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Michael Villavarayar and Anr. Vs. the Workmen, represented by the Secretary, Boatmen's Union and Anr. (18.04.1961 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1962)1MLJ313
AppellantMichael Villavarayar and Anr.
RespondentThe Workmen, represented by the Secretary, Boatmen's Union and Anr.
Cases ReferredIn Associated Cement Co. Ltd. v. Their
Excerpt:
.....hand, and of the lascars on the other is that of employer and employee. this would show that the tindal has got duties which combine supervisory duties in regard to the lascars who work under him, and besides navigation of the boat he has also got certain additional duties of his own, like collection of freight and so on on behalf of the boat-owners who employ him. if an individual has officers subordinate to him whose work he is required to overlook, if he has to take decisions and also the responsibility for ensuring that the matters entrusted to his charge are efficiently conducted and an ascertainable area or section of work is assigned to him, one would ordinarily be justified in saying that he is in a position of management. while in those voyages, he is in complete management of..........is a term of indian origin. the following account of it is found in the shorter oxford dictionary:tindal (tindal) india 1698 (ad. malayalam tandal, telugu tandelu, also hindustani, tandel, chief or headman of a body of men). 1. a native petty officer of lascars, on board ship, or in the ordinance department; also, the forman of a gang of labourers on public works (yule) a boatswain; a foreman. 2. a personal attendant, 1859.the above definition gives a general idea that he is connected with navigation of a boat and is generally identified with the foreman of the group of lascars who manage the boat. with the passage of time, and according to practice, certain additional duties have come to be imposed upon him.5. there are conflicting versions of these additional duties. an account of.....
Judgment:

Ramakrishnan, J.

1. These two petitions are filed under Article 226 of the Constitution for the issue of a writ of certiorari directed against the Presiding Officer of the Labour Court, Madurai. As the points in dispute are identical they were heard together with the consent of parties.

2. The petitioners, Michael Villavarayar, in W.P. No. 176 of 1960, and the petitioner Correra & Brother in W.P. No. 209 of 1960 are boat-owners in Tuticorin. On certain charges after issuing the necessary 'show cause notice' they dismissed from employment Micheal Fernando, and Santhacrus Fernando, tindals in their service, engaged for the running of particular boats. In Tuticorin there is a Labour Union called the Boatmen's Union, Tuticorin. They took up the cause of the dismissed tindals. Thereafter, the Government of Madras, in two G.O.'s referred the issue of the valid termination of the services of these tindals as an industrial dispute to the Labour Court at Madurai for adjudication under the Industrial Disputes Act (Central Act XIV of 1947). Before the Labour Court, the management urged as a preliminary ground that the Court did not have jurisdiction, but their objections were overruled and the Court decided to proceed with the enquiry. Thereupon, the petitioners have come to this Court with the present petitions for the issue of a writ to quash the finding of the Labour Court.

3. The petitioners urged the following grounds:

(1) The term 'tindal' does not satisfy the definition of 'Workman' in Section 2(s) of the Industrial Disputes Act. He has got the sole control over a boat once it is taken to sea, over its crew and over its freight. In this manner, his position is similar to that of a Captain or Manager of a sea-going vessel. Though he may discharge duties of a supervisory nature, still he falls within the Exception to Section 2(s) of the Industrial Disputes Act.

(2) In substance this is only a private dispute between the management and a worker in its employ. It has not the backing of a substantial majority of the Labour Union. Therefore, the dispute cannot be described as an industrial dispute.

(3) On a prior occasion, when the dispute between the Boat Workers' Union and their management came up before the Industrial Tribunal at Madurai, at the time of the pendency of an appeal from its order, a compromise was entered into. Under the terms of that compromise, even if it is assumed that a tindal is a workman, a dispute of the present kind has to be referred for decision to a Board of Arbitrators, specially provided for, in the agreement. Consequently the reference to the Labour Court in the present case is illegal.

(4) These allegations were traversed in the counter-affidavit filed by the respondent-workmen represented by the Secretary of the Boatmen's Union, Tuticorin.

4. I heard the learned Counsel appearing for the petitioners and the respondents.

Point (1) above: The word 'tindal' is a term of Indian origin. The following account of it is found in the Shorter Oxford Dictionary:

Tindal (Tindal) India 1698 (ad. Malayalam Tandal, Telugu Tandelu, also Hindustani, Tandel, Chief or headman of a body of men). 1. A native petty officer of lascars, on board ship, or in the Ordinance Department; also, the forman of a gang of labourers on public works (Yule) a boatswain; a foreman. 2. A personal attendant, 1859.

The above definition gives a general idea that he is connected with navigation of a boat and is generally identified with the foreman of the group of lascars who manage the boat. With the passage of time, and according to practice, certain additional duties have come to be imposed upon him.

