Gulam Rasul v. Calcutta Dock Labour Board And Others

The Judgment of the Court was delivered by

Sinha, J.:— The facts in this case are shortly as follows: The petitioner carries on business under the name and style of Union Weighment Company in Calcutta. In 1948, a Central Act was passed called the Dock Workers (Regulation of Employment) Act, 1948 (Act IX of 1948) which came into operation on March 4, 1948. This is an Act to provide for regulating the employment of dock workers. Under Section 4 of the said Act, the Government may, by notification in the official Gazette and subject to the condition of previous publication, make one or more schemes for a port or group of ports. In exercise of power conferred by Section 4, the Central Government framed a scheme for the Port of Calcutta called “The Calcutta Unregistered Dock Workers (Regulation of Employment) Scheme, 1957. It is stated in the said Scheme that the object in promulgating the scheme is.”to regulate the employment of dock workers to whom this Scheme applies”.

2. The Scheme applies to the dock workers of the classes specified in the schedule thereto and to the employers of such dock workers in the Port of Calcutta, except certain classes of workers mentioned in subclause (2)(a)(b) and (c) of the said scheme. Workers engaged in any class or description of work carried out by the Commissioners for the Port of Calcutta are excluded. The said Scheme is administered by the Calcutta Dock Labour Board constituted under clause 4 of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1956. Under clause 4 of the said Scheme, the Board may, with a view to regulating the employment of dock—workers to whom the Scheme applies, take such measures as it may consider desirable, including measures for keeping and maintaining a list of dock employers, entering or re-entering therein the name of any dock employer and where circumstances so require, removing from the list the name of any dock employer, either at his own request or in accordance with the provisions of the said Scheme, as also keeping and maintaining from time to time a list of dock workers and removing from the list the name of a dock worker either at his own request or in accordance with the provisions of the said Scheme. Clause 6-A sets out the function of the Administrative Body. The relevant provisions are as follows:—

“6-A. Functions of the Administrative Body—The Administrative Body shall be responsible for the administration of this Scheme, under the control and supervision of the Chairman, and shall in particular be responsible for—

(a) the allocation of the listed workers in the pools constituted under clause 9-B who are available for work, to the listed employers and for this purpose the Administrative Body shall—

(i) be deemed to act as an agent for the listed employer;

(ii) make the fullest possible use of the listed workers in each pool;

(iii) provide for the maintenance of records of employment and earnings;”

3. Clause 8 deals with the listing of employers of dock workers. The provisions run as follows:—

“8. Listing of employers of dock workers—(1) The Board shall maintain a list of employers of dock workers to whom this Scheme applies.

(2) Every person, who is an employer of dock workers to whom this Scheme applies on the date of commencement of the Scheme, and who applies to the Board in this behalf on or before such date as may be fixed by the Board for this purpose, shall be entitled to be listed under this Scheme.

(3) The Board may, if it considers expedient and necessary to do so, list employers other than those covered by subclause (2).

(4) Omitted.

(5) Where the Board refused to list an employer, it shall communicate to the person concerned a copy of the order together with the reasons therefor.

(6) The Board may, subject to such conditions as it may prescribe in this behalf, permit persons listed under subclause (3) to form one or more groups and each group so formed shall be treated as one emlpoyer only for employment of monthly workers:

Provided that the Board shall have power to make such alterations or modifications in the conditions prescribed, as it may deem necessary from time to time.”

4. Clause 9 deals with the listing of dock workers. It provides that any dock worker, who has been in the employment of an employer to whom the Scheme applies and has worked under him for such number of days or shifts, during such period as may be prescribed by the Board, shall be eligible for being listed subject to certain conditions stated therein. Under the Scheme as framed originally, dock workers were classified into four categories, as mentioned in the Schedule to the Scheme. We are concerned only with two, namely, category Nos. 2 and 3 who are described as follows:

“(2) Stitcher and Baggar except those employed by contractors appointed by the Ministry of Food and Agriculture for clearance of imported foodgrains.

(3) Salt worker.”

5. By notifications dated November 25, 1959 and January 5, 1960, the Schedule was amended and the two classes were consolidated into one, namely “Salt workers, Stitcher and Baggers”. By notification dated August 7, 1961, clause 9-A was introduced. By this clause, dock workers listed under this Scheme were to be classified into six categories.

