitution of India. A
WITH

W.P. (C) Nos 457/98, 278/99, 530, 599/2000, 45/2001, 12112000, 262/2002,
19/2003, and C.A.No. 57/2001, 6608 of2003.
B
Raju Ramchandran, Additional Solictior General, P.P. Malhotra, Dinesh
Kumar Garg, Ms. Ritu Puri, Rohit, Ashok Sharma, R.D. Upadhyay, Imtiaz
Ahmed, Ms. Nagma lmtiaz, Ranbir Yadav, V.N. Raghupathy, Dr. Sumant
Bharadwaj, Ms. Mridula Ray Bhardwaj, Ms. Indra Sawhney, Amit Mahajan,
Ms. Smita Inna, Ms. Anjani Aiyangari, Ms. Anil Katiyar, Ms. Sushma Suri,
Mr. D.S. Mahara, Mrs. Suman Bala Rastogi, R.C. Kaushik, S.K. Bhattacharya, C
B.M. Goswami and Ms. Sarla Chandra for the appearing parties.

The Judgment of the Court was delivered by

Dr. AR. LAKSHMANAN, J. Leave granted in Special Leave Petition No.
6560 of200l. D
This group of writ petitions and appeals raise common questions of law
relating to the abolition of contract system of labour. Writ Petition No. 433
of 1998 was filed by the All India Railway Parcel and Goods Porters Union
praying for the following reliefs:
E
"(a) Issue appropriate writ in the nature of mandamus or any other
writ, direction or order commanding the respondents to treat the
petitioners who are working as Parcel Porters as permanent
employees of the Northern Railway as has been directed by this
Hon' ble Court in various petitions filed by the colleagues of the
petitioners and a further direction may be given to abolish contract F
,system in parcel handling work at different Railway Stations in
Northern Railway and all the Parcel Porters working at different
Railway Stations of Northern Railway may be treated as regular
employees of the Railways;

(b) Issue an appropriate writ, direction or order commanding the G
respondents to treat the petitioners as employees of Northern
Railway and give them the same benefits which have been given
to other parcel porters working at different Railway Stations of
Northern Railway as regular employees ofN01thern Railway;

(c) Issue an appropriate writ, direction or order commanding the H
846 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A respondents to stop treating the petitioners as contract labour at
Railway Stations of Northern Railway for loading and unloading
of parcels as this work done by the petitioners is of permanent
and perennial nature."

Similar prayers have been asked for by the petitioners union in other
B writ petitions. Civil Appeal No. 57 of 200 I was filed by the Union of India and
Others questioning the correctness of the final judgment and order dated
07 .07 .2000 passed by the High Court of Delhi in Writ Petition No.5595 of 1998.
In the said case, the Central Administrative Tribunal allowed the claim of the
respondents therein by following the judgment of this Court in National
Federation of Railway Porters, Vendors and Bearers v. Union of India and
C Ors.. reported in [1995] Supp 3 SCC 152. Since the issue raised in the said writ
petition before the Delhi High Court is pending consideration of this Court
in Writ Petition No. 433of1998 wherein this Court on 08.09.2000, passed the
following interim order.

"Pending disposal of these petitions, there shall be no regularization
D
of parcel porters working at different railway stations notwithstanding
any order of any Court, Tribunal or other authorities. Call after six
weeks."

Since the High Court dismissed the writ petition filed by the Union of
E India holding that there is no legal infirmity in the order of the Tribunal, the
Union of India has preferred the above civil appeal.

Appeal @ Special Leave Petition No. 6560 of 2001 was filed by one
Radhey Shyam and Others against the Union of India and Others questioning .
the correctness of the judgment and order dated 10.11.2000 passed by the
F High Court of Judicature at Allahabad in Writ Petition No.1760 of2000 dismissing
the writ petition and affirming the order passed by the Central Administrative
Tribunal.

