1 545.11
SQP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.545 OF 2011
Indian National Shipowners' Association,
A non-profit industry association incorporated
u/s.25 of the Companies Act, 1956 to
promote Indian Shipping and having its
registered office at 22 Maker Tower,
`F' Wing, Union No.22, 2nd floor,
Cuffe Parade, Mumbai 400 005. ...Petitioners
Versus
1.National Union of Seafarers of India,
A Trade Union Registered under
Trade Unions Act, 1926 having its
office at NUSI Bhavan, 1, Goa Street,
Ballard Estate, Mumbai 400 038,
through its General Secretary
Mr.A.Y.Sarang
2.Forward Seamen's Union of India,
A Trade Union Registered under
Trade Unions Act, 1926 having its office
at FSUI, 14/1F, Kabitirtha Sarani,
22/1A, Mohan Chand Road,
Kolkata - 700 023, and having an
office in Mumbai at 18, IDA Mansion,
Vaju Kotak Marg, Ballard Pier,
Mumbai-400 011 through its
General Secretary Mr.Sadhan Kanjilal
3.Union of India through its
Ministry of Shipping,
having its office at Transport Bhavan,
New Delhi - 110 001.
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4.Directorate General of Shipping,
having its office at Jahaz Bhavan,
Walchand Hirachand Marg,
Mumbai - 400 001. ...Respondents
......
Mr.J.P.Cama, Senior Advocate with Mr.M.J.Kalyaniwalla i/b Mulla &
Mulla & Craigie Blunt & Caroe for Petitioner.
Mr.Anil Anturkar with Mr.P.N.Salgaonkar & Mr.G.Sardesai i/b Salgaonkar
& Co. for Respondent No.1.
Ms.Jane Cox for Respondent No.2.
Mrs.Shehnaz V.Bharucha for Respondent Nos.3 and 4.
......
CORAM:- A.M.KHANWILKAR AND
R.Y.GANOO, JJ.
ORDER RESERVED ON :- 14TH JUNE, 2011.
ORDER PRONOUNCED ON : 24TH JUNE, 2011
ORDER : (PER A.M.KHANWILKAR, J.)
1. This Writ Petition under Article 226 of the Constitution of India has
been filed by the Ship Owners’ Association on the apprehension of
impending strike/agitation in some form on the ships, ports, offices and
residences of petitioner and its member shipping companies, primarily, on
account of the show of strength between the rival unions – respondent Nos.1
and 2 on the issue of participating in negotiations with regard to wage
agreement. It is stated that the respondent No.1 Union claims to be and has
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been found to be having the largest number of membership by the Regional
Labour Commissioner. For that reason, it was objecting to inclusion of
more than three members from the respondent No.2 Union as team of
members for negotiations. Whereas, the respondent No.2 Union wanted
more than three members of their union to form part of the team for
negotiations. According to the petitioners, inspite of best efforts, the
petitioners were unable to resolve the deadlock between the stand so taken
by respondent No.1 and respondent No.2. On the contrary, the respondent
No.1 made it amply clear that petitioners ought not to negotiate with the
respondent No.2 union. The respondent No.2 union also informed the
petitioners that they should not proceed with the negotiations with
respondent No.1 Union by ignoring them in the process. It is the case of the
petitioners that both the unions have virtually threatened to go on
strike/agitation in some form on the ships, ports, offices and residences of
the petitioner and its member shipping companies.
2. In this backdrop, the petitioner sent detail communication to the
Secretary, Ministry of Shipping, Government of India, New Delhi dated 2nd
February, 2011. In the said communication, the petitioner placed its
predicament on record that as per the decision of our High Court dated 4th
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April, 2006 in Notice of Motion No.1034 of 2006, the petitioners were
required to negotiate with respondent No.1 union which has been found to
be having a largest number of membership, but as per another order dated
15th February, 2008, passed by this Court in Writ Petition No.2375/2007,
both unions were allowed to participate in the negotiations for determining
revised emoluments and conditions of service of their members. In this
backdrop, the petitioners wrote to the Secretary, Ministry of Shipping in the
following words:
“16. However, none of the Unions were willing to provide an assurance
not to proceed with industrial action or strike, as had been verballythreatened as well as conveyed by FSUI to INSA in writing. This strike
notice coupled with the verbal/oral threat of NUSI will paralyze the
shipping industry and may lead to violent clashes amongst union members
which will in turn lead to a colossal loss to the shipping industry and the
country’s economy in general. This industrial unrest will lead to anindustrial dispute due to the spat between rival trade Unions. The
seafarers as the employees and shipowners as the employers are perplexedand disturbed as INSA has tried its level best to bring about and suggest
amicable solutions but not succeeded. None of the aforesaid Unions are
willing to find an amicable solution to their dispute but forcing INSA to
take steps rather than they take steps and sorting out the issue which isclearly due to their internal differences. Also other Unions who are not
part of the meetings are pressuring INSA to include them too in Wage
Negotiation.
