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Calcutta Port Sramik Union Vs. Bengal River Transport Assn. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1979)IILLJ151Cal
AppellantCalcutta Port Sramik Union
RespondentBengal River Transport Assn. Ltd. and ors.
Excerpt:
- anil k. sen, j.1. these are the two appeals under clause 15 of the letters patent directed against the judgment and order dated april 4, 1978, reported in 1978 l.i.c. 1416 (cal.) passed by a.k. mookerji, j., allowing the two writ petitions--one by the calcutta river transport assiciation and others and the other by bengal river transport association and there by setting aside an award dated july 28, 1976, passed by shri a.k. moidu, presiding officer of the national tribunal constituted by the central government under section 7b of the industrial disputes act, 1947, in a reference made by the said government under section 10(1a) of the industrial disputes act, 1947 (hereinafter referred to as the said act). as the two writ petitions were heard analogously and had been disposed of by orders.....
Judgment:

Anil K. Sen, J.

1. These are the two appeals under Clause 15 of the Letters Patent directed against the judgment and order dated April 4, 1978, reported in 1978 L.I.C. 1416 (Cal.) passed by A.K. Mookerji, J., allowing the two writ petitions--one by the Calcutta River Transport Assiciation and others and the other by Bengal River Transport Association and there by setting aside an award dated July 28, 1976, passed by Shri A.K. Moidu, Presiding Officer of the National Tribunal constituted by the Central Government under Section 7B of the Industrial Disputes Act, 1947, in a reference made by The said Government under Section 10(1A) of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act). As the two writ petitions were heard analogously and had been disposed of by orders based on a common judgment now under challenge in the present two appeals before us, we have heard them together and we would dispose them as such. For deciding the points at issue and for appreciating the real dispute between the parties it would be necessary to refer to certain facts and circumstances in details which are set out hereunder.

2. In terms of the recommendations made in paragraph 26 Chapter XXVII of the Second 5 Year Plan Government of India set up a Wage Board for the Port and Dock workers at major ports on November 13, 1964 and made a reference to the said Board on the following terms namely,-

(a) To determine the categories of employees (manual, clerical, supervisory, etc.), who should be brought within the scope of proposed wage fixation (excluding, however, the Class I and Class II officers.)

(b) To work out a wage structure based on the principle of fair wages as set forth in the report of the Committee of Fair Wages.

In making the reference the Central Government laid down a guideline as to how the fair wages are to be assessed and further directed the Board to submit its recommendations in respect of interim relief pending submission of the final report.

3. On April 9, 1965, the Wage Board submitted its interim relief recommendations and therein prescribed that such recommendations, would apply to the undermentioned categories of employees connected with the port and dock workers at major ports, namely.

A. Employees of Major Port Authorities.

(1) All categories of employees employed by the authorities of major ports at Bombay, Calcutta, Cochin, Kandla, Madras and Vishakhapatnam covered by the report of the Committee for Classification and Categorisation for Class III and Class IV employees of major ports and equivalent categories in the port of Mormugao.

(2) Any other categories of manual, clerical, supervisory, etc. employees who hold posts created subsequently or earlier by any of Major Port Authorities and who are not regarded as Class I and Class II Officers.

(3) Shore employees of all categories employed by Major Port Authorities including A, B, C, and all other employees directly engaged by the Port Authorities on daily or other basis.

B. Dock workers as defined under Dock Workers (Regulation of Employment) Act, 1948.

(1) Employees covered under the schedules of the Dock Workers (Regulation of Employment) Scheme relating to the major ports of Bombay, Calcutta, Madras, Cochin and Vishakapatnam.

(2) Employees covered by Unregistered Dock Workers (Regulation of Employment) Scheme at the ports of Bombay, Calcutta and Madras.

(3) Similar categories of employees as covered under Item 1 at the ports of Kandla and Mormugao.

(4) Similar categories of employees as covered under Item 2 at the port of Cochin, Vishakhapatnam, Kandla and Mormugao.

(5) Similar categories of employees as in Items 1 and 2 at all major ports whether they are covered by the Schemes or not.

C. The employees engaged by the dock labour boards and their administrative bodies.

D. Employees engaged by listed employers.

E. Employees of employers, other than port authorities, dock labour boards administrative bodies, listed employers and registered employers.

(1) Ore employees at dumps or depots.

(2) Employees engaged for handling cargoes in warehouses and transit sheds.

(3) Crew of boats, lighters and barges wholly engaged in the docks and streams whose work is connected with loading and unloading of vessels and other processes of dock and port work.

(4) Employees engaged in loading and unloading all cargoes (including tea chests) in the dock areas from river crafts, vessels boats, trucks, etc.

(5) Persons mainly employed in a Dock as defined in para 2(3) of the Dock Workers (Safety, Health and Welfare) Scheme, 1961 made by the Central Government in exercise of powers conferred by Section 4(1) of Dock Workers (Regulation of Employment) Act, 1948.