For the sake of convenience, we will first deal with the facts in Writ
Petition No. 433 of 1998 and the questions of law as they arise therefrom. The
G petitioners in this writ petition is the Union. The writ petition was filed
seeking the same relief which has been granted by this Court to the colleagues
of the petitioners similarly situated and working as Parcel Porters in Northern
Railways at different railway stations for the last 10-30 years onwards
continuously. However, they have not been treated as the permanent
H employees of the Railway so far, though they are discharging the duties of
A.I. RAILWAY PARCEL& GOODS PORTERS UNION v. U.0.1. [LAKSHMANAN,J.] 847
pennanent and perennial nature. A list containing the names of Parcel Porters A
who have been engaged by the Northern Railways as contract labour at
different railway stations along with their service details was also filed and
marked as Annexure-A.

Mr. Dinesh Kumar Garg, learned counsel appearing for the writ
petitioners, submitted that this Court in the case of National Federation of B
Railway Porters, Vendors and Bearers, (supra) (vide its judgment and order
dated 09.05.1995) gave directions to absorb all Parcel Porters as permanent
employees of the Railway. He also invited our attention to the judgment and
order dated 15.04.1991 in Writ Petition No. 277 of 1988 in which this Court
while directing to abolish the Contract Labour system in Parcel work on C
different Railways, directed the Government of India to treat 166 Parcel Porters
working at Charbagh Railway Station at Lucknow of Northern Railway to treat
them as pennanent employees of Northern Railway (Annexure-B). It is further
submitted that subsequently this Court in Writ Petition Nos. 568 and 711 of
1995 vide judgm~nt and order dated 08.07.1996 again directed the Railways
i •

to absorb parcel porters as pennanent employees of the railway according to D
their seniority (Annexure-D). Learned counsel has also invited our attention
to the order dated 19.09.1997 passed by this Court in Writ Petition No. 90 of
1997 directing the Assistant Commissioner (Labour), Central Government to
conduct an enquiry as to whether the Parcel Porters in the aforesaid writ
petition had been discharging the work of pennanent and perennial nature E
and if so the period for which they have been engaged. The learned counsel
also drew our attention to various similar orders passed by this Court directing
the Labour Commissioner to conduct an enquiry regarding the working of the
Parcel Porters.

Pursuant to the directions given by this Court in the instant case on p
30.11.1992, the Assistant Labour Commissioner (Central) Lucknow conducted
an elaborate enquiry and submitted a detailed report in which he had recorded
the findings that the work of parcel handling Northern Railway is permanent
and perennial in nature and sufficient to keep all the Parcel Porters engaged
continuously, and the requirements of Section I 0 of the Contract Labour
(Regulation and Abolition) Act, 1970 had been satisfied and the petitioner G
parcel porters were working continuously for long years without any break 0
in service.

According to the learned counsel, in spite of the directions given by
this Court for the abolition of the Contract System in parcel handling work H
848 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A and in spite of various orders passed by this Court and of the commitment
made by the Northern Railway, the contract system in parcel handling work
is neither been abolished nor the parcel porters working in different railway
stations have been treated as permanent employees of the railway, though
these parcel porters had been working for the last 10-30 years continuously.
He would further submit that though the contractors are changed from time
B to time, the petitioners have been working· continuously as Parcel Porters
under the direct control of Railways which is the principal employer, therefore,
he submitted that the petitioners should be given the relief which has been
granted by this Court to their colleagues by absorbing them as permanent
employees and also to issue a further direction to abolish contract system in
C parcel handling work at different railway stations in Northern Railway The
learned counsel has also invited our attention to para 12 of the writ petition
as to how the petitioners are discharging the work of permanent and perennial
nature and as to how it is very essential for the railways to continue its
activities as narrated in para 12 (a)-(k). It is also submitted that the conduct
and duties of the petitioners are being controlled by the Railway Authorities
D and if the Authorities are displeased with any of the Parcel Porters, they are
empowered to punish such parcel porters and tum them out of the railway
station and do not issue entrance passes as well as badges to such parcel
porters. It is also contented that since the petitioners have to discharge their
loading and unloading and shifting duties under the strict supervision of the
E Railway Authorities, they cannot be treated as contract labourers.