5. There are conflicting versions of these additional duties. An account of such duties is found in the judgment of Sri E. Krishnamurthi, the Industrial Tribunal, who heard the dispute in 1953, between the Boatmen's Union of Tuticorin and the boat-owners. The owners of boats apparently contended that a tindal was a contractor who hires labour and mans the boats for cargo duties. In this way the owners of boats tried during the hearing of that dispute to shift responsibility for the various service conditions of the lascars to the tindals. But the Industrial Tribunal Sri Krishnamurthi repelled this contention. While doing so he has given an account of the tindal's duties:

There is no force in the argument on behalf of the boat-owners that the tindal is only an independent contractor who recruits, dismisses, and pays the crew. On the other hand it is perfectly clear that the relationship between the boat-owners on the one hand, and of the lascars on the other is that of employer and employee. The tindal is only an agent and servant of the employer, i.e., the boat-owner. No doubt he is the master of the ship (boat) and he has to attend to the duties of navigation. But to all intents and purposes, he is the agent and representative of the boat-owner and he acts as his authorised agent. He has a hand in the matter of fixing, and collection of freight, and payment of the same to the boat-owner.... Considering all the circumstances I am of opinion that the relationship of employer and employee exists between the boat-owner and a member of the crew, and that the position of tindal is only that of an agent of the boat-owner, the employer, in addition to his being entrusted with navigational duties.

(italics are mine).

Put briefly, the tindal is primarily responsible to his employer, namely, the boat-owner, for the successful navigation of the boat. He takes charge of the duties of navigation and supervises the work of the lascars who work under him, but in regard to such lascars the boat-owners also have responsibilities, in the matter of payment of wages and other conditions of service. The tindal also negotiates with the owners of cargo, fixes the freight rates, collects freight, pays the boat-owners' share and then divides the rest between himself and the crew, according to a fixed proportion. This would show that the tindal has got duties which combine supervisory duties in regard to the lascars who work under him, and besides navigation of the boat he has also got certain additional duties of his own, like collection of freight and so on on behalf of the boat-owners who employ him.

6. Section 2(s) of the Industrial Disputes Act gives the definition of 'workman' thus:

'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Tindal is employed in the industry of carriage of cargo in boats, and hence falls within the main body of the definition. The question is whether, as contended by the learned Counsel for the petitioner, he comes under Exception (iii) or Exception (iv) to the section. Exception (iii) refers to a person who is employed mainly in a managerial or administrative capacity. Exception (iv) refers to one who though employed in a supervisory capacity draws wages exceeding Rs. 500 per mensem or the nature of whose duties attached to the office or by reason of the powers vested in him, discharges functions mainly of a managerial nature. It is common ground that a tindal does not get a pay exceeding Rs. 500. Therefore the first part of Section 2(s)(iv) is excluded. This leaves the second part of Section 2(s)(iv) and Section 2(s)(iii). Both these have this in common namely, that the duties on which the workman is mainly engaged should be of a managerial nature. Section 2 (s)(iii) has also another limb, 'administrative capacity'. But that does not appear to be very relevant in the case of a tindal. It is nobody's case that he has got administrative duties. One relevant question is whether a tindal's duties in supervising the work of lascars under him, are such that he should be considered to be exercising duties mainly of a managerial nature. In this case, the Labour Court, Madurai, was content to dispose of this point with the short observation:

In my opinion tindal is none but a lascar paid a larger wages than the latter. If, on the other hand, he did not travel in the boat, but only controlled the affairs of the boat by remaining on the shore, it would be possible to hold that his duties were of a managerial or administrative nature. That not being so, it must be held that he is a workman not coming under the two Exceptions (a(s)(iii) and 2(s)(iv) of the Act) referred to above.

But the matter is not free from difficulty. Balakrishna Ayyar, J., in S.V.O.C. v. Commissioner of Labour (1959) 2 M.L.J. 271 , after summing up a number of instances came to the conclusion:

If an individual has officers subordinate to him whose work he is required to overlook, if he has to take decisions and also the responsibility for ensuring that the matters entrusted to his charge are efficiently conducted and an ascertainable area or section of work is assigned to him, one would ordinarily be justified in saying that he is in a position of management.

