IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE Present: THE HONB’LE Mr.JUSTICE BISWANATH SOMADDER & THE HON’BLE Mr.JUSTICE SIDDHARTHA CHATTOPADHYAY A.P.D.No.3 of 2015 With C.S.No.303 of 2005 T.P.ROYCHOWDHURY & COMPANY PRIVATE LTD.-Vs.CALCUTTA DOCK LABOUR BOARD.
For the Appellant/Defendant Advocate.
: Mr.Samir Chakraborty, Senior : : : Mr.Aniruddha Ray, Advocate Mr.Nirmalya Das Gupta, Advocate Mr.Anjan Deb Sarkar, Advocate For the Respondent/Plaintiff : Mr.Arindam Mukherjee, Mr.Ashok Kumar Jena, Advocates.
Heard on : 05th September, 2016 Judgment on : 28.09.2016 SIDDHARTHA CHATTOPADHYAY, J.: This instant appeal arises out of the judgment and decree dated 27th March, 2015 passed by the Learned Single Judge in C.S.No.303 of 2005.
The appellant has taken several grounds in order to assail the impugned judgment.
According to the appellant, the Learned Single Judge failed to appreciate the scope and purport of the provisions of the Calcutta Dock Clerical and Supervisory Workers (Regulation of Employment) Scheme, 1970 framed under the Dock Workers (Regulation of Employment) Act, 1948.
It has been specifically alleged that the Learned Single Judge failed to appreciate the interpretation of the relevant provisions of the Scheme in its proper perspective and the claim of the present respondents are absolutely baseless and that the appellant is in no way liable to pay the amount along with interest as assessed by the Learned Single Bench.
Referring to Regulation 35(1) it has been contended that every registered employer shall accept the obligations of the Scheme and Regulation 35(5)(i) requires the registered employer to make payment to the Executive Officer of the plaintiff Calcutta Dock Labour Board (hereinafter referred to as the ‘Board’) in such a manner and at such time as directed by the said Board and the levy and other administrative charges would be payable in terms of clause 49 of the Scheme along with gross wages.
Regarding ‘daily workers’, the said Regulation 35(5)(ii) also stipulates that a registered employer is to make payment as contribution to the ‘Dock Clerical and Supervisory Workers Welfare Fund’ under clause 52 of the Scheme.
In the memo of appeal, it is also contended that Regulation 35(5)(iii) requires that the registered employer is to make payment to the Board, i.e.the monthly provident fund subscription recovered from the wages from the workers and the contribution by the registered employers thereon, repayment of provident fund loan and interest thereon because of maintaining the provident fund of the monthly workeRs.which should be defrayed by payments to the plaintiff Board in the manner as it would be fixed from time to time.
The specific case of the appellant is such that they complied with all the requirements of Regulation 35 read with Regulation 49 which deals with payment of levy.
There was no Scheme which contemplates that there would be an obligation regarding payments by a registered employer regarding any other demand for payment by the plaintiff and if anything is imposed upon them, it will be ultra vires the Scheme and the registered employers do not have any obligation to make payment, which is not included in the Scheme.
The contention in the memo of appeal – the finding of the learned Judge, that in the absence of the Board, generating funds for payment of the arrears of the revised wages or allowances in terms of Regulation 50 of the Scheme it becomes the primary responsibility of a registered employer to pay the said arrears of revised wages – is completely based on a mis-interpretation of Regulation 50 of the Scheme.
Ventilating its grievances, the appellant has prayed for setting aside the impugned judgment.
Learned counsel appearing on behalf of the appellant, at the time of hearing, expressed all the grievances and submitted that the judgment of the Trial Court has to be set aside, since the Scheme does not permit any arrear of amount regarding wage hike.
He contended by saying that learned Judge’s finding is erroneous and cannot be sustained.
Learned counsel appearing on behalf of the respondent, has argued that learned Trial Judge has taken care of all the relevant issues in its proper perspectives and has come to a correct conclusion, which does not warrant any interference.