6. The relevant provisions are as follows:—

“9-A. Classification of workers in the list.—(1) The Board shall arrange for the classification of workers by categories in the list and prepare and maintain a separate sub-list of workers for each of the categories or sub-categories referred to in sub-clause (2) …………………The names of monthly workers, if any, shall be arranged separately in the list.

(2) Dock workers listed under the scheme shall be classified into the following categories, namely:—

(a) ………………

(b)……………….

(c) Baggers,

(d) Stitchers,

(e) Salt workers,

(f) …………..

The Board may, if considered necessary for the efficient performance, further classify the workers of any category into sub-categories.”

7. In January, 1962 the ‘salt workers’ were sub-categorised into ten categories which are as follows:—

(1) Weighment-in-charge,

(2) Weighment Supervisor,

(3) Weighment clerk,

(4) Chapadar,

(5) Foreman,

(6) Sardar,

(7) Mate,

(8) Sliceman,

(9) Chamachiya and (10) Winchman.

8. Clause 11 provides for the obligations of listed employers, It provides that every listed employer shall pay to the Board such administrative charges as may be fixed by the Board from time to time. Subject to the provisions of clause 9-B, a listed employer shall not employ a worker other than a dock worker who has been allocated to him by the Administrative Body, in accordance with the provisions of clause 6-A. A listed employer shall in accordance with arrangements made by the Administrative Body submit all available information of his current and future labour requirements. A listed employer shall lodge with the Administrative Body a certificate of the output of certain listed workers employed by him, shall pay wages due to the dock workers and keep such records as the Board may require. Under clause 14, if an employer has failed to carry out the provisions of the said scheme, the Personnel Officer may give him a warning in writing, or report the case to the Deputy Chairman who may, after such investigation as he thinks fit, censure the employer and record the censure in his record sheet, or, subject to the approval of the Board and after one month's notice in writing to the employer, direct that the name of the employer shall be removed from the list of employers for such period as may be determined by the Board or permanently if the Board so determines. Pursuant to the said Scheme, the petitioner made an application on August 28, 1957, for being listed as an employer. In the form of application the petitioner, stated as follows:—

“I hereby submit my application for being ‘Listed’ as an employer of the following class of Dock Workers mentioned in the schedule of the Calcutta Unregistered Dock Workers (Regulation of Employment) Scheme, 1957.

XX salt worker (Salt Weighment Contractor and supervisor).”

9. With the said application, certain particulars were supplied Item (g) of the particulars reads as follows:—

“(g) Whether carrying on stevedoring work or any other business connected with dock work under the same name of the Company. If so, the nature of the business and the date of commencement of that business.

Salt weighment contractors and supercisors. The weighment Contractors and Supervisors must be employed as the salt is sold and discharged at the mid-stream ex-ship. The scales are supplied by the Government Salt Golah under the Salt Contractor of Government of India.”

10. On July 11, 1958, the petitioner was informed that his application has been approved by the listing committee of the Calcutta Dock Labour Board—for ‘listing as an Employer of salt workers’. He was asked to deposit the necessary charges.

11. On July 24/25, 1958 the petitioner was informed that his name had been included in the list of Employers of salt workers maintained by the Board under clause 8(i) of the Scheme, with the Serial number “SW-11”. A copy of the said letter is Ext. “C” to the petition. The petitioner states that for the purpose of unloading and discharging a ship carrying cargo of salt arriving at the Calcutta Port, he has at all material times employed, according to nature of the work and from time to time, the services of the following categories of employees:

(a) Sliceman,

(b) Chamachiyas,

(c) Weighment,

(d) Chapadars,

(e) Weighment clerk,

(f) Weighment Supervisors,

(g) Weighment in charges,

(h) Sardars whose duty consists in supervising the entire operation as aforesaid.

12. According to the petitioner, after he was listed as an employer of Salt workers under the said scheme he had all along drawn and or booked all the aforesaid sub-categories of salt workers out of the pool maintained by the Board for the purpose of unloading and or discharging the various salt ships. It is stated that on September 2, 1963 the petitioner received a letter from the respondent No. 2 communicating an order, a copy where-of is included in annexure “E” to the petition. It was stated therein that legal opinion had been taken and it had been decided that in as much as the petitioner in his application for listing had declared himself as salt weighment contractor being employer of (1) Weighment Incharges, (2) Weighment supervisors, (3) Weighment clerks and (4) Chapadars, he would be entitled only to requisition workers of the said categories and not others. It is against this order that this application is directed.

