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General Secretary, CochIn Port Wharf Staff Association Vs. Chairman, CochIn Port Trust and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1982)ILLJ173Ker
AppellantGeneral Secretary, CochIn Port Wharf Staff Association
RespondentChairman, CochIn Port Trust and ors.
Excerpt:
.....benefit of compensation will be discontinued. after going into the concerned demand, the wage revision committee recommended in paragraph 82 of its recommendations as follows: whether the demand of the outdoor wharf staff of the cochin port trust for payment of additional amount at 10% of the revised basic pay in the revised pay scale recommended by the wage revision committee as accepted by the government of india. , holding that there was no justification for the demand by the union for the payment of additional amount at the rate of 10% of revised basic pay in the revised pay scales as recommended by the wage revision committee. 3. it may at once be noticed that over and above the wages recommended by the wage revision committee the workers concerned are paid 10% of the..........when the benefit of compensation will be discontinued.after going into the concerned demand, the wage revision committee recommended in paragraph 82 of its recommendations as follows:we are accordingly of the view that there is no justification in the demand for reduction in the working hours of outdoor clerical staff, nor is there any justification for payment of overtime or a special allowance for extra hours of work. we, therefore, recommend that wherever such a practice obtains, the same should be discontinued. this recommendation should however, be prospective in operation and shall take effect from the date of government orders in our recommendations.later on a settlement was reached between government of india and the federation of unions. exhibit m2 produced in the dispute.....
Judgment:

K. Bhaskaran, J.

1. The dispute in this writ petition falls within a short compass. Following the demand made by to Wharf Staff of the Cochin Port Trust in 1972 for reduction in the working hours so as to bring it in level with that of the indoor clerical staff, the Board of Trustees of the Port Trust constituted a sub-committee by resolution dated 23-11-1972 to go into the matter. The subcommittee after due deliberations made the following recommendation:

The Committee felt that for the extra work turned out by them either some compensation should be paid or alternatively their working hours in the second shift should be reduced on par with the Indoor Ministerial staff. Taking all factors into consideration including the probable financial commitment, the sub-committee unanimously decided to recommend to the Board the payment of an additional amount of 10% of the basic pay of the Wharf Staff as compensation for the extra hours of work until such time as the Board is in a position to make an alternative arrangement or decision at an All India Level is arrived at, when the recommended benefit of compensation will be discontinued. (Vide Ext. W-1 produced before the Industrial Tribunal.)

2. On a consideration of the recommendation of the sub-committee the Port Trust resolved by resolutions Nos. 23 and 25 as follows:

23. Resolved after discussions to accept the recommendation of the Sub-Committee for the payment of an additional amount of 10% of the basic pay of the Wharf Staff as compensation for the extra hours of work till such time as the Board is in a position to make an alternative arrangement or a decision at an All India level is arrived at, when the recommended benefit of compensation will be discontinued.

25. Resolved further that the payment of 10% of the basic pay as compensation for the extra hours of work be also be made to all outdoor clerical staff who are required to do eight hours of work a day till such time as the Board is in a position to make an alternative arrangement or a decision at an All India level is arrived at when the benefit of compensation will be discontinued.

After going into the concerned demand, the Wage Revision Committee recommended in paragraph 82 of its recommendations as follows:

We are accordingly of the view that there is no justification in the demand for reduction in the working hours of outdoor clerical staff, nor is there any justification for payment of overtime or a special allowance for extra hours of work. We, therefore, recommend that wherever such a practice obtains, the same should be discontinued. This recommendation should however, be prospective in operation and shall take effect from the date of Government orders in our recommendations.

Later on a settlement was reached between Government of India and the Federation of Unions. Exhibit M2 produced in the dispute resulting in Ext. P4 award is the copy of the settlement. By paragraph 2 of the settlement arrived at between the Government of India and Federation of Port and Dock Workers on the implementation of the report of the Wage Revision Commitee it was decided that the recommendations of the Wage Revision Committee will be implemented with effect from 1-4-1974 subject to the Following:

(m) Merely as a consequence of implementation of the recommendations of the M.R.C. any facility, privilege, amenity, benefit monetary or otherwise, or concession to which an employee might be entitled by way of practice or usage shall not be withdrawn, reduced or curtailed except to the extent and manner as provided for in this agreement.