In other words, he simply contended that the impugned judgment is unimpeachable and is, therefore, required to be sustained.
In the interest of effective adjudication it would be profitable for all of us to revisit the plaintiff/respondent’s case.
Sieving out unnecessary details, the plaintiff/respondent’s case in an encapsulated form is such that they used to supply workers on monthly basis as well as on daily basis to the appellant under the provision of a Scheme which is called Calcutta Dock Clerical and Supervisory Workers (Regulation of Employment) Scheme, 1997.
In terms of the said Scheme, the defendant/appellant was liable to pay a levy to the Executive Officer of the plaintiff/respondent in the manner as mentioned in the said Scheme.
According to them – regarding pool workers – the plaintiff used to charge the registered employers herein 353% of the wages of each monthly worker, of which 24% went to the wage revision fund of the Board.
The monthly workers are paid directly by the plaintiff and for which the plaintiff charges 131% of the wages, excluding levy on wage revision fund, from the registered employer (present appellant).It is the practice that in view of the Scheme, the wages to the monthly arrears are to be paid by the defendant registered employer directly.
The plaintiff/respondent’s specific assertion was such that on 2nd August, 2000, an agreement in relation to wage settlement was done with national federations representing workers in respect of all the Major Ports and Dock Labour Boards of the country in terms of section 12 (3) of the Industrial Disputes Act.
In terms of that settlement, wages and allowances/salaries of all Port Workers and Dock Workers – including monthly workers – were revised in August 2000 with retrospective effect from January 1998.
Due to such upward revision of wages/emoluments, a total sum of Rs.33,07,596.17p became due and payable by the present defendant/appellant – being the registered employer – and they were supposed to pay the said enhanced salaries/wages to the workers and that the plaintiff/respondent had no liability to pay the same.
The Board has candidly admitted that there was an erroneous assumption on their part that they were liable to pay the amount due to upward revision.
They passed a resolution dated February 27, 2001 which states that “the registered employers would make the payment to the monthly workers and the board would reimbuRs.the same in 12 equal monthly instalments by way of adjustment of the periodical bills to each of the employers on submission of Demand Note to the Board.” The said reimbursement was supposed to be made by actual adjustment of the payment receivable from the registered employers against the periodical bills raised every month.
Thereafter, in view of the terms of the Scheme, a total sum of Rs.33,07,596.17p was adjusted.
Plaintiff categorically submitted that they had no obligation to make any payment to the monthly workers and it was the liability of the registered employer to pay the same.
Although erroneously the plaintiff had done so, the defendant/appellant was bound to repay the same.
Accordingly, when the mistake was detected by the plaintiff/respondent, they, in their Board resolution No.22 dated 10th December, 2004, followed by C & AG’s report, issued letters of demand on three successive occasions, i.e.on 12.12.2004, 25.01.2005 and 22.08.2005, requesting the defendant/appellant to pay the said amount to the plaintiff but this received a cold reception from the defendant/appellant.
The plaintiff has calculated the said dues along with the interest calculated from 29th December, 2004 and claimed in all Rs.36,26,031.59p along with interest at the rate of 14 per cent per annum from 6th September, 2005 upto realisation.
As against this, defendants filed a written statement in which they have categorically denied all the material allegations levelled against them and interpreting the Scheme they had contended that in case of any revision of dearness allowances or grant of revised wages or other allowances with retrospective effect, in pursuance of any award or recommendation of any Board or Body set up, or of any order made by the Central Government, the Board may, out of its funds, pay the registered workers arrears up to the date of the award or, as the case may be or the recommendation or order, if the Board so decides.
They have specifically mentioned in their written statement that they have complied with all the duties and obligations under the Scheme including the obligations as enjoined under Regulations 35 and 49 respectively thereof.
They have also referred to a resolution alleged to have taken place by resolution No.51 dated 2nd December, 1981, as modified thereafter by Resolution 34 dated July 27, 1983 to establish a wage revision fund.