17. Therefore, it is prayed that to avoid the strike, agitation, industrial
unrest, it is incumbent upon the Central Government to constitute aTribunal of one or more persons adjudicating the disputes as contemplated
u/s.150 of Merchant Shipping Act, 1958 at the earliest and on urgent basis
preferably within 72 hours due to the exigencies of the situation and the
perceived threat of a strike/obstructions/disruption by which the industrial
peace will be affected on the vessels of the INSA members and refer the
following issues for adjudication.
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a) Determine the representation between the two unions on the
Negotiation Committee.
b) Determine the representatives of the Unions for signing the negotiated
agreement.
c) If above is not possible, what steps the management should take to
negotiate and resolve the industrial disputes with its employees and/or
Unions.
d) Whether the NMB constitution ought to be Amended? If so, then what
amendments ought to be made in the NMB constitution?
e) Pending the above adjudication, the Central Government be pleased to
stay the strike.
18. It is not out of place to mention that if the Central Government delays
in constituting a Tribunal and notifying the same in the official gazette and
passing relevant injunction orders under Section 151 of the M.S. Act 1958
then there would be nationwide industrial disputes which will cripple theShipping Industry and cause great monetary loss to the shipowners and the
National Exchequer.
19. INSA trusts that their prayers may be considered expeditiously on
urgent basis and for this act of kindness INSA shall be duty bound foreverpray.”
3. Without waiting for the response of the Appropriate Authority, the
petitioners rushed to this Court by way of present Writ Petition for
declaration that the members of respondents 1 and 2 unions ought not to
resort to strike/agitation in any form on the ships, ports, offices and
residences of petitioner and its member shipping companies till the
respondent No.3 (Union of India) constitutes a Tribunal and award is
passed therein. Further declaration has been sought that the conduct of the
members of respondent Nos.1 and 2 is opposed to public policy and public
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duty. Further relief claimed in the Writ Petition is to issue direction to
respondent No.3 (Union of India) to forthwith constitute a Tribunal under
Section 150 of the Merchant Shipping Act, 1958 and refer the dispute
relating to the strike/agitation threatened by respondent Nos.1 and 2 as well
as the Charters of Demand submitted by the respondent Nos.1 and 2 dated
19th May, 2010 and 28th April, 2010 respectively for adjudication. Further
relief has been claimed against respondent Nos.1 and 2 to cease and desist
from instigating and/or continuing with its strike and stoppage of work in
connection with the members of petitioner ships in all ports or to cause any
damage/destruction/agitation to the members of the petitioner’s
ships/vessels, ports, offices all over India, container terminals, warehouses,
etc. in any manner whatsoever and also from holding dharnas, staging
demonstrations, making threats to the petitioner, members of the petitioner,
its officers, employees, servants, agents, etc. within the radius of 500 mtrs.
of such ships/vessels, ports, offices and residents all over India, container
terminals, warehouses, etc.
4. While this Petition was placed for admission, the respondents raised
preliminary objection regarding maintainability of the Petition on the
argument that the petitioners were essentially claiming substantive reliefs
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against private parties i.e. Unions. During the pendency of the Petition,
however, the respondent No.3-Union of India vide its communication dated
24th February, 2011 informed the Chief Executive Officer of the petitioners
as follows:
“F.No.B-11011/2/2011-MA New Delhi dated the 24th February, 2011
To,
Shri Anil Devli,
Chief Executive Officer
Indian National Shipowners’ Association,22, Maker Tower-F,
2nd Floor, Cuffee Parade,
Mumbai-400 005.
