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CochIn Dock Labour Union (by Its Secretary) and ors. Vs. CochIn Dock Labour Board (by Its Chairman) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1967)IILLJ108Ker
AppellantCochIn Dock Labour Union (by Its Secretary) and ors.
RespondentCochIn Dock Labour Board (by Its Chairman) and anr.
Cases ReferredBuckingham and Carnatic Co. v. Venkatayya
Excerpt:
.....had subsequently written to the board stating that their absence was for reasons other than the strike. 5. the petitioners complain in para. in respondent 1'a counter-affidavit, it is stated that on scrutiny, it was found unsafe to regard the same as completely genuine. respondent 1 thought it would not be safe to act on such a 'mass explanation' or to rely on the signatures appearing in the same. it follows, therefore, that the reliefs, if any, ultimately granted in this writ petition, can only be in favour of petitioners 2 to 6. 10. the second preliminary objection was that this writ petition was premature in so far as the petitioners had not waited for a sufficient time to enable the government to act in pursuance of the failure report ex. without awaiting government's action in..........the counter-affidavit, that the strike notice dated 30 october 1966 did not specify the demands of union workmen, which was done only dated letter dated 8 november 1966, sent by the union. it, is alleged that the union and its members were adopting an obstructive attitude, and that as petitioner 1 union was not a recognized union, there was no question of carrying on any correspondence with if.4. the strike commenced at 1 a.m. on 1 december 1986, and 275 registered workmen who were on shift duty on the night/ morning of 30 november/1 december 1966, struck work, and more than 500 workmen scheduled for work on subsequent days also abstained for work. it is the petitioners' case that pursuant to a letter dated 7 december 1968 (copy ex p. 2) from the chief labour commissioner (central),.....
Judgment:

V.P. Gopalan Nambiyar, J.

1. The petitioners are the secretary of the Cochin Dock Labour Union and five other individual workmen employed under the Cochin Dock Labour Board. Respondent 1 is the Cochin Dock Labour Board and respondent 2 is its administrative body, namely, the United Stevedore Association of Cochin (Private), Ltd., represented by its president. The reliefs sought in this writ petition are:

(1) a declaration that Ex. P. 6 (a) resolution passed by respondent 1 board at its meeting dated 8 December 1968 is illegal, inoperative and void and all actions by the respondents under Ex. P. 6 (a) are also illegal and void;

(2) a write of mandamus directing respondent 2 not to treat petitioners 2 to 6 and dock workers similarly situated as having abandoned service in pursuance of Ex. P. 6 (a) resolution ; and

(3) a writ of certiorari or any other appropriate writ, order or direction quashing Ex. P. 6 (a) resolution or to grant; such other reliefs that are deemed fit and just in the circumstances of the case.

2. When this writ petition came on for hereing on 17 February 1957, counsel for respondent 2 prayed for time to file a counter-affidavit. Counsel for respondent 1 also stated that it might become necessary to traverse the allegations in the additional affidavit of the petitioners dated 8 February 1937 filed on 9 February 1967, and to counter the effect of Ex. P. 8 filed along with the same. It was then represented by Sri T. C. N. Menon, counsel for the petitioners, that no reliance would be placed on the additional affidavit dated 8 February 1957 or on Es. P. 8 filed along with it. It was also stated by Sri Menon that no reliance would be placed on the allegations made against respondent 2 in the affidavits of the petitioner, and no reliefs will be claimed against respondent 2. These were recorded by me, and it was stated, that in the circumstances, it seemed unnecessary for respondent 2 to file any counter-affidavit, or for either respondent 1 or 2 to file any rejoinder to the additional affidavit of the petitioners. Arguments ware then addressed.

