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Pratul Chandra Mukherjee and ors. Vs. Chairman, Calcutta Dock Labour Board and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 223 of 1957 (Matter No. 95 of 1956)
Judge
Reported inAIR1958Cal636
ActsDock Workers (Regulation of Employment) Act, 1948 - Section 4; ;Constitution of India - Article 14
AppellantPratul Chandra Mukherjee and ors.
RespondentChairman, Calcutta Dock Labour Board and anr.
DispositionAppeal dismissed
Excerpt:
- .....those circumstances, the legislature intervened and in the year 1948 enacted a statute, called the dock workers (regulation of employment) act 1948, in order to provide for the regulation of the employment of dock workers. the statute itself was a very slender piece of legislation consisting of only seven sections and, in the main it only provided for the training of schemes for each port with a view to regulating the recruitment and employment of dock workers and taking suitable measures for providing them with work on fair wages and securing their health and safety. section 3 of the act enumerated the matters for which a scheme might provide and section 4 laid down that government might by notification in the gazette make one or more schemes for a port or group of ports and amend or.....
Judgment:

P. Chakravartti, C.J.

1. The nine appellants are registered and licensed tevedores, carrying on business in the Fort of Calcutta. Besides them, there are nineteen other stevedores, carrying on business at the same port. The appellants are memhers of a body, called the Calcutta Stevedores Association, whereas fourteen of the other nineteen stevedores are members of a body, called the Master Stevedores Association. The remaining five are unattached.

2. The work of a Stevedore consists in loading and unloading ships and on occasions in preparing a vessel for the reception or discharge of cargo. Such work requires the aid of human labour. Naturally, a large body of men, capable of offering such labour, congregate at ports where ships call,but it is in the nature of things impossible that they should be able to get regular employment unless the work is controlled and equitably distributed. Inorder that stevedoring work may be available, there must be ships to load or unload, but no one can expect ships to call at any particular port with anything like regularity, nor can it be expected that the tonnage of the ships which actually call will be sufficient to provide employment for all the dock labour seeking work. The prospect of getting employment is thus always uncertain and this uncertainty was causing some dissatisfaction among the labourers and occasionally some dislocation of work.

3. In those circumstances, the Legislature intervened and in the year 1948 enacted a statute, called the Dock Workers (Regulation of Employment) Act 1948, in order to provide for the regulation of the employment of dock workers. The statute itself was a very slender piece of legislation consisting of only seven sections and, in the main it only provided for the training of schemes for each port with a view to regulating the recruitment and employment of dock workers and taking suitable measures for providing them with work on fair wages and securing their health and safety. Section 3 of the Act enumerated the matters for which a scheme might provide and Section 4 laid down that Government might by notification in the Gazette make one or more schemes for a port or group of ports and amend or revoke such schemes from time to time. One of the matters for which a scheme might provide was the regulation of the employment of dock workers, whether registered or not, and the terms and conditions of their employment, including rates of remuneration. Another matter was the manner in which the cost of operating the scheme was to be defrayed.

4. In exercise of the powers conferred by the Act, the Central Government framed in October, 1951, a scheme, called the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951. The object of the Scheme was to ensure greater regularity of employment for dock workers and to secure that an adequate number of them would be available for the efficient performance of dock work. The Scheme was intended to apply to the Port of Calcutta and to classes or descriptions of dock work and workers set out in a schedule annexed thereto. The work mentioned in the Schedule was stevedoring work, other than 'coal and salt work' and the workers mentioned were workers, falling under ten specified categories, namely, Dock Foremen, Hatch-Foremen or Gunners, Winchmen, Sirdars, Mates, Senior Kamalias, Tunior Kamalias, Senior Rolias, Junior Rolias and Clerks.

5. Apart from classifying the workers under ten categories, the Scheme also classified them by reference to the manner of their employment. It divided them into daily workers and monthly workers. 'Monthly worker' meant a registered dock worker who was engaged by a registered employer on monthly wages under a contract which required at least one month's notice for the termination; and 'daily worker' meant a registered dock worker who was not a monthly worker. This manner of classifying the workers left a rather curious lacuna, because it would seem that if a worker was employed on a yearly basis, he too would be a daily worker under the definitions, because he would be a worker who was not a monthly worker. This piece of curiosity, however, need not detain us.