Subject : Request to constitute Tribunal for Adjudication of disputes as
contemplated u/s.150 of the Merchant Shipping Act, 1958 and W.P.No.
258/2011 filed by INSA in the High Court of Judicature at Bombay
against NUSI and others.
Sir,
I am directed to refer to representation dated 02.02.2011 addressed to
Secretary(S) on the above subject and the Court Case as mentioned above filed by
INSA in which Ministry is the third Respondent and to say that after careful
consideration of the representation, INSA is advised to abide and honour the
judgment of High Court of Judicature, Bombay dated 04.04.2006 in Notice ofMotion No.1034 of 2006 in Appeal No.950 of 2005 in W.P. No.1751 of 2000 filed
by FSUI against NUSI.
2. This issues with the approval of Hon’ble Minister of Shipping.
Yours faithfully,
Sd/-
(A.R.Sengupta)
Under Secretary to the Govt.of India
Tel.No.23719031″
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5. In the light of this communication, the petitioner has amended the
Petition seeking further reliefs in terms of prayer clauses (aa) and (ab),
thereby praying for striking down the impugned order dated 24th February,
2011 issued by the respondent No.3 and to direct the respondent No.3 to
exercise its powers under Section 150 of the Merchant Shipping Act, 1958
and to make an order of reference of industrial dispute arising from the
strike notice dated 14th January, 2011 issued by the respondent No.2 and
threat to strike notice dated 2nd February, 2011 issued by the respondent
No.1.
6. We have reproduced the relevant portion of the communication sent
by the petitioners to the Secretary, Ministry of Shipping dated 2nd February,
2011 which ought to be the guiding document to consider the efficacy of
the reliefs claimed by the petitioners. Before examining the matter further,
we would first deal with the issue of the maintainability of the Petition.
Even if we were to agree with the argument of the respondents that
considering that the reliefs originally claimed in the Petition were
essentially directed against private parties (respondent Nos.1 and 2 unions),
having regard to the fact that the Petition now stands amended after receipt
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of communication from the respondent No.3 (Union of India), and which
decision of the respondent No.3 (Union of India) has been challenged by
way of further amended reliefs, the objection regarding maintainability of
the Petition has become insignificant.
7. Instead of dilating on the said aspect, we would prefer to examine the
merits of the grievance of the petitioners. As aforesaid, the petitioners had
requested the respondent No.3 to constitute Tribunal for agitating the
disputes under Section 150 of the Act on issues referred to in paragraph 17
of its communication. That request has been negated by the respondent No.
3 vide communication dated 24th February, 2011, primarily with reference
to the decision of this Court dated 4th April, 2006, wherein, it is held that the
petitioners herein must negotiate with the respondent No.1 Union which has
been found to be having largest number of membership. That view taken by
the respondent No.3, in our opinion, is unexceptionable, more particularly,
in the context of the specific request made by the petitioners in its
communication dated 2nd February, 2011 to refer issue to determine the
representation between the two unions on the Negotiation Committee or to
determine the representatives of the Unions for signing the negotiated
agreement. The third issue in the said communication is essentially advise
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sought from respondent No.3 as to what steps the petitioner should take to
negotiate and resolve the industrial disputes with its employees and/or
Unions, if the two issues could not be answered. Insofar as the fourth
proposed issue for adjudicated by the Tribunal formulated by the petitioner,
is again seeking advise whether the NMB constitution ought to be
amended, and if so, the nature of amendment. The fifth issue in paragraph 7
is in fact, requesting the Central Government to stay the strike pending the
adjudication of the four issued by the Tribunal.
8. Suffice it to observe that the respondent No.3 rightly responded to the
said request of the petitioner by inviting attention of the petitioner to the
decision of this Court dated 4th April, 2006 in Notice of Motion No.1034 of
2006 in Appeal No.950 of 2005 in Writ Petition No.1751 of 2000 which
was binding on the parties to the said proceedings until it was to be
reversed. Our attention has been invited to the fact that the appeal in which
the said decision came to be passed on 4th April, 2006 by this Court was
itself eventually withdrawn by the respondent No.2. The order passed in
Appeal No.950/2000 dated 25th July, 2007 reads thus:
“P.C. :
The learned Counsel appearing for the Appellant states that as a result of
developments taking place during the pendency of the Appeal, the Appellant-
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Union is no more representative union and therefore without prejudice tot he
rights of the Appellant to challenge the order in relation to recognition, the
Appellant seeks leave of the court to withdraw the Appeal. Appeal is permitted tobe withdrawn. No order as to costs.”