Counter affidavit was filed on behalf of respondent Nos. 1-7 contending
that this Court has ordered for regularization of the required number of
I
persons to the extent of perennial number of posts ascertained after ;
•
conducting work study and not all the petitioners as stated in the annexures.
F It is further submitted that most of the petitioners of the petitions mentioned
have already been regularized against the perennial posts and on the basis
of work study report in case any additional post is found as perennial and
permanent in nature, the senior-most person(s) will be regularized after
completing all other formalities as per the Railway rules. It is also stated in
the counter that it is not possible to stop the contract labour system of
G handling work and that the nature of job which is not perennial and permanent
will have to be completed by engaging contract labourers and for the work
which has been casual in nature are not permanent in nature it is not possible
to engage permanent parcel porters. It is further stated that parcel handling
works are awarded to the labour cooperative societies which supply the
H labour as per the requirement of the Railways on a day to day basis depending
A.I. RAILWAYPARCEL&GOODS PORTERS UNION v. U.0.1. [LAKSHMANAN,J.] 849

upon the volume of the work to be handled on a particular day, and the A
payment is made to the cooperative societies and not to the individual
labourers on the basis of the total weight handled.

Another counter affidavit was filed on behalf of respondent Nos. 1, 3
and 8 stating that the muster rolls of the cooperative societies have no
sanctity and cannot be taken to show the names of the labour who have been B
genuinely working and the length of time for which they have been
continuously working.

An additional affidavit was filed by respondent Nos. 1-7 through their
Deputy Chief Marketing Manager, Northern Railway stating that the Railways C
do not have the records of the porters who have been working with the
contractors, and in the absence of any documentary proof, they were not in
a position to either accept or deny the claims of the petitioners. A rejoinder
affidavit was filed by the petitioners' union denying the averments contained
in the counter affidavit.
D
The Eastern Railway Administration filed an additional affidavit on its
behalf.

Mr. Raju Ramachandran, learned Additional Solicitor General, took us
through the statements and averments contained in various affidavits filed by
the Railways and submitted that the Railways is not just a commercial concern, E
but also a public utility concern which carries several essential commodities
at a very concessional freights and also gives a lot of concessions in passenger
traffic to innumerable categories of persons. This being so, if such economically
non-viable acts like regularization of the petitioners is forced upon the railways,
public utility and passenger amenity items are bound to suffer. He would
further submit that the work performed by the contract labour is of fluctuating F
nature and the amount of work depends upon the parcels received in a
particular day and that no Jabour is required as the loading and unloading is
done by the party itself and in view of the fluctuations and irregular and
seasonal type of work, keeping permanent cadre for doing this parcel handling
work is not possible. He would further urge that the Railways are facing a G
financial crisis due to decreasing budgetary support and increasing cost of
production and purchase of various items and the Railway Administration is
itself contemplating measures for downsizing its present cadre, minimizing the
staff cost and operating ratio. This being the case, it will not be feasible for
the railway administration to absorb the petitioners in regular service.
Moreover, if the present petitioners unreasonable prayers are acceded to by H
850 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A this Court, it would lead to several such requests for regularization from many
quarters even though the applicants may be working elsewhere and may not
have '1ridergone the well laid down procedures for recruitment and may not
be fulfilling the eligibility criteria for appointment for the post or may not be
adequately trained. It is thus submitted that in view of the huge number of
petitioners, lack of any documentary proof of their having worked continuously,
B and the meagre parcel handling earnings, their regularization by the Railways
is financially not viable. It is further submitted that due to the government
policy of downsizing the staff cadre, the Railways is coming up with many
schemes of awarding contracts to private parties by leasing of SLRs and
BOLT schemes etc. to implement the Fifth Pay Commission recommendations.
C Thus, the absorption of such a huge work force of Class IV employees
without adequate amount of work will result in a financial crunch. The learned
Additional Solicitor General drew our attention to the additional affidavit of
Respondent Nos. 1-7 and the statements made thereunder, to the effect that
as a result of the present loading/unloading operations being totally
· uneconomical, a Joss of approximately 900 crores is being incurred by the
D Railways and, therefore, there is no option but to rationalize the entire operation
with regard to the parcel handling business. The learned Additional Solicitor
General would further contend that in order to improve services, the Railways
introduced the concept of leasing the space in the luggage compartment of
the front luggage coach of some of the passengers carrying trains in November,
E 1991. However, a comprehensive policy was introduced in the year 1999 in
order to attract parcel traffic through the leasing route and as per the master
circular issued on 16.11.1999; SLR space in the front SLR was permitted for
leasing for all types of trains and SLR space in over 200 trains is being leased
out to provide operators, where the loading and unloading is also done by
them. The process of leasing was taken one step further with the launch of
F the Parcel Express trains known as "Millennium• Parcel Express" trains in
March, 2001, which envisages running of high speed "time-tabled" parcel
trains leased to cargo consolidators on the basis of open tenders and two
such weekly trains are already being operated and more are likely to be
introduced in future. It is further submitted that the steps taken by the Indian
G Railways to encourage handling of parcel by private parties through leasing
of the space in SLRs, VPs and parcel trains has helped in increasing the
railway earnings and as a result thereof, the earning from parcel traffic has
increased from 294.24 crores in 1998 to Rs. 433.46 crores in 2001-02 which
according to the learned Additional Solicitor General is proof of the fact that
the senders and receivers of parcel prefer handling through their own agency.
H
A.I. RAILWAYPARCEL&GOODSPORTERSUNIONv. U.0.1.[LAKSHMANAN,J.) 851

