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Kesab Lal Banerjee and anr. Vs. Calcutta Dock Labour Board and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberMatter No. 61 of 1959
Judge
Reported inAIR1960Cal166
ActsDock Workers (Regulation of Employment) Act, 1948 - Section 2
AppellantKesab Lal Banerjee and anr.
RespondentCalcutta Dock Labour Board and anr.
Appellant AdvocateS.K. Acharya, Adv.
Respondent AdvocateS.K. Mookerjee, Adv.
Excerpt:
- .....or descriptions to which the scheme applies; (h) 'employer's register' means the register of dock employers maintained under the scheme; (i) 'registered employer' means a dock employer whose name is for the time being entered in the employer's register;' 2. clause 10 speaks about the maintenance of registers. there appears to be two classes of registers, one the employers' register and the second is the workers' register. its corresponding ckuse in the 1956 scheme which is of great importance in this application will be dealt with under that scheme. 3. it will thus be seen that the scheme envisages two kinds of registration. one is the registration of the employers of the dock workers and the other is the registration of the dock workers themselves. so far as the workers are.....
Judgment:

D.N. Sinha, J.

1. There are two petitioners before me. Kesab Lal Bannerjee and Hiralal Bannerjee, Their father, Monilal Bannerjee, carried on business as a supplier of tally clerks to ships that call at the Port of Calcutta. He had been carrying on this business ever since 1918. After his death in. 1939, his business was continued by the petitioners who are two brothers under the firm name of 'M. L. Bannerjee and Sons'. As such, they have also been carrying on business as supplier of tally clerks to ships that call at the Port of Calcutta. The way that the business is carried on is that the petitioners employ a number of tally clerks, whom they supply to ships according to their requirements. In the year 1948, was enacted the 'Dock Workers (Regulation of Employment) Act, 1948' being Central Act IX of 1948. This Act was promulgated to provide for regulating the employment of dock workers. The Act contemplates the drawing up of a scheme for the registration of dock workers, with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or not, in a Port. In exercise of the powers conferred by the Act, the Central Government in or about October, 1951, framed a Scheme called the 'Calcutta Dock Workers (Regulation of Employment) Scheme 1951.' This Scheme was intended to apply to the Port of Calcutta and to classes or description of dock work and workers set out in the Schedule annexed thereto. This Scheme was subsequently replaced by another Scheme called the 'Calcutta Dock Workers (Regulation of Employment) Scheme 1956.' This is the Scheme now in operation. Before I proceed further it will be necessaryto consider some of the provisions of the Act and the two Schemes hereinbefore mentioned. Clause (b) of Section 2 of the said Act defines a 'dock worker' to be a person employed or to be employed in or in the vicinity of, any port, or work in connection with the loading, unloading, movement or storage of cargoes, or work in connection with the preparation of ships and other vessels for the receipt or discharge of cargoes or leaving port. Clause (c) defines the word 'employer' as follows : '(c) 'employer', in relation to a dock worker means a person by whom he is employed or to be employed as aforesaid;' Section 5 of the Act provides for the constitution of an Advisory Committee consisting of an equal number of members representing Government, dock workers, and the employers of dock workers. Coming now to the Scheme of 1951, we find that under Clause 4 has been established a Board tailed the 'Calcutta Dock Labour Board', which is a body responsible for the administration of the scheme. The Board was to consist of 12 members, to be appointed by the Central Government, and was to include an equal number of members representing Government, dock workers and employers of dock workers and shipping companies. Clause 3 contains certain definitions. The following definitions are important:

'(f) 'dock employer' means the person by whom a dock worker is employed or is to be employed;

(g) 'dock work' means operations at places or premises to which the Scheme relates, ordinarily performed by dock workers of the classes or descriptions to which the Scheme applies;

(h) 'employer's register' means the register of dock employers maintained under the Scheme;

(i) 'registered employer' means a dock employer whose name is for the time being entered in the employer's register;'

2. Clause 10 speaks about the maintenance of registers. There appears to be two classes of registers, one the employers' register and the second is the workers' register. Its corresponding ckuse in the 1956 Scheme which is of great importance in this application will be dealt with under that scheme.