It was also resolved therein that for that purpose there would be collection of special contribution at a specified rate on the wages and allowances, excluding incentives, of the workeRs.Levy system for supplying registered workers has been discontinued by the Board on introduction of unit rate per tonne with effect from 1st January, 2000 and prior to that when levy system was in vogue the plaintiff charged levy at the rate of 353% of the wages of pool workers supplied to the registered employers of which 24% went to the wages revision fund.
They also contended that there was tripartite wage settlement on 2nd August, 2000 in terms of Industrial Disputes Act and the wages and allowances/salaries were revised with retrospective effect from January 1998.
Payment of such revised wages and allowances etc.were duly made by the registered employeRs.In so far as arrear wages and allowances are concerned, according to the defendant/appellant, the same was required to be paid by the plaintiff from its fund in terms of Clause 50 of the said Scheme.
Possibly, that is the main bone of contention between the plaintiff/respondent and defendant/appellant.
In the written statement, they have also mentioned some calculations challenging the purpose of the Scheme and also effected the reimbursement of the sum paid by the defendant.
Other parts of the challenge of the plaintiff were mainly in the form of denial.
They have disputed the claim amount, branded it as vague and denied the right of the plaintiff to claim the said amount along with 14% interest.
In fine, they have prayed for dismissal of the suit.
It appears from the record that learned Trial Court had recorded the evidence of the parties.
Mr.Gopi Mohan Chatterjee – examined as a witness on behalf of the plaintiff/respondent – in his evidence has clarified his stand in following manner.
According to him, normally wage revision of All India Board of Dock Workers Employers are made in five years interval but the wage revision relating to the period 1998 was effected for ten yeaRs.that is, up to 31st December, 2006.
This wage revision agreement was signed by the five federations in August 2000, with retrospective effect from 1.1.1998 and the current effect had been extended from September, 2000.
As a result, question of arrears has arisen from 1.1.1998 to August, 2000.
According to the Scheme, the Board has paid the arrears to its daily rated workers but could not pay the monthly workers out of its fund.
There was some lack of fund but as per the appeal of the registered employeRs.a Board meeting was conducted and in the Board meeting the matter was considered and the registered employers requested for reimbursement of the same to them for the payment of arreaRs.The arrear amount was Rs.1.31 crores, out of which one of the registered employers was T.P.Roychowdhury & Co.PVT.LTD.and its amount is Rs.33,07,596.17p.
Subsequently, as per the decision of the Board reimbursement was allowed to be made to the registered employeRs.After they made the payment to the monthly workeRs.it was detected that payment was made on an erroneous assumption.
Hence, the question of refund of Rs.33,07,596.17p along with 14% interest against this principal arose.
This witness candidly unfolded the case made out in the plaint without any ambiguity and also faced cross-examination at length.
In couRs.of cross-examination, he has reiterated his own stand.
He has proved the relevant exhibited documents.
In couRs.of cross-examination, he stood like a rock of Gibraltar and took the stance in the same tenor.
Vide question No.151, he was asked if the Board is entitled to collect levy on unit rate basis and while answering that question he admitted it saying that the unit rate concept has been introduced by the Board, after interference of the Hon’ble High Court at Calcutta and after receiving the view of the Secretary, Ministry of Shipping, Government of India.
He further stated that according to the directions of the Hon’ble High Court at Calcutta and Government of India, levy concept has to be changed and the unit rate should be implemented.
The entire Scheme has been framed according to the order of the Hon’ble High Court read with the instructions of Ministry of Shipping after concurrence of the Board.
In couRs.of cross-examination he was asked if a surplus fund was lying with the plaintiff on account of wage revision.
He denied the said suggestion.
Vide question No.166, wherein this witness was asked if the defendant (present appellant) defaulted in payment of such levy to the respondent, he answered that as per the levy structure the registered employers had already paid their admissible levy to the Board.
The levy for revision of wages of monthly workers has not been implemented by the Board and the registered employers had not paid owing to which, the arrears accrued.