With a view to make the parcel services vibrant business along with A
better service to its customers, the Government has accepted the
recommendation of the Parliamentary Standing Committee on Railways, as
contained in their 9th Report (2001) presented in Lok Sabha in April, 2001 to
segregate parcel services from passenger services. He would further state that
the Government oflndia's plan of"rightsizing" the workforce has been acted
upon by the Railways. Rightsizing automatically involves rationalizing the B
operations, coming down to redundant areas and outsourcing of "non-core"
areas. As loading/unloading of parcels is a non-core activity, the parcel
leasing schemes vest the leaseholder with the responsibility of handling the
parcel traffic.

Learned Additional SoliCitor General further submitted that apart from
c
the losses in parcel business that the Railways are sustaining, they have also
to face the mounting wage bill of the employees. The average annual wage
bill of a Railway employee during 2000-0 l was Rs. l ,21,281/-. As against this
overall average for all staff, the annual wage bill of a group D employee was
as high as Rs. 84,576/-. The wage bill has been increasing over the years and D
the average wage bill of group D employee has increased from Rs. 37,344/-
in 1994-95 to Rs. 84,576/- in 2000-0 l. The current wage bill can be estimated
to be nearly around Rs. l lakh per group D staff. Thus, with a workforce of
over 9000 departmental parcel porters, the annual wage bill on this account
is over Rs. 90 crore. Thus, though the average number of group D staff has
reduced from Rs. 5.06 lakh in 1994-95 to Rs. 4.62 lakh in 2000-01, there is a E
continuous and heavy increase in the wage bill of the Indian Railways, which
is difficult to bear.

It is also submitted in the instant batch of cases, the number of petiti,mers
are again more than 1500. If the judgment of this Court is in favour of the F
petitioners, there will be spate of litigation with many more parcel porters and
other similarly placed workers approaching this Court for similar relief. The
financial implication for the Indian Railways in regularization of the petitioners
would be Rs. I crore for every I 00 such private parcel porters.

Concluding his argument, the learned Additional Solicitor General G
submitted even for the parcel traffic handled departmentally by the Railways
by Mail/Express and Passenger trains, the loading/unloading work is of a
sporadic and intermittent nature. Even this work is confined only to the time
when the various trains originate/terminate/stop at the stations for short
duration. Thus, whichever worker is engaged by the contractor, will generally H
852 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A be available on the Railway premises for the purpose of loading/unloading
only on the day and at the time of arrival/departure of various trains and that
the work of loading/unloading is neither regular nor continuous in nature and,
therefore, does not require engagement of regular workers. Concluding his
argument, the learned Additional Solicitor General submitted that as the
railways are sustaining an annual loss of Rs. 900 crores and also have to face
B the mounting wage bill, they have no option but to rationalize the parcel
business by leasing out to private cargo operators and will not be in a
position to absorb the contract labourers engaged in parcel handling. Our
attention was also drawn to the various circulars issued by the Government
oflndia, Ministry of Railways marked as Exhibit-RI, R2 and R3.
c The petitioners have not filed any reply or rejoinder to the additional
affidavit of respondent Nos. 1-7 filed on 16.01.03.