4. On November 29, 1969, the Wage Board submitted its final report. It would appear from the final report that the Wage Board was conscious of its difficulties because of the wide terms of reference made to it, in as much as the 'Board had not only to deal with labour belonging to the Port Trusts and Dock Labour Boards but also with a host of others who came within the purview of all embracing and very wide definition of dock workers under the Dock Workers (Regulation of Employment) Act, 1948, so much so, that all categories of workers connected with the ports and docks and working within their vicinity were required to be considered by the Board.' (Para 1.12). But the Wage Board was authorised under the terms of reference to determine the categories out of such workers or employees who should in the opinion of the Board be brought within the scope of the proposed wage fixation and that was done while making the interim recommendation referred to hereinbefore (Para 2.1).

5. In Chapter IV Section 1 while considering the port labour and working conditions the Wage Board referred to the term 'Dock Worker' as denned in the Dock Workers (Regulation of Employment) Act, 1948, and observed 'This definition is very wide and may be construed to mean all categories of workers working in a port or in its vicinity, if they are handling cargo. However, in common parlance, workers employed by port authorities are known as port workers and workers employed by other agencies are known as dock workers. As to who should be considered as port and dock workers for the purposes of wage fixation by this Wage Board will be considered later. But for the time being, it may only be pointed out here that the employers in the port areas are mainly the port authorities and stevedoring firms, There are other categories of workers like salt workers food grain handling workers and those handling bulk cargo like chemicals and fertilisers ores, scrap iron, sulphur and workers engaged on cleaning, chipping and painting of vessels, coal stevedoring, coal bunkering, etc. Besides these, bargemen and lightermen employees of licensed measurers, clearing and forwarding agents are also working in the ports. (para 4.1.1).

6. As would presently appear the dispute involved in the case now under consideration relates to one category of bargemen as employed in the Calcutta Port. The Wage Board found that there are about 15,000 bargemen in Calcutta who are mostly employed by the members of River Transport Association (the petitioners in the writ petitions) known as Dandis and Majhis having the minimum total wage of Rs. 121 and Rs. 141 respectively (para 4.2. 101).

7. In Chapter VI of its report the Wage Board determined the categories of employees who should be brought within the scope of proposed wage fixation and specified principally the categories of such employees in paragraph 6.9. The said paragraph is set out hereunder:

6.9 The Board has unanimously decided that the undermentioned categories of employees (except Class I and Class II Officers) and who are doing manual, clerical, technical, supervisory, etc., work should be brought within the scope of the proposed wage fixation.

(i) Persons employed by major port authorities:

(a) All categories of Class III and Class IV employees irrespective of their nature of work and place of posting, employed by the port authorities of Bombay, Calcutta, Madras, Vishakhapatnam, Cochin, Mormugao, Kandla and Paradeep.

Note : Labour members wanted the words 'including Haldia ' to be added after 'Calcutta', i.e., they wanted that all workers at Haldia should have the same wage structure (including C.A. and H.R.A.) as the workers at Calcutta. Employer members agreed to workers recruited at Haldia, getting same basic pay and dearness allowance but not necessarily to the C.A. and H.R.A.

(b) Cargo handling shore workers of all categories employed by the port authorities including 'A', 'B' and 'C' categories and all other employees directly employed by them on daily or other basis.

(ii) Employees engaged by the dock labour boards and their administrative bodies irrespective of their nature of work and place of posting.

(iii) Dock workers, as defined under the Dock Workers (Regulation of Employment) Act, 1948.

(iv) Employees covered under the schedules of the Dock Workers (Regulation of Employment) Schemes, relating to the major ports of Bombay, Calcutta, Madras, Visakhapatnam, Cochin, Mormugao and Kandla.

(v) Employees covered by the Unregistered Dock Workers (Regulation of Employment) Schemes at the ports of Bombay, Calcutta, Madras and Kandla.

(vi) Similar categories of employees as covered under Clause (iv) above at Paradeep Port.

(vii) Similar categories of employees as covered under Clause (v) above at the ports of Cochin, Visakhapatnam, Mormugao and Paradeep.

(viii) Employees engaged by the registered and listed employers and who are dock workers as defined in the Dock Workers (Regulation of Employment) Act, 1948.

(ix) Employees of employers other than port authorities, dock labour boards and their administrative bodies, registered employers and listed employers, namely:

(a) Ore employees at jetties, dumps, or depots;

(b) Employees engaged for handling cargoes in warehouse and transit sheds;

(c) Crew of boats, lighters and barges wholly engaged in the docks and streams whose work is connected with loading and unloading of vessels and other processes of port and dock work;

(d) Employees engaged in loading and unloading of all cargoes (including tea-chests) in the dock areas from river crafts, vessels, boats, trucks, etc.

(e) Crew working on boats and launches for transporting port and dock labour/staff in port waters and on tugs for towage of barges, lighters, etc., in port waters in connection with the loading, unloading, movement or storage of cargoes or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving port;

(f) Licensed measurers' workers; and

(g) Ore sampling workers, wholly employed in the port area.

