IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.09.2008
CORAM
THE HONOURABLE MR. JUSTICE F.M.IBRAHIM KALIFULLA
W.P.No.32755 of 2005
The Chairman,
Chennai Port Trust,
Chennai. .. Petitioner
Versus
1. The Presiding Officer,
Central Government Industrial Tribunal
cum Labour Court,
Shastri havan,
Haddows Road,
Chennai - 600 006.
2. V. Durai
3. M/s. K.P.V.Sheikh Mohammed Rowther & Co.,
Chennai - 600 001.
.. Respondents
The Writ Petition has been filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records pertaining to I.D.No. 35 of 2003 including the award of the first respondent dated 22.02.2005 (received by the petitioner on 21.05.2005) on the file of the first respondent and quash the same.
For Petitioner : Mr.G.Venkatraman
For Respondent-2 : Mr. M. Sriram
For Respondent-3 : Mr. V.Sudhakar
ORDER
The Chennai Port Trust is the petitioner. The challenge is to the award of the Central Government Industrial Tribunal-cum-Labour Court, Chennai dated 22.05.2005 passed in I.D.No.35 of 2003. The issue which came up for consideration before the first respondent-Tribunal by way of the order of the Central Government, Ministry of Labour dated 24.02.2003 reads as under:
“Whether the non-employment of Shri V.Durai, an ex-employee of M/s. K.P.V. Shaik Mohammed Rowthar Co. Ltd., Steverdoring Agent by the Chennai Port Trust is justified and if not, to what relief the workman is entitled to ?”
2. The brief facts which are required to be set out are that originally the operation in the dock of Chennai Port Trust was said to have been handled by the Dock Labour Board. The Dock Labour Board in turn was recognizing such labour through Stevedores and Clearing and Forwarding Agents. The operation and handling of such labour were originally covered by two schemes, known as Madras Dock Workers (Regulation of Employment) Scheme, 1956, otherwise called as “Registered Scheme” and the Madras Unregistered Dock Workers (Regulation of Employment) Scheme, 1957. Both the Schemes were framed under the purview of Dock Workers (Regulation of Employment) Act, 1948. By virtue of the operation of the Schemes, there were two systems of workers, one by way of ‘General Pool workers’ maintained by the Dock Labour Board itself and the other called ‘privately maintained pool workers’ under settlement reached under section 12(3) of the Industrial Disputes Act. Since the workers of the Stevedores Association and Clearing and Forwarding Agents were clamouring for employment by the Dock Labour Board, such a demand was considered by the Central Government and a Scheme came into effect in the year 1988 known as Madras Unregistered Dock General Pool Workers (Regulation of Employment) Scheme, 1988. Under Clauses 16 to 22 of the said 1988 Scheme, the manner in which such general pool workers maintained by the Dock Labour Board and the pool of workers privately maintained by the Stevedores and Clearing and Forwarding Agents was elaborately set out. Under the said 1988 scheme, 2 lists namely List ‘A’ and List ‘B’ came to be prepared and the benefit of the Scheme was made applicable only to such of those persons whose names find a place in either List ‘A’ or List ‘B’ and none else. Subsequent to coming into force of 1988 Scheme, there was yet another development, by which, the Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 (Act 31 of 1997), came into being and by virtue of the said 1997 Act, the system of Dock Labour Board itself was abolished. Subsequently, there was a settlement dated 25.05.2001, reached between various Unions representing the employees of Madras Dock Labour Board with Chennai Port Trust under section 12(3) of the Industrial Disputes Act, 1947. Under Clause 28 of the said settlement, the Management of Chennai Port Trust agreed to take nine left out employees of List ‘A’ and five other left out employees of List ‘B’ as the employees of Chennai Port Trust.
3. It is in the above stated background, the second respondent herein raised the present Industrial Dispute, which went before the first respondent-Tribunal for adjudication as I.D.No.35 of 2003, wherein the terms of reference as extracted earlier came to be referred for consideration.
4. The second respondent in his claim statement before the first respondent-Tribunal contended that he was employed in the third respondent-Stevedoring Company as Supervisor, that, his name was omitted to be included in List ‘A’ like that of nine other left out employees of List ‘A’, who came to be absorbed by the Chennai Port Trust under the settlement dated 25.05.2001, that the second respondent herein ought to have been absorbed in the petitioner-Port Trust, and therefore necessary direction should be issued by the first respondent-Tribunal to the petitioner-Port Trust to that effect. While claiming such a relief, the second respondent contended that his services came to be terminated by the third respondent-Company in the year 1988 itself and when the left out nine employees of List ‘A’ were granted relief pursuant to the direction of this Court in Writ Petitions, the second respondent could seek for any claim only thereafter.