9. Suffice it to observe that considering the dictum in order dated 4th
April, 2006, which binds the parties, especially after the withdrawal of the
appeal filed by the respondent No.2 upon admitting the position that it was
no more representative union, the response given by the respondent No.3 in
its communication dated 24th February, 2011 was inevitable.
10. In any case, even if we were to consider the further amended relief
claimed by the petitioners for setting aside the impugned order dated 24th
February, 2011 and to direct the respondent No.3 to make an order of
reference, that could be considered only in the context of the request made
in the communication dated 2nd February, 2011. The petitioners, however, in
prayer clause (ab) have asked for relief in the context of strike notice dated
14th January, 2011, in relation to which, no specific issue for adjudication
was formulated in the communication sent to the respondent No.3. With
regard to the issues for adjudication formulated in paragraph 17 of the
communication dated 2nd February, 2011, we find force in the submission of
the Counsel for respondent No.1 that none of these issues would be covered
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within the meaning of Section 150 of the Act. Notably, sub-section (9) of
Section 150 of the Act opens with the words “nothing contained in the
Industrial Disputes Act, 1947 shall apply to any dispute referred to in
Section 150“. Sub-section (1) of Section 150 refers to disputes between
seamen or any class of seamen or of any union of seamen and the owners of
ships in which such seamen are employed or are likely to be employed and
exits or is apprehended. It further provides that such dispute must relate to
any matter connected with or incidental to the employment of the seamen.
In the first place, the five issues formulated in paragraph 17 of
communication dated 2nd February, 2011 are not covered within the sweep
of Section 150 as it cannot be said to be dispute between union of seamen
and the owners of the ships relating to any matter connected with or
incidental to the employment of the seamen. Counsel for the petitioner,
however, vehemently argued that the expression `employment’ will have to
be interpreted liberally to include even determination of representations
between two unions of the Negotiation Committee and to determine the
representatives of the unions for signing the negotiating agreement. It is not
possible to countenance this submission. Answering these issues will be
nothing short of resolving the dispute between the two rival unions interse
and not adjudication of dispute between the union of seamen and the
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owners of the ships in relation to any matter connected with or incidental to
the employment of the seamen as such. Even on this count, the petitioners
cannot succeed in challenging the impugned order dated 24th February,
2011 being violative of Articles 14 and 19 of the Constitution of India.
11. Counsel for the petitioners as well as respondent No.2 was at pains
to rely on the decision of this Court in Writ Petition No.2375 of 2007 dated
15th February, 2008 whereunder both the unions, i.e. respondent Nos.1 and
2, were allowed to participate in the negotiations for revision of
emoluments and conditions of service. We are not impressed by this
argument. Inasmuch as the plain reading of the said order makes it more
than clear that it was passed on the basis of mutual arrangement agreed
upon between the parties which was not to be treated as precedent for the
future. The said order reads thus:
“P.C.:
. Rule. Heard forthwith. Though a settlement had been arrived
at there was a dispute as to the signatories to the settlement. The
parties, however, at the intervention of the Court, have agreed toabide by the terms and to accept the present settlements which
both the contesting Unions, who are parties here had agreed to
in negotiations with the petitioner, considering the present situation in
the industry and with the rider that this arrangement will not act as a
precedent for the future.
. Considering the agreement between the parties we do not
propose to consider the reliefs as prayed.
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. The approach of all parties to arrive at a settlement with the
larger objective of maintaining industrial peace in the industry is
commendable.
2. The petitioners have tendered in Court two sets of agreed
written down terms containing conditions of service and
emoluments of Indian Seafarers in the category of Ratings and
Petty Officers serving on foreign going, home trade and off-shore Articlesof Agreement. The two sets of agreed written down terms are marked
as Exhibit “A” and Exhibit “B” and form part of this order.