8. Having specified the categories as above the Wage Board laid down the wage structure in Chapter VII. In Section 2 of the said Chapter while laying down the pay scales the Wage Board fixed the scale for the bargemen in following terms:

7. Bargemen (unanimous recommendations)

(i) The new pay scales of barge crews of non-propelled crafts wholly engaged in docks and streams, whose work is connected with loading and unloading of vessels and other process of port and dock work and new pay scales for crews of launches for transporting port and dock labour/staff in port waters and tugs for towage of barges, lighters, etc., in port waters, in connection with loading, unloading, movement or storage of cargo or work in connection with the preparation of ships or other vessels for receipt or discharge of cargoes or leaving port, should be as follows:

Category Port New scales1 Khalasis Bombay and Visakhapatnam 104-2-116-3-1402 Dandis.... Calcutta 3 Tindals.... Bombay andVisakhapatnam 115-3-136-4-1604 Majhis.... Calcutta J(ii) The new pay scales of the categories of bargemen doing similar work at the ports of Cochin and Mormugao should also be the same as the above mentioned new pay scales.

(iii) The new pay scales of categories other than mentioned in (i) who are covered by the definition of 'dock worker' under the Dock Workers (Regulation of Employment) Act, 1948, should be the same as have been recommended by the Board for similar categories of employees of port authorities engaged on similar types of vessels.

9. On May 26, 1970 the Central Government accepted the recommendations of the Wage Board.

10. The above recommendations of the Wage Board raked up a long standing dispute then in existence between the bargemen, i.e., the Dandis and Majhis and their employers, viz., the barge owners at the port of Calcutta over the wages payable to such bargemen. As a matter of fact there was an earlier reference by the State Government of such a dispute to a labour tribunal and such a tribunal had by an award dated March 9, 1966 fixed their basic wages at Rs. 110 and Rs. 130 respectively. There were certain ad hoc increments, of such wages by different interim agreements but even then the bargemen claimed the benefits under the Wage Board award. Ultimately the bargemen and their employers by a settlement dated July 25, 1970, left it to the Central Government to decide the question of reference of the disputes relating to the implementation of the Central Wage Board for the Port and Dock Workers to an appropriate tribunal. Accordingly, the Central Government on August 22, 1970, constituted a national Tribunal at Calcutta and referred to the said Tribunal the following issue for adjudication, namely,-

Whether recommendations of the Central Wage Board for the Port and Dock Workers as accepted by the Central Government in their resolution No. WB-21 (7)/69 dated the 28th March, 1970 are applicable to the bargemen in the matter of wages and allowances If not to what other relief with regard to wages and allowances are they entitled ?

The said reference on transfer ultimately came up for adjudication before Shri A.K. Moidu, Presiding Officer, National Tribunal, Calcutta. In that adjudication the workmen were represented by the five unions and the employers were represented by two associations, namely, Bengal River Transport Association and the Calcutta River Transport Association.

11. In the written statements filed on their behalf the different unions representing the workmen in substance sought to make out a case that barges, lighters and boats perform the combined functions of transit sheds, warehouse, jetties, quays, wharfs on a miniature scale and enable loading and unloading of cargoes into and from ships. They carry cargoes from mills, factorries and establishments located on the bank of the river because it is advantageous and economical to use barges, lighters and boats for loading and unloading of cargoes into and from ships because of all round lower costs. Accordingly, it was claimed that barges, lighters and boats are engaged in dock works and the bargemen fully conform (to) the definition of dock workers as given in the Dock Workers (Regulation of Employment) Act, 1948, and they are wholly or exclusively engaged in such work in the docks and streams in port water, and as such, entitled to the scale fixed by the Wage Board in para. 7, 2, 108. Alternatively they claimed that if their wages are to be assessed independently then they are entitled to a minimum wage of Rs. 206.40 on the very same considerations which led the Wage Board in its recommendations to fix the minimum wage at that figure as incorporated in paras 7, 1, 19 to 7, 1, 70. This in short was the case made by the workmen before the Tribunal.

12. The employers on the other hand and mainly the two associations representing the employers in their counter-statement made out a case that bargemen do not come within the definition of dock workers and are not covered by the Wage Board recommendations since they are employed mainly in the transportation of goods. According to them the bargemen are employed in carrying jute and jute goods from jute mills to ships berthed in and around the docks from mills to mills, jetties and ghats and also cargo from ships to various places in the State of West Bengal. They are neither wholly engaged in docks and streams nor are they involved in the process of unloading and loading. Strong reliance was placed by the employers on the findings of an expert committee appointed by the Central Government to the effect that 'bargemen are engaged more in the transport of cargo rather than its handling and they, therefore, do not fit in with our definition of dock workers.' In that view, the employers took a stand that the first part of the reference is totally misconceived, in as much as, on the recommendations of the Wages Board itself the bargemen do not come within its purview. Secondly, the employers disputed the correctness of the wage fixation as made by the Wage Board with reference to certain alleged infirmities pointed out by them including the infirmity of the Board not considering the capacity of the industry to pay on the principles laid down by the Supreme Court. So far as the second part of the reference is concerned, the employers made out a case that the wage of the bargemen had been fixed by an industrial tribunal on a reference by the Government of West Bengal made on January 4, 1965. The wage so fixed had been revised from time to time by agreement between the parties and there being no change in the circumstance justifying any further revision thereof, there should be no upward revision of the existing wage structure. The employers further pleaded that the workmen's demand does not take into consideration the financial capacity of the employers. Most of the employers are small and struggling units financially incapable to sustain any further load by way of enhanced wages for their workmen. They also claimed that the capacity of the industry to pay should be gauged on industry-cum-region basis after taking a fair cross section of that industry and the industry should be divided into classes in relation to paying capacity. This in short was the case made by the employers in their written statements.