13. The respective contentions of the parties are as follows: According to the respondents, the petitioner in his application for being listed as an employer under the said scheme had to mention the class of dock workers which he wished to employ. In his application dated August 28, 1957 he mentioned the class of workers required by him as—“salt workers (salt weighment contractor and supervisor)”. In the particulars given by him (annexed to the application) he mentioned that he was carrying on work as “salt weighment contractor and supervisor”. Therefore, he is not entitled to any sub-category of workers except those required for his work as salt weighment contractor and supervisor. To be precise, it has been decided that he is only entitled to four sub-categories of workers namely—(1) Weighment incharges, (2) Weighment supervisors, (3) Weighment clerks and (4) Chapadars.

14. On behalf of the petitioner it is contended that in 1957 when he made the application, there was only one class of workers called “salt workers”. This was item 3 in the schedule to the said scheme. Therefore, what he asked for was the right to employ that class of workers, although he mentioned that his work was that of a salt weighment contractor and supervisor. It is pointed out that after a long wait he was entered into the list of employers in. July, 1958 and the letter date July 24/25, 1958 being Ext. “C” to the petition clearly shows that he was listed as an “employer of salt workers”. The number allocated to him was SW-11. When the schedule was amended, this number was renumbered ass SSB: 22 which meant that he was listed as an employer of “salt workers, stitcher and Baggers”. It is pointed out in paragraph 12 of the petition that at all material times, since the listing of the petitioner in 1957 uptil today, he has drawn and or booked all the aforesaid sub-categories of salt workers out of the pool, for the purpose of unloading and or discharging various salt ships in mid-stream without any objection or hindrance. As mentioned above, the petitioner was listed in July 1958 and in September, 1963 the dispute arose. The sub-categorisation of the salt workers took place in January, 1962. Exhibit D to the petition shows that between March 26, 1962 and August 22, 1963 the petitioner unloaded 14 vessels and was allowed all the categories of salt workers as needed by him. The wages of the salt workers were accepted by the Dock Labour Board, who also accepted the requisite levies. In the affidavit in opposition filed by Gopal Singh Ahluwalia, Deputy Chairman of the Calcutta Dock Labour Board, affirmed on November 19, 1963, this fact is not denied. What he says in paragraph 15 is as follows:—

“I say that for some time on the wrongful requisition of the petitioner the Dock Labour Board inadvertently supplied all sub-categories of salt workers to the petitioner which was irregular. After some time the said irregularity was detected by the Dock Labour Board and the Board sought to rectify the said error by its order dated September 2, 1963. I say that under clause 6-A of the said scheme the Administrative Body of the Dock Labour Board is responsible for allocation of listed workers in the pools and it is within the right of the Board to limit the supply to the petitioner those categories of salt workers to which the said firm of Union Weighment Company was and is entitled as per the declaration made in the application for listing.”

15. The reason given in the affidavit as to why, administratively it was not desirable to allot all kinds of salt workers to the petitioner is stated to be that he had no requisite experience and it would retard the speed of work in the Port with serious consequences. During arguments, a fresh ground was taken namely, that unloading from ships is the prerogative of stevedors who have to get special licence from the Commissioners for the Port of Calcutta, and as the petitioner had no such licence he should not be allowed to do the work of a stevedore.