6. The description of the dock worker as 'registered' in the definition of both 'daily worker and 'Monthly worker' had reference to Clause 10 othe Scheme. That clause first provided for an Employers' Register in which all stevedores, carrying on business at the port, were to get their names entered. It then provided for Workers' Registers, mainly of two types, namely, a Monthly Register and a Reserve Pool Register. Under Clause 3(n) of be Scheme 'reserve pool' meant a pool of registered dock workers who were available for work and who were not, for the time being, in the employment of a registered employer as a monthly worker. The Monthly Register was to be a register of workers who were engaged by each stevedore on contract on a monthly basis and who were known as monthly workers, while the Reserve Pool Register was to be A register of workers other than those who were an the Monthly Register. Clause 31 of the Scheme provided that no person, other than a registered employer, would be allowed to engage for employment or employ any worker on dock work and further that no registered employer was to engage for employment or employ a worker on dock work unless that worker was a registered dock worker. It will be seen that the workers whose names were entered in the Reserve Pool Register were daily workers. As to how the dock workers would be employed, Clause 20 provided that workers on a Monthly Register attached to a registered employer would be entitled to be employed by that employer in preference to any worker in the Reserve Pool Register and that for work which could not be done by workers borne on the Monthly Register, those' on the Reserve Pool would be employed.

7. The Scheme provided for the creation of a body, called the Calcutta Dock Labour Board. The functions of the Board were set out in clause 7 of the scheme and they appear to be practically the same as the purposes of scheme set out in Section 3(2) of the Act. The one function with which we are concerned in this appeal is that specified in Clause 7(h). It is 'levying and recovering from registered employers contributions in respect of the expenses of the Scheme.' It would be noticed that this provision is virtually the same as that contained in Section 3(1) of the Act.

8. It appears that while the responsibility for the payment of the monthly workers was taken over wholly by their employers, the Dock Labour Board had some responsibilities with respect to the daily workers. Those workers are entitled under clause 23 of the Scheme to wages for at least twelve days in a month, to attendance wages under Clause 24, when they are available for work but no work can be found for them, and to Disappointment Money under Clause 26, when the work in which a worker is employed cannot proceed for some reason beyond the control of the employer and at the same time no alternative work can be found for him, The duty of making these payments to the daily workers lies on the Dock Labour Board.

9. The Dock Labour Board has thus to provide itself with the necessary finances in order to be able to make these payments. The Scheme provides that the money is to be procured by obtaining certain payments from the employers. These payments include, in the case of daily workers, both the wages payable to them and a levy computed at it certain percentage of the gross wages payable. But in the case of monthly workers, only the levy is to be paid by the employer and not the wages. The whole procedure for procuring the payments is laid down in Clauses 30(5). 30(6) and 41 of the Scheme, Clause 30(5) provides that

'a registered employer shall in accordance with directions given by the Administrative Body, lodge with the latter a return of the gross wages(including overtime) and allowance and without deductions of any kind) due from him to each registered dock worker engaged by him in respect of the period covered by the return.'

should pause here to point out that the Administrative Body referred to in the clause is a body constituted by the Central Government under Clause 5 of the Scheme for carrying on its day to day ad-ministration under the supervision and control of the Dock Labour Board. Clause 30 (6) provides that 'a registered employer shall pay to the Administrative Body in such manner and at such times as the Board may direct the total amount of the gross wages due to daily workers specified in the return made under the preceding paragraph.' It will thus be seen that in the case of monthly workers, the employer is only to lodge a return of the gross wages payable by him to them, but he is not to pay any money to the Administrative Body. In the case of daily workers, however, the employer is to pay to the Administrative Body the whole amount of the gross wages payable by him to them.

10. So much about the wages payable. The collection of a levy in addition to the wages is provided for in Clause 41, on a true construction of which the result of this appeal depends. What the Dock Labour Board did in this case was to impose a levy' at a certain percentage in the case of monthly workers and a levy at a higher percentage in the case of daily workers. The appellants, who are mainly employers of daily labour, complain of this differentiation and contend that it is not warranted by law.