He has candidly admitted in connection with question No.169, that there was a wage settlement arrived at on 2nd August, 2000.
He also admitted that the wage settlement was done in presence of five federations under the control of the Government of India and Indian Port Association for revision of pay and allowances to the employees and workers of All Major Ports and Dock Labour Board.
He also admitted that this revision includes enhancement of wages and it was given effect to from 01.01.1998.
He has clarified this stand of the plaintiff/respondent in connection with question Nos.173 and 174.
With respect to question No.175, he has categorically stated that in view of clause 50, the plaintiff is responsible only for its ‘daily rated workers’.
However, there is no provision for payment of the monthly rated workers from the fund of the plaintiff but there is a rider in clause 50 of the Scheme, i.e., the Board may consider the same.
Accordingly, they had extended the benefit by reimbursement to the registered employers but subsequently it was detected that the same has been wrongly done.
Therefore, the plaintiff/respondent had claimed that amount by issuing three successive notices which were not responded to by the appellant in its letter and spirit.
Now, we are to consider the cross-examination of the defendant/appellant.
In response to question vide Nos.54 to 67 and 77 to 78, the witness has virtually accepted the factum of the majority decision taken whereby the wages and salaries were enhanced.
This defendant/appellant had also participated in the said resolution and majority view was that the monthly rated workers’ enhanced salaries and wages have to be borne by the registered employers themselves and since it was given a retrospective effect, naturally the burden shall be upon the defendant/appellant to pay.
In spite of that, under a wrong assumption the plaintiff/respondent had paid the same initially but when the mistake was detected followed by C & AG’s report, they wanted to get it reimbursed and three demand notices were sent to the appellant/defendant.
But all their requests were turned a deaf ear to.
In such circumstances, the respondents had to file the suit.
The learned Trial Court, in its judgment has referred to clauses 35, 39 and 50 of the Scheme of 1970.
After going through the said Scheme, learned Trial Judge held on the basis of clause 50 of the Scheme that the plaintiff/respondent will make such payment out of its fund and they have to generate funds for such payments.
The Trial Judge further held that it was not the case of the parties that funds have been put in by any external source such as the Central Government or any other entity to the plaintiff for the purpose of meeting the arrears on account of wage revision.
The registered employers have also not put the plaintiff/respondent’s funds for wage revision.
It is perhaps needless to say that the monthly workers are the employees of registered employeRs.Therefore, it is the primary liability of a registered employer to pay the wages as well as any revision of wages.
Since no fund was generated for payment of such arrears from any external source, such as the Central Government and as there was no contribution from the registered employeRs.the learned Trial Court held it was the duty of the employer concerned to pay the revised wages including the arreaRs.Learned Trial Court also held that in Exhibit-C, plaintiff had noted that the realisation of 131% as levy from the registered employers (such as the defendant) did not comprise any wage revision component.
Therefore, the rate of levy i.e.131% imposed by the plaintiff on the defendant was earmarked for specific purposes such as 74% for general levy, 6% for Quadrinawaji Committee, 50% for welfare and 1% for workers welfare compensation fund.
Nothing has been shown by the defendant to establish that the plaintiff had received a levy on account of wage revision.
Therefore, in our view, learned Trial Court had not made any error.
The impugned judgment passed by the learned Trial Court is quite unimpeachable and it does not require any interference.
We have no hesitation to put a seal of approval in respect of the judgment and the decree impugned.
Purpose of justice, however, shall be best served if we direct the appellant/defendant to pay the entire decretal amount by six equated monthly instalments and the fiRs.of such instalments shall fall due on 27th October 2016.
Accordingly, we direct the same.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis upon compliance with all requisite formalities.
I agree with the conclusion, (BISWANATH SOMADDER, J.) (SIDDHARTHA CHATTOPADHYAY, J.) Later: After the judgment is pronounced in open Court, the learned advocate representing the appellant prays for stay of operation of the order, which is considered and refused.
(BISWANATH SOMADDER, J.) (SIDDHARTHA CHATTOPADHYAY, J.)