Really the dispute centres round (he interpretation of the true spirit and ambit of this clause contained in the agreement produced as Ext. M 2 in the dispute leading to Ext. P4 award. The question boils down to this: whether the demand of the Outdoor Wharf Staff of the Cochin Port Trust for payment of additional amount at 10% of the revised basic pay in the revised pay scale recommended by the Wage Revision Committee as accepted by the Government of India. Ministry of Shipping and Transport, in Resolution No. LWR-20/77-D. II dated 17-8-1977 with retrospective effect from 1-1-1974 is justified; if so to what relief are the employees entitled. A dispute having arisen, the matter was referred by the Government of India under Section 10(1)(a) of the Industrial Disputes Act, 1947, for adjudication to the Industrial Tribunal. Madras. The matter was gone into by the Tribunal in I. D. No 70 of 1977 and the award was passed on 28-5-1978 The Tribunal answered the point in the negative, i.e., holding that there was no justification for the demand by the union for the payment of additional amount at the rate of 10% of revised basic pay in the revised pay scales as recommended by the Wage Revision Committee. It is aggrieved by this award Ext. P4 that this writ petition has been filed by the Cochin Port Trust Wharf Staff Association.

3. It may at once be noticed that over and above the wages recommended by the Wage Revision Committee the workers concerned are paid 10% of the basic pay in the pay scale prevalent before the revision of wages by the Wage Revision Committee, at the maximum rate. So the dispute really narrows down to this. Whether the 10% given over and above the wages according to the revised scale of pay recommended by the Wage Revision Committee, should be 10% of the revised pay in the revised scale or it should be 10% of the basic pay before the wages were revised as a result of Ext. M2 agreement.

4. Sri P. Balagangadhara Menon, the counsel for the petitioner-Association, contended that though the Wage Revision Committee found that there was no justification for separate treatment with respect to working hours regarding the indoor ministerial staff on the one hand and the outdoor wharf staff on the other, and felt the need for uniformity in the matter, what in effect happened was that the indoor clerical staff continued to have only 6 1/2 hours as working time, and the outdoor wharf staff continued to have 8 hours working period in every shift. This was the real situation. It was taking notice of this peculiar position that in Ext. M2 agreement Clause (m) was inserted. According to him, the object of Clause (m) in Ext. M2 was to protect the benefits enjoyed by the outdoor wharf staff as a compensation for the extra turnover of work during a longer span of time. He pointed out that before the coming into effect of the agreement Ext. M2, admittedly the outdoor wharf staff was receiving the benefit at 10% of the basic pay. He also submitted that but for the fact that Clause (m) of Ext.M2 protected the continuation of the payment, what was being given by the Port Trust as per Resolution Nos. 23 and 25 contained in Ext. M1 produced in the dispute leading to Ext. P4 award, would have come to an automatic cessation His contention in substance, therefore, is that, as before, 10% of the basic salary at the rate which is current should be paid by virtue of the protection given in Clause (m) of Ext. M2 to the employees covered by the said clause.

5. Sri P. K. Kurian, the counsel for the Port Trust, on the other hand, laid great stress on the fact that the definite recommendation of the Wage Revision Committee was to do away with the practice of paying anything extra by way of compensation for the extra work on the basis that while indoor Ministrial Staff worked only for 6 1/2 hours the outdoor Wharf Staff worked for 8 hours, even in the case of those who were deputed, or transferred from the indoor section to the outdoor section. In the light of the recommendation, he would contend, the demand for the continuation of what was received by the outdoor Wharf Staff purely as a transitory measure pending the making of alternate arrangements of the implementation of the decision of the Government of India on the recommendation of the Wage Revision Committee, itself was not justified.

6 No doubt, but for Clause (m) in Ext. M2 agreement the benefit given in pursuance of Resolution Nos. 23 and 25 in Ext. M1 would have lapsed automatically. So it is Clause (m) in Ext. M2 that gives extended life to the rights and obligations traceable to Resolution Nos. 23 and 25. That the outdoor Wharf Staff should be entitled to continue to receive the benefit in issue is a position seem to have been accepted by the Port Trust itself as has already been noticed. Now the only question to be decided is whether in the context of things and in the historical background of the dispute the interpretation placed by the 2nd respondent - Tribunal in Ext. P4 award could be upheld. In this connection the memorandum of the Indian National Port and Dock Workers Federation to the Government of India in respect of the recommendations of the Wage Revision Committee in so far as it relates to the present dispute (Ext. M2 in the dispute leading to Ext. P4 award) is of some significance. That reads as follows:

IV.... .... .... ....(X) protection should be given to the existing privileges like special allowance and pay now enjoyed by certain categories. Same should be allowed to continue, on pro-rata basis; for example, the benefit of 10% of the basic pay enjoyed by the Wharf and Outdoor Clerical Staff at Cochin Port should be protected.