13. In making the award the tribunal first referred to the various disputes and agreements between the parties leading to the reference. The Tribunal next proceeded to consider the various preliminary objections raised to the maintainability of the reference which were all overruled for reason given. It is then that the Tribunal in paragraph 16 of the award took up the reference as made for consideration. In construing the scope of the reference the tribunal took the view that the reference has two parts: 'One part relates to the wages and allowances due to be paid to the bargemen on the basis of recommendations of the Wage Board and the other part relates to wages and allowances to be fixed in favour of the bargemen on the basis of the demands to their employers independently of the recommendations of the Wage Board.' Proceeding to consider the first part of the reference the tribunal referred to the definition clause of the term 'dock worker' in Section 2(b) of the Dock Workers (Regulation of Employment) Act, 1948, and noted the wide connotation thereof. The Tribunal, however, held that such definition was not adhered to by the Wage Board and there is no explanation why that was not done. The tribunal was of the view that both the Wage Board as well as the expert committee had missed the definition of the term 'dock worker' as aforesaid. Taking that view the tribunal observed: 'We have to take into consideration the evidence and other circumstances in the case to establish that the bargemen are dock workers. We cannot rely on the definition which was furnished by the Wage Board, much less the observation which Shri Chatterji (of the expert committee) made in Ext. M/6, report. In considering the evidence the tribunal first overruled the claim of the employers that the barges ply beyond the port of Calcutta on the ground that such was not the case made by them in their written statements. The Tribunal referred to the definition of port and its extent and area with reference to the relevant statutory notifications in holding on the evidence that duty of these bargemen is to ply within the port area and perform the work of loading and unloading in and out of barges. So far as the nature of the work is concerned, the Tribunal on consideration of the evidence adduced before it came to the conclusion that the bargemen have been doing similar work of other dock workers employed by the Calcutta Dock Labour Board in the matter of loading and unloading of cargoes in and out of the barges. On the findings so recorded the Tribunal concluded that if the very nature of the work contained in the definition of dock workers in Section 2(b) of Act IX of 1948 is examined with reference to the bargemen's work it is established beyond dispute that the bargemen come within the definition of dock workers. In paragraphs 24 and 25 of the award the Tribunal, however, observed that the Wage Board restricted the scope of the words 'dock workers' with a view to exclude the bargemen out of the definition of dock workers as defined in Act IX of 1948 though there is no ground for excluding the bargemen from that definition. The tribunal concluded: 'I am satisfied from the available evidence and records that the Wage Board as well as the Chatterji Committee (expert committee) deviated from the definition of the dock workers as defined in Act IX of 1948 and came to a wrong conclusion which is inconsistent with the definition of dock workers in that Act with the result that the bargemen were deprived or their due share of wages to be paid to them on the basis of the recommendation they made in the report of the Wage Board. I am satisfied that the evidence in the case leads to the only conclusion that the bargemen are dock workers within the meaning of dock workers as defined in Act IX of 1948. It follows, therefore, that the bargemen would be entitled to all the benefits by way of wages and allowances which the Wage Board recommended in their report.' The tribunal further specified that the wage and allowances so recommended is the wage and allowances in terms of paragraph 7.2. 108 (7).

14. Having arrived at a conclusion as aforesaid, the Tribunal proceeded to consider the wage structure of the bargemen. This, the Tribunal did, first with reference to the Wage Board's report and then with reference to the workmen's demand for enhanced wages. Reviewing the Wages Board report in that regard the tribunal concluded that the Wage Board in recommending the minimum wage at Rs. 202-40 did so as a minimum wage so that the workmen, namely, bargemen would be entitled to get such wages and allowances irrespective of the employers' financial capacity. The Tribunal appears to have taken the view that the Wage Board's recommendation is not one for fair wages so that the employer's capacity to pay does not come into consideration and the employers are not entitled to question the fixation made by the Wage Board on grounds set forth in their counter statement and they are liable to pay wages to the bargemen in terms of the recommendations of the Wage Board, the same being the minimum wage.

