D.K Sethi, J.:— Sri Nihar Kanti De and Md. Nazir, the two petitioners purports to represent 46 other stevedoring labourers carrying out work of loading and unloading of cargo from vessels within Calcutta Port Trust. Their case inter alia was that they were stevedoring labourers employed for last 30 years on permanent basis by registered employer under the Calcutta Dock Workers (Regulation of Employment) Scheme, 1970 (hereinafter referred to as the said scheme). That the respondent Nos. 2 and 3, as statutory authorities, are responsible for discharge of their public duty in protecting the rights of the petitioners. The respondent Nos. 4 and 5 are body corporate constituted under the Dock Workers (Regulation of Employment) Act, 1948. Under the statute the respondent Nos. 4 and 5 are also obliged to protect the interest of the petitioners. However, the petitioners did not claim themselves to be registered dock workers. However, they claimed to have been working under registered employer. In paragraph 16, it has been pointed out that vessels with G.R.T less than 350 tones were exempted from engaging dock workers and that owners of such vessels were entitled to engage their own labourers. The Petitioner was originally engaged by M/s. Hauers Lines Pvt. Ltd. and then by M/s. Shanti Shipping Co. Ltd. At one point of time the vessels of Shanti Shipping were held to be above 350 G.R.T upon such assessment they were no more entitled to appoint their own workers. In such circumstances Shanti Shipping had filed a writ petition being W.P No. 5171(W) of 1998. However, subsequently though the vessels of Shanti Shipping were assessed to have higher G.R.T still then they were allowed to continue with the old system of engaging their own labours by a letter issued by the appropriate authority. Subsequently the vessels were now handled by the respondent Nos. 6 and 7 and Shanti Shipping was no more in the picture. It is alleged that the respondent Nos. 6 and 7 both of whom are registered employers were engaging their own workers without engaging the petitioners. Now therefore, by means of this petition the petitioner claims for directions upon the respondents for registering the petitioners under the 1970 Scheme and for ensuring their engagement without engaging any outsider and to restore status quo in respect of the employment of the petitioners.
2. The learned Counsel for the petitioner had relied upon various provisions of law particularly the 1970 Scheme in order to substantiate the contention. According to her even if the petitioners are not registered dock workers still the respondent Nos. 6 and 7 being registered employers are bound to engage the petitioners without engaging any outsiders and by reason of the said Act and the Scheme the respondent Nos. 4 and 5 are bound to ensure engagement of the petitioner by compelling the respondent Nos. 6 and 7 to do so under the scheme and the respondent Nos. 2 and 3 has an obligation to issue appropriate direction to the respondent Nos. 4 and 5 for the implementation of the said scheme viz to engage the petitioners. Relying on paragraph 12 of the scheme the counsel had pointed out the obligations of the authorities. Relying on paragraph 20 she claims that the petitioner should be registered as registered dock workers. Relying on paragraph 41 she has pointed out the obligations of the registered employers and referreing to paragraph 42 she pointed out the restrictions on employment. She also contends that by reason of Paragraphs 48 and 50 of the scheme the respondents exercise control over such workers. Therefore, it is the obligation of the respondent Nos. 4 and 5 vis-a-vis 2 and 3 to ensure employment or engagement of the petitioners and to compel the respondent Nos. 6 and 7 to engage the petitioners. She has also referred to certain decisions in support of her contentions to which reference would be made at appropriate stage. The learned Counsel Mr. Alok Kumar Banerjee, for the respondent Nos. 4 and 5 on the other hand contended that the petitioners are claiming their right through Shanti Shipping on the ground that despite the scheme Shanti Shipping was exempted from the scope of the scheme and was entitled to engage their own labours namely the petitioners. The same exemption was allowed to continue even when the G.R.T of the two vessels Island Queen and Island Princes of Shanti Shipping exceeded 350 tonnes respectively. Therefore, it was a relation between Shanti Shipping and the petitioners which was sought to be protected in the earlier writ petition being W.P no. 5171(W) of 1998. Therefore, in the absence of Shanti Shipping this writ petition cannot be mainlined. He next contended that neither the Calcutta Port Trust nor the Dock Labour Board is the employer of the petitioners. At the same time the petitioners are not registered Dock workers. Therefore, the petitioners cannot thrust themselves upon the respondent No. 7 nor the Dock Labour Board hereinafter referred to as the Board can compel the respondents No. 7 or 6 as the case may be, to engage the petitioners. According to him unless the petitioners are registered dock workers the scheme has no manner of application. He also referred to various provisions of law as well as certain decisions to which reference would be made at appropriate stage. Thus he contended that the writ petition should be dismissed.
