Promode Ranjan Datta v. Union of India — 1977 DIGILAW 106 (CAL)

JUDGMENT This Rule is directed against the proposal for compulsory retirement of several registered dock workers contained in the resolution dated the 29th July, 1976 of the Calcutta Dock Labour Board. 2. Five petitioners and the Dock Sramic Association, Calcutta, a registered Trade Union moved an application under Article 226 of the Constitution of India on 29th of November, 1976 praying for a Writ in the nature of Mandamus commanding the respondents to recall, rescind and revoke the impugned resolution dated 29th July, 1976 and obtained the above Rule. An interim order was granted restraining the respondents from making any order of compulsory retirement with respect to the petitioner Nos. 1 to 5 until further orders. Leave was also granted under Order 1 Rule 8 of the Civil Procedure Code. Subsequent to the filing of the said petition, several applications have been filed by several other dock workers for being added as petitioners to the main Rule. Thereafter, on the 22nd December, 1976 an application for amendment of the writ application was made by the petitioners challenging the resolution dated 5th October, 1976 and also the approval of the Central Government dated 22nd November, 1976 on the basis of which the names of the petitioners have been removed from the relevant registers or records of the Board under the schemes. According to petitioners, those fasts they came to know from the affidavit-in-opposition filed on behalf of the respondents. By consent of parties the proposed amendment was allowed. 3. There are about 12,000 registered dock workers under the Calcutta Dock Labour Board. The petitioners are registered under the Calcutta Dock Workers (Regulation of Employment) Scheme 1970, the Calcutta Shipping and Painting Workers (Regulation of Employment) Scheme 1970 and the Calcutta Dock Clerical and Supervisor Workers• (Regulation of Employment) Scheme 1970. The petitioners, are the "Dock Workers" within the meaning of the Dock Workers (Regulation of Employment) Act, 1948. The said Act was enacted in the year 1948 to provide for regulating the employment of dock workers. Section 3 of the said Act contains provisions for making schemes for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers in, a Port. The said Act was enacted in the year 1948 to provide for regulating the employment of dock workers. Section 3 of the said Act contains provisions for making schemes for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers in, a Port. Under the said statutory provisions, the Central Government has framed the aforesaid three schemes, which applied to different categories of dock workers mentioned in the respective schemes. It is stated by the petitioners in the petition that the said schemes do not contain any provision for de-registration of the dock workers. There is also no provision for compulsory retirement of registered dock workers. Normal age of retirement is 58 years. By a resolution No. 39 dated 29th July, 1976, the Board authorised its Chairman to take necessary steps to regulate the correct number of registered workers under the different schemes operated by the Board in accordance with the present trends of traffic to be handled. The Chairman was authorised to examine the said issue and determine the correct number of surplus workers and to cause their compulsory retirement by eliminating the older age group workers on certain terms and conditions. It was proposed that the present dock workers of the age of 50 years and above should be retired compulsorily. Such retired workers would be allowed in addition to normal retirement benefits, compensation as admissible under the Industrial Disputes Act, 1947. A minimum compensation, equivalent to two months wages, would be allowed irrespective of the total amount of compensation otherwise payable to the retired workers of different categories under the Industrial Disputes Act. Additional compensation in the shape of exgratia payment @ Rs. 150/- each for each year of service still left, should be paid to each retired worker. The total amount of compensation could in no case exceed the wages for the remaining period of service which a worker would have rendered if he continued upto the normal date of retirement. In the Board's meeting held on 5th October, 1976 the aforesaid proposal was adopted and thereafter, it was forwarded for approval of the Government of India. The total amount of compensation could in no case exceed the wages for the remaining period of service which a worker would have rendered if he continued upto the normal date of retirement. In the Board's meeting held on 5th October, 1976 the aforesaid proposal was adopted and thereafter, it was forwarded for approval of the Government of India. It is also stated in the petition that neither the Central Government nor the Board has any power under the said Act or the said Schemes to cause compulsory retirement of dock workers of any age group. A registered dock worker could not be retired before the attainment of superannuation as prescribed under the said Scheme nor could their names be removed from the Registers by the Board. Their services are terminable only in the manner prescribed in the said Scheme and in no other manner. Any other device to cause such termination is illegal, ultra vires and without jurisdiction. 