S.B.MAJMUDAR - (1.) LEAVE granted in both the Special LEAVE Petitions.
(2.) WITH the consent of learned Advocates appearing for the contesting parties these appeals were taken up for final hearing and after hearing them they are being disposed of by this judgment. The appellants in these appeals represent 332 workmen who claim to be treated as regular workmen entitled to be covered by the Paradeep Port Clearing, Forwarding and Handling Workers (Regulation of Employment) Scheme, 1994 (hereinafter referred to as 'CFH Scheme'). It is their contention that they are so entitled pursuant to the recommendations of a High Power Committee called Khanna Committee appointed by this Court by its judgment in Paradeep Port Trust v. Paradeep Port and Dock Mazdoor Union in Civil Appeal No. 1422 of 1990 reported in AIR 1990 SC 1125 and the subsequent order of this Court approving the said report by its decision dated 31/01/1995 in Special Leave Petition (Civil) No. 13490 of 1994. 170 of these appellants have felt aggrieved by the judgment and order of the High Court of Orissa at Cuttack in OJC No. 12149 of 1996 and the remaining appellants out of the said 332 agitating workmen who are petitioners in S.L.P. (C) Nos. 14312 of 1997 out of which the companion appeal arises have felt aggrieved by the common decision of the same High Court disposing of number of writ petitioners including OJC No. 3308 of 1995 whereby the said appellants' Intervention Application was disposed of. In order to appreciate the grievance of the appellants which is common to both these groups of appellants it will be necessary to note a few facts leading to those proceedings. Background Facts
(3.) PARADEEP Port Trust is situated in the State of Orissa. It is governed by the Major Port Trust Act, 1963 (hereinafter referred to as 'the Act'). As per Section 42 of the said Act a duty is cast on the major port governed by the Act to undertake and perform services mentioned therein. In the exercise of powers conferred by Section 42 of the Act the Board of Trustees of PARADEEP Port which is duly constituted under Section 3 of the Act framed a scheme in connection with the handling of cargoes at the said port. The said scheme was styled as the PARADEEP Port Cargo Handling Scheme of 1979. As per Clause 2 of the said Scheme Pradeep Port Trust had to undertake the supply of cargo handling workers to the licensed stevedores and to the trade for all operations on the Board of vessels and for bagging, stitching and sealing operations on berth respectively. Clause 18 of the said Scheme prescribed composition of gangs of workers to be entrusted with the said task. Sub-clause (iii) of the said Clause related to stevedoring gang and sub-clause (iv) related to shore gang. The said 1979 Scheme came into force with effect from January 1980. Under the said Scheme two lists of workmen were prepared - (1) Main List and (2) Subsidiary/Standby List. Under the said Scheme of 1979 the PARADEEP Port directly undertook the following services to facilitate the movement of cargo, outward and inward, at the said port. The said services comprised of the following categories : (a) Handling of all cargoes on shore (including Cargo in bulk) in the course of landing or shipment; (b) Intraport transportation; and (c) Any other operations, directly connected with landing and shipment of Cargo but not including bagging, stitching and sealing. The categories of Cargo Handling workers to whom the said 1979 Scheme applies are mentioned in Schedule II to the Scheme as under : (a) Winchman (b) Signalman (c) Gang Leader (d) Mazdoor (e) Tally Clerk (f) Supervisor (g) Deck Foreman. It appears that some dispute arose amongst the dock workers in connection with the right to be employed for carrying out all the aforesaid services at the PARADEEP Port. Different trade unions of workmen raised diverse claims which ultimately came to be considered by this Court in an appeal against the decision of the High Court of Orissa in OJC No. 2539 of 1985. In the decision rendered by this Court in Civil Appeal No. 1422 of 1990 (reported in AIR 1990 SC 1125 (supra) this Court observed that the benefit of decasualisation of the workers should be in conformity with the PARADEEP Cargo Handling (Regulation of Employment) Scheme, 1979. In order to work out the said benefit in an appropriate manner this Court in the aforesaid decision appointed a High Power Committee under the chairmanship of a retired Judge of this Court Justice H. R. Khanna who was to be associated with two experts in the field. Justice Khanna Committee after due deliberation spread over couple of years submitted its report, now known as Khanna Committee Report or High Power Committee Report. The said High Power Committee though identified and noticed increased workload in respect of PARADEEP Port, did not recommend the cases of 332 workers who have been working in the Port for few years on the ground that they cannot be considered because they have not worked for sufficiently long period. The said High Power Committee fixed the criteria for enlisting appropriate number of workmen for the work of clearing, forwarding and handling of cargo at the PARADEEP Port. The said Report was submitted by the High Power Committee on 18/07/1993. As per the said Report PARADEEP Port Trust Management Committee, respondent No. 2 in these appeals framed another Scheme in 1994 called PARADEEP Port Clearing. Forwarding and Handling Workers (Regulation of Employment) Scheme 1994, which, as noted earlier, is known as CFH Scheme. Pursuant to the said Scheme apart from 1500 workers cleared by the High Power Committee by placing them in the main list, a provisional list of 437 standby workers was prepared by respondent No. 2. As the High Power Committee had not recommended the cases of 332 workmen, some of them are the appellants before us in these appeals, they came to this Court after having unsuccessfully approached the Orissa High Court. In their S.L.P. (C) No. 13490 of 1994 this Court on 31/01/1995 while disposing of their petition laid down as under : "The respondents will give preference in the vacancies that may be available with them, to the standby workers first. If there are more vacancy or vacancies which are not filled in by the standby workers, the respondents will go according to their record, and give preference to the other workmen found to have worked under them as per their record, including the petitioners and the members of the other Unions. The Job should be given strictly according to seniority. These proceedings stand closed." It, therefore, becomes obvious that this Court