3. Mr. Majumdar, learned Counsel for the respondent NQS. 2 and 3 had adopted the submission of Mr. Alok Kumar Banerjee, representing respondents No. 4 and 5 and contended that respondent Nos. 2 and 3 has nothing to do with the matter. Dock Labour Board has altogether an independent entity constituted under a different statute over which the respondent Nos. 2 and 3 does not have any administrative control. Therefore, the writ petition cannot be maintained as against the respondent Nos. 2 and 3.
4. Mr. Das, learned Counsel representing the respondent No. 7 had contended that the petitioners cannot maintain the petition on behalf of the other 46 workers in the absence of any disclosure of authority. The case might be at best a case of individual workers having distinct and separate cause of action for each individual worker. He then contends that the petitioners are workers of Shanti Shipping and they are not dock workers. Admittedly they are not registered dock workers. The 1970 scheme has no manner of application in their case. Therefore, this writ petition cannot be maintained as against the respondents No. 4 and 5 or the respondents No. 2 and 3 or the respondent No. 1, as the case may be. As such in the absence of respondent Nos. 1, 2, 4 and 5 the writ petition cannot be maintained as against the respondent Nos. 6 and 7. He then contends that in the absence of Shanti Shipping, through whom the petitioners claimed their right, the petition cannot be maintained. According to him the relief sought for is in the nature of specific performance of personal contract for service which cannot even be enforced through civil suit and as such cannot be done so through writ jurisdiction. There is no law under which either the petitioners themselves or the respondent Nos. 4 and 5 vis-a-vis respondent Nos. 2 and 3 could thrust the petitioners upon the respondent Nos. 6 and 7. Therefore, this petition should be dismissed.
5. Mr. Utpal Majumdar, learned Counsel representing respondent No. 6 contends that the respondent No. 6 is handling the vessels Suleman and Agni as agent. It has no connection with Island Queen and Island Princes handled by Shanti Shipping in respect whereof the petitioners were engaged by the said Shanti Shipping on account of the exemption granted to the said vessels. Therefore, the respondent No. 6 is not necessary party. He also contends that this petition cannot be maintained in the absence of Shanti Shipping and that the petitioners, not being registered dock workers, cannot claim the benefit of the scheme.
6. In reply the learned Counsel for the petitioners contends that the absence of Shanti Shipping will not affect the position since the petitioners are not claiming any relief against Shanti Shipping but are claiming their right through the scheme seeking to enforce the obligation of the respondent Nos. 4 and 5 vis-a-vis the respondent Nos. 2 and 3 under the scheme relating to the respondent Nos. 6 and 7 who are admittedly registered employer and are obliged under the scheme. Therefore, the relief sought for should be granted forthwith.
7. I have heard the respective counsel for the parties at length.
8. The question that the writ petition cannot be maintained in the absence of Shanti Shipping and the question of representation of 46 other workers by the two pretitioners may be of some relevance. But I do not propose to examine the same at the outset. Having regard to the facts and circumstances of the case let us examine first as to whether the petitioners can claim any right under the said scheme to maintain this petition as against the respondent Nos. 4 and 5 vis-a-vis 6 and 7.
9. In order to extend protection to the dock labours Indian Dock Labourers Act, 1934 was enacted. Subsequently, for regulating the employment of dock workers the Dock Workers (Regulation of Employment) Act, 1948 was enacted. Under section 3 thereof a scheme was to be formulated of ensuring regular employment of the workers. Accordingly the Calcutta Port Trust had formulated Calcutta Dock Workers (Regulation of Employment) Scheme, 1970. Section 2 of the said scheme prescribes the objects and obligations. Under sub-paragraph 2 of paragraph 2 the scheme is applied only in respect of dock work and dock workers set out in scheduel 1 and to any dock workers not specified in schedule 1. After sub paragraph 2, Provides that the scheme shall apply to registered dock workers their registered employers. Thus the scheme is applicable only in d dock workers who satisfy the description contained in 4 employers.