4. An affidavit-in-opposition has been filed on behalf of the respondents and affirmed by Bhupendra Nath Podder, the Deputy Chairman, Calcutta Dock Labour Board wherein it is stated that due to sharp declining of the traffic at the Calcutta Port it became absolutely necessary to remove the surplus dock workers from the reserve pool for the economic viability and efficient functioning of the Calcutta Dock Labour Board. The Calcutta Port has been facing a declining volume of traffic for the last eight or nine years and especially from the year 1967-68. An assessment of the requirement of dock workers as on 1.4.77 based on the current rate of labour productivity reveals a total surplus of 5551 workers of different categories of workers, under the three different schemes of the Calcutta Dock Labour Board. A committee was appointee, viz. the Professor Chatterjj Committee and that committee pointed out that the existence of a highly inflated labour force at Calcutta has made it practically impossible to operate any incentive scheme. The Calcutta Dock Labour Board which is a representative body consisting of representatives of the Government, workers and shipping interest unanimously took the decision that the surplus dock workers should be removed, because no industry can survive with perpetual drainage of ideal wages on account of surplus workers. The Board has paid more than Rs. 10 crores by way of ideal wages during the period from 1970-71 to 1975-76. The Board has paid more than Rs. 10 crores by way of ideal wages during the period from 1970-71 to 1975-76. The inhabitable consequence of payment of huge ideal wages year after year for maintaining dock workers for excess in number than actually required for the purpose of handling cargoes in Calcutta Dock resulted in imposition of a general levy at the rate which is the highest amongst all major ports in India. During the period 1947-48, Calcutta Port handling approximately 45% of total cargoes handled in all major ports in India and it topped the list amongst all major ports in terms of cargo handling. The Calcutta Port now handles only 10% or 12% of the total cargoes handled in all major ports in India. In the circumstances stated hereinabove, the Board decided for maintaining adequate number of dock workers keeping in view the anticipated requirements, better economy and efficiency of operations, to remove the surplus dock workers from its registers. Dock works require more physical strength and involve mainly outdoor work. In the meeting held on 29th July, 1976, it was considered fit and proper that for the purpose of removal, the older age group should go first. The said Board meeting was duly attended to by labour members who were the representatives of the dock workers. It was held at the said meeting that the younger workers who had just started their family life and had many years to go and were also physically more fit should be retained in preference to the older workers. In the said meeting the Chairman was authorised to ascertain on scientific basis the actual number of surplus dock workers. The Chairman, as would appear from the assessment report, had ascertained the number of surplus dock workers after taking into consideration all relevant factors. It was found that 5225 surplus dock workers, out of the older age groups of workers above the age of 47 were required to be removed. The labour members of the Board sought the good offices of the Labour Minister, Government of West Bengal in this matter who expressed his opinion that instead of removing dock workers above the age of 47, only those who had crossed the age of 50 might be removed from the Board's service for the present. That opinion of the Minister was duly considered and accepted by the Board. That opinion of the Minister was duly considered and accepted by the Board. The Calcutta Dock Labour Board after careful consideration of all the aspects of the matter and with the requisite approval of the Central Government has issued collective and also individual notices dated 2nd December, 1976 to the surplus dock workers communicating the Board's decision to remove their names. The said notices were issued on 2nd December, 1976 and also on 4th and 5th December, 1976, i.e. on the first two days about 83 percent of the surplus workers covered by the said notices had accepted their payments in full and acted in terms of the said notices. The Board under the Schemes has the power to remove names of the surplus dock workers and is not under any obligation to pay any other compensation but on humanitarian grounds it decided to pay by way of exgratia payment a generous sum on the basis mentioned in the resolution dated 5th October, 1977. Dock workers working in the category of dock foreman removed from the registers, have received payments over Rs. 40,000/- and no dock workers who have been so removed have received payment less than 10,000/-. 