Learned counsel for the other writ petitioners have adopted the
arguments advanced by learned counsel for the writ petitioner Mr. Dinesh
D Kumar Garg.

Learned counsel for the writ petitioners drew our attention to the order
passed by this Court on 14.07.1999 in Writ Petition No. 433 of 1998 which
reads thus:

E "The Assistant Labour Commissioner (Central), Lucknow to whom
copies of all the previous orders passed in the case, shall be sent,
shall conduct an inquiry as to whether the petitioners were working
continuously and whether the job which they perform is of a perennial
nature. The inquiry may be completed within three months from the
date of receipt of this order and a report submitted to this Court."
F
He also invited our attention to the report of the .Assistant Labour
Commissioner (Central) Lucknow dated 18.01.2000 containing 85 pages. We
have perused the same. The Assistant Labour Commissioner framed two
issues for enquiry which are as follows:-

G 1. Whether the petitioners were working continuously and

2. Whether the job which they perform is of a perennial nature.

According to the Labour Commissioner, the railways have not produced any
records pertaining to the period of working of the parcel porters as no records
H of the petitioners are maintained at the stations or any other railway office.
A.I. RAILWAY PARCEL&GOODS PORTERS UNIONv. U.0.1. [LAKSHMANAN,J.] 853
Railways have also contended that they have no knowledge as to which of A
the petitioners were engaged by the contractors and from what date. It is
further stated in the report that only six contractors appeared and dozens of
them did not even respond to his notice he had sent to them on their
addresses which were supplied to him by the petitioners and the railways. A
number of registered letters were returned undelivered with the postal
department's remarks that either the contractors refused to accept the letters B
or they were not available at those addresses. The contractors who appeared
before the Labour Commissioner did not also produce any records. Under
such circumstances, he heard the individual petitioners who appeared before
him and recorded their statements. The Labour Commissioner has stated that
in fact the contractor is suppressing the records to conceal the fact of the C
petitioners working and, therefore, he accepted the employment cards/service
certificates submitted by the petitioners as proof of their working for the
.· period claimed by them. The findings on issue Nos. 1 and 2 rendered by the
Labour Commissioner runs thus:-"

Issue No.I: D
The Railways and the contractors have verified the period of
working of the petitioner parcel porters in some cases. The period of
such verification is very short in many cases, the reason being that
the contractors have· changed very frequently and the records that
might be in possession of earlier contractors could not be obtained. E
The Railway and the contractors have not produced -the records of
working of the parcel porters who have claimed to have worked prior
to the period as verified by the contractors and the Railway. It appears
unjust that the petitioners' interests should be harmed due to ron-
production of records.
F
Despite several notices havfog been issued to the concerned
respondent Railways and the contractors that in the event of failure
on their part to produce records the claim of the petitioners wouid be
accepted, till 14.1.2000 on which date I finalised this report none of
them produced records for the past period to admit or deny the claim G
of petitioners. I am left with no other option than to conclude that
they must have worked.

(a) The list of petitioners whose period of working has been verified
is enclosed as Annexure "A" to this report.

(b) The list of petitioners who have claimed to have worked but H
854 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A whose working period could not be verified due to non-production
of records by the Railway and the contractors is enclosed as
Annexure "B" to this report.

Issue No. 2

B I have reached to the conclusion that the work of parcel handling/
loading/un-loading is an activity that is not separate and detatched
from the complex parcel handling job being done by Railways. Parcel
handling is an integral part of the whole system and it has been going
on for ages round the clock during day and night for all the 365 days
in a year without the break of a single day. In fact the job of parcel
C handling which is being performed by the petitioners is the foundation
on which the gigantic structure of parcel department stands. If the
parcel handling work is stopped then the whole work of parcel
transportation will come to stand still and all the regular staff and
officers whose number is very large will become idle.