3. There has been a great deal of controversy and dispute in regard to the facts alleged in the petitioners' affidavit or stated by petitioners' counsel. Broadly stated, the position disclosed is as follows. Respondent 1 board IB governed by the provisions of the Cochin Dock Works (Regulation of Employment) Scheme, 1959, framed under the provisions of the Dock Workers (Regulation of Employment) Act, 1948 (Central Act 9 of 1918). By an award in Industrial Dispute No. 3 of 1961, dated 18 October 1962, about 1,800 dock workers wore registered, according to the terms of the award, and respondent 1 board began to employ the workman from about 6 November 1962. Till then the stevedoring work in the board, which is casual in nature, used to be undertaken by casual workmen supplied for the purpose by two unions, namely, the Cochin Tauramugha Thozhilali Union and the Cochin Port Thozhilali Union. Petitioner 1 was registered as a union some-time in 1963, and, according to respondent 1, it wrote for the first time, for being considered for recognition on 13 March 1964. Respondent 1 board seems to have taken up this matter of recognition of the union with the Government of India, and by Ex. R. 1 letter, dated 9 June 1965 of the Government of India to the president of petitioner 1 union, it was stated that the question of recognition of the union should be taken up only after the code of discipline was made applicable to the Dock Labour Board. According to the petitioner, more than 000 dock workers are members of petitioner 1 union. This is denied by respondent 1, According to the petitioner again, respondent 1 was insisting that the recruitment of casual workmen should be done only through either of the two unions through which it was done till 1962, and was also harassing petitioner 1 union. Petitioner 1 union, therefore, issued a notice of strike on 30 October 1966 intimating that the registered dock workers represented by it, would commence an indefinite strike from 1 December 1966. A conciliation conference was called by the Assistant Commissioner, Ministry of Labour and Employment, Government of India, Ernakulam, on 30 November 1966 to make attempts for an amicable settlement of the dispute. Owing to the non-co-operative attitude of respondent 1 as alleged by the petitioners, the conciliation conference resulted eventually in Ex. P. 1 failure report dated 9 December 1966 of the conciliation officer. These have been recounted in Paras. 9 and 10 of the petitioner's affidavit. In answer, respondent 1 has alleged in Para. 11 of the counter-affidavit, that the strike notice dated 30 October 1966 did not specify the demands of Union workmen, which was done only dated letter dated 8 November 1966, sent by the union. It, is alleged that the union and its members were adopting an obstructive attitude, and that as petitioner 1 union was not a recognized union, there was no question of carrying on any correspondence with if.

4. The strike commenced at 1 a.m. on 1 December 1986, and 275 registered workmen who were on shift duty on the night/ morning of 30 November/1 December 1966, struck work, and more than 500 workmen scheduled for work on subsequent days also abstained for work. It is the petitioners' case that pursuant to a letter dated 7 December 1968 (copy Ex P. 2) from the Chief Labour Commissioner (Central), Ministry of Labour, to the general secretary, Port, Dock and Water Front, Workers' Federation of India, Madras, petitioner 1 union called off the strike on 8 December 1966, and sent a letter on the same day to respondent 1 (copy Ex. P. 3) intimating that the members of the union who had struck work will report for duty the next morning. In answer to these allegations, respondent 1 has denied that the workers were called upon to go on strike from 1 a.m. on 1 December 1966. It is stated that a good number of the workmen who were absent from 1 December 1966 had subsequently written to the board stating that their absence was for reasons other than the strike. The receipt of Ex. P. 3 letter on the night of 8 December 1966 is admitted.