15. The Tribunal then proceeded to consider whether the bargemen would be entitled to any enhanced wages and allowances. In considering this aspect the tribunal proceeded on the assumption that 'for the purpose of fixing a fair wage to be paid to the bargemen under the latter part of the reference, I will consider the minimum wage fixed by the Wage Board as the fair wage.' In that light the tribunal considered the evidence regarding the financial position of the employers and considering such evidence concluded that the barge-owners are in a position to pay such fair wages on the basis of the recommendations made by the Wage Board. After having concluded as such, the tribunal observed: 'The conclusion arrived at in the second part of the reference cannot be brought into operation in the award as I have already held in the first part of the reference that the barge-owners are liable to minimum wages as recommended by the Wage Board to the bargemen.' Having come to the conclusion that the award he is making is to take effect from 1.1.1976, the Tribunal made its award in following terms:

In the result, an award is passed in favour of Dandis and Majhis working under the members of Calcutta River Transport Association and the Bengal River Transport Association and that of the Port Shipping Company Ltd. for payment of wages and allowances with effect from the 1st January, 1976 on the basis of the recommendations of the Central Wage Board for Port and Dock Workers on account of the finding that the Dandis and Majhis working in barges, lighters and boats are dock workers within the meaning of Section 2(b) of Dock Workers (Regulation of Employment) Act, 1948.

16. That was the award which was challenged before the learned single Judge on two independent writ petitions--one by Calcutta River Transport Association and some of its members and the other by Bengal River Transport Association. Those writ petitions were heard on contest and the learned single Judge took the view that the reference has two parts one alternative to the other. The first part relates to the applicability of the recommendation of the Central Wage Board to the bargemen in the matter of wages and allowances while the other part relates to the wages and allowances the bargemen are entitled to if the recommendations of the Central Wage Board are not applicable to the said bargemen. So far as the first part of the reference is concerned the learned judge held that on the reference the tribunal must proceed on the report of. the Central Wage Board and it is not for the tribunal to criticise the said report of the Wage Board or hold the same to be erroneous in so far as the bargemen were excluded by the said Board. The learned Judge, therefore, held that the Tribunal really exceeded its jurisdiction in acting as a Court of appeal over the recommendations of the Wage Board and in extending the said recommendation in favour of the bargemen notwithstanding its finding that the said recommendations were not applicable to the bargemen by holding such exclusion to be erroneous. The learned single Judge, therefore, concluded that 'Dealing with the first part of the reference the tribunal exceeded its jurisdiction and as regards the second part it failed to exercise its jurisdiction. The petitioners have every right to challenge in the writ petition that the tribunal has exceeded its jurisdiction or there is an error apparent on the face of the award.' On a conclusion, as aforesaid, the learned Judge quashed the award and allowed the writ petitions. Feeling aggrieved the present two appeals have been preferred by the workmen represented by their unions.

17. Mr. Dey appearing on behalf of the workmen in support of these appeals has contended that the learned trial Judge should not have set aside the award. According to Mr. Dey, the learned Judge failed to appreciate that the tribunal had come to a definite finding that these bargemen are dock workers as defined under the Dock Workers (Regulation of Employment) Act, 1948, and when on its recommendations such workers had been expressly brought within the scope of the proposed wage fixation the Tribunal's conclusion that they are entitled to the benefit of such fixation should not have been set aside. Reference is made to paragraph 6-9 of the Wage Board's award which has been set out herein-before. Strong exception has been taken by Mr. Dey to the observation of the learned trial Judge that it was not for the tribunal to establish upon oral and documentary evidence that bargemen are dock workers within the meaning of the Act. According to Mr. Dey, the first part of the reference could not have been effectively dealt with by the tribunal without going into the specific issue as to whether the bargemen are dock workers or not. Such an issue having been decided in favour of the workmen on consideration of the evidence adduced by the parties it was not open to the learned trial Judge to dispute the findings so arrived at.

18. Mr. Chakrabarty appearing on behalf of the employers in one of these appeals and Dr. Mukherji appearing for the employers in the other has strongly contested the points raised by Mr. Dey Both of them have supported the decision of the learned trial Judge by contending that not only is there grievous error on the face of the award itself but that it has been rightly found that the award as made is materially beyond the jurisdiction of the Tribunal . It has been pointed out by them that the Tribunal failed to appreciate the true scope of the reference the two parts whereof being alternative to each other. They have strongly contended that when under the reference the tribunal is to find out whether the bargemen under consideration are covered by the recommendations of the Wage Board or not, it was not for the Tribunal to question the propriety or correctness of the recommendation itself. On the other hand, the tribunal having arrived at a conclusion that these bargemen were excluded by the Wage Board from their recommendations, the tribunal should have gone over to fix a structure of wages and allowances for them independently and in accordance with the settled principles governing such fixation which the tribunal never did Mr. Chakrabarty has raised a further technical objection disputing the jurisdiction of the present Tribunal to hold the adjudication, He has contended that when the original Tribunal constituted of Shri B.N. Banerji ceased to exist on the retirement of Shri Banerji, the subsequent transfer of the reference first to the tribunal constituted of Shri S.N. Bagchi and then to the present tribunal under Section 33B was not competently made because on the retirement of Shri Banerji it can no longer be. said that the reference was still pending before a tribunal.