Balakrishna Ayyar, J., was dealing with the interpretation of the term 'a person employed in the position of management' found in Section 4(1)(a) of the Madras Shops and Establishments Act. At page 776 of the report, Balakrishna Ayyar, J., has drawn a distinction between a manager and 'a person employed in the position of management.' In the same page, he has equated 'position of management' with 'managerial position'. Note that the term 'managerial capacity' is used in Section 2(s) of the Industrial Disputes Act and this appears to be analogous to 'a position of management' in the Madras Shops and Establishments Act. Note that one of the instances referred to by Balakrishna Ayyar, J., at page 777 of the above report, is that of a person in the position of Captain of a ship, who holds a position of management. It was urged in the present case that a tindal often takes a boat on the coastal traffic, making sometimes long voyages from Tuticorin to ports in the West Coast. While in those voyages, he is in complete management of the boat and is responsible for the cargo, for the discipline of the lascars and for the success of the voyage. It was urged that these duties are much more complicated than the duties of a workman, and should fit tindal more appropriately in a position where the duties are mainly managerial, thereby attracting Section 2(s)(iii) and the second part of Section 2 (s)(iv).

7. In the Supreme Court decision in Dharangadhra Chmical Works Ltd. v. State of Saurashtra and Orissa : (1957)ILLJ477SC , the view is held that:

a person who agrees himself to work and does so work and is, therefore, a workman, does not cease to be such by reason merely of the fact that he gets other persons to work along with him and that these persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman, and the fact that he takes assistance from other persons would not affect his status.

The Supreme Court dealt with the case of persons engaged by a salt company for manufacturing salt. They were held to be workmen within the meaning of Section 2(s) of the Industrial Disputes Act, even though they were paid by piece-rate basis, they could employ others and pay them, and it was held that these facts could not be considered to be decisive in holding them as independent contractors.

8. In my view the definition of tindal in the dictionary extracted above shows that essentially it dealt with a job analogous to that of a foreman of lascars and this job brought him into a position of direct employment under the boat-owner as a workman, with the additional job of supervising a specified number of lascars under him. He is a Petty Officer of lascars, who is also expected to do personal work himself. He has not merely to give directions to lascars as to how to do the work, but should, when occasion arises do the work of lascars. But with the passage of time more and more duties happened to be entrusted to him; but they involved besides the duties of navigation, additional duties of fixing up cargo, settlement of freight charges, receiving those freights, disbursement to the workmen and payment of the share to the boat-owner. If a decision is essential on the point, I would still say that the duties of the tindal continued to be principally those of a foreman of lascars, and in a subsidiary degree certain supervisory duties. The data before the Labour Court were therefore sufficient for the conclusion formed by it, viz., that a tindal is a workman, and it is not appropriate to disturb that conclusion in these petitions for a writ.

9. The respondents' learned Counsel also referred to another point, derived from the definition of workman in Section 2(s) of the Act. This may not be quite relevant, while dealing with the matter in a writ petition. However, since the point was raised, I will deal with it briefly. In Section 2(k) of the Industrial Disputes Act, the term 'Industrial dispute' is defined as a dispute which is connected with the employment or non-employment or terms of employment or the conditions of labour of 'any person'. The word 'person' does not mean necessarily a workman as defined in Section 2(s) of the Act. There is significance in making this reference to a person instead of workman, in Section 2(k). The significance of the word 'person' has been brought out in a decision of the Supreme Court reported in Assam Chah Karmachari Sangha v. Dimakuchi Tea Estate : (1958)ILLJ500SC . After an elaborate discussion of conflicting views, their Lordships of the Supreme Court came to the conclusion:

The Act avowedly gives a restricted meaning to the word 'workman' and almost all the provisions of the Act are intended to confer benefits on that class of persons who generally answer to the description of workman. The expression 'any person' in the definition clause means, in our opinion, a person in whose employment, or non-employment, or terms of employment, or conditions of labour the workmen as a class have a direct or substantial interest--with whom they have, under the scheme of the Act, a community of interest.

In their judgment, by a majority, their Lordships of the Supreme Court repelled the view pressed on them that the Medical Officer of a tea plantation was a 'person' as denied above; and for that purpose they laid down the test mentioned above. That test can, with advantage, be applied to find out whether a tindal in the present case will be a 'person' for purpases of Section 2(k) of the Act.

10. The discussion in the foregoing paragraphs of the nature of the duties of a tindal shows that he is substantially a foreman of lascars, closely in touch with them, and in times of difficulty taking over their work of navigation. He collects the freights or charges, pays certain share to the owner and then out of the balance the share as between him and lascars is taken in a fixed proportion. The lesser the share of the boat-owner, the greater will be the wages shared between the tindal and the worker. The entire work of the lascars is done under the eyes of the tindal. He exercises disciplinary control over them. The boat-owners consult the lascars through the tindal in many matters. These circumstances show that the tindal is a person in whose employment or non-employment or terms of employment or conditions of labour, lascars as a class have a direct or substantial interest and with whom they have a community of interest. This is sufficient to invoke Section 2(k) to the present case.

