1. On 7 February 1975, in exercise of the powers conferred by Cl. (d) of Sub-sec. (1) of S. 10 of the Industrial Disputes Act, 1947, the General Government referred a dispute between the management of Maritime Engineers, Calcutta, the petitioner herein, and their workmen in respect of the question whether the termination of services of Sri Ranjit Kumar Das, welder, with effect from 10 September 1974, was justified, and if not, to what relief was the workman entitled.
2. The petitioner-company in its written statement, inter alia, contended that the Central Government Industrial Tribunal at Calcutta had no jurisdiction to adjudicate the said reference on the ground that the Central Government was not the appropriate Government to make the reference of the alleged dispute between the management of Maritime Engineers and its workmen. The Presiding Officer, Central Government Industrial Tribunal by its order, dated 30 August 1975, has held that the reference made by the Central Government was legal, valid and tenable and it fixed the date of final hearing of the reference in question.
3. The petitioner-company has obtained this rule, inter alia, praying that the aforesaid order of the Tribunal be quashed and the Tribunal be prohibited from further proceeding with the reference made by the Central Government.
4. The short point in this rule is whether the reference under S. 10(1)(d) made by the Central Government to the Central Industrial Tribunal is valid. The answer to the said point would depend on the determination whether in relation to the dispute which has been referred to the aforesaid Tribunal the Central Government was the appropriate Government within the meaning of S. 2(a) of the Industrial Disputes Act. The Presiding Officer of the Central Government Industrial Tribunal has, inter alia, held that the workman concerned was a dock worker and, therefore, the alleged dispute was in relation to a major port. Therefore, the Central Government was competent to make the impugned reference.
5. The respondents have not appeared to oppose the rule. Therefore, Sri Bala, appearing on behalf of the petitioner has placed before me the relevant portions of the proceedings of the Tribunal below and also placed several reported decisions which might be helpful in resolving the aforesaid controversy. At this stage I may record that Sri Bala appearing on behalf of the petitioner-company has made two-fold submissions. In the first place, he has submitted that the petitioner-company's trading activity was not concerning a major port and the ship repairing work undertaken by the petitioner-company was not the sole but only one of the several kinds of works undertaken by the petitioner-company. According to Sri Bala, the ship repairing work was not even incidental to the works concerning a major port. Lastly he has submitted that the findings made by the Tribunal regarding the nature of the work done by the petitioner-company was perverse because the Tribunal did not at all consider the evidence given on the side of the petitioner.
6. It is accepted position that in terms of S. 2(a)(i) of the Industrial Disputes Act, 1947, the Central Government would be the appropriate Government in relation to any industrial dispute concerning a major port. In interpreting the said expression I may apply the tests laid down by the Supreme Court in Serajuddin and Company v. Their workmen [1962—I L.L.J 450]. In Serajuddin and Company case (vide supra), the Court had occasion to consider the meaning of the expression “dispute concerning a mine” within the meaning of S. 2(a)(i) read with S. 10 of the Industrial Disputes Act. The Supreme Court in Serajuddin and Company case (vide supra), had rejected the contention of the appellant-company that a mine means the industry of mining and that would include the head office which exercised general supervision over the mining operation though it may be situated at a place far away from the place where the mining operations were carried on. A dispute between the company and its workmen employed in their Calcutta office which carried on sale operations was held not to be a dispute concerning a mine. In this connexion, Gajendragadkar, J., who delivered the judgment in Serajuddin and Company case (vide supra), referred to the definition in S. 2(a)(i) and observed that it would be noticed that where it was intended to refer to an industry as such, the definition uses the word “industry” as for instance, it refers to an industrial dispute concerning any such controlled industry as may be specified in this behalf by the Central Government, whereas in referring to the dispute in regard to a mine the definition does not refer to an industrial dispute concerning a mining industry but it merely says an industrial dispute concerning a mine. In this context, a mine is referred to as an oil field or a major port is referred. Therefore, in construing the words “an industrial dispute” in relation to a mine, we must first determine what a mine means and this must be done without reference to the broad definition of industry prescribed by S. 2(j). The Industrial Disputes Act then did not contain any definition of the expression “mine.” Therefore, Gajendragadkar, J., has observed that the Court may take into account the dictionary meaning of the word “mine” and also the definition of “mines” given in S. 2(j) of the Mines Act. In the light of these meanings of the word “mine” the Supreme Court came to the conclusion that the dispute in the said case did not concern a mine. Gajendragadkar, J., in this connexion indicated the following test:
“In our opinion, they cannot be said to be ordinarily engaged in any other kind of work whatsoever incidental to, or connected with mining operations either. The work which is incidental to or connected with mining operations must have some connexion with or relation to the mining operations themselves.”