5. The claim before the first respondent-Tribunal was resisted by the petitioner-Port Trust, by contending that the preparation of List ‘A’ and List ‘B’ employees, was based on various material documents originally maintained by the Dock Labour Board and the respective Stevedores and Clearing and Forwarding Agents, that, in order to grant the benefit to List ‘A’ employees, for being transferred to List ‘B’, the same Stevedore, namely the third respondent-Company, gave due intimation as to who were all figuring in List ‘A’ and out of those persons with reference to whom the third respondent wanted to provide employment on their own, that the name of the second respondent herein never figured in the List ‘A’ maintained by the third respondent-Stevedoring Company and therefore, he had no locus-standi to seek for any relief as against the petitioner-Port Trust. It was further contended that the second respondent’s name could have never figured in List ‘A’, in as much as, he never worked either as ‘Receipt Clerk’ or as ‘Supervisor’, who alone were included in List ‘A’ at the relevant point of time when the 1988 Scheme came into effect and therefore, on that ground as well, the claim of the second respondent can never be considered.
6. Before the first respondent-Tribunal, the second respondent examined himself as W.W.1 and one other person by name, Mr.T.M.Mohanan was examined as W.W.2. On the side of the petitioner-Port Trust, one Thiru.K.Natarajan was examined as M.W.1. Exs.W.1 to W.12 were marked on the side of the second respondent, while Exs.M.1 to M.6 were marked on the side of the petitioner-Port Trust.
7. The Tribunal, by the impugned Award, directed the petitioner-Port Trust to include the name of the second respondent in List ‘A’ and consequently, directed the petitioner-Port Trust to employ the second respondent as Receipt Clerk as that of nine left out employees of List ‘A’ covered by the Settlement, dated 25.05.2001, and that, while granting such relief no back-wages need be paid.
8. Assailing the impugned Award, Mr.G.Venkatraman, the learned counsel for the petitioner-Port Trust, after referring to various Schemes of the years 1956, 1957 and 1988, as well as the Settlement dated 25.05.2001, contended that none of the documents relied upon by the second respondent establish that he was one of the List ‘A’ employees or at least he was eligible to be included in List ‘A’ by virtue of his status as Receipt Clerk or Supervisor and in the absence of such proof having been placed before the first respondent-Tribunal, merely based on ipse-dixit statement of W.W.2 and the second respondent-W.W.1, the Tribunal ought not to have granted the relief, which works contrary to 1988 Scheme and the Settlement dated 25.05.2001.
9. The learned counsel appearing for the petitioner-Port Trust took me through the relevant documents and contended that the second respondent miserably failed to establish his claim that he was a List ‘A’ employee in order to grant the relief as per 1988 Scheme and subsequent absorption under Act 31 of 1997.
10. Mr.M.Sriram, learned counsel for the second respondent in his contentions, submitted that under Ex.W.6, there was a clear statement by the third respondent-Company itself that the second respondent was working as Supervisor at the relevant point of time, that since his services were terminated in the year 1988 itself, he could work out his remedy till similarly placed nine other employees got the relief pursuant to the orders of this Court and the subsequent settlement, and therefore, the relief granted by the first respondent Tribunal does not call for interference.
11. Having heard the learned counsel for the respective parties, I find force in the submission of Mr.G.Venkatraman, learned counsel for the petitioner-Port Trust.
12. At the outset, it is necessary to set out the relevant Clause in the 1988 Scheme in order to appreciate the case of the petitioner-Port Trust. Under Clause 16 of the 1988 Scheme, the maintenance of Lists of various employees in the Dock Labour Board through the Stevedores and Clearing and Forwarding Agent is provided. Under Sub-clause (2) of Clause 16, the manner in which, List ‘A’ and List ‘B’ was to be prepared, has been set out. List ‘A’ employees are known as ‘monthly workers’ and List ‘B’ employees are called as ‘listed workers’. The definition of the listed workers and monthly workers has been set out in Clause 3(m) and (n) of the 1988 Scheme. Under Clause 20, how to enlist the existing and new workers under List ‘A’ and List ‘B’, had been clearly set out. The categories of such employees who could come within List ‘A’ or List ‘B’, have been specifically set out in Schedule I to the 1988 Scheme, which consists of 4 categories namely:-
(i) Supervisor (ii) Receipt Clerk (iii) Rigger Foreman (iv) General Purpose Mazdoor Therefore, in order to avail of the benefits of the 1988 Scheme, the names of the persons should find a place in List 'A' or List 'B'. 13. One other relevant Clause for our present purpose is Clause 18, which states as to how workers from List 'A' can be transferred to List 'B', which reads as under:
” 18. Temporary Transfer for workers from List ‘A’ to List ‘B’ except those Supervisors and Receipt Clerks who are not listed under General Pool. The Supervisor and Receipt Clerk shall ordinarily be attached to a Listed employer in the monthly register namely List ‘A’. In the event of services of Supervisor or Receipt Clerk being terminated due to total closure of stevedoring business of the employer or for any other compelling reasons found valid by the Chairman, he may be retained temporarily in the General Pool, namely List ‘B’ till such time he is re-allocated to any other employer.”