D The parcel handling work being performed by the petitioners is of
a perennial nature.

Submitted."

The Railways filed opposition to the report of the Labour Commissioner.
E It is stated_ therein that the railways came to know about the report only
through the Central Agency Section on 08.05.2000and more surprisingly, the
report dated 18.01.2000 appears to have been submitted before this Court in
the same week itself but neither the answering respondent nor the railways
was afforded any opportunity to either lead evidence or cross-examine the
F witnesses appeared on behalf of the respondents. According to the railways,
from a bare reading of the report it will be clear that the report is not based
on any documentary evidence and that the objections raised by the Railway
Authorities have either been not entertained and incorporated in the report
or have been dealt in most unfair manner and that the Labour Commissioner
has not taken pain to summon the contract9rs along with the relevant records
G though complete addresses of such contractors were supplied by the Railway
Administration. It is, therefore, submitted that in the absence of the documents
regarding the particulars of the services rendered by the Porters, the Railway
Administration was obviously not in a position either to admit or deny the
claim of the petitioner. It is also stated in the opposition that since the
H contract labour is abolished w.e.f. 30.10.1995 there is no question of any other
A.I. RAILWAY PARCEL& GOODS PORTERS UNION v. U.0.1. [LAKSHMANAN, J.] 855
labourers left to be regularized and, therefore, the Assistant Labour A
Commissioner should be directed to permit the Railway Administration to
verify the contents of the documents submitted by the petitioners and ex-
contractors by cross-examination; compel all the ex-contractors to be present
at the hearing and submit a fresh report based on the documents actually
presented before him.
B
Per contra, learned counsel for the petitioners submitted that the Labour
Commissioner gave repeated adjournments to enable th" Ra:lways for finalizing
objections or to cross-examine the petitioners and contractors under whom
the petitioners have been discharging their duties at different railway stations.
However, the officials refused to cross-examine the petitioners or the contractors C
and, therefore, the Labour Commissioner on the basis of the record available
on the file of the Assistant Labour Commissioner as well as with the officials
of the Railways have submitted his report. Thus, it is submitted that the
· objections regarding the report of the Labour Commissioner lfad been raised
for no reason or basis.
D
Itis seen from the report of the Labour Commissioner that the contractors
have refused to produce the records and cooperate with the Labour
Commissioner at the enquiry. Likewise, Railways also complained that the
Labour Commissioner has not afforded them sufficient opportunity to verify
the veracity of the ~ocuments as well as the period for which the petitioners
have already worked as parcel porters. Therefore, the report of the Assistant E
Labour Commissioner cannot be taken as a full and complete report as to
whether the petitioners were working continuously and whether the job they
perform is of perennial nature.

As per the established principle of law, the petitioners in order to F
succeed will have to substantiate their claim. Non-production of evidence in
opposition will not support the claim of the petitioners even by legal fiction.
The Assistant Labour Commissioner, in our opinion, has failed to appreciate
this proposition of law while recommending the claim of the petitioners.

The burden of proving the claim of continuous working rests on the G
claimants for which they are required to furnish concrete proof and reliable
documents. We are, therefore, of the view that an opportunity to cross-
examine the petitioners and to peruse the records produced by the petitioners
should be afforded to the railways. As already noticed, the contractors did
not produce the original records and the railways had no opportunity to
cross-examine the contractors also. The contractors are, therefore, be directed H
856 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A to appear before the Labour Commissioner and to produce the records for the
relevant period in question and the claim of the petitioners can again be
verified and regularize the services of the members of the petitioners
association as employees of the Railway Administration. We, therefore, direct
the Labour Commissioner to again afford an opportunity to the Railway
Administration and the contractors and the petitioners and verify the
B authenticity and genuineness of the claim made by the petitioners with
reference to the records that may be produced by the Railway Administration
and the contractors and submit a report to the Railways within six months
from the date of receipt of this judgment which, in our opinion, would resolve
the disputed claim of the petitioners and the railways and on the basis of the
C report submitted, the railway administration shall consider the claim of the
individual petitioners subject to the terms and conditions to be stated infra
in this judgment.

