PER TAPEN SEN, J. - (1.) IN this Writ Petition, the Petitioners, who are 5 (five) in number have prayed for the issuance of a writ of Mandamus commanding upon the Respondents to permanently absorb them as departmental employees of the Haldia Dock Complex together with all service benefits as all are admissible to Lift Operators. The Petitioners further pray for the issuance of a writ of Prohibition prohibiting the Respondents from treating the Petitioner as contract labourers under M/s. I.B. Ghosh Pvt Ltd., Engineers and Contractors, 3, C.R. Avenue, Kolkata - 700072 (Respondent No 7). They have also prayed for an ad interim order of injunction restraining the Respondents from interfering with their services till disposal of the Writ Petition.
(2.) THE Petitioners have stated that they are trained Lift Operators and all have the academic qualification of having passed Class -VIII. The Haldia Dock Complex has been built for handling various types of cargo and other merchandise navigated though the river Hooghly. The entire complex has been built by the Calcutta Port Trust for convenience of internal trade as will as for international trade and commerce. A number of high -rise buildings have been constructed to accommodate various offices of the Dock complex. There are altogether five lifts/escalators - one operating in the operation building at Chiranjibpur; two operating in the new annexe building of Jawahar Tower and two operating in the main building of Jawahar Tower of the said Dock complex. Over and above the said five lifts, there is another lift operating at the new annexe building of Jawahar Tower. The five lifts/escalators are manually operated for which, there are altogether, five liftmen. The lifts were installed by the aforesaid contractors (Respondent No. 7) and after installation, the lifts were handed over to the Haldia Dock complex authorities in or about the year 1987. The authorities of the Haldia Dock Complex did not appoint any liftmen for operating the lifts and instead, they awarded a contract to the Respondent No.7 for hiring five lift operators, initially on a monthly remuneration of Rs. 2200/ - per lift operator. The remuneration was enhanced from time to time as and when fresh contracts were awarded to the Respondent No.7. Although the contract was initially awarded for the period of six months in 1986, but the same was systematically extended as a matter of course till date - with enhanced remunerations. In support of such a contention, the Petitioners have relied upon Annexures A and B which are photocopies of Letters dated 19.2.1988 and 5.3.1990. Both the letters have been issued to the Respondent No. 7 and they are documents to show that the contracts were in relation to hiring of one lift operator. It is the further case of the Petitioner that pursuant to such contracts, the services of the Petitioners were taken on hire by the Respondent No. 7 for operating the lifts installed by it and at the behest of the Dock Complex Authorities. They have stated that the Petitioner No. 1 has been rendering services since 1986; the Petitioner No.2 -since 1997; the Petitioner No. 3 - since 1997; the Petitioner No. 4 -since 1997; and the Petitioner No. 5, since 4.4.2000. They have all been given free accommodation by the authorities of the Complex at the Anchorage Camp, Haldia Township, Midnapore on the request of the Respondent No.7. The Petitioners have relied upon a specimen copy of the daily attendance register (Annexure -C, Pages -28 -36) to say that their attendance is recorded on the said register which is not only provided by the Dock authorities, but also, counter -signed by them. They have also relied on a photocopy of a chart/statement (Annexure -D) to say that even extra duty hours performed by each operator are duly authenticated and counter -signed by an Officer of Dock Complex. It is the further case of the Petitioners that they are paid monthly remuneration including overtime allowances on the basis of attendance registers and the chart/statement of extra duty hours against vouchers which are signed individually by the Petitioners as a token of acceptance of their monthly remunerations. They have also stated that the Respondent No. 7 does not pay the full rate as awarded by the contract but what is actually paid is almost 1/3rd of the amount/rate fixed by the Haldia Dock Complex for each individual lift operator on a monthly basis. They have further made a grievance that even their overtime allowance of Rs.25 (Rupees twenty five) per hour is also slashed by the Respondent No. 7 and these are instances to show that the said Respondent not only exploits them but also makes wrongful gain out of such exploitation and that too, with the knowledge of both the Dock as well as the Port authorities. It is the further case of the Petitioners that although their services have been placed by the Respondent No.7 on the basis of contracts and at the behest of the Haldia Dock Complex since 1986 but, for all practical purposes, their services are controlled and monitored by the Haldia Dock Authority inasmuch as: - (a) Their working hours have been fixed by the Haldia Dock authority as would be evident from Annexure -A; (b) Their working hours have been fixed by the Haldia Dock authority as would be evident from Annexure -A; (c) Their working hours have been fixed by the Haldia Dock authority as would be evident from Annexure -A; (d) Their monthly remunerations have been fixed by the said authority; (e) The mode of payment has been determined by the same authority; (f) The allotment of duties is determined by the same authority; (g) The daily attendance registers are maintained by the same authority and on the basis of the said registers, monthly remunerations are paid; (h) The attendance registers provided by the Dock authorities are checked, verified and authenticated by the Plant Engineer (Electrical), Ship Electrical Maintenance Office of the Haldia Dock Complex; (i) Residential accommodation of the lift operators has been provided free of cost by the Dock Authorities; (j) The Financial Control regarding payment of remuneration, overtime allowances etc. are in the hands of the Dock authorities; (k) The lift keys, tool boxes for emergency, cotton rags etc. are all supplied by the Dock Authorities; (l) In the event any leave is prayed for, the same has to be sanctioned by the said authority; (m) Transfer of any liftman from one location to another is controlled by the said authority; and (n) Each individual liftman is obliged to follow disciplinary regulations imposed by the Dock Authorities.
(3.) THE Petitioners have stated in paragraphs 17 and 18 that they are rendering services since 1986 without any break as lift operators under the control and management of the Haldia Dock Authority and therefore, they have a right to be absorbed as departmental employees. The Calcutta Port Trust being a statutory authority and its functions being regulated by the Department of Surface Transport, Govt. of India in accordance with the Major Port Trusts Act, cannot frustrate the rights of the Petitioners since, in any case, they require permanent lift operators for the lifts and which is a perennial activity. The have stated that way back in the year 1989, the Manager of the Complex by his Report dated 16.6.1989 (Annexure -E) had written to the Deputy Chairman recommending the creation of the post of lift drivers. Till October 1990, the Port Trust Authorities or the Dock Complex Authorities did not take any decision and therefore on 24.10.1990, the Manager (P &E) Haldia Dock Complex placed a fresh proposal to the General Manager (Operation) proposing the post of lift drivers and also proposing the scales of pay (Annexure -F). Again, nothing was done and therefore the Manager (P &IR) sent another proposal dated 10.11.1990 for creating the post of two lift drivers and -sought for the approval of the Deputy Chairman (Annexure -G). It is stated that neither the Calcutta Port Trust nor the Haldia Dock Authority took any action thereby leaving the Petitioners to suffer as contract labourers although their services were regulated by the said authorities. Being aggrieved, the Petitioners filed a Representation before the Deputy Chairman, Haldia Dock complex on 1.6. 1999 praying for absorption (Annexure -H). The Junior Assistant Manager (P & IR), on the basis of the aforementioned Representation, requested the Administration, by his note dated 4.10.1999 (Annexure -I) to take a decision on the question of departmentalisation of the lift operators and their absorption. On another Application/Representation having been made, the said Junior Assistant Manager, by his Office note dated 16.3.2000, again requested the authorities to departmentalise the five contract labourers (Annexure -J). It is the grievance of the Petitioners that nothing has been done and that the authorities have only neglected and ignored the matter pertaining to taking a decision in spite of the fact that each one of them are entitled to be absorbed. Based on the aforementioned facts, the Writ Petition has been filed.;