19. We have given anxious consideration to the points raised before us in view of serious consequence which may follow if we uphold the decision of the learned trial Judge resulting in frustration of an adjudication over a long standing dispute between so many workmen and their employers. We must, however, say that the process of reasoning adopted by the Tribunal has not been happy and even Mr. Dey in his fairness has not made any attempt to support some of the conclusions arrived at by the Tribunal though he made great endeavour to support the ultimate conclusion on the findings arrived at by the tribunal.

20. On the reference, the Tribunal was to adjudicate two issues, in the alternative, namely, (i) whether the recommendations of the Central Wage Board for Port and Dock Workers are applicable to the bargemen in the matter of wages and allowances and (ii) if not, to what other relief with regard to wages and allowances are they entitled. In our view, the learned trial Judge had rightly pointed out that if first of the above issues is decided by the Tribunal in favour of the workmen the second issue would not arise for consideration. That issue would have arisen for consideration only if the first issue was decided against the workmen and if it had been held that the recommendations of the Central Wage Board are not applicable to the bargemen. Reading the award as a whole it appears to us to be clear that the Tribunal failed to appreciate that the issues referred to it for adjudication are so alternative to each other. The Tribunal proceeded on the view that the reference in its two parts requires him to fix the wages and allowances of these bargemen on the basis of the recommendations of the Wage Board and then further to consider in view of the second part what enhanced wages and allowances they may be entitled to on the basis of their demands. That was never the scope of the reference and it is rather unfortunate that since the very inception the Tribunal proceeded on an erroneous footing.

21. Even then let us consider what is the true effect of the findings of the tribunal. The Tribunal referred to the wide terms of the definition of the term dock workers in Section 2(b) of the Dock Workers (Regulation of Employment) Act, 1948, which defines dock workers to mean 'a person employed or to be employed in or in the vicinity of any port of work in connection with loading, unloading, movement or storage of cargoes or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving port.' Considering the evidence adduced by the parties regarding the nature of work done by the disputed bargemen the Tribunal found that these barges are ordinarily used for carrying jute goods and they also carry other goods when they are imported through ships and that the work of these bargemen is in relation to their duty involved in the export and import of cargo and when they play within the port area and perform the work of loading and unloading of cargo in and out of barges they undoubtedly answer the description of the term dock workers as in Section 2(b) above. In arriving at the above finding the tribunal refused to consider the evidence on behalf of the employers to show that such barges are often found to ply beyond the port of Calcutta for the purpose of transportation of goods on an erroneous idea that such was not the case made by the employers in their statement overlooking all the same the necessary pleadings in paragraph 10 and paragraph 31 of the respective statements of the two associations. Be that as it may, the tribunal adopting the wider connotation of the term dock worker on the provisions of Section 2(b) as above held that the disputed bargemen must be held to be dock workers. The tribunal, however, did not come to any conclusion that these bargemen are such dock workers as were covered by the Wage Board on their recommendations. The tribunal failed to take note of an important aspect of the reference to the Wage Board and its recommendation, viz., that the said Board was authorised on the terms of the reference to determine which of the categories dock workers should be brought within its recommendation and the Board did that. Therefore, the mere fact that a group of workmen come within the definition of dock worker does not bring them within the scope of the recommendations. On the other hand, material finding of the Tribunal is really against the workmen when the Tribunal held that they were wrongly excluded from the recommendations by the Wage Board, the said Board having deviated from the said definition. In our view there is ample ground for Mr. Chakrabarty and Dr. Mukherji to contend that once the Tribunal had come to such a conclusion, namely, that these bargemen were excluded by the Wage Board from the benefit of their recommendations the first of the aforesaid issues arising on the reference should have been decided against the workmen and it was not open to the Tribunal to hold that the Wage Board by deviating from the definition of dock worker and by giving a restrictive meaning to the said term acted erroneously so that such an error being made out by the tribunal it could come to the conclusion that the bargemen would be entitled to all the benefits by way of wages and allowances which the Wage Board recommended in their report. This process of reasoning of the Tribunal is clearly erroneous and we are afraid that such an error arose because the Tribunal failed to appreciate the true scope of the reference and made a wrong approach. The Tribunal was proceeding on the basis that it was for the Tribunal to fix the wages and allowances firstly by applying the recommendations of the Wage Board and then further considering whether the workmen were entitled to anything more. Such being its approach the tribunal thought that even if the Wage Board had wrongly excluded these workmen from its recommendations the tribunal could rectify the error and give them the benefit. But unfortunately that was not the reference as pointed out earlier, the first part being whether the recommendations as they stand are applicable to these workmen or not.