Along with the writ petition, number of orders passed by this Court on
few earlier occasions have also been filed as Annexures. Annexure-B is one
,D such order in Writ Petition No. 277 of 1998 filed by one Raghavendra
Gaumastha, under Article 32 of the Constitution. The petitioners claimed relief
for issue of writ of mandamus directing the Railway Administration to regularize
the petitioners services and to pay them the same salary which is paid to
others carrying •out the similar duties and functions. This Court, by order
E dated 04.10.1989, referred the matter to the Labour Commissioner to decide the
question whether the petitioners are contract labourers or they are the
employees of Railways and also the question as to whether they have been
working as labourers for a number of years. This Court, after extracting the
report of the LabOllr Commissioner, directed the railway administration to tre~t
the petitioners as regular parcel porters and to grant them the same salary
F which is being paid to regular parcel porters in view of the fact that most of
the petitioners have been working since 1972 and some of them since 1980
and few of them in 1985.
..
.

The order passed by this Court dated 15.04.1991 in writ petition No. 277
of 1998 was followed by this Court in the case of National Federation of
G Railway Porters, Vendors and Bearers, (supra). This Court, taking into
consideration the nature of the prayer in the writ petition, made an order
directing the Labour Commissioner to enquire and submit a report and after
perusal of the said report issued certain guidelines and directions to the
Union of India and the Railway Administration in regard to the absorption of
H the railway parcel porters on permanent basis.
A.I. RAILWAY PARCEL& GOODS PORTERS UNION"· U.0.1. [LAKSHMANAN, J.] 857
Again this Court by order dated 08.07.1996 in Writ Petition No.568 and A
711 of 1995 filed by National Federation of Railway Porters Union have issued
directions for regularization of their services as mentioned in the order if the
petitioners are found to be eligible.
/

Yet another order can also be profitably looked into in this context
which has been passed by this Court in Writ Petition No. 90 of 1997 dated B
19.09.1997 in which this Court directed the Assistant Labour Commissioner,
Calcutta to conduct an enquiry into the allegations whether the petitioners
who were working as parcel porters at various railway stations had been
working continuously at the concerned railway stations and the work is of
a perennial nature and requirements of Section IO of the Contract Labour C
(Regulation and Abolition) Act, 1970 have been satisfied. Similar direction
was issued by this Court on 27.04.1998 in Writ Petition No. 176of1995.

The learned counsel for the petitioners placed strong reliance on the
judgment of this Court in National Federation of Railway Porters, Vendors
and Bearers, (supra) and the directions given by this Court in absorbing the D
labourers under certain conditions. This Court in R.K. Panda and Ors, v. Steel
Authority of India and Ors., reported in JT (1994) 4 SC 151 issued directions
that all labourers who had been initially engaged through contractors but
have been continuously working with the respondent for the last 10 years on
different jobs assigned to them in respect of the replacement and change of
the contractors shall be absorbed by the respondent as regular employees E
subject to being found medically fit and if they are below 58 years of age
being age of superannuation. The Court also gave further directions for fixing
inter se seniority, absorption of wages and terms and conditions of service.
The Court also directed that the respondent shall be at liberty to retrench the
workmen so absorbed in accordance with law.
F
In Gujarat Electricity Board, Thermal Power Station, Ukai v. Hind
Mazdoor Sabha and Ors., AIR (1995) SC 1893, this Court held that where the
contract labour system is abolished the industrial adjudicator can, depending
upon the facts of the case, direct the pr.incipal employer to absorb all or any
of the workmen of the ex-contractor and on such terms as he may determine. G
This Court after pointing out the vital lacuna in the Act, namely, no provision
as to the fate of workman of ex-contractor after the abolition of contract
labour system however issued guidelines for such absorption that the workmen
of the ex-contractor, if found suitable can be absorbed by the principal
employer after the contract system is abolished. This Court has laid down
H
858 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A guidelines for the same in the said judgment.
We have carefully examined the report of the Assistant Labour
Commissioner, the findings recorded therein and the counter affidavits, reply
affidavits and rejoinder filed by the respective parties. The facts disclosed in
the report and the findings recorded in regard to the perennial nature of work
B cannot be overruled. Though we have heard at length both the parties, the
learned Additional Solicitor General appearing for the Railway Administration
was not able to point out to us any valid reason as to why the present writ
petitions should not be allowed in terms of the order dated 15.04.199 J made
by this Court in similar Writ Petition No. 277 of 1988 particularly when in the
C matter of absorption of contract labour by a public undertaking on a pennanent
regular basis. We feel, therefore, it is just and appropriate to isf.ue the
following directions to the respondent Union of India and the Railway