3. It will thus be seen that the scheme envisages two kinds of registration. One is the registration of the employers of the dock workers and the other is the registration of the dock workers themselves. So far as the workers are concerned, Clause 11 of the said Scheme has made a classification, and one classification is under the heading -- 'clerks' which expression includes tally clerks. I now come to the 1956 Scheme which has replaced the earlier Scheme, In this Scheme, the definitions are virtually the same. Thus, the 'employers' register' still means the register of dock employers maintain-ed under the Scheme and a 'registered employer' means a dock employer whose name is for the time being entered in the employers' register. Under the new Scheme, the Calcutta Dock Labour Board still continues to be responsible for the administration of this Scheme. The Board must still consist of members including the employers of dock workers and shipping companies. I now come to Clause 15 which deals with the maintenance of registers, including the employers' register. The relevant part of the clause runs as follows :

'15. Maintenance of Registers, etc.--(1) Employers' Register

(a) There shall be a register of employers.

(b) In so far as the application of the Scheme to stevedore labour is concerned, every stevedore Or stevedoring firm who on the date of the enforcement of the Scheme is already registered under the Calcutta Dock Workers (Regulation of Employment)Scheme 1951 shall be deemed to have been registered under this Scheme.

(c) Persons or firms other than those who are deemed to have been registered under item (b) shall not be registered as stevedores unless Board considers it expedient and necessary to do so and in no case shall a person or a firm be registered until he or it has been licensed in that behalf by the port authority.

(d) A registration fee of Rs. 500/- shall be payable to the Board by every stevedore or stevedoring firms to be registered under item (c).

(e) The Board may, subject to such conditions as it may with the previous approval of the Central Government prescribe in this behalf, permit the persons registered under item (b) or (c) form one or more groups and each group so formed shall be treated as one employer only for employment of monthly workers; provided further that the Board in its discretion may, if it is satisfied that any group of employers has to comply in part or in full with the conditions prescribed for the formation of such groups revoke the permission given from such date as it may specify on this behalf and such groups shall stand dissolved from that date.'

4. Clause 16 of the Scheme deals with the classification of workers in registers. In this Scheme, instead of the word 'clerk' we have the words 'tally clerk'.

5. It will be necessary now to go back to the enumeration of facts in order to understand the dispute that has arisen in this case. I have already stated that in the year 1948 came into operation the Act IX of 1948 and a Scheme was framed in 1951 relating to the work in the Calcutta Port. On 19-11-1952 the petitioners wrote to the Secretary, Calcutta Dock Labour Board (hereinafter referred to as the 'Board') stating that they have been working as an employer of tally clerks and enquiring whether it was essential to have their names registered with the Calcutta Dock Labour Board. In reply thereto, by a letter dated 28-11-1952 the Secretary of the Board informed the petitioners that the matter had been referred to the Government of India and its decision would be communicated in due course, This decision was never communicated, even until February, 1955 when the petitioners made an application for registration as employer of tally clerks. By letter dated 10-2-1935 the Secretary of the Board informed the petitioners that the matter was still under the consideration of the Government and the petitioners would be informed in due course. It appears that in March, 1955 the Asiatic Shipping Co. Ltd., agreed to appoint the petitioners as their stevedores if they could get a stevedoring license. On 28-6-1955 the petitioners applied to the Board for getting a stevedoring license. In that letter it was stated that they have been working for the last 35 years as tallying contractors, which was a part of stevedoring. It was stated that prior to the introduction of the Calcutta Dock Labour Board the petitioners also worked as stevedores in Calcutta and that they possessed necessary gears and expert knowledge for a stevedore's job. In answer to this the petitioners were informed on 5-4-1955 by the Secretary of the Board that in accordance with the 1951 Scheme a notice calling for applications from stevedering firms for the purpose of registration was issued through the press in October, 1952 and the last date for receiving such applications was 24-11-1952. As the Board did not consider it necessary to add to the evisting number of registered stevedores it was regretted that the request of the petitioners for a stevedoring license could not be acceded to. On 28-4-1955 the petitioners wrote to the Chairman of the Board drawing his attention to the fact that the petitionerswere acting as direct contractors for supplying tally clerks with the Holland Bengal-Burmah Line, present agents, Java Bengal Line, since their formation in Calcutta in 1918. The letter proceeded to enumerate the various attempts which the petitioners made to enquire as to whether it was necessary for them to get themselves registered, but although they were told that this was under the consideration of the Government, no decision of the Government had yet been communicated. It was further mentioned that tally clerks were being registered by the Board and as it would be necessary for the petitioners to draw upon the services of such clerks from the Board, it was necessary to get themselves registered. A prayer was made to regularise the position. There was no reply to this letter, but on 17-10-1955 the Secretary of the Board wrote to the petitioners asking them to furnish certain informations as to the strength of tally clerks employed by them, the wages that were paid, and the particulars of registers maintained. The letter concludes with the following remarks :