It has also to be noticed that the report of the sub-committee, whose recommendations were accepted by the Port Trust while passing Resolutions 23 and 25 mentioned above had noticed that the work that was being done by the outdoor Wharf Staff was not less arduous, and there was no justification for having discrimination between the hours of work of those two classes considering also that the indoor Ministerial Staff actually worked in a more comfortable atmosphere. The Port Trust appears to have gained the impression that the outdoor Wharf Staff had made out a case for compensation for the extra work extracted from them in comparison with their counterparts working in the indoor clerial (Ministerical) section, despite the fact no positive recommendation in that direction was made by the Wage Board and that the Wage Revision Committee had in no unmistakable terms condemned the practice of making such payments. It is also reasonable to infer that the benefit given under the two Resolutions was made temporary in character in the hope that the anomaly would be removed by the Wage Revision Committee in its report and recommendations. That, however, did not happen. During the negotiations between the Government and the Federation which ultimately led to Ext. M. 2 settlement, this aspect appears to have been stressed by the Federation and weighed with the Government and that alone could possibly justify the engrafting of a provision in the nature of Clause (m) in Ext. M 2 settlement. The idea behind giving the benefit envisaged by Resolutions 23 and 25 in Ext. M6 was to compensate for what the Port Trust considerd to be the extra work that was turned out by outdoor Wharf Staff. The unanimous recommendation of the sub-committee accepted by the Port Trust, was that an addition of 106 of the basic pay should be paid to those workers on that account. It is that benefit that has been agreed to be retained and continued in terms of Clause (m) of Ext. M 2 agreement. The question really is- is it any particular quantum of amount by way of the benefit or the very benefit as such based on certain principles that has been allowed to be retained and continued? The stand of the Government followed by the Port Trust appears to have been that what was protected was only the quantum that was being received during the pre-revision Stage subject to the variation that it could be at a flat rate a the maximum for the sake of uniformity. On the other hand, the stand of the Association is that it is the benefit based on certain criteria that has been preserved and protected.

7. As has already been stated, the idea seems to have been that the concerned workers should be able to carry home with their pay packets, which otherwise they would have got, an additional sum equal to 10% of their basic salary. Basic salary rather the quantum of basic salary is not a constant factor. It is likely to be varied from time to time depending upon various facts and circumstances. The actual quantum of the amount by way of 10% of the basic salary which the concerned workers received must have certainly varied from time to time during the pre-revision period itself. If that be so, is there any justification now for introducing a departure from the practice that was evolved as a result of Resolution Nos. 23 and 25, the operation of which has been extended by Clause (m) of Ext. M2 To repeat, the idea was to compensate the extra work at a certain percentage of the basic pay. That being a variable factor, it only stands to reason that the quantum is to vary according to the change of basic pay. I think, we will be reading into cl- (m) what is not there or intended to be there, if the expression ''benefit, monetary or otherwise', occurring therein is construed to mean 'benefit, monetary or otherwise quantified as on the day immediately prior to the date of settlement (Ext.M2). If such a narrow, and in fact unwarranted, construction is given to that expression, we would be sacrificing the very spirit underlying the settlement; and the result would be that what the employee carry home by way of benefit under Clause (m) along with his pay packet based on the revised pay scale recommended by the Committee, would not be equal to 10% of his basic salary. Resolutions 23 and 25 seem to have said in unequivocal terms that every time the employee concerned received his salary he would receive 10% of the basic salary received by him as compensation for the extra work done by him. It is the right to continue that benefit has been protected in favour of the employee by Clause (m) of Ext. M2.

8. Even assuming that it is possible to have two views, namely, (i) that what was protected by Clause (m) was only the quantum of compensation or extra payment that was being received before Ext. M2 settlement on the one hand, and (ii) that the whole idea was to enable the workers concerned to carry home along with their pay pockets, for which they are otherwise eligible, an additional sum equal to 10% of the basic pay currently received on the other, it is only the latter view, that is the view in favour of the worker, that could be given effect to in an industrial dispute. The 2nd respondent Tribunal claims to have construed Clause (m) strictly, and such construction, when liberal interpretation is called for, in the light of the principle stated above, has in effect and substance led to a perverse decision, not warranted by the terms of the agreement or in the historical background of the dispute and it amounts to an error of law going to the very root of the matter vitiating Ext. P 4 award.

9. For the foregoing reasons the writ petition is allowed; Ext. P 4 award is quashed; and the 2nd respondent Tribunal is directed to pass fresh award according to law and in the light of the observations contained in this judgment. There will be no order as to costs.


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