3. The petitioners members shall within one week from the date
hereof make payment in accordance with the above written down termsto all the above categories of employees.
4.
Respondent Nos. 4 and 5 representing
hereby undertake on behalf of themselves and
FSUI and NUSI
their respective
members that their members shall accept the above revised
emoluments and conditions of service in full and final settlement of all
their claims upto the date hereof and further that neither their members nor
they themselves shall raise any claim or demand involving any financial or
any other demand or implications having a financial bearing for the period
ending 31st March, 2010.
5. The Court would like to place on record its appreciation of the
efforts taken by all the Counsel representing parties as also the maturityshown by the management and office bearers of the Unions in arriving
at the above settlement. ” (emphasis supplied)
12. Suffice it to observe that the fact that respondent No.2 was also party
to the agreement reached on earlier occasion does not in any manner,
militate against the direction contained in order dated 4th April, 2006 passed
in Notice of Motion No.1034 of 2006 that the petitioners were required to
negotiate with respondent No.1 union which has been found to be having
largest number of membership. The impugned order passed by the
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respondent No.3 dated 24th February, 2011 merely restates the position
contained in the said order.
13. Counsel for the respondent No.2 was at pains to persuade us to take
the view that the observation in the order dated 4th April 2006 in Notice of
Motion No.1034 of 2006 was in the context of membership of the
respondent No.1 union at Mumbai and not for whole of India. This
argument of the respondent No.2 cannot be countenanced, having
withdrawn the appeal preferred by respondent No.2 union being Appeal No.
90 of 2000 vide order dated 25th July, 2007 and more so, having admitted
that it was no more representative union. This argument of respondent No.
2, in any case, cannot be taken forward in the present Petition. If the
respondent No.2 has any grievance relating to the present strength of
membership of the respondent No.1 within Mumbai or for that matter in
India, is free to agitate that matter before the appropriate forum. Thus,
neither at the instance of petitioner, nor the respondent No.2, that issue can
be examined in the present Petition.
14. That takes us to the other relief claimed by the petitioner for
declaration against respondent Nos.1 and 2 Union and for issuing direction
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as referred to in prayer clause (e). It is stated in the Petition that any hasty
step taken by the two unions may have far reaching cascading effect not
only on the owners of the ships but the entire shipping industry and
eventually on the economy of the Country. For that reason, the respondent
Nos.1 and 2 and its members have public duty not to act in the manner
threatened in the two communications received from the respondent Nos.1
and 2 dated 2nd February, 2011 and 14th January, 2011 respectively. In the
context of this relief, we may place on record that the argument to press this
relief was made by the Counsel for the petitioner only at the end of the
rejoinder, when the Court was about to close the case as arguments were
concluded. The Counsel for the petitioner asserted that he did not raise that
point in his opening argument, as the Court called upon the other side to
respond to his arguments relating to principal relief of setting-aside the
impugned order dated 24th February, 2011 and to direct the respondent No.3
to make order of reference. We corrected the Advocate for the petitioners
by pointing out that his assertion is incorrect, as neither he was asked to sit
down by the Court nor the Court called upon the other side to respond
while he was already on his legs.
15. Be that as it may, the communication sent by the respondent No.1
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dated 2nd February, 2011 is not a communication giving notice of strike.
Indeed, the letter sent by respondent No.2 dated 14th January, 2011 does
indicate that 14th February, 2011 will be observed as a token protest day by
striking work by all the members. However, that date has elapsed long
back. Whereas, during the pendency of this Petition, assurance was given
by respondent No.2 through Counsel that it will not resort to any strike so
as to paralyse the work of the petitioner during the pendency of this
petition. It is not the case of the petitioner that the respondent No.1 and 2
are likely to resort to strike/agitation without following procedure
established by law. Suffice it to observe that the said relief as prayed, does
not arise for consideration in this Petition. We will leave all questions
relating to the said relief claimed against respondent Nos.1 and 2 open to be
agitated by the petitioner before the appropriate forum as and when
occasion arise.
16. For the aforesaid reasons, this Petition is disposed of with the above
observations.
(R.Y.GANOO, J.) (A.M.KHANWILKAR, J.)
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