5. The petitioners have averred that the labour officer of respondent 1 issued Ex. P. 4 show-cause notice dated 7 December 1966 to the 257 workers of petitioner 1 union who commenced the strike at 1 a.m. on 1 December 1966, demanding their explanation for stopping the work and leaving their place of duty. All the 257 workmen furnished their explanation on 9 December 1966 to the labour officer stating that they stopped work in pursuance of the strike notice by the petitioner-union, that the strike was legal and therefore not a misconduct under Clause 19 of the standing orders, and complaining of denial of employment by respondent 1 from 9 December 1966, onwards, when they reported for duty. Exhibit P. 5 is a copy of the pro forma of the reply submitted by the workmen. In answer to these allegations, respondent 1 has denied that the action of the 257 workmen, was is pursuance of the strike notice, and that all of them reported for work on 9 December 1966. At the hearing it was denied that all the 257 workmen furnished explanation in the pro forma Ex. P. 5. The petitioners complain in Para. 15 of their affidavit; that from 9 December 1966 about 800 workmen were waiting before the office of respondent 1 reporting for duty every day, and except 37 of them who agreed to join the other two unions, all the rest; have been denied employment. These allegations have also been denied on the aids of respondent 1.

6. At a meeting of respondent 1 board held on 8 December 1066 at 3 p.m. the board discussed the strike of the members of the petitioner-union and passed resolution No. 182 the material part of which reads as follows:

Minutes of the meeting No. 12 held in the board room of the port trust on Willingdon Island at 3 p.m. on Thursday, 8 December 1966.

5. It was decided after discussion that:

(a) As regards the workers who deserted their duty on 30 instant night, shift, they should be chargesheeted calling for their explanation as to why disciplinary action should not be taken against them as per standing orders.

(b) As regards the workers who have been absenting themselves, they will be considered as having left the services of the board voluntarily, as per 01.18 of the standing orders.

A copy of the proceedings has been filed as Ex. P. 6 and, the resolution relating to the strike itself has been marked as Ex. P. 6 (a).

7. I may refer to one fact noticed In the counter-affidavit of respondent 1 and referred to by the petitioners' counsel at the hearing-, although not expressly stated, In the petitioners' affidavit. On 31 December 1966 a mass explanation or a common explanation was received by respondent 1 signed by 512 workmen. In respondent 1'a counter-affidavit, it is stated that on scrutiny, it was found unsafe to regard the same as completely genuine. There was duplication of names in many cases. Explanations were purported to have been sent even by those who were on leave during the relevant period and who had Joined duty before the said period, to the effect that they were on strike. Respondent 1 thought it would not be safe to act on such a 'mass explanation' or to rely on the signatures appearing in the same. From 17 January 1967 onwards, respondent 1 alleged that a number of letters were received from the workmen stating that they were on strike from 1 December 1966. Before these explanations could be considered by the board, interim orders were received from this Court prohibiting respondent 1 from acting in pursuance of Ex. P. 6 (a) resolution.

8. I have indicated broadly the facts leading to the impugned resolution and the scope of the controversy in relation to the same.

9. I may now notice certain preliminary objections raised by the counsel for respondent 1. It was first objected that petitioner 1 is an unincorporated body of Individuals which has no locus standi to maintain the application on behalf of the individual workmen sought to be represented by it. Reliance was placed on a decision of mine in Perumbavoor Municipality case 1965 K.L.T. 669 which was followed by my learned brother Mathew, J., in Original Petition No. 792 of 1965. Counsel for the petitioner accepted that the above decisions were against him and reserved his right to challenge their correctness, if necessary, in a higher Court; but he rightly contended that the want of locus standi of petitioner 1 would not in any manner affect the right of petitioners 2 to 6 who are a few of the individual workmen aggrieved. It follows, therefore, that the reliefs, if any, ultimately granted in this writ petition, can only be in favour of petitioners 2 to 6.