10. In order to appreciate this situation we may beneficially refer to sub-paragraphs 2 and 3 of paragraph 2.
“2. Objects and Application
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(2) the scheme relates to the Port of Calcutta within the limits specified in Schedule V and applies to the classes or descriptions of dock work and dock workers set out in Schedule 1. Provided that the scheme shall not apply to any dock worker who is not specified in Schedule 1.
The Scheme shall apply to registered dock workers specified above and their registered employers”.
11. Thus a plain reading of the said provision makes it clear that the scheme applies only to registered dock workers and their registered employers. Even if the dock work relates to the description in schedule 1 and to the classification of dock workers referred to therein still it would not apply unless the dock worker is a registered dock worker. If a worker is a registered dock worker in that event the scheme will apply in relation to their registered employer. In other works, even if the employer is a registered employer still then the scheme will not apply to them in relation of their obligation so far as dock workers who are not reigstered workers and particularly the petitioners. In case, the petitioners do have any grievance in that event they might seek relief under the Industrial Disputes Act but not under this scheme. However, 1 am not supposed to enter into the said question except to find out that whether the scheme applies in the case of the petitioners.
12. Paragraph 3(p) defines ‘registered dock worker’ to mean “a dock worker” whose name is, for the time being, entered in the register or record.” ‘Registered employer’ defined under paragraph 3(q) means “an employer” whose name is, for the time being, entered in the employers’ register. The words “dock worker” has been defined in the Act but it has not been defined in the scheme. However, dock worker and dock employer has also been defined in the scheme. The scheme even defines pool worker 2(n) and reserve pool 2(r). The petitioners may be dock workers. One may be dock employer but the application of the scheme can be invited only to “registered dock workers” and their “registered employer” and not otherwise. However, “pool worker” has been defined to mean “dock worker registered in the register maintain by Dock Labour Board,” and “reserve pool” means a pool of dock worker registered in register maintained by the Dock Labour Board.”
13. The ‘dock worker’ though not defined in the scheme happens to be defined under Section 2(b) of the 1948 Act. Even if the petitioners are dock workers still they cannot be governed by the scheme so long they are not registered dock workers or pool workers within the meaning of the scheme. Under section 3 of the 1948 Act a scheme may be formulated and it may provide for its application to such class of dock workers and employers specified therein. Even if the petitioners may not be registered workers, they may be dock workers and are also entitled to get them enrolled as pool workers and if they are so enrolled in that event they may seek protection under the said scheme. But unless and until the petitioners are governed under the scheme they cannot claim any benefit thereout.
14. The fact remains that the petitioner had never claimed themselves either as registered dock workers or pool workers or reserve pool workers. On the other hand the petitioners had claimed themselves as stevedoring labourers engaged by M/s. Shanti Shipping in respect of their two vessels Island Queen and Island Princes having G.R.T less that 350 tonnes. Admittedl this G.R.T was assessed at higher rate but subsequently the benefit of lesser tonnage of 350 was allowed to continue in respect of these two vessels. Admittedly the petitioners were engaged by Hauers Lines Pvt. Ltd. and thereafter by M/s. Shanti Shipping. The engagement of the petitioners were by reason of the exemption allowing M/s. Shanti Shipping or its predecessor to engage their own labours namely the petitioners. Thus it is a relation between M/s. Shanti Shipping and the petitioners with which the scheme had nothing to do since though M/s. Shanti Shipping might be a registered employer but yet the petitioners were not registered dock workers nor were they pool workers nor reserve pool workers. Since the provisions of the scheme applies to the registered dock workers and their registered employers, therefore, Shanti Shipping being registered employers, of the petitioners even if they could claim any right as dock workers workers without being registered as dock workers they could claim it only against Shanti Shipping. Therefore, in the absence of Shanti Shipping it is very difficult to grant any relief to the petitioners and to maintain this writ petition.
15. Be that as it may the petitioners are now claiming that the respondents No. 6 and 7 should employ them. Respondent No. 6 had pointed out that they are not dealing with Island Queen and Island Princess the vessels in which the petitioners were working but some other vessels namely Suleman and Agni. Therefore, the petitioners cannot claim any right without being registered dock workers or pool workers or reserve pool workers to work in Sulaman or Agni under the respondent No. 6. Thus, this writ petition as against the respondent No. 6 cannot be maintained who is an unnecessary party.