11. On the merits, the case of the appellants-appears to be this. They say that, previously, allthe stevedoring work at the Calcutta Port was confined to certain stevedores of an established standing who were all members of the Master Stevedores Association. The ships which called at theCalcutta port were mainly owned by foreign shipping companies whose interests were looked after bya body, called the Calcutta Liners Conference andthat body, acting in collaboration with the BengalChamber of Commerce, kept all the stevedoringwork limited to members of the Master StevedoresAssociation. Only when, during the last great War,a large number of vessels controlled by the Ministry of Sea Transport and other War Departmentsbegan to call at Calcutta and when simultaneouslysome private merchants also began to charter shipsthat an opportunity offered itself for parties whoWere not members of the Master Stevedores Association to try for stevedoring work. But the MasterStevedores Association had closed its membershipand, therefore, these new entrants had to found anassociation of their own which they called the Calcutta Stevedores Association. The work whichthey could get was, however, small and of a sporadic character. The bulk of the work continued tohe handled by the members of the Master Stevedores Association and they were in a position toemploy monthly workers on a monthly paymentbasis, because they could provide employment forthe greater part, if not the whole, of the month.The appellants and the other five unattached stevedores were not in the same fortunate position and since the work handled by them was small, theycould afford to employ only daily workers whowere to be paid on a daily basis for the actualwork they did. The complaint of the appellantsin the present case is that they were already in ahighly disadvantageous position by reason of whatwas practically a mononoly established by the members of the Master Stevedores Association and if,in addition to that disadvantage, they were placedunder a further disadvantage of having to pay a levy at a higher rate of percentage with respect to daily workers whom only they could employ, they would in no time be driven out of business altogether. With difficulties of that character arising out of the ordinary course of business operations in A particular line of trade or business, the Court has no concern. The appellants have, therefore, stated their grievance in the form that the imposition of a differential levy was without jurisdiction and that the Dock Labour Board should be prevented by a writ of prohibition from enforcing it. That is the only matter which has got to be examined in this case.

12. The answer to the question raised by the appellants depends on the true construction of Clause 41 of the scheme. That clause runs as follows:

'(1) The cost of operating the Scheme shall be defrayed by payments made by registered employers to the Board in the manner following;

Every registered employer shall pay to the Board-

(a) such amount whether by way of percentage on the gross wages payable by him under Clause 30 (6) or as otherwise agreed, together with and at the same time as the payment of those wages, and

(b) at the same time as the payment under sub-paragraph (a), such amount whether by way of percentage on the gross wages shown as due to monthly workers in the return made under Clause 30 (5) or as otherwise agreed, as the Board may in either case from time to time notify by public notice.

2. In determining what payments are to be made by registered employers under paragraph (1) of this clause, the Board may fix different percentages for different categories of work or workers, provided that the percentages shall be so fixed that the like percentages will apply to all dock employers who are in like circumstances.'

13. The contention of the appellants is that the percentage fixed for the purpose of paragraph (a) and that fixed for the purposes of paragraph (b) must, under the words of the clause, be the same and cannot be different and that the only difference which the clause authorises is a difference of the kind provided for in sub-el. (2). This is said to be the true meaning of Clause 41, properly construed.

14. Paragraph (a) of Sub-clause (1), speaks of an amount by way of percentage -- I am leaving out 'otherwise agreed -- on the gross wages payable under Clause 30 (6) and, similarly, paragraph (b) speaks of a payment by way of percentage -- I am again leaving out 'otherwise agreed' -- on the gross wages shown as due in the return made under Clause 30 (5). The concluding words of the sub-clause are that such amounts shall be 'as the Board may in either case from time to time notify by public notice,' It is thus clear that the amount payable under paragraph (a) shall be such amount as the Board may notify and similarly the amount payable under paragraph (b) shall be such amount as may be notified by the Board. There is nothing whatever to suggest that these amounts, or rather the percentages, under the two paragraphs must be identical, but, on the other hand, the language of the sub-clause expresses unmistakably the intention that the percentages may well be different. This was not disputed on behalf of the appellants and indeed Mr. Meyer, who appeared for them, made this difference the first premise of his own argument. What he said, however, was that while Sub-clause (1) of Clause 41 undoubtedly authorised the Board todifferentiate between daily workers and monthly workers regarding the amount to be levied with respect to them, the Board had not been left free to make a differentiation in any manner it liked, but the only form of differentiation allowable had been indicated in Sub-clause (2). To put it in another way. Mr. Meyer's argument was that while Sub-clause (1) undoubtedly permitted a differentiation, Sub-clause (2) limited the Board to the form of differentiation, specified there. The only differentiation it could make was to fix different percentages for different categories of workers, that is to say, different percentages with respect to Dock Foremen, Hatch-Foremen, Winchmen, Sirdars and the other categories mentioned in the Schedule to the Scheme, but not any other differentiation.