22. Mr. Dey no doubt has strongly contended that at least when the tribunal had on consideration of evidence come to a finding that these bargemen were dock workers as defined under the Dock Workers (Regulation of Employment) Act, 1948, they would clearly come within the recommendations of the Wage Board since such dock workers were expressly classified as one of the categories of employees who should be brought within the scope of wage fixation. Strong reliance is placed by Mr. Dey on paragraph 6.9. of the Wage Board's report referred to hereinbefore. But it should be pointed out that there is ample ground to doubt whether the Wage Board in determining the categories to bring within its recommendation intended or actually did bring in all such workers who answer the description of a dock worker as in Section 2(b) of the Dock Workers (Regulation of Employment) Act, 1948. We have referred to material part of the report hereinbefore. On the terms of the reference it was left to the Wage Board to determine the categories of employees who should be brought within the scope of the proposed wage fixation. The Wage Board was very much conscious of the wide connotation of the term dock workers as defined by the Dock Workers (Regulation of Employment) Act 1948, which would bring within its fold all categories of workers connected with the ports and docks and working within their vicinity and the Board in its report expressed itself to say that the Board is also to determine which amongst such dock workers are to be brought within the proposed wage fixation. In making its interim relief recommendations (set out in Annexure 4 of the report) the Wage Board specified the categories which we have set out hereinbefore. It would appear from the said categorisation that though dock workers as defined under the Dock Workers (Regulation of Employment) Act, 1948, was one of the categories but all such dock workers were not coveied because under that heading only 5 categories of workers answering the said description and specified in the five clauses were sought to be brought within the recommendation.

23. In the background of such categorisation the Wage Board in their final report determined the categories of employees which according to the Board should be brought within the scope of the wage fixation. That was done in Chap. VI of the Wage Board's report. Chap. VI indicates that there existed some difference between the employees' representatives and the employers' representatives as to the categories of employees who should be brought within the scope of the proposed wage fixation. While the employees' representative sought for a wider coverage, the employers' representatives sought for restricted coverage. It would appear from the note of dissent by the employers' representatives that in their view the bargemen employed in or in the vicinity of the port should not be brought within the scope of the proposed wage fixation and that in that note of dissent there was a specific reference to the bargemen now under consideration who were said to be employed in bringing jute and gunny alongside the ships in Calcutta Dock from mills some of which are outside the port area. A similar dispute was also raised with reference to the bargemen engaged in transporting iron ore from loading points on the river-side to Mormugao port.

24. In the background of such a dispute paragraph 6.9 of the Wage Board's report specifies the categories in respect of which the Board was unanimous in their decision that they should be brought within the scope of the proposed wage fixation. No doubt one of the categories set out in Clause (iii) of the said paragraph is 'dock workers as defined under the Dock Workers (Regulation of Employment) Act, 1948.' But it is doubtful whether the Wage Board ever intended to bring all workers who answer the said definition to be brought within the said category. It is doubtful because had it been so further detailed categorisation that follows the said clause would not have been necessary because if not all most of them would come within the term dock worker as in Clause (iii). As a matter of fact in the very same paragraph under Clause (ix) the Wage Board recommended that crew of boats, lighters and barges wholly engaged in the docks and streams whose work is connected with loading and unloading of vessels and other process of port and dock work is a category which was directed to be brought within the scope of the proposed wage fixation. When the bargemen as a whole operating in or in the vicinity of the port in connection with loading, unloading, movement or storage of cargoes or in work in connection with the preparation of the ships or other vessels for the receipt or discharge of the cargoes for leaving port are brought within the category in Clause (iii), one finds little justification for a further categorisation as in Clause (ix)(c), namely, crew of boats, lighters and barges wholly engaged in the docks. In our view there is ample justification for the contention put forward by Mr. Chakrabarty and Dr. Mukherji that by bringing in a restricted category of such bargemen, viz., those who are wholly engaged in the docks and stream the Wage Board intended to exclude such bargemen who were not so wholly engaged though they may be dock workers. Reading the categorisation in Chapter VI in the light of the categorisation made for the interm relief it appears to us that Clause (iii) in paragraph 6.9 is really intended to be the heading for the categories of workmen set out in Clauses (iv) to (viii). That again would be in consonance with the scheme of reasoning set out in Chapter VI. We have pointed out hereinbefore that the employers' representatives were disputing the position that the bargemen now under consideration and the bargemen employed in transportation of iron ores for the port of Mormugao should not be brought within the scope of the proposed wage fixation. So far as the bargemen now under consideration are concerned, employers' objection was based upon a report of an independent expert committee headed by Sri N.N. Chatterji. In paragraph 2.8(9) of the report the said expert committee pointed out that though the definition of dock worker is very wide, such definition should be more specific in including 'only persons mainly or wholly engaged in loading and unloading operations on board the ship.' The said committee in paragraph 6.14.4 further found that these bargemen do not operate in the port area only and their function is the transport of cargo rather than the handling of cargo. In paragraphs 6.11 to 6.21 the Wage Board by majority decision overruled the objection in respect of bargemen engaged in transportation of iron ore for the Mormugao port and brought them within the proposed wage fixation notwithstanding such objection on the part of the employers but no reference was made there to the bargemen employed for transportation of jute and jute goods in the port of Calcutta. If those bargemen were intended to be covered by the dock workers as in Clause (iii) of paragraph 6.9 certainly that could not have been the unanimous decision and the Wage Board would then have given some reasons to differ from the expert committee. Again when we refer to the pay scale fixed by the Wage Board in Chapter VII we find that such a scale is fixed for the bargemen at Calcutta being the Dandis and Majhis who again are wholly engaged in docks and streams and not all bargemen who answer the description of dock worker. Thus, we find the Wage Board adopting the same standard as was the recommendation of the expert committee.