In Serajuddin and Company case (vide supra), the work that had been carried on in the head office of the management at Calcutta consisted principally of sale operations which began after the minerals were raised and all operations incidental to or connected with them were over. It may be noted that the Industrial Disputes Act was subsequently amended and now S. 2(1)(b) adopts the definition of “mine” given in S. 2(a)(i) of the Mines Act, 1952. The Industrial Disputes Amendment Act, also inserted S. 2(1)(a) under which “major port” means a major port as defined in Cl. (8) of S. 3 of the Indian Ports Act, 1908 (15 of 1908). In my view, we may apply the above test laid down in Serajuddin and Company case (vide supra), in order to ascertain the meaning of the expression “an industrial dispute concerning a major port.” The intention of the Legislature appears to make the Central Government the appropriate Government in relation to industrial dispute concerning works in major ports. In the absence of elaboration in the Industrial Disputes Act, the Central Government would be appropriate Government to make a reference under S. 10 of the Act when the dispute is between the management and the workers employed in works considered as incidental to or connected with operations in a major port. The Court is bound to examine the facts of each particular industrial dispute and determine the question whether in relation to the same the Central Government or the State Government would be the appropriate Government. Therefore, to put in another way, in order to determine whether a particular dispute is concerning a major port, the real test would be the nature of the works or activity of the industry concerned employing the workmen in question.
7. Sri Bala has placed before me the decision of the Judicial Commissioner, Kutch, in P.K Pillai v. Burmah Shell Oil Storage and Distribution Company of India [A.I.R 1956 S.C Kutch 9]. The said decision is not very relevant for resolving the point of controversy in the present case. In P.K Pillai case (vide supra), the company had an office in Kandla Port and was doing business in the port area. But, according to the finding of the learned Judicial Commissioner, the company's business was not concerning a major port. Therefore, in relation to a dispute between the company and one of its stenographers, the Central Government was not held to be the appropriate Government. In the case of Tulsidas Khemji v. Jeejeebhoy [1961—I L.L.J 42], the petitioner company carried on business of
(1) clearing and shipping agents;
(2) insurance agents;
(3) godown keepers; and
(4) godown supervisors and controllers.
The Government of India, as the appropriate Government purported to refer to the Central Tribunal disputes between the company and its workmen regarding retrenchment of some of the employees from the clearing and the forwarding departments and also the godown department of the company. A Division Bench of Bombay High Court overruled the point taken by the petitioner-company in its writ application that the reference made by the Central Government bad and without jurisdiction on the ground that the activities carried on by the company did not fall within the items specified in S. 2(a)(i) of the Industrial Disputes Act. The Division Bench of the Bombay High Court held that the said contention was not raised before the Tribunal, and therefore, the petitioner could not be allowed to raise that point for the first time in that High Court. Secondly, according to the Division Bench, the retrenchments were made from the shipping and clearing departments and the godown of the petitioner-company. The Company itself had given notice to the Central Government under S. 25G of the Industrial Disputes Act. Therefore, it was practically conceded that these activities of the company were in relation to a major port. The Division Bench in Tulsidas Khemji case (vide supra), however, found that the four departments of the petitioner-company did not constitute a single industrial establishment and there was no unity of employment for the purpose of S. 25G. Therefore, the reference made under S. 10 was quashed. For the foregoing reasons the Division Bench in Tulsidas Khemji case (vide supra), did not really consider what activities would constitute works concerning a major port.
8. Sri Bala also placed before me the decision of the Judicial Commissioner in Goa Dock Labour Union v. Government of Union Territory of Goa [A.I.R 1969 Goa 16]. Again the learned Judicial Commissioner did not decide the question whether the Central Government was the appropriate Government in respect of a dispute between the barge-crew and their employers. In the said case, the reference had been made by the Government of the Union Territory of Goa. The learned Judicial Commissioner by relying upon the General Clauses Act and also a previous decision of the same Court held that in relation to an Union Territory the Government of the said Territory would be the Central Government. Alternatively it was held that the Government of the Union Territory was competent to make reference on the ground that the same did not relate to a major port. I have already indicated that the ratio decidendi of the decision in Serajuddin and Company case [1962—I L.L.J 450] (vide supra), is that in determining the question as to which is the appropriate Government within the meaning of S. 10 read with S. 2 (a) of the Industrial Disputes Act, the nature of the activity of the management and the extent of its relationship with the port work should be considered in the light of the evidence adduced by the parties.