15. In my view, this construction of Clause 41 is not tenable. I have already pointed out that the first sub-clause leaves the Board entirely free to fix whatever percentage it likes-with respect to daily workers and it leaves the Board equally free to fix what percentage it likes with respect to monthly workers. The language is, such amount as the Board may 'in either case' notify from time to time. If complete' liberty to notify different sums on the basis of different percentages is given by Sub-clause (1) and if, inconsequence, the over-all amount under paragraph (a) may be different from the over-all amount in paragraph (b), it is wholly impossible to see how Sub-clause (2) can be fitted in with such a provision, if it is intended to have the effect of limiting the Board's liberty to make a differentiation only to-make such differentiation as between different categories of workers. There can be no doubt that Sub-clause (2) is in the nature of a proviso to Sub-clause (1). On the construction proposed on behalf of the appellants, Sub-clause (2) would not be a proviso at all, but it would be, on the other hand, a wholly incongruous provision.

16. Sub-clause (2), however, does control Sub-clause (1) to a certain extent, but not in the way contended for on behalf of the appellants. Both paragraphs (a) and (b) of Sub-clause (1) speak of 'such amount by way of percentage on the gross wages' and give no room for a construction that such percentage can be anything but a uniform rate applicable to all classes of workers. It is to be noticed that daily workers, with whom paragraph (a) is concerned, may well include workers of all the different categories mentioned in the Schedule and, similarly, paragraph (b), which is concerned with monthly workers may include workers of the same categories. The two paragraphs do not classify the workers category-wise, but they classify them by reference to their mode of employement. Read in that context, the expression 'such amount by way of percentage on the gross profits', as used in each (paragraph, can only mean an amount computed at a single rate of percentage in the case of all categories of workers, whatever that percentage may be. The total effect of the language used in paragraphs (a) and (b), read with the concluding sentence, thus is that while the Board is at liberty to fix one percentage in the case of daily workers and another in the case of monthly workers, the percentage applicable to all the categories of daily workers and, similarly, the percentage applicable to all the categories of monthly workers must be a uniform percentage and not a different percentage in the case of each category,

17. To my mind, it is to this provision that Sub-clause (2) of Clause 41 is a proviso. It relieves the Board of the obligation to raise a levy at a uniform percentage applied to all categories of workers serv-ding as daily workers and a similar obligation to raise a levy at a uniform percentage applicable to all categories of monthly workers which is imposed by Sub-clause (1) of Clause 41; and it authorises the Board, in modification of what is provided for in Sub-clause (1), to fix different percentages for different categories of workers. In other words, to the liberty to make a differentiation between the percentage applicable to daily workers as a class and percentage applicable to monthly workers as a class, Sub-clause (2) adds the further liberty of making a differentiation as between different categories even inside the body of daily workers and, similarly, inside the body of monthly workers, by reference in each case to the different categories to which the workers may belong. We are not concerned in the present case with any such further differentiation, because none has been made. The only resolution passed by the Dock Labour Board on 10-5-1956, which I have not so far read, is as follows:

' Resolved that the recommendation of the Standing Finance Committee to the effect that the rate of levy be fixed at 25 per cent., of wages paid to monthly workers and 40 per cent., of the wages paid to pool workers be accepted with the proviso that in respect of monthly workers reimbursement by the Board of leave salary and provident fund contribution to the employers of monthly workers should continue as at present. Tin's rate of levy should come into force with effect from 1-6-1956.'

The resolution only applies a certain percentage to the case of monthly workers as a whole and a different and a higher percentage to daily workers as a whole. It does not purport to impose different percentages even as amongst monthly workers or as amongst daily workers on the basis of the categories to which they belong. The only differentiation in the present case is the differentiation contemplated by Sub-clause (1) of Clause 41, that contemplated by sub-clause (2) not coming into the picture at all, and in my view, such differentiation is entirely authorised. The learned Judge arrived at the same conclusion and it has not been proved to our satisfaction that he was in any way wrong.