16. It will now be necessary to examine the respective contention of the parties. It will be remembered that the scheme was made in exercise of powers conferred by sub-section (1) of Section 4 of the Dock Workers (Regulation of Employment) Act, 1948. That Act states in the preamble that the object was to “regulate the employment of dock workers”. Sections 3 and 4 of the said Act deal with schemes. It is provided that the schemes were for “ensuring regular employment of workers”. In the scheme, clause 2 sets out the “object” and states that “the object of the scheme is to regulate the employment of dock workers to whom the scheme applies”. Therefore, the object of both the Act and the scheme is to regulate the employment of workers and not employers. So far as the scheme is concerned, clause 8 deals with the listing of employers. All that it states is that the Board shall maintain a list of employers of dock workers to whom this scheme applies. Any person who was an employer of dock workers to whom this Scheme applied could make an application to the Board and was ordinarily entitled to be listed under the scheme. There is no provision for classifying or categorising employers. Clause 11 lays down the obligation of listed employers namely, that he should pay the administrative charges and wages of workers and keep records and give information as mentioned therein. If he fails to carry out the provisions of the scheme, then disciplinary proceedings could be taken against him under clause 14 and he could be warned or censured or removed from the list. There is, however, no provision for classifying or categorising employers. Therefore, under clause 15 which deals with appeals by employers, appeals are provided against disciplinary action or refusal to list, but there is none against classification or categorisation or any order restricting the kind of workers that he may have. On the other hand, there are specific provisions for classification and categorisation of workers. They have been described above. The most important provision, upon this point is clause 6-A. This clause lays down the functions of the Administrative Body. The Administrative Body is responsible for the administration of the scheme and one of its important duties is the allocation of the listed workers in the pool constituted under clause 9-B who are “available for work” to the listed employer. It is further stated that the Administrative Body was to be deemed for this purpose as an agent for the listed employers and it would be its duty to make the fullest possible use of the listed workers in each pool. In my opinion, the Administrative Body can only allot workers, but if workers are available in any category and its sub-categories and if a listed employer entitled to employ workers of a particular category wants any such worker, it cannot refuse to allot the same to him. What, in fact, the respondents are trying to do is to classify or categorise employers. So far as classification is concerned the relevant classification is “salt workers stitchers and Baggers”. This has been further split up into three categories—(i) Salt workers (ii) Stitchers and (iii) Baggers. The petitioner has been listed as an employer of all the three categories. At least, he is listed as an employer of “Salt workers” and therefore of all the sub-categories mentioned therein of Salt workers. It may be that in the application form it was necessary to indicate the kind of workers he was likely to employ. That, however, is no part of clause 8, which relates to the listing of employers. There is only one list of employers, and it may be that for administrative convenience he had to set out in the application form the kind of work he was doing at the time of the application. Every person who was an employer of dock workers of any of the classes or categories to which the said scheme applies on the date of the commencement of the scheme, was entitled to be listed as employer of such class or category. There is no provision in the scheme that he was to be listed as being entitled to employ a particular sub-category of workers. Of course, if the category or sub-category of workers demanded is not available, then the Administrative Body is not bound to provide the same. On the other hand, if workers are available and not supplied then there is at once a violation of the provisions in clause 6-A which states that the Administrative Body must make the fullest possible use of the listed workers of each pool. In my opinion, this attempted restriction in the supply of sub-categories of workers is clearly stated that he was listed as an employer of ‘salt workers’. No particular sub-category was mentioned. Then again, even since there was a sub-categorisation of salt workers the petitioner was being supplied with any sub-category he demanded. I am unable to accept the naive explanation that this was done ‘inadvertently’ for some time. The argument that the petitioner, in unloading cargo in mid-stream, was performing the duties of a stevedore is also an after-thought. No such point was taken in the affidavit in opposition as originally filed. At the hearing, this argument having been propounded, I suggested that the Commissioners of the Port of Calcutta may be contacted. Letters were written to the Port Commissioners, but no reply has been received. If they had any objection, they would have put it forward. As I stated above, for a very long time the petitioner had been unloading salt in midstream, but no one, including the Port Commissioners ever objected. It is doubtful whether mere unloading of salt in midstream is stevedoring work, or whether it requires a licence. But if it does, it is no part of the duty of the Dock Labour Board to enforce the same. The work of stevedores is regulated by the provisions formulated by the Commissioners for the Port of Calcutta. They have never objected to the petitioner carrying on the particular work above mentioned. Even when notice had been given to them by solicitor's letter, there has been no objection. In my opinion, the Dock Labour Board cannot be permitted to go beyond the scheme and arrogate to themselves a duty of protecting the interests of stevedores, which does not fall within the scope of their activities provided by statute. The stand taken on behalf of the petitioner is the correct one and for the reasons stated above this rule must be made absolute and there will be a writ issued in the nature of mandamus directing the respondents not to give effect to the order communicated by the letter dated September 2, 1963 and to perform their duties in accordance with the scheme. If the particular work done by the petitioner is subject to any statutory regulation, I make it clear that nothing in this order will absolve him from complying with the same before requisitioning the Services of any listed worker under the said scheme. The respondents will be at liberty to reconsider the position if the commissioners for the Port of Calcutta or any legally constituted authority object to the use of the petitioner of any category or sub-category of workers, as infringing any statutory provision of law or rules and regulations having the force of law.

17. There will be no order as to costs.