1. These four criminal appeals and the original petition were heard together. It is common ground that it the criminal appeals succeed, the original petition has to be dismissed; and if the criminal appeals fail, the original petition has to be allowed.
2. The Provident Fund Inspector, Ernakulam, is the appellant in the criminal appeals. He was the unsuccessful complainant before the Industrial Tribunal and Special First Class Magistrate, Calicut and Ernakularn, in calendar cases Nos. 30, 31, 32 and 38 of 1963. The accused in the calendar cases and the respondent in the criminal appeals--Bernard Paul Abrao --is the petitioner in the original petition.
3. The sole question for consideration is whether Bernard Paul Abrao comes within the ambit of a notification of the Government of India in the Ministry of Labour and Employment, notification No. G. S. R. 346 dated the 7th March 1982. The notification was published in the Gazette of India, dated the 17th March 1962 and reads as follows :--
'In exercise of the powers conferred by Clause (b) of Sub-section (3) of Section 1 of the Employees Provident Funds Act, 1952(19 of 1952), the Central Government hereby applies the said Act, with effect from the 30th April, 1962, to every trading and commercial establishment employing twenty or more persons each and engaged in the purchase, sale or storage of any goods, including establishments of exporters, importers, advertisers, commission agents and brokers, and commodity and stock exchanges, but not including banks or warehouses established under any Central or State Act.'
4. It is not contended that Bernard Paul Abrao was engaged in the purchase, sale or storage of any goods or that he ran an establishment of advertisers, commission agents and brokers or that he had anything to do with commodity and stock exchanges during the relevant period. The only contention is that ho was a stevedore, and that the establishment of a stevedore should be considered to be the establishment of an exporter and importer, as the stevedore plays a necessary part in the export and import of goods by sea.
5. It is not disputed that Bernard Paul Abrao was and is a stevedore. His submission--a submission with which we agree--is that a stevedore can in no sense be considered to be an exporter or importer of the goods that he handles in the course of his work as a stevedore.
6. A stevedore is a workman employed either as an overseer or as a labourer in the loading and unloading of the cargoes of merchant vessels. It is agreed that all that Bernard Paul Abrao did was to load or unload cargoes from the ships that requisitioned his services; and it is impossible to say that that work will make him an exporter or importer as understood in the language of commerce or of ordinary men.
7. Short of a statutory definition--which does snot exist--including a stevedore within the meaning of the expressions exporter and importer--we cannot hold that such is the case. If the Government wants to bring the establishment of stevedores within the ambit of the Employees' Provident Funds Act, 1952, there is no doubt that what it should do is to amend the notification, and not attribute impossible meanings to familiar words and stretch the sense beyond the breaking point.
8. The stevedores are not even employed by the exporter or importer of cargo. They are engaged by the owner of the ship.
9. Willes, J. deals with the employment of stevedores its follows:--
'The employment of stevedores has grown out of the duty of the owner to load and unload the ship. This duty used formerly to be executed by the crew; but, in dealing with large cargoes, the exigencies of modern commerce have created a necessity for the employment of persons skilled in the particular work of stowing cargo.' Murray v. Currie, (1870) 6 C P 24. And Halsbury :
'Where the actual work of the loading is delegated to a stevedore, the stevedore is, as a general rule, to he regarded as the servant of the shipowner, who, as being the person primarily responsible for the loading, is liable to the shipper, in the absence of an exception covering the stevedore's negligence, for the Manner in which the stevedore performs his work, and also to the stevedore for his charges.'
(3rd Edition, Volume 35, page 395).
10. The remedies of stevedores--and of trimmers of coal on board ships--having claims for work done in connection with the stowing or discharging of ships' cargoes were enlarged by the (English) Merchant Shipping (Stevedores and Trimmers) Act, 1911. Sub-section (1) of Section 1 of that Act provides :
'If it is claimed that any sum is due to any person from the owners of a ship for work done at any place in the United Kingdom by that person in connection with the stowing or discharging of cargoes on board or from that ship, or the trimming of coal On board that ship, and that ship is at any time found in any place in England or Ireland or within three miles of the coast thereof, a judge of any court of record in England or Ireland may, upon its being shown to him by any person applying in accordance with rules of court that prima facie the claim against the owners is a good claim and that none of the owners reside in the United Kingdom, issue an order for the arrest of the ship.'
11. In Magor and St. Mellons Rural District Council v. Newport Corporation, 1950-2 All E R 1226, Denning L. J. said :
'We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by tilling in the gaps and making sense of the enactment than by opening it up to destructive analysis.'
The persuasive argument of counsel for the Provident Fund Inspector was reminiscent of this far-reaching proposition.
12. The proposition, however, does not embody the law of England or of this country. The case went up in appeal to the House of Lords and the speech of Viscount Simonds was devoted entirely to a sharp disapproval of what Denning L. J. had said. Viscount Simonds quoted the passage and observed :
'The first part of this passage appears to be an echo of what was said in Hey don's Case, ((1584) 78 E R 637) three hundred years ago and, so regarded, is not objectionable. But the way in which the learned Lord Justice summarises the hoard rules laid down by Sir Edward Coke in that case may well induce grave misconception of the function of the court. The part which is played in the judicial interpretation of a statute by reference to the circumstances of its passing is too well known to need re-statement. It is sufficient to say that the general proposition that it is the duty of the court to find out the intention of Parliament--and not only of Parliament but of Ministers also--cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used. Those words may he ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited. 'The second part of the passage that I have oited from the judgment of the learned Lord Justice is, no doubt, the logical sequel of the first. The court, having discovered the intention of Parliament and of Ministers too, must proceed to fill in the gaps.' What the legislature has not written, the court must write. This proposition which re-states in a new form the view expressed by the Lord Justice in the earlier-case of Seaford Court Estates, Ltd. v. Asher, (1949-2 All E R 155) (to which the Lord Justice himself refers), cannot be supported. It appears to me a naked usurpation of the legislative function under the thin disguise of interpretation, and it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act. (Magore and St. Mellons Rural District Council v. Newport Corporation, 1951-2 All E R 839).
13. A stevedore is a mere handler of goods in the maritime movement of commodities. An exporter or importer is a trader in international commerce. Throughout the years the expressions have meant things which are different, and it is not possible for a court to stow into the content of the former the concept of the latter. Judges are no stevedores of the unexpressed intent of a silent legislature.
14. The Criminal Appeals fail and are dismissed. The Original Petition succeeds and is allowed. There will be no order as to costs.