18. It was then contended, though rather faintly, that assuming that Clause 41 empowered the Board to impose different percentages in the case of monthly workers and daily workers, the provision was void, because it involved discrimination and was thus repugnant to Article 14 of the Constitution, I confess that I find it somewhat difficult to follow this argument. If the appellants were thinking o legislative discrimination, there was clearly none, because Clause 41 does not require that different percentages must be imposed in the case of the daily and the monthly workers, but only permits that different percentages may be imposed. But quite apart from that circumstance, against whom is the discrimination directed and where is any discrimination at all? The scheme is only a shell to which, the kernel is to be supplied by the circumstances of the port concerned. The effect of Clause 41 is merely that those who employ daily workers, and all those who employ them, will pay the levy at a certain percentage and those who employ monthly worters, and all who employ them, will pay a levy at a different, and it may be a lower percentage. As between employers of daily workers, no discrimination is made, nor is any discrimination made as between employers of monthly workers. There is nothing like a class of employers, statutorily limited to employing monthly labour, nor is there a classs, statutorily limited to employing daily labour. Indeed, the facts of this very case show that stevedores, who are employing monthly workers in large numbers, are also employing daily workersand the appellants themselves, though they mainly employ daily workers, do at times employ monthly workers also or at least may do so. I can see no discrimination of any land in the provisions of the clause as such.

19. It may, however, be said that Article 14 of the Constitution does not speak of legislative discrimination alone, but comprises discrimination in all forms. It says that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.' Administrative or executive discrimination may, therefore, be well within the purview of Article 14. 1 do not, however, see that 'on the facts it can be made out that there has been even such discrimination in the present case as will offend against Article 14. The basic idea in Article 14 is equals shall be treated equally and not that there should be equal treatment of even unequals. As I said a few moments ago, the Dock Labour Board has a very special responsibility of a financial character with, respect to daily workers whose wages are payable by the Board and who are also entitled to claim from the Board the Attendance Wages and the Disappointment Money. There is no corresponding obligation on the Board with respect to monthly workers. In those circumstances, it is perfectly clear that from the point of view of the Board, the monthly workers and the daily workers are not on the same plane. It is but elementary that if a discrimination in fact can be referred to some rational basis, clearly connected with the object of the legislation or with the object of the administrative act concerned, such discrimination is not forbidden by Art, 14, In my view, there is in the present case a clear and rational basis on which a distinction could lawfully be made as between daily and monthly workers with respect to the levy chargeable on account of them,

20. Indeed, it seems to me that what the appellants are really contending is not that although they are in the same position as the stevedores, who are members of the Master Stevedores Association, they are being discriminated against, but that their position in the business is not the same and, therefore, they may reasonably expect some protection. A claim of protection on the ground of some special disability is not a claim of equality. It may well be that in the circumstances stated by the appellants, if they are factually true, there will be a matter for the authorities to consider as a question of policy as to whether some accommodation should or should not be extended to them. But such a claim has nothing whatever to do with the law. The claim of the appellants, as I see it is not a claim based on an assertion of equality at all, but a request based on an assumption of disadvantage or inferiority for which whatever else may be responsible, the law is not.

21. The only two points urged in support of (he appeal were that Clause 41 did not authorise the Dock Labour Board to impose different percentages in the case of daily workers and monthly workers and that assuming it did, the provision was ultra vires the Constitution, In my opinion, both these contentions fail.

22. The appeal is, accordingly, dismissed. There will be no order as to costs.

23. The interim injunction granted by us will stand automatically vacated with the disposal of the appeal.

24. The respondents shall be entitled to withdraw through their solicitors the cash amounts deposited by some of the appellants as also the Government Promissory Notes deposited by othersand apply the cash, as also the sale proceeds of the Government Promissory Notes, to the payment of the levy respectively payable by them, provided, however, that the sales of the Government Promissory Notes, when held, must be on previous notice to the appellants concerned, that is to say, those who furnished security in Government Promissory Notes, which notice must be a week's notice.

25. The Registrar to act on a signed copy of the minutes. Messrs. Sandersons and Morgans, undertake to the Court through Mr. Mukherjee to have this order drawn up with all possible expedition.

S.C. Lahiri, J.

26. I agree


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