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Roy Chowdhury (T.P.) Vs. Calcutta Dock Labour Board and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1963)IILLJ179Cal
AppellantRoy Chowdhury (T.P.)
RespondentCalcutta Dock Labour Board and ors.
Excerpt:
- .....the calcuttadock workers (registration of employment) scheme, 1956. under the aforesaid scheme, a 'dock employer' is defined as: section 3(g)-dock employer means the person by whom a dock worker is employed or is to be employed and includes a group of dock employers formed under section 15(1)(e).4. clause 4 of the scheme reconstituted the calcutta dock labour board and made the board responsible for the administration of the scheme. clause 7 defines the functions of the board of which i need concern myself with the previsions of clause 7(1)(d), which reads as follows:clause 7(1)-the board may take such measures as it may consider desirable for furthering the objectives of the scheme set out in clause (2), including measures for....(d) keeping, adjusting and maintaining the employers'.....
Judgment:

B.N. Banerjee, J.

1. Dock labour is regulated by an Act known as the Dock Workers (Regulation of Employment; Act, 1948 (IX of 1948). Under Section 4 of the Act,

The Central Government may, by notification in the official gazette and subject to the condition of previous publication, make one or more scheme for port or group of ports and may, in like manner and subject to the like condition, add to, amend, vary or revoke any scheme made by it.

2. Under powers conferred by Section 4 quoted above, there was a scheme made for the port of Calcutta, in the year 1951, which was known as the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951. Clauses 4 and 10 of the scheme read as follows:

4. Calcutta Dock Labour Board-Establishment of,-(1) The Central Government shall, by notification in the official gazette, constitute a board to be called the 'Calcutta Dock Labour Board' which shall, subject to the provisions hereinafter contained, be responsible for the administration of the scheme.

(2) The board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and besued.

10. 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, who is working as a stevedore in the port of Calcutta on the date of constitution of the board, shall be entitled to be registered under the scheme; but no such person shall be so entitled unless he applies for registration on or before the date fixed by the board for this purpose;

Provided that no such person shall be entitled to registration unless be satisfies the board that he has at least such minimum number of monthly paid workers in his permanent employment and such minimum gear required to clear a ship of general cargo, as may be considered to be adequate in the opinion of the board exercising its discretion in the particular case, ' or applying standards, if any, prescribed by it in writing:

Provided further that the board may, Instead of refusing registration under the preceding proviso, grant such time as it considers reasonable to enable the person concerned to fulfil the adequate or prescribed requirements and grant him temporary registration during the period so allowed.

(c) Persons other than those registered under Sub-clause (b) shall not be registered as stevedores,

(i) unless the board considers it expedient and necessary to do so;

(ii) except subject to such conditions as the board may in consultation with the port authority prescribe.

(d) A registration fee of Rs. 500 shall be payable to the board by every stevedore.

3. That scheme was substituted by another scheme, in the year 1956, which is known as the CalcuttaDock Workers (Registration of Employment) Scheme, 1956. Under the aforesaid scheme, a 'dock employer' is defined as:

Section 3(g)-dock employer means the person by whom a dock worker is employed or is to be employed and includes a group of dock employers formed under Section 15(1)(e).

4. Clause 4 of the scheme reconstituted the Calcutta Dock Labour Board and made the board responsible for the administration of the scheme. Clause 7 defines the functions of the board of which I need concern myself with the previsions of Clause 7(1)(d), which reads as follows:

Clause 7(1)-The board may take such measures as it may consider desirable for furthering the objectives of the scheme set out in Clause (2), including measures for....

(d) Keeping, adjusting and maintaining the employers' register entering or re-entering therein the name of any dock employer and where circumstances be require, removing from the register the name of any registered employer either at his own request or in accordance with the provisions of the scheme.

5. Clause 15 of the scheme deals with the maintenance, of the employers' register, the material portion of which reads 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 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 the 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 firm to be registered under item (c).

6. The petitioner, T.P. Roy Chowdhury, says that, since August 1951, he has been carrying on business as a stevedore, under the trade name T.P. Roy Chowdhury & Co. On the promulgation of the scheme of 1951, he applied for his registration as an employer and was duly registered as such. The letter, dated 30 January 1953, informing the petitioner about his registration, reads as follows:

To

T.P. Roy Chowdhury,

17A, Circus Avenue, Calcutta-17.

You are hereby informed that your registration application No. 1016/52, dated 24 November 1952, has been accepted and that you have been registered as a temporary licensee for a period of six months in the first instance, your registration number being C.D.L.B. 35.