Administration Units:

I. The Assistant Labour Commissioner, Lucknow is directed to
D again scrutinize all the records already placed by the _petitioners
and also the records to be placed by the respective contractors
and the railway administration and discuss and deliberate with all
r•
parties and ultimately arrive at a conclusion in regard to the
genuineness and authenticity of each and every claimant for
E regularization. This exercise shall be done within six months from
the date of receipt of this judgment.

2 Subject to the outcome of the fresh enquiry and the report to be
submitted by the Assistant Labour Commissioner, the Railway
Administration should absorb them permanently and regularize
F their services. The persons to be so appointed being limited to
the quantum of work which may become available to them on a
perennial basis. The employees so appointed on permanent basis ...,
shall be entitled to get from the dates of their absorption, the
minimum scale of pay or wages and other service benefits which
the regularly appointed railway parcel porters are already getting.
G
"'
-'· The Units of Railway Administration may absorb on permanent
basis only such of those Railway Parcel Porters (petitioners in
this batch) working in the respective railway stations concerned
on contract labour who have not completed the age of
superannuation.
H
A.l.RAILWAYPARCEL&GOODSPORTERSUNIONv.U.0.1.[LAKSHMANAN,J.] 859
4. The Units of Railway Administration are not required to absorb A
on permanent basis such of the contract labour Railway Parcel
Porters who are not found medically fit/unsuitable for such
employment.
_,.,
5. The absorption of the eligible petitioners in the writ petitions on
a regular and permanent basis by the Railway Administration as B
Railway Parcel Porters does not disable the Railway Administration
,J
from utilizing their services for any other manual work of the
Railways depending upon its needs.
6. In the matter of absorption of Railway Parcel Porters on contract
labour as permanent and regular Railway Parcel Porters, the c
persons who have worked for longer periods as contract labour
shall be preferred to those who have put in shorter period of
work.
7. The report to be submitted by the Assistant Labour Commissioner
should be made the basis in deciding the period of contract D
labour work done by them in the railway stations. The report
shall be finalized and submitted after discussions and deliberations
with the railway administration and the contractors and all the
representatives of the writ petitioners or writ !Jetitioners
themselves.
E
8. While absorbing them as regular employees their inter se seniority
shall be determined department/job-wise on the basis of their
continuous employment.
9. After absorption, the contract labourers will be governed
exclusively by the terms and conditions prescribed by the railway F
administration for its own employees irrespective of any existing
contract or agreement between the respondent and the contractors.
No claim shall be made by the contractors against the railway
" administration for premature termination of their contracts in
respect of the contract labourers.
G
IO. The railway administration shall be at liberty to retrench the
... workmen so absorbed in accordance with law. This order shall
not be pleaded as a bar to such retrenchment.
11. This judgment does not relate to the persons who have already
been absorbed. H
860 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A Several I.As were filed to modify the order dated 08.09.2000 passed by
this Court in Writ Petition No. 433of1998 and 457of1998. Few I.As were
filed seeking certain prayers pending writ petition. Few I.As were. filed to
implead the proposed parties as parties to the writ petition. Some I.As were
filed for intervention.

B In view of the disposal of the main matters, no separate direction is
necessary in these I.As.

In the result, the writ petitions and the civil appeal~ including the I.As
filed in different writ petitions shall stand disposed of accordingly.

C However, there will be no order as to costs.

S.K.S. Petitions/Appeals disposed of.

r