5. Mr. Chatterji, appearing on behalf of the petitioners contended that the terms and conditions of service of registered dock workers of the Calcutta Dock Labour Board contained no provision for compulsory retirement before attainment by them of the normal age of the retirement as fixed by the said three Schemes. 6. Mr. Chakraborty, appearing on behalf of the respondents contends that the Calcutta Dock Labour Board has the jurisdiction under clause 7(1) (d) and (f) read with clause 19 of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1970 to increase or decrease the Dumber of dock workers, and to remove their names from its Registers if circumstances so require. Obviously, the decrease in the number of registered dock workers means compulsory retirement of a number of such workers found to be in excess of the actual requirement. 7. Obviously, the decrease in the number of registered dock workers means compulsory retirement of a number of such workers found to be in excess of the actual requirement. 7. Clause 7 of the Scheme deals with the functions of the Board which provides-(1) The Board may take such measures as it may consider desirable/or furthering the objectives of the Schemes set out in Clause (2) including measures for * * * (d) determining and keeping under review, in consultation with the Administrative Body, the number of registered employers and registered dock workers from time to time on the register or records and to increase or decrease as may be necessary, the numbers in any such registers or records if the said review warrants the same in keeping with anticipated requirements and for better efficiency and economy of operations; (f) keeping, adjusting and maintaining from time to time such registers or records, as may be necessary of dock workers including any register or records of dock workers who are temporarily not available for dock work and whose absence has been approved by the Administrative Body, and where circumstances so require removing from any register or record the name of any registered dock workers either at his own request or in accordance with the provisions of the Scheme. Clause 19 of the Scheme relates to fixation of the number of workers on the Register which provides that "the Board shall in consultation with the Administrative Body-and subject to the approval of the Central Government periodically determine the number of workers required in such category and arrange to adjust the workers registers accordingly. 8. It appears from the provisions of the Calcutta Dock Workers (Regulation of Employment) Act, 1948 and the Schemes framed thereunder that there is no relationship of employer and employee between the Board and the dock workers. The functions entrusted to the Board under the Schemes are discharged to ensure greater regularity of employment of dock workers and to secure that an adequate number of dock workers is available for efficient performance of the dock work. The Schemes provide for the registered employers paying to the Board such amount by way of levy in respect of the 'Reserve Pool' workers when paying the gross amount of wages due from them under the provisions of the said Schemes. 9. The Schemes provide for the registered employers paying to the Board such amount by way of levy in respect of the 'Reserve Pool' workers when paying the gross amount of wages due from them under the provisions of the said Schemes. 9. Clause 2 of the Scheme lays down the objects of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1970 wherein it is stated that the objects of the Scheme are to ensure : "greater regularity of employment for dock workers by maintaining an adequate number of dock workers", The functions of the Board have been enumerated in clause 7. Sub-clause (d) of clause 7(1) provides that in consultation with the Administrative Body the Board might increase or decrease as may be necessary, the number of such registered dock workers keeping in view the anticipated requirements and for better efficiency and economy of operations. Under Sub-clause (f) powers have been conferred upon the Board, when circumstances so require, to remove from the registers or records the name of any registered dock workers in .accordance with the provisions of the Scheme. In the scheme, however, there is no express provisions as to how the names of the registered dock workers could be removed. 10. It is urged by Mr. Chatterji that no provision relating to the exercise of powers under sub-clause (f) of clause 7(1) have been made in the Scheme. So unless the procedures or measures have been laid down in the Scheme itself the Board could not remove the names of the registered dock workers from the registers or records in exercise of such powers. 