'The above information asked for has already been supplied by the various stevedores and Steamer Agents and it is called for from your organisation as it is understood that the requirements of the Java Bengal Line and the Java Pacific Line are met in part by you.'

6. The petitioners gave the information called for, which was supplemented from time to time. On 17-2-1956 the Secretary of the Board wrote to the petitioners that the tally clerks employed by the petitioners whose names were included in the list sent with the letter had been considered fit for registration as tally clerks. In fact these tally clerks were registered by the Board. On 10-4-1957 the petitioners asked for some requisition forms for tally clerks, which meant that they wanted certain official requisition forms with the help of which they could requisition the services of the registered tally clerks, to carry on their business. To this, on 12-4-1957 a letter was received from the Administrative Superintendent of the Board to the effect that the requisition forms could only be supplied to registered employers. On 10-4-1957 the petitioners had also written to the chairman of the Board asking for the issue of a stevedoring licence enabling them to take tally clerks from the pool. On 7-4-1959 the Board published the following notice :

'The Calcutta Dock Labour Board has decided that the Tally clerks registered with the Board will be booked in all the three shifts or work with effect from 15-4-1959. All Shipping Companies. Shipping Agents and Stevedores are hereby informed that no Tally Clerks other than those, who were in their permanent employment on a monthly basis on 9-10-56, and a list of whom has been supplied to the Board under Clause 18 (2) (ii) of the Calcutta Dock Workers (Regulation and Employment) Scheme, 1958, should be employed with effect from 15-4-1959. Requisition for the booking of Board's registered Tally Clerks in all the three shifts with effect from the above date should be sent through Registered Employers to the Administrative Body, Calcutta Dock Labour Board at New Call Stand at Kidderpore in the usual manner.'