16. Even if the responent No. 6 is a registered employer still then respondent No. 6 is not a registered employer of the petitioners who are not registered dock workers. Therefore in between the petitioners and in respondent No. 6 the 1970 scheme cannot be attracted. Thus no obligation could be conceived or seems to have been conferred on the respondent Nos. 4 and 5 as far as the petitioners are concerned.
17. The respondents No. 4 and 5 being authorities constituted under the 1948 Act are altogether independent entity. None of the provisions of the 1948 Act provides for exercise of any jurisdiction or power over the Board constituted under the 1948 Act by the respondents No. 2 and 3. Thus, respondents No. 2 and 3 have no obligation so far as the present case is concerned having regard to the petitioners. Thus, the respondent No. 1 cannot be brought in the picture. Therefore, this petition cannot be maintained as against the respondent Nos. 1, 2 and 3 respectively.
18. Unless the scheme is attracted no obligation can be expected from the respondent Nos. 4 and 5. All the obligations, power and functions are circumscribed by the provisions contained in the scheme. No jurisdiction or power can be conferred so far as the respondent Nos. 4 and 5 are concerned dehors the scheme. Thus, it is only when the provisions of the scheme could be attracted then the question of jurisdiction, power and obligation of respondent Nos. 4 and 5 can thought of.
19. As observed earlier the petitioners not being registered dock workers the scheme cannot be attracted in their case even if the respondent No. 7 is a registered employer handling Island Princes and Island Queen. Inasmuch as despite assessment of higher G.R.T Island Princes and Island Queen has since been allowed to be exempted from the application of the 1970 scheme. As such the provisions of the scheme cannot be enforced against the respondent No. 7 when it relates to the handling of the vessels Island Princes and Island Queen. Admittedly M/s. Shanti Shipping and the respondent No. 7 are altogether different entities. But then such a dispute in the absence of application of the scheme can be adjudicated if at all under the Industrial Disputes Act but not under this Scheme. Unless the petitioner's case is covered under the scheme, the reliefs sought for which is in effect enforcement of specific performance of personal contract for service, cannot be granted. The Court has no power to thrust the petitioners upon an unwilling employer. Inasmuch there is no statutory obligation on the part of the respondent No. 7 even as registered employer to engage the petitioners who are not registered dock workers. Therefore, Court is powerless to grant any relief in the present case.
20. In view of the above finding it is not necessary to deal with the other questions raised by the respective counsel. Mr. Banerjee had relied on the decision in the case of Vishakhapattanam Dock Labour Board v. Stevadors Association, (1969) 2 SCC 801 : AIR 1970 SC 1626. He relied on paragraphs 10, 14, 23-25. In the said decision it was held that there is no relationship of employer and employee between the Board and Dock Labour. In this case the petitioners had never claimed any such relationship. But had claimed that the Board had certain obligation for regulating employment of dock labours so far as registered employers are concerned and therefore the petitioners had been seeking such relief to enforce the obligation of the board the scheme. Thus the said decision does not help us in the present case. Mr. Banerjee had also relied on the decision in the case of Calcutta Dock Labour Board v. Board of Wages Authority, 1982 Lab IC 657 (Cal) (Paragraphs 13, 15). Similar view was taken that there is no relationship of employer and employee between the Board and the dock workers by the Calcutta High Court under the said scheme. For similar reason this judgment also is not relevant for our present purpose. Reliance was placed by the learned Counsel for the petitioner on the decision in the case of Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617. In the said decision it was held that the Court can interfere with the decision making process on the grounds of mala fides unreasonableness or arbitrariness. But such power are discretionary and should be exercised with great caution and only in furtherance of overwhelming public interest. In the present case, nothing has been shown that there is any mala fide on the part of the Board. Neither they had taken any decision. So long the petitioners are not registered dock workers or pool workers there is no scope for taking any decision by the Board. Thus, no mala fide unreasonableness or arbitrariness could be imported.
21. Thus, for all these reasons the writ petition fails and is accordingly dismissed.
22. Petition dismissed.