7. In the affidavit-in-opposition, affirmed by Gopal Singh Ahluwalia, Deputy Chairman, Calcutta Dock Labour Board, however, it is stated as follows:

On or about 24 November 1952, T.P. Roy Chowdhury & Co. made an application for being registered under the aforesaid scheme of 1951, and registration number C.D.L.B. 35 was allotted to the said T, P. Roy Chowdhury & Co. It appears that by mistake and/or through oversight the letter dated 30 January 1953, mentioned in the petition, was addressed to T.P. Roy Chowdhury and not to T.P. Roy Chowdhury & Co. It is denied that there was any application for registration from the petitioner in his own name or in his individual capacity.

8. The aforesaid statement, however, is denied in the affidavit-in-reply by the petitioner and therein it is asserted that the petitioner was registered in his personal name T.P. Roy Chowdhury and not in his trade name T.P. Roy Chowdhury & Co. The dispute on this point is, however, not of much consequence. I proceed on the basis that the petitioner was himself registered as an employer either in his personal name, or in his trade name....

9. On or about 15 July 1955, the petitioner transferred his business carried on under the trade name of T.P. Roy Chowdhury & Co. to one K.S. Janakiram, by a deed of transfer the material portion of which reads as follows:

Whereas the said vendor is carrying on the business of stevedoring, ship-chandling, dubashing, general marine contractors, etc, under the name and style of 'T.P. Roy Chowdhury & Co.,' and is having his office at present at 6/1 A, Hartuki Bagan Lane, Calcutta-6; And whereas the vendor holds for the said business the required licence, which is current, being licence ho. C.D.L.B. 35 isssued by the Calcutta Dock Labour Board; And whereas the vendor has agreed to transfer, assign and convey to the purchaser the said firm ' T.P. Roy Chowdhnry & Co.' along with all its goodwill, benefits, interests, rights, advantages, as also the aforesaid stevedoring licence free from all encumbrances, charges, lien and liabilities either arising from the business transactions of the firm or from his own personal dealings and actions; And Whereas the vendor has entered into an 181 agreement with purchaser on 13 July 1955, to that effect and has accepted earnest money of Rs. 101 (one hundred and one) only ; Now this deedwitness that in pursuance of the said agreement and in consideration of the sum of Rs. 6,000 (six thousand) only paid by the purchaser to the vendor (the receipt whereof the vendor hereby admits and acknowledges) the vendor does hereby convey, assign, transfer, assure and make over to the purchaser all that the said firm' T.P. Roy Chowdhury & Co.' and all the beneficial interest and goodwill of the said firm 'T.P. Roy Chowdhury & Co.' of stevedoring, ship-chandling, dubashing, etc., along with the stevedoring lincence and necessary papers and books of the said firm for the due and continued business of the firm, as also all benefits and advantages, if any, of the said firm and all the right, title and interest of the vendor to and in the said business of 'T.P. Roy Chowdhury & Co.' to have and to hold the said firm, interests, advantages, goodwill and licences hereby conveyed to the purchaser absolutely free from all encumbrances, charges, liabilities or lien, whatsoever.

10. Whether this transfer was a real transfer or a purposive transfer, as alleged by the petitioner, I need not decide in this rule. Suffice it for the purposes of this rule to notice that the registration of the petitioner as employer under the scheme was also transferred or purported to be transferred to K.S. Janakiram, under the deed of transfer.

11. In the year 1956, there was a private limited company incorporated under the name of T.P. Roy Chowdhury & Co. (Private), Ltd., and the petitioner say a that he became a member of the said company. The petitioner says further that the private limited company, on its incorporation, did not take over the business of T.P. Roy Chowdhury & Co. as a going concern but stevedoring business began to be carried on by the private limited company under the registration of the petitioner as an employer.

12. In or about the year 1961, the petitioner and K.S. Janakiram fell out and K.S. Janakiram, it is alleged, began his attempts to get the limited company registered as an employer in place of the petitioner. So as to checkmate and counteract K.S. Janakiram, the petitioner wrote the following letter to the Chairman, Calcutta Dock Labour Board, on 27 March 1961:

Dear Sir,

I understand that there has been some confusion in your board regarding T.P. Roy Chowdhury (my self) and T.P. Roy Chowdhury & Co. (Private), Ltd.

T.P. Roy Chowdhury and T.P. Roy Chowdhury & Co. (Private), Ltd., are two distinct entitles, although T.P. Roy Chowdhury (myself) is a founder-director of T.P. Roy Chowdhury & Co. (Private), Ltd.

13. Then on 28 September 1961 the petitioner wrote the following letter to the limited company:

I would like to invite your attention to the provisions of the Calcutta Dock Workers (Regulation of Employment; Scheme, 1956, relating to the requirements of registration for carrying on stevedoring business in the port or dock area. Under the said scheme no person or firm can be registered unless he or the firm has been listed as registered employer in that behalf by the . dock labour board authority.