7. On 13-4-1959 a letter was written by the petitioners stating that they were put in a peculiar position, since the authorities would not tell them as to whether it was necessary for them to get themselves registered, and also turning down their application for being registered as employers or as Stevedores. It was pointed out that the position had become so anomalous that their business had to be closed. On 21-4-1959 all that the petitioners received was a request from the Secretary of theBoard asking them to give the number and date of the previous correspondence and preferably with copies of letters. Thereafter, the petitioners have come to this Court and a Rule was issued calling upon the respondent to show cause why they should not be directed to register the applicants as Dock employers and/or otherwise to act according to law. The first thing that I should mention is that Mr. Mukherjee appearing on behalf of the Dock Labour Board has stated that the Board did not have sufficient time to consider the application of the petitioners. In the context of the dates sot out above, this appears to be somewhat strange. Ever since 1952, the petitioners have been moving the authorities for information as to whether it was at all necessary for them to get themselves registered and if so to register them either as employers or as Stevedores. Although the authorities have said from time to time that the Government was considering the position, no information has yet been given. As regards registration, the authorities would not register the petitioners either as employers or as stevedores. When it came to registration as Stevedores they are told that it was too late, and when it came to registration as employers, nothing definite was done except that the major part of the employees of the petitioners have themselves been registered as Tally Clerks, but the application of the petitioners for being registered as an employer has not been dealt with. Now, before me, the stand taken is that under Clause 15 of the 1956 Scheme there can be registration only of Stevedores. It is said that the petitioners are stevedores and they could only be registered if they got the necessary license from the Port authority. This is a new stand, and if it is final one, as I hope it is, it will be necessary to decide whether it is at all justified in law. It will be remembered that by the notice published in April, 1959, no employer can draw for registered Tally Clerks from the pool unless he is registered as an employer. It has resulted in a complete stoppage of the petitioner's business. Apropos tile latest stand made by the Dock Labour Board before me, the point that has been raised involved the question as to whether under the Act or the Scheme there can be an employer other than a stevedore, and if there can be, then whether the petitioners as such employers can claim registration under the Scheme. There is also the question as to whether the petitioners can be called stevedores. If the petitioners are stevedores, then of course, they come within the mischief of Sub-clauses (b) and (c) of Clause 15 (1) of the Scheme, particularly Sub-clause (c). In that case, they would firstly have to get a license from the Port authorities to act as stevedores and secondly, they would have to get themselves registered as stevedores under the Scheme, which, it seems, is not at all an easy thing. Firstly, no new stevedores are being registered, and secondly, full power has been given to the Board not to register new stevedores unless it considers it expedient and necessary to do so. Upon a consideration of the provisions or the Act and the Scheme. I am of the opinion that the petitioners, in so far as they any on their business of supplying tally clerks, cannot be called stevedores. The! word 'stevedore' is not defined either in the Act or the Scheme. The word, 'stevedore' has been defined in Stroud's legal dictionary as a person employed to load and unload a ship. In Wharton's Law Lexicon the word, 'stevedore' has been defined to mean a person employed to stow cargo on board a ship. According to Jowitt, the word, 'stevedore' has been defined to mean a person whose duty is to undertake, stowage or discharge of cargoes with a gang of men whom he hires and pays and is responsible for their work. As I have said, in the ActIX of 1948, dock work includes work in connection with, not only loading and unloading of cargo, but with its movement or storage or work in connection' with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving the Port, and an employer is a person who employs any person employed in connection with any such work. There can be no doubt that tally clerks do work in connection with the loading and unloading of cargo in ships, but the petitioners, in so far as they carry on as tally clerk contractors, merely supply tally clerks to ships. By themselves they have nothing to do with the loading and unloading of cargoes on the stowage or discharge of cargoes in relation to ships which call at the Port of Calcutta. In this capacity they are mere contractors to arrange for providing the services of a number of men to real stevedores. In my opinion, they cannot be called stevedores themselves. It is true that they have in their own correspondence stated that a tally clerk contractor's work is also a part of stevedoring, but that was stated under the stress of circumstances, and is of little assistance in deciding the question. If the petitioners are not stevedores, the question is whether they can be called 'employers' under the Act and the Scheme and whether they can be registered, and if so, what is the procedure for it. As 1 have stated above the most important provision to be interpreted is Clause 15 or the Scheme of 1956, because that clause deals with the question of the maintenance of the employers' register. As I have also pointed out above, Sub-clauses (b) and (c) of Clause 15 (1) of the said Scheme deal with the question of stevedores. From this it is sought to be argued that an employer intending to be regisitered under the Scheme must necessarily be a stevedore. It is argued that Sub-clauses (b) and (c) lay down certain conditions for registration of stevedores whereas Sub-clause (a) speaks about the register of employers, but does not lay down any procedure for registration or any condition It is true that Sub-clause (a) merely lays down that there shall be a register of employers. If however, no particular procedure is laid down or no condition is imposed, that will not make the provision void Since it lays that there shall be a register of employers, it must be implied that employers are entitled to get themselves registered, that is to say, have their names entered into the register. If there is no restriction