14. A reading of Clause 18 makes it clear that in order to get the name shifted from List ‘A’ to List ‘B’, one’s name should find a place in List ‘A’, that such person was in the category of Supervisor or Receipt Clerk, that his services came to be terminated due to total closure of stevedoring business of the employer or for any other compelling reasons found valid by the Chairman of the Port Trust, in which he might be retained temporarily in the General Pool, namely List ‘B’ till such time he is re-allocated to any other employer.
15. The third respondent which was one of the Stevedoring Company operating through the Madras Dock Labour Board, stated to have closed its operation in the year 1992-93. There is no dispute that the List ‘A’ employees of the third respondent-Company were 26 in number, whose names were set out in Ex.M.2. While withdrawing its operation as Stevedoring Company, the third respondent addressed a communication to the Madras Dock Labour Board, dated 20.02.1992 stating that they have lost major portion of the Stevedoring business with Shipping Corporation of India Limited and for one other Company which was handling agents for Thermal Coal and therefore, by merely retaining five of the employees whose names were found in List ‘A’, rest of the employees can be re-allocated. In the said letter (Ex.M.2), the name of the second respondent does not find a place. Even in the list of 26 names set out in Ex.M.2, the name of the second respondent does not find a place. Even in the five names mentioned in the letter of the third respondent, the name of the second respondent is not found.
16. It is stated that in spite of third respondent’s above referred to communication under Ex.M.2, nine of the employees whose names were mentioned in the list of 26, were not transferred to List ‘B’ as per Clause 18 of the 1988 Scheme. Those nine employees agitated for their rights by filing separate Writ Petitions, which were dismissed by the learned Single Judge. They preferred Writ Appeals before this Court and the Division Bench, in its judgment reported in 1994 (1) L.L.J 649 (G.Gopinath vs. Min. of Surface Transport & Ors.), permitted those nine employees to make a fresh representation to the petitioner-Port Trust and seek for appropriate relief.
17. Thereafter, those nine employees made representations by contending that the withdrawal of the Stevedoring operations by the third respondent-Company, would fall within the expression “compelling reasons” as provided in Clause 18 of the 1988 Scheme and therefore, they were all entitled to be transferred from List ‘A’ to List ‘B’. The representations were all rejected by the petitioner by separate orders dated 18.10.1993.
18. As against such rejection, those nine employees preferred Writ Petitions in W.P.Nos.22458 of 1993 etc. batch, which were allowed by this Court, by order dated: 02.11.2000. While setting aside the order of the petitioner-Port Trust dated 18.10.1993, the petitioner-Port Trust was directed to include those nine employees in List ‘B’ of General Pool Scheme till such time they were re-allocated to any other Listed employer.
19. According to the petitioner, while the Port Trust was contemplating to challenge the said order of the learned Single Judge, since Act 31 of 1997 came into being, abolishing the Dock Labour Board itself and the subsequent Settlement dated 25.05.2001, the petitioner-Port Trust decided to implement the order in order to maintain better industrial relations with its employees and that is how those nine employees were also granted the benefit of transfer from List ‘A’ to List ‘B’ by applying Clause 18 of the 1988 Scheme.
20. In the above said background, the second respondent seems to have tried his luck by raising the present industrial dispute. In fact, before raising the dispute, the second respondent approached this Court by filing a Writ Petition in W.P.No.150 of 1995, seeking to quash the order of the Madras Dock Labour Board, dated 18.10.1993, contending that he was also similarly placed like that of the nine employees who made separate representations to the petitioner-Port Trust and that his representation was also rejected under the said order dated 18.10.1993.
21. As a matter of fact, the second respondent herein never made any representation and no such representation was ever placed before the first respondent-Tribunal. Nevertheless, the said Writ Petition No.150 of 1995 was disposed of by my order dated 07.09.2001, holding that the consideration of the second respondent for granting any relief, would involve very many questions of facts, which cannot be examined in the writ proceedings and he can only work out his remedy before the appropriate Adjudicating Forum constituted under the provisions of the Industrial Disputes Act 1947.