10. The second preliminary objection was that this writ petition was premature In so far as the petitioners had not waited for a sufficient time to enable the Government to act in pursuance of the failure report Ex. P. 1, under Section 12(5) of the Industrial Disputes Act, by either referring the dispute for adjudication or declining to do so for reasons to be recorded. Without awaiting Government's action in the matter, it was complained that the petitioners ought not to have precipitated matters by this writ petition. I am not prepared to say that there is no force in the objection. Exhibit P. 1 failure report Is dated 9 December 1966 and this writ petition was filed on 2 January 1967. However, it was not intimated to me that any steps have been taken by the Government, In pursuance of Ex. P. 1 report either referring the dispute or refusing to do so, till the date of hearing of this writ petition. It was also stated by the petitioners' counsel that the conciliation officer is a member of respondent 1 board. In the circumstances, as a large number of workmen are alleged to have been denied work on account of the action impugned, I am not inclined to countenance this preliminary objection and shut out the petitioners on the ground that they ought to have awaited the Government's action in pursuance of the failure report and pursued other alternative remedies before approaching this Court by this writ petition.

11. I now turn to the contentions on the merits. As noticed, it was stated by the counsel for the petitioner and recorded by me that no relief is claimed against respondent 2 and no reliance placed on the allegations in the petitioners' affidavits against the said respondent. This has attenuated the scope of the writ petition. The only question that survives for decision is the validity of Ex. P. 6(0) resolution. Counsel for the petitioners maintained that Ex. P. 6(0) resolution was invalid as violating the provisions of the 1959 scheme by which the respondent 1 was governed. Secondly, it was contended that standing Order 18 recited in the resolution was inapplicable and would remain suspended when the workmen go on a strike. Thirdly, it was contended that at even for resorting to standing Order 18, a notice of termination of service to the workmen was necessary. Fourthly and lastly, it was contended that the resolution was vitiated by mala fides on the part of respondent 1 and was an act of victimization of the workmen represented by petitioner 1 union.

12. I might here notice the objection by the counsel for respondent 1 that the relief asked for In effect amounts to a reinstatement of the workmen and that a contract of employment cannot be specifically enforced in proceedings under Article 226. The petitioners' counsel relied on the decision in Tewart v. District Board, Agra 1964-I L.L. J. 1, and contended that a writ might, in proper oases, issue, even to specifically enforce a contract of employment of one whose terms are regulated by statute. The scope and effect of the decision was considered by me In Original Petition No. 874 of 1966. I am content, for the purpose of this case, to proceed on the footing that a contract of employment may, in appropriate cases, be specifically enforced in writ proceedings. The question is: Have the petitioners made out any case for such specific enforcement?

13. Counsel for the petitioner referred to Clauses 40, 45 and 47 of the Cochin Dock Workers (Regulation of Employment) Scheme, 1959. Clause 49 provides that the scheme shall cease to apply to a registered dock worker when his name has been removed in accordance with provisions of the scheme. Clause 45 (2) provides for disciplinary proceedings against the registered dock workers who commit any act of indiscipline or misconduct. Clause 47 provides that employment of a registered worker shall not be terminated except In accordance with the provisions of the scheme, and that when the employment is so terminated his name shall be removed from the register or record of the administrative body. By Clause 18 (6) of the scheme, the board in meeting is given the power to direct removal of the name of a registered dock worker. From these provisions it was argued that a registered dock worker has a right to continue on the rolls till his name is removed by the board in meeting, and that a provision for termination of service under standing Order 18 is at variance with the statutory scheme. Exhibit P. 7 is a copy of the standing orders for registered dock workers, In the reserve pool, governed by the provisions of the 1959 scheme. It opens by stating that if any provision therein is repugnant or contrary to the provisions of the scheme, the provisions of the scheme shall prevail. Standing Order 18 reads as follows:

18. Termination of employment,-Any dally worker who absents himself for eight consecutive days without leave or who remains absent for eight consecutive days beyond the period of leave originally granted or subsequently extended shall be deemed to have left the board's services without notice. If thereafter he returns and gives an explanation to the satisfaction of the administrative body within 30 (thirty) days, he may be allowed to resume work and the period of his absence may be converted into leave with or without pay and allowances. For such application received after expiry of this period the matter may be referred to the board.

14. (Standing Order 18 as given In Ex. P. 7 Is not quite accurate and it was admitted at the bearing that the above version of the standing order in the respondent's counter-affidavit was correct.)