11. Point (2): The petitioners urge that the Boatmen's Union by a majority did not decide to sponsor the cause of the tindals. In view of that, it is not an industrial dispute within the meaning of Section 2(k). It was also urged by Sri M.S. Venkatarama Aiyar, learned Counsel for the petitioners, that there should be evidence that not merely isolated groups selected at random from the boat-workers should have given support, but a majority of tindals as a class should have given support. There is no warrant for any of these contentions which also appear to be somewhat vague. The question of support of the majority of the workers is not relevant. It was held in Working Journalists of 'Hindu' v. Management of Hindu : (1961)ILLJ288Mad :

The fact that a majority of the workers who had collectively sponsored the cause of workmen and raised an industrial dispute in regard to the propriety of the termination of his services, had subsequently, and pending adjudication of their dispute, retracted and withdrawn their support would not make the Labour Court cease to have jurisdiction to proceed to deal with die dispute.

At page 265 it is observed:

All that is necessary is that the dispute in order to become an industrial dispute should have the support of a substantial section of workmen concerned in this establishment. What 'a substantial section of workmen' may mean would depend upon the particular facts of each case.

In Associated Cement Co. Ltd. v. Their workers : (1960)ILLJ491SC , it is stated:

We have already noticed that an industrial dispute can be raised by a group of workmen or by a Union even though neither of them represent the majority of the workmen concerned; in other words, the majority rule on which the appellant's construction of Section 19(6) is based is inapplicable in the matter of the reference under Section 10 of the Act. Even a majority group of workmen can make a demand and thereby raise an industrial dispute which in a proper case would be referred for adjudication under Section 10.

Consequently, I am of opinion that this part of the petitioners contention is not entitled to weight.

12. Point (3): The petitioners finally contended that under an agreement between the Boatmen's Union and the management entered into in 1953 before the Labour Tribunal of India a dispute of the present kind should have been referred to a Board of three arbitrators as provided in the agreement. Consequently, the Labour Court would have no jurisdiction.

13. This agreement has got seven clauses. It was entered into between the Country Craft Owners' Association, Tuticorin, representing the 31 boat-owners on the one side and the Boatmen's Union, Tuticorin, representing the workmen employed by them on the other. This is in the preamble. Clause (I) gives recognition to the Union. Clause (II) provides for batta at different rates for different types of boats. Clause (II)(b) says that the boat-owners agreed to pay each worker, including tindal 5 annas per day from out of the boat-owners' share. Note that in this clause tindal was specifically referred to in order to give him a benefit in addition to the benefit to the worker and that the parties were not content to leave the term 'worker' by itself, as they would have done if their intention was to benefit the tindal also. In Clause (III) it is provided that for fixing up the freight rates a Joint Board shall be set up. It is necessary to point out that the Labour Court at Madurai was content with reliance on Clause (III) alone for holding that the jurisdiction of the Joint Board would not include a dispute about dismissal of an employee. It was rightly pointed out that later on in the agreement there is a Clause (V)(b) dealing with the subject of dismissal. To that Clause 1 shall presently advert. Clause (IV)(a) states that the boat-owners accept responsibility for moneys due to boat-workers. In Clause (IV)(b) it is said that if the tindal does not disburse the wages to the workmen on the stipulated dates, the boat-owners shall pay them within two days thereof. This would show evidently that tindals and workmen are treated as distinct persons in this agreement. Again in Clause (IV)(c), it is said that if the tindals fail to disburse the wages on the due dates, the boat-owners shall pay the same within five days thereafter, again stressing the distinction between tindal and worker. It is therefore, that we find Clause (V)(b), which says that if the workman is discharged, and a dispute arises in respect of that discharge, it shall be left to the arbitration of the Joint Board. It was urged by the learned Counsel appearing for the petitioner, that under Clause (V)(b) the present dispute has to be settled by the Joint Board, and not by the Labour Court on the assumption that a tindal is a worker. He also pointed out that if the decision of the Tribunal on the first point above, that a tindal is a workman is accepted, it would follow that under Clause (V)(b) the dispute is taken out of the Labour Court. Even assuming that parties can by agreement contract themselves out of the jurisdiction of the Industrial Disputes Act in certain circumstances, such an agreement has to be construed strictly. If we bear in mind the manner in which the words 'tindal' and 'worker' are distinguished in the agreement, it would appear that Clause (V)(b) was intended to apply to workers and did not cover the case of a tindal.

14. For the aforesaid reasons I hold that this objection is also not tenable.

15. Consequently, the grounds urged in these petitions for the issue of a writ are not substantiated. The petitions are dismissed with costs. The rule nisi is discharged: Advocate's fee Rs. 100 one set.


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