22. Thus, when I considered the claim of the second respondent, I find that under Ex.W.1, which is the Service Book maintained by the third respondent-Company relating to the second respondent, he was only working as “Bill Clerk” and subsequently, his designation was changed as “Junior Clerk”. Under Ex.W.2, which is the Identity Card issued by the Madras Port Trust, the second respondent’s designation has been shown as ‘Clerk’, while in Ex.W.4 series, he has been described as ‘Piece Rate Employee’.
23. The only other relevant document which was heavily relied upon by the second respondent was Ex.W.6 (xerox copy of the Service Certificate issued to the second respondent). The said document in my considered opinion, is not worthy of the paper, in which it is written, inasmuch as though it was stated to have been issued by the third respondent on 25.02.1988, it states that during his tenure with the third respondent, he worked as “Data, Receipt Clerk, Supervisor and MPT Gang Cargo handling Indent for Containers, Bulk, Break Bulk from 22nd January 1982 to 16th March 1988”.
24. Significantly, in the claim statement filed before the first respondent-Tribunal, the second respondent herein claimed that he was employed as Receipt Clerk / Supervisor. In the very same claim statement in paragraph 4, he stated that he was one such employed as a Supervisor. Thus, he was making prevaricating claims in his own claim statement as regards his status, while Exs.W.1 and W.2 disclose that he was employed either as Junior Clerk or as Clerk and he was never a Receipt Clerk or Supervisor.
25. The only other evidence which was available on record was the oral evidence of W.W.2 Mr.Mohanan. The said Mohanan was one of the nine employees, who got the benefit of absorption under the Settlement dated 25.05.2001. As far as the evidence of W.W.2 and W.W.2 (Mohanan’s) absorption, are concerned, it was contended before the first respondent-Tribunal that, after his absorption, salary was paid by applying a wrong scale of pay which came to be rectified later, which was subject matter of challenge before this Court and that though initially he was able to secure an order of stay of recovery, the same was subsequently vacated by this Court and thereby he had an axe to grind against the petitioner. The order of this Court passed in respect of W.W.2-Mohanan was placed before the first respondent-Tribunal as Ex.M.6. In any event, the oral version of W.W.2 could not have been relied upon as against the documentary evidence which was glaring at one’s face in the form of Exs.W1, W2 and W4 series. As between the documentary evidence to the effect that the second respondent was employed only as Bill Clerk or Junior Clerk and not as a Receipt clerk or Supervisor, mere ipse-dixit of W.W.2 that he was working as Record Clerk or Supervisor, ought not have been relied upon by the first respondent Tribunal.
26. In any event, in the first place, when admittedly the name of the second respondent did not figure in List ‘A’, the first respondent-Tribunal ought not to have attempted to grant any relief to the second respondent, inasmuch as, such a course would amount to re-writing the Scheme provisions contained in the 1988 Scheme, which was not permissible at all for the first respondent-Tribunal while considering the claim of the second respondent. The first respondent-Tribunal failed to note that any such attempt for inducting persons whose names did not figure either in List ‘A’ or in List ‘B’ at any later point of time, would open up the flood gate and there would have been no end to it.
27. Therefore, the impugned Award of the first respondent-Tribunal in holding that the second respondent was employed as Receipt Clerk/Supervisor, is contrary to the material evidence placed by the second respondent himself before it. On that score itself, the said finding is liable to be set aside.
28. As rightly contended by the learned counsel for the petitioner-Port Trust, the oral version of W.W.2 was totally unreliable one, as the same was conflicting with the documentary evidence that was placed by the second respondent himself in the form of Exs.W1, Ex.W2 and Ex.W4 series.
29. Since the contents in Ex.W6 were not proved in the manner known to law by examining the author of it, the same ought not to have been relied upon. In any event, the said letter (Ex.W.6) does not state as to in what particular capacity the second respondent was working. The statement that a person was working in all capacities was wholly unbelievable and in the absence of any satisfactory legal evidence in support of such contents in the said document, the said document should have been rejected by the first respondent-Tribunal in limine.
30. Therefore, every one of the conclusions reached by the first respondent-Tribunal in its Award in order to direct the petitioner-Port Trust to include the name of the second respondent in List ‘A’, was not tenable. In any event, such a direction for inclusion of a person’s name in List ‘A’, was not permissible at all for the first respondent-Tribunal, which would run beyond the Scheme provisions contained in 1988 Scheme and on that score also, the impugned Award of the first respondent-Tribunal is liable to be set aside.
31. For all the aforesaid reasons, the Writ Petition stands allowed and the impugned Award is set aside. There will be no order as to costs.
mra
To
1. The Presiding Officer,
Central Government Industrial Tribunal
cum Labour Court,
Shastri havan,
Haddows Road,
Chennai – 600 006.
2. The Chairman,
Chennai Port Trust,
Chennai
[ PRV / 15822 ]