9. I may now proceed to examine the finding made by the Tribunal and the evidence on record. The copies of the records placed before me indicate that the petitioner-company had examined its chief executive, Harish Kumar Agarwalla, to prove the nature of the activity of the petitioner company and the kind of work performed by R.K Das, whose dismissal is the subject-matter of the reference. R.K Das, the workman, concerned and Bistu Ghose, a representative of the Dock Workers' Union were the two witnesses examined on the side of the workman. Sri Bala, learned advocate for the petitioner, is right in his submission that the Central Government Industrial Tribunal in its impugned order did not consider the evidence given on the side of the company in recording its finding on the question of the validity of the reference. I may also record that the respondents have not appeared to traverse the averments made in the writ petition that the petitioner-company did not work incidental to and concerning a major port work. I am, however, unable to accept the extreme submission of Sri Bala that in case a company is engaged in ship building or ship repairing the said company cannot be considered to be carrying on works concerning a major port. In this connexion the Tribunal has referred to the definition of dock worker in the Dock Workers (Regulation of Employment) Act, 1948. According to the said definition a “dock worker” means
“a person employed or to be employed in, or in the vicinity of, any port on work in connexion with the loading, unloading, movement or storage of cargoes, or work in connexion with the preparation of ships or other vessels from the receipt, of discharge of cargoes or leaving port.”
It may be said that in a port the major work consists of berthing of ship and loading and unloading from the same. But I am unable to hold that repairs carried on in a ship while in the port is not part of the port work. It is common knowledge that when a ship calls at a port it is checked and examined and if necessary repaired to keep it sea-worthy. Every port may have not necessarily a ship building yard, but facilities for ship repairs are generally available in every major port. We are not concerned with the question whether or not ship building is a work concerning a major port. “Port” according to dictionary meaning is a place where the ships may ride secure from storm and may take on or discharge cargo.
10. Sri Bala drew my attention to the fact that in a large number of other cases concerning industrial disputes between other ship builders and their workmen, the State Government had purported to make references under S. 10 of the Industrial Disputes Act but the same cannot be considered as binding precedents because in the said cases no challenge was raised as to the competency of the references and, therefore, there was no determination of the question whether the referring Government was in fact the appropriate Government.
11. In the instant case, the Central Government Industrial Tribunal, I have already stated, did not consider the evidence of Harish K. Agarwalla. The evidence of said Harish K. Agarwalla, the chief executive of the company was that the company worked as engineers, contractors and ship repairers. In their factory they used to do fabrication work, manufacturing of spare parts and various industrial works and as a part of their business they used to do ship repairing work also. The said Harish K. Agarwalla had produced a file showing the various other kinds of works done by the petitioner-company. In answer to questions put by the Tribunal the said witness had stated that the factory was at a distance of six kilometres away from the port. He also further stated in his examination in chief that they had no office within what was called the port and dock area. Therefore, the mere fact that the dismissed workman Ranjit Kumar Das may have held a pass for entering the restricted area of the port would not be decisive in determining whether or not the activity of the petitioner-company was incidental to and connected with port work, The said witness on behalf of the petitioner-company had further stated that they had no special workmen meant for ship repairing work. All the workmen used to do the job whenever required for. If the company had no work for the ship, the workmen used to do the work of manufacturing of spare parts, fabrication, repair of cars, etc. It appears from the evidence on the side of the company that Ranjit Kumar Das used to be deputed whenever his services were required. P.W 1 had elaborated the works done by the company in relation to ship. He stated that they undertook work of repairing of pumps, diesel engine, etc., and fabrication work. The ship work was a seasonal work and it depended upon the contracts they could have. The company had no concern with the Dock Labour Board. I have already stated that the Tribunal below did not apply its mind to this evidence on the side of the petitioner-company and the same amounted to error, apparent on the face of the record. No doubt, the Tribunal had relied upon the evidence of Ranjit K. Das the workman but the company can legitimately contend that the veracity of the said witness and the weight to be attached to his evidence should have been decided by the Tribunal after considering the evidence given on the side of the company. For the foregoing reasons I would have been ordinarily inclined to remit the matter back to the Tribunal for fresh adjudication of the question involved. But I have already pointed out that the respondents have not appeared to oppose this rule and the assertions made by the petitioner-company in their writ petition concerning the nature of the work done by them remain uncontroverted. For this reason, I am inclined to make this rule absolute.
12. I accordingly make this rule absolute. Let a writ of certiorari issue quashing the impugned order of the Tribunal, dated 30 August 1975. Let a writ of mandamus issue commanding the respondents not to give effect or further effect to the said order; Let a writ of prohibition also issue prohibiting the Tribunal from further proceeding with the reference. I make it clear that the appropriate Government would be at liberty a make a fresh reference in accordance with law in case there is still a subsisting industrial dispute between the management and its workmen.
13. There will be no order for costs.