imposed on employers other than stevedores, then it is either a defect in the Scheme or an intentional omission It is for Government which has framed the Scheme to remedy the defect, if any. The Scheme must be implemented as it stands. It must not be forgotten that the Act and the Scheme impose restrictions on the fundamental rights of a citizen to carry on his trade or business. It must therefore, receive a strict interpretation. I shall now consider whether it is reasonable to state that the word, 'employer' and the word, 'stevedore' are synonymous. I have pointed out above the definition of a 'dock worker' and 'employer' in Act IX of 1948. The word 'employer' in relation to dock worker means a person by whom he is employed or to be employed. Since the words, 'dock workers' are not confined to employees of stevedores, I do not see why the wont 'employer' should bear a restricted meaning and why they should be synonymous. Coming now to the Scheme of 1956 with which we are concerned in this case, and which substantially repeats the expressions used in the earlier Scheme, we find that the words, 'dock employers' mean a person by whom a dock worker is employed or is to be employed. The words, 'dock work' mean operations-at places or premises to which the Scheme relates; Thus, even under the present Scheme, 'dock work(tm) is not confined to the work of stevedoring. If thatis so, I do not see why the word 'employer' should, under the Scheme, mean only a stevedore. It fol-lows that the words 'employers' register'' did not necessarily mean a register only of stevedores. As I have stated before, the word 'stevedore' has not been defined either in the Act or in the Scheme. Therefore, we have to look to the meaning of the word as used elsewhere. I have already set out above the various meanings given to it in authoritative dictionaries. Roughly speaking, the work of stevedoring is mainly concerned with the stowing and discharge of cargo. The work of a tally clerk, as the name signifies is concerned with checking or goods, materials and cargoes during the operation of stowing or discharge, but also extends to incidental operations like storage in a godown at the docks or removal therefrom. A stevedote may certainly employ tally clerks. Here however, we find that the petitioners carry on business as contractors supplying the services of tally clerks. Nowhere in the extensive correspondence have the respondents ever admitted that they are stevedores. In my opinion, in so far as the petitioners carry on the business of contractors supplying the services of tally clerks only, it cannot be said that they are stevedores as such. Corning back to Clause 15, we find that in Clause 15 (1) (a) it is laid down that there shall be a register of employers but there is nothing to indicate that such employers must be stevedores. Coming to Sub-clause (a) of Clause 15 (1) we find that a registration fee of Rs. 500/- is to be paid to the Board by every stevedore or stevedoring firm to be registered under item (c). Here there is no mention of the word 'employer' but it deals with stevedores only. Coming to Sub-clause (c) of Clause 15 (1) we see that it talks about the 'employer' and does not mention the word 'stevedore'. In the second proviso we find the word 'employer' used and so reference to the word 'stevedore'. From this, it must be deduced that although stevedores are certainly employers of dock workers, they are not the only kind of employers that can exist under the Act and the Scheme. There may be employers who are not stevedores. They may be carrying on work which has nothing to do with stevedoring, or they may be such as carry on work, as in the instant case, assisting the work of a stevedore or a stevedoring firm, but by themselves, such an employer cannot be called a stevedore. The Government can do one of two things. Firstly, it can define the word 'stevedore' and give it an extended meaning which will include every body who is a stevedore proper, as also those who assist a stevedore in any manner. In such a case, every body will be aware of his position andthe provision as to stevedores would be applicable to such persons. In the alternative however, the Act and the Scheme must be interpreted as laying down provisions for all kinds of employers of dock workers to be registered. If it is the intention of Government that only stevedores need to be registered, then the Scheme should say so and employers other than stevedores should be exempted from registration Since however the Scheme requires all employers to be registered I do not see how the registration can be confined only to stevedores. In this case, the least that can be said is that the respondents have created an impossible situation for the petitioners. They would not tell them us to whether it was at all necessary for them to be registered under the Scheme. Then again, when they wished to be registered as employers the request was turned down without giving any reason. When they wish to be registered as stevedores, that also is turned down. Their employees have been registered as dock workers, and yet notice is given that only registeredemployers can employ the registered dock workers. Apart from an inexcusable delay in correspondence.I am constrained to hold that the respondents havenot interpreted the law properly. In my opinion, thepetitioners are 'employers' as defined in the Act andthe Scheme, and they are not stevedores. As such,they are entitled to be registered as employers, thatis to say, they are entitled to have their names putin the register of employers. As they are not stevedores the conditions and restrictions imposed inSub-clauses (b) and (c) of Clause 15 (1) of the Schemedo not apply to them. Lastly, I come to the pleaput forward on behalf of the Dock Labour Boardthat the Board had not sufficient time to deal withthe application of the petitioners. Strictly, speaking,such an application commenced from 1952 and Ithink that taking it from any angle of view, 7 yearsshould be sufficient time for the Board to make upIts mind. However, it would be quite sufficient tosay that this rule is made absolute and the respondent No. 1, the Calcutta Dock Labour Board, isdirected to deal with the application for registrationof the petitioners within a reasonable time, and inaccordance with law, in the light of the principleslaid down above and particularly on the footing thatthe petitioners are not stevedores but are employersof dock workers and are entitled to registration.This will be without prejudice to the rights of thepetitioners to come up this Court again, in case theirapplication is not dealt with by the respondent No.1 in accordance with law. There will be no order asto costs.


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