You would realize that T.P. Roy Chowdhury & Co. (Private), Ltd., has not been registered as a stevedoring firm or company by the Calcutta Dock Labour Board authority since after the flotation of this company in or about August 1956, for carrying on the stevedoring business.

I was carrying the stevedoring business in the name of my firm T.P. Roy Chowdhury & Co. and after the commencement of 1S51 scheme I was granted necessary registration and/or licence and was enrolled as a registered employer under the 1951 scheme.

Your company has been carrying on the stevedoring business using my personal registration number and/or licence granted to roe previously by the Calcutta Dock Labour Board which it has no authority to do under the law. I now realize that it is not permissible to treat the registration number and/or licence granted to me as the registration and/or licence for the above-named company, which is altogether a separate entity. Since the use of my registration number by your present company which is altogether a different entity is not permissible in law and is unauthorized, I do not like to be a party to it. I therefore call upon you to cease using my registration number and/or license C.D.L.B. 35 forthwith.

14. A copy of this letter was forwarded to the Chairman of the Dock Labour Board.

15. K.S. Janakiram thereupon took steps. He transferred the business T.P. Roy Chowdhury & Co. along with its registration as an employer to the private limited company, on 24 December 1961, and applied before the dock labour board for registration of the company as an employer in place of T.P. Roy Chowdhury & Co. That application succeeded and the dock labour board passed the following resolution, on 15/16 February 1962, relying on the provisions of the deed of transfer between T.P. Boy Chowdhury and K.S. Janakiram and the deed of transfer between K.S. Janakiram and T.P. Roy Chowdhury & Co. (Private), Ltd., hereinbefore referred to:

Resolved that the board accepts T.P. Roy Chowdhury & Co. (Private), Ltd., as registered stevedore in place of T.P. Boy Chowdhury & Co.

16. Aggrieved by the aforesaid resolution, the petitioner moved this Court, under Article 226 of the Constitution, asking inter alia, for a mandate on the respondent dock labour board prohibiting it from giving effect to the resolution.

17. Mr. Jitendra Kumar Sen Gupta, learned advocate for the petitioner, contended for three propositions in support of the rule. He argued that registration as an employer was not transferable and was not and could not be transferred to K.S. Janakiram when the business of T.P. Boy Chowdhury & Co. was transferred to him. He contended, in the next place, that the registration stood in the name of the petitioner's personal name and not in his trade name T.P. Boy Chowdhury & Co. and even though K.S. Janakiram be taken to have become the owner of the business T.P. Roy Chowdhury & Co., he could not have utilized the registration of the petitioner as employer and could not have transferred the same to T.P. Roy Chowdhury & Co. (Private), Ltd. He contended lastly that the Calcutta Dock Labour Board had no Jurisdiction to substitute the name of the private limited company in place of the name of the petitioner and could, if at all separately register the private limited company as an employer.

18. Mr. Sen Gupta may be right in his contention that registration of an employer is not property, which is capable of being transferred, but, nevertheless if an employer transfers his stevedoring business and himself ceases to carry on the same, it may be possible for the dock labour board to take into account that fact and make the necessary adjustment in its register under Clause 7(1)(d) of the scheme, by treating the transferee as entitled to the benefits under the registration. It is no use keeping on its record a defunct employer, who was not doing business. It appears from the deed of transfer by the petitioner to K.S. Janakiram annexed to the affidavit-in-opposition by respondent 3, that the petitioner agreed not only to transfer his registration as an employer to K.S. Janakiram but further agreed:

not to carry on either by himself or in partnership with other similar and like business under the name ' T.P. Roy Chowdhury & Co.'

19. That being the position, the dock labour board should not have kept the petitioner on its register as an employer any longer. It should have cancelled his registration forthwith. Instead of doing so, it made the necessary adjustment in its register by incorporating the name of the transferee private limited company from K.S. Janakiram in its register. This might not have been the best of performance in the circum-stances of the case, but the petitioner's grievance does not call for interference by this Court.

20. Finally, I do not find much substance in the last grievance made by Mr. Sen Gupta, Whether the petitioner was registered in his personal name or in the name of his trade is a disputed question of fact;. Assuming for the sake of argument that he was registered as an employer in his personal name, he transferred his trade and also transferred his registration for the purpose of being used by the transferee as an authority to carry on trade. He cannot now be heard to say that he should be allowed to salvage his registration as an employer although he had transferred his business as an employer of dock labour.

21. For the reason aforesaid, I am not inclined to interfere in this matter. If the petitioner feels that he has been overreached by K.S. Janakiram, he may have his remedy against him. But he cannot achieve that objective by asking for a writ against the Calcutta Dock Labour Board.

22. The rule is, accordingly, discharge.

23. There will be no order as to costs in this rule.


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