15. Looking carefully to the terms of Clause 45 of the scheme and standing Order 18, there does not appear to be any conflict. Indiscipline and misconduct contemplated by Clause 45 (2) of the scheme have not been defined by the scheme. Clause 19 (6) of the standing orders provides what shall constitute indiscipline or misconduct for the purpose of Clause 45 of the scheme. Among the things so listed items 26, 34 and 42 read as follows:

26. Participating in Illegal strike or Inciting workmen to illegal strike.

34. Leaving place of work during work-hours without permission of foreman or chargeman or falling to attend duty after taking booking.

42. Stopping work and/or leaving the place of work without permission before closing time and reporting late for work and/or habitual late attendance.

Standing Order 18 seems to provide for a case of what is presumed, till proper explanation, to be a cause of abandonment of service. It is essentially the embodiment of a term of the contract between employer and workmen. I overrule the contention that Ex. P. 6 (a) resolution is invalid as standing Order 18 is in conflict with the provisions of the 1959 scheme. I might mention that the petitioner's counsel frankly stated that his complaint was only against Para. 5 (b) of Ex. P. 6 (a) resolution extracted supra, and that he had no complaint against Para. 5 (a) thereof.

16. In support of his second contention that standing Order 18 itself is Inapplicable when the workmen go on strike, and remains suspended for the period of the strike, counsel for the petitioner cited a large number of rulings of the Labour Appellate Tribunals to the effect that a strike does not terminate the relationship of master and servant, and that a standing order which punishes abstention from, or refusal to, work will remain suspended during a strike. He cited also the decision of the Supreme Court in Express Newspapers, Ltd. v. Michael Mark and Ors. 1962-II L.L. J. 220 where it has been observed that where the employees go on strike with the specific object of enforcing demands they cannot be regarded as having abandoned employment. The observations of the Supreme Court, and in the decisions cited, of the various Labour Appellate Tribunals, were all made with reference to a strike that was lawful. In the present case, the question of the legality of the strike is a matter in hot controversy. As noticed, according to respondent 1 that strike notice dated 30 November 1966 did not specify the demands, and these were made known to respondent 1 only by letter dated 8 December 1966. Further, according to respondent 1, the strike notice was not to strike work from the midnight of 30 November 1966, but only with effect from the morning shift of 1 December 1966. The workers actually abandoned work during the night shift at 1 a.m. on the night/morning of 30 November/1 December 1966. This, according to respondent 1, was not covered by the strike notice. These disputed questions of fact have first to be resolved before applying the principle of the decision relied on by the counsel for the petitioner. They cannot be so resolved in these proceedings. For the said reasons, I am unable to accept the contention of the petitioners' counsel that standing Order 18 is inapplicable or remains suspended during the period of the strike by the workmen from 1 to 8 December 1966.

17. The third contention was that standing Order 18, in so far as it provides for or implies, an automatic termination of service is invalid, and that notice of termination of service on the workmen is required, In spite of the provisions of the said standing order. Reliance was placed on the decision in Jai Shankar v. State of Rajasthan 1966-II L.L.J. 140. That was concerned with the validity of Regn. 13 of the Jodhpur Service Regulations which provided that an individual who absents himself without permission for one month or more after the end of his leave should be considered to have sacrificed his appointment, and may only be reinstated with the sanction of the competent authority. It was ruled by the Supreme Court that an action in pursuance of the above regulation refusing to take back a person who had overstayed his leave involved a termination of service and contravened Article 311 of the Constitution, if the person is denied an opportunity for explanation. The decision is Inapplicable, as we are not termination by any considerations of Article 311. More to the point, is the decision of the Supreme Court in Buckingham and Carnatic Co. v. Venkatayya 1963-II L.L.J. 638. The standing order that was construed in that case provided that an employee who absents himself for eight consecutive working days without leave shall be deemed to have left company's service without notice there by terminating his contract of service. If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance. Dealing with the above standing order, it was observed by the Supreme Court:

This standing order Is a part of the certified standing order which had been revised by an arbitration award between the parties In 1957. The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has terminated his contract of service. The first provision in Clause (11) proceeds on the basis that absence for eight consecutive days without leave will lead to the Inference that the absentee-workman intended to terminate his contract of service. The certified standing orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as such If not more, as private contracts embodying similar terms and conditions of service. It is true that under common law an Inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an Inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of Intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. But where parties agree upon the terms and conditions of service and they are included in certified standing orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the first part of standing Order 8 (11) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment.

The standing order here in question has also been issued under the provisions of the Industrial Employment (Standing Orders) Act, 1946, which by Section 2(g) of the Act defined Standing orders as rules relating to matters set out in the schedule. Item 8 of the schedule deals with 'termination of employment and the notice thereof to be given by employer and workmen.' Standing Order 18, as I understand, raises a presumption of abandonment of service without notice, from eight days' absence as specified. The presumption can be rebutted by satisfactory explanation.

18. The fourth and the last point is one of mala fides. The petitioners' counsel made it clear that he was not attributing personal mala fides to the board or to its officers but argued mala fides only in the sense of an inadvertence to, or a reckless disregard of, the provisions of the statutory scheme of 1059. I am unable to see any contravention or disregard of the provisions of the scheme and am therefore unable to accept the case of mala fides.

19. The petitioners' counsel advanced an argument that the workmen's action was specifically covered by standing Order 21, which reads:

21. Liability to deduction of wages in the case of strike.-it ten or more daily workers acting In concert absent themselves from work without due notice and without reasonable cause, they shall render themselves liable to a deduction of wages in accordance with the Payment of Wages Act.

and that standing Order 18 is therefore excluded. It was contended that standing Order 21 was an implied recognition that if strike was with proper notice, wages shall not be taken away. I doubt the advisability of the petitioners inviting a pronouncement on the question from me at this stage. By Ex. P. 4 notice Issued by the labour officer appointed by respondent 2 (against whom no relief IB now claimed) under Clause 12 of the scheme, the workmen have been called upon to furnish their explanations for misconduct. It might be open to the workmen in their explanations to raise the question as to the scope and applicability of standing Order 18. But as the point was raised before me that respondent 1 has no Jurisdiction to proceed under standing Order 18 as the matter was specifically covered by standing Order 21 I must express myself on the question. A similar question arose in Buckingham and Carnatic Co. v. Venkatayya 1963-II L.L.J. 638 (vide supra) and was answered thus by the Supreme Court:

It Is true that absence without leave for eight consecutive days is also treated as misconduct under Clause 13 (f) of the standing orders. The said clause refers to the said absence and habitual absence without leave. In other words, the position under the standing orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under standing Order 8 (11) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant standing order. The fact that the same conduct is dealt with in two different standing orders cannot affect the applicability of standing Order 8 (11) to the present case. It is not as if the appellant Is bound to treat Venkatayya's absence as constituting misconduct under standing Order 13 (f) and proceed to hold an enquiry against him before terminating his services. Dismissal for misconduct as denned under standing Order 13 may perhaps have different and more serious consequences from the termination of service resulting from the standing Order 8 (ii). However that may be, if standing Order 8 (11) is applicable, it would be no answer to the appellant's case under standing Order 8 (11) to say that standing Order 13 (f) is attracted. This position is not seriously in dispute.

20. The above observations appear to be a sufficient answer to the plea of want of jurisdiction on the part of respondent 1 to proceed under standing Order 18. In so holding, I should not be understood as having precluded the petitioners, If so advised, from contending in answer to Ex, F. 4 notice that action under standing Order 21 alone, if at all, was called for, or was more appropriate.

21. I dismiss this writ petition, but make no order as to costs.


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