25. Mr. Dey no doubt has drawn our attention to paragraph 7.2.108 sub-paragraph (7) Clause (iii) in contending that even if the bargemen now under consideration do not come within Dandis and Majhis specified in sub-paragraph 7 (i) they would come under 7 (iii). Here again there is ample scope for doubt because Clause (iii) refers to categories of employees other than those mentioned in Clause (i), that is, categories other than Dandis and Majhis. In any event, the Tribunal has in its award decided that these bargemen being dock workers within the meaning of the said definition would be entitled to the scale as in sub-paragraph 7 (i) wholly overlooking the position that that is the scale for bargemen wholly engaged in docks and streams and not for all bargemen who come within the definition.

26. In this view it is quite evident that there arises a serious doubt as to whether all dock workers answering the definition of Dock Workers (Regulation of Employment) Act, 1948, were intended to be brought within the scope of the proposed wage fixation. That such a doubt exists, is the foundation of the reference itself when in referring the dispute for adjudication the Central Government called upon the Tribunal to decide whether these bargemen were proposed to be covered by the wage fixation recommended by the Wage Board or not. That issue lies within the jurisdiction of the Tribunal to decide and not within our jurisdiction. We are not exercising concurrent jurisdiction with the Tribunal nor are we the court of appeal. The Tribunal--if it had at all decided--it has decided against the workmen on its findings referred to hereinbefore. Therefore, we cannot accept the contention of Mr. Dey that on finding of the Tribunal about the nature of work done by these workmen and on the interpretation of the Wage Board award, we should hold that these bargemen were covered by the wage fixation recommended by the said Board and that tribunal's view that they were excluded is erroneous. We cannot say that part of the finding of the tribunal is erroneous, because the Tribunal never found these bargemen to be wholly engaged in loading and unloading of cargo. Since we have no jurisdiction to substitute our finding for the finding of the tribunal, we cannot accept the contention of Mr. Dey. In this view we are unable to uphold the award of the tribunal in this respect which is clearly erroneous on its face.

27. So far as the second issue that was referred to the Tribunal for adjudication in the alternative is concerned, the Tribunal has clearly failed to do so and that too again because the Tribunal made a wrong approach. The Tribunal was to fix the wages and allowances upon its independent judgment on application of the settled principles for such fixation. This, the Tribunal never did. Proceeding to fix the wages in terms of the recommendation of the Wage Board the Tribunal first held that the minimum wage fixed by the Wage Board must be adopted for fixation of wages in the present case irrepsective of the financial capacity of the employers since that was the minimum wage. The Tribunal, however, was not correct then. The Wage Board in fixing the said wage on the basis of the principles of fair wages as set forth in the report of the committee of fair wages did so upon the consideration of the capacity of the employers. Reference may be made to paragraph 5.2 of the Wage Board's report. But the employer whose capacity was taken into consideration was the port authorities and not of the private employers like the employers now before us. No doubt in the award some reference is made to the financial capacity of some of these employers but that had been done only to support the conclusion that the minimum wage as fixed by the Wage Board should be admissible to these workmen and that it would not be beyond the capacity of the employers to shoulder the same. It had been rightly contended before us on behalf of the employers that the tribunal never made any attempt to lay down a wage structure for the industry as a whole. The tribunal failed to consider the position of the different units of the employers and/or their paying capacity nor did the tribunal consider the case of the employers that for the purpose of wage fixation the employers themselves should be classified because the different cross sections of the employers have not the same financial capability. We agree with the learned trial Judge that the Tribunal failed altogether to adjudicate and decide the second issue referred to it upon an independent adjudication for the purpose of fixing a wage structure for the industry as a whole. This, it failed to do because it was not conscious of the position that on the terms of the reference it is for the tribunal to do so in case the Tribunal finds that these workmen are not covered by the recommendations of the Wage Board.

28. For reasons aforesaid, we must uphold the decision of the learned trial Judge. Award of the Tribunal impugned in the writ petitions, is clearly unsustainable not only because of grievous errors on its face affecting the final decision but also on the finding of the trial Judge that the same is materially beyond the jurisdiction of the Tribunal. As such, it is not necessary for us to go into or decide the other technical objection raised by Mr. Chakrabarty which was not raised before the learned trial Judge. The appeals, therefore, fail, and are dismissed. There will be no order for costs.

B.C. Chakrabarti, J.

29. I agree.


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