while upholding the High Power Committee Report and the CFH Scheme accordingly framed by respondent No. 2-authority in the light of the said Report clearly laid down that the available vacancies must first be filled in by standby workers and after exhausting their claim if any more vacancies were left then the respondent-authorities had to go according to their record and give preference to the other workmen found to have worked under them as per their record, including the 332 appellants before the Supreme Court and the jobs could be given strictly according to seniority. This Court directed that the proceedings should stand closed. Unfortunately the desire of this Court to bring down the curtain on this simmering controversy and dispute between the parties did not fructify, as will be seen presently. A spate of writ petitions came to be filed in the Orissa High Court after this Court's order dated 31/01/1995. The appellants in appeal arising out of S.L.P. (C) No. 9719 of 1997 filed OJC No. 12149 of 1996 before the High Court of Orissa. The prayer in that petition read as under : "Under the circumstances stated above, the petitioners most respectfully pray that this Hon'ble Court may be graciously pleased to issue a writ or writs in the nature of writ of mandamus directing the opp. parties to declare the present petitioners as listed 1994 Scheme workers : . . . . ." In short they contended before the High Court that even if the High Power Committee might not have given them any preference in the light of the decision of this Court in S.L.P. (C) No. 13490 of 1994 decided on 31/01/1995 they were entitled to be considered for regular listing as there were vacancies available after the claims of eligibile standby workers were considered and got exhausted. Their main grievance in the petition was that pursuant to the CFH Scheme most of the eligible stanby workmen kept sitting on the fence and as they were not inclined to put forward their claims for being listed as workmen under the said CFH Scheme and as they were all the while thinking that they were entitled to the benefit under the statutory scheme of 1979, they did not offer themselves for medical examination as required under the Scheme of 1994. Not only that but even after inclusion of 125 workmen in the standby list of 1994 Scheme, for the remaining vacancies respondent No. 2 gave number of notices and opportunity to the remaining standby workmen to put forward their claims under the Scheme for being listed as regular workmen and get themselves medically examined but they did not opt out for the same. Number of opportunities were given for the medical tests to these workmen. According to the appellants 14 such opportunities were given ranging from 23/03/1993 up to 20/05/1995, but they did not come forward for getting the benefit of the 1994 Scheme. The appellants submitted that the Union representing the standby list of workmen filed writ application being OJC No. 674 of 1996 praying therein to give one more chance to them for their medical examination as intention of the standby workers to join 1994 Scheme was not very clear, despite the High Court giving several chances to their Union to file individual affidavits of the standby workmen who wished to appear for medical test only four affidavits of standby listed workmen were filed and the rest did not do so. In the meantime according to the appellants respondent No. 2-authorities in the light of the increasing workload at the port had to fill up the vacancies which remained unfilled under the 1994 Scheme as sufficient number of standby workmen who were given priority by the High Power Committee Report did not come forward to fill up these vacancies. Respondent No. 2, therefore, undertook that exercise and pending the aforesaid OJC No. 674 of 1996 before the High Court passed a resolution after considering the seniority of 332 workmen 170 of whom are the appellants before us, and decided to appoint them on ad hoc basis as casual workmen awaiting the final result of the aforesaid OJC. The said OJC was disposed of by the Orissa High Court on 26/04/1996 in the following terms : "Since only four persons have filed affidavit standing by stand of Utkal Port and Dock workers union in spite of directions given by this Hon'ble Court that affidavits of all the persons whose cause is supposed to be espoused by the petitioner union, we do not entertain this application filed on behalf of the petitioner. The writ application is disposed of accordingly." The appellants, therefore, contend that at least 174 workmen who were found eligible to be offered ad hoc appointments as casual workmen after the disposal of the aforesaid writ petition of the Union of standby workmen are required to be considered to have been regularly appointed on the available 174 vacancies under the CFH Scheme as regularly listed workmen just below the 125 standby workmen who had already got the benefit of the said Scheme. The aforesaid contention of the 174 petitioners in OJC No. 12149 of 1996 was sought to be repelled by the other respondents who had filed diverse writ petitions in the High Court for getting the benefit of 1994 CFH Scheme. Amongst them were also some of the standby workmen who had not opted out for medical examination earlier but also individually filed writ petitions in the High Court for getting one more chance for being medically examined. The High Court by the impugned common judgment thought it fit to give one more chance to these standby workmen who had also been given appropriate priority in the Report of the High Power Committee and directed that after giving them one more chance for opting out for the said Scheme after undertaking the medical tests, they be considered for regular employment. It was then observed by the High Court in the penultimate paragraph of its common judgment to the following effect : ". . . . .The vacancies remaining after accommodating these writ petitioners may be made available for the interveners upon proper consideration." Having said so, in the last paragraph of the impugned judgment it was observed that all the aforesaid writ petitions were disposed of. Thus, not only the writ petitions filed by left-out standby workmen were allowed by giving them one more chance for getting themselves medically examined for obtaining eligibility for regular employment under the CFH Scheme, writ petition being OJC No. 12149 of 1996 filed by the appellants-174 workmen who were given ad hoc appointments by respondent No. 2 also got disposed of without any express consideration of their claim in the said writ petition. ;