11. In (1) Cajee v. Siem, AIR 1961 SC 276 , it has been held by the Supreme Court that, except where a statutory power is made by the Legislature dependent or conditional upon the making of rules or regulations, the exercise of the statutory power cannot be held to be in abeyance or suspense unless such subordinate legislation is framed by the Administrative Authorities. So, in my view, it cannot be said that unless the procedures are laid down in the Scheme for removing the names of the dock workers from the registers or records the Board cannot exercise the powers under Sub-clause (f) of Clause 7(1) to remove the names of the registered dock workers from the registers or records where the circumstances require such removal. 12. 12. In the impugned order dated 2.12.76 it is stated that whereas in pursuance of the resolution dated 29th of July, 1976 with a view to making Calcutta Port operationally efficient and economically viable, it had become absolutely necessary to re-organise the work force of the Board and in accordance with Clause 7(1) (d) and 7(1) (f) of the Scheme, the Board reviewed, in consultation with the Administrative Body the number of registered dock workers on the registers or records of the Board under the Scheme and decided at its meeting held on 5.10.76 to decrease the number of registered dock workers on its registers or records by removing from the said registers or records the names of the registered dock workers of the age of 50 years and above, keeping in view the anticipated requirements and for better efficiency and economy of operations. 13. For the purpose of exercising powers under Clause 7(1) (d) and (f) of the Scheme the following conditions are required to be fulfilled: (a) There shall be a review. (b) It should be done in consultation with the Administrative Body. (c) Two things are to be considered in such Review (i) Anticipated requirements and (ii) Better efficiency and economy of operations. On the basis of such Review report, the Board can decrease the number of dock workers and remove their names from the registers under Clause 7(1)(f), if circumstances so require. So, it follows that for the purpose of exercising powers under Clause 7(1)(d) and (f) not only there shall Be a review in consultation with the Administrative Body but also the circumstances would be such as would require removal of the names of the dock workers from the registers of the Dock Labour Board. It appears that a committee known as the Chatterji Committee was constituted by the Central Government to review the operation of the Schemes and also the allied matters relating to the major ports in India. The said Chatterji Committee in its interim report dated 14th September, 1975, observed that "of all the Ports the Calcutta Port presents the gloomiest picture of excessive manning, high operational costs and low efficiency in cargo handling by the dock workers". The Committee further noted in the said report that the Calcutta Port faces the problem of surplus labour on a much large scale than any other Ports. The Committee further noted in the said report that the Calcutta Port faces the problem of surplus labour on a much large scale than any other Ports. The Chatterji Committee recommended for taking immediate steps for reducing the number of surplus dock workers in the Port of Calcutta. In view of the said recommendation, a meeting of the Calcutta Dock Labour Board was called on 29th July, 1976, with the specific agenda, for adjustment of number of dock workers under the Calcutta Dock Labour Board as per Clause 19 of the Calcutta Dock Workers (Regulation of Employment) Scheme 1970. The Chairman of the Board prepared a note and sent it with all the relevant facts and figures to enable the members to appreciate the gravity of the problem and to come to a decision. At the meeting of the 29th July, 1976 a resolution was passed that with a view to making the Calcutta Port efficient and economically viable, it has become absolutely necessary to re-organise the work force of the Calcutta Dock Labour Board. The Chairman was authorised by the Board to take necessary steps to review the correct number of registered workers under the different Schemes operated by the Dock Labour Board in accordance with the present trends of traffic to be handled. So, it appears that a review was made by the Chairman. The Chairman examined all the materials and datas collected by a team of experts and prepared a synopsis of the assessment report as to the number of surplus dock workers existing in the reserve pool. On the basis of such report, the decision was taken by the Board at a meeting held on 5th of October, 1976, to remove 3,500 dock workers immediately, leaving a surplus of 1,700 workers approximately. It appears from the materials on record that the circumstances which require the exercise of powers under Clause 7(1)(d) and (f) have been fully explained and discussed. So, it cannot be said that such powers have been exercised arbitrarily or malafide or without taking into consideration the relevant materials. In my view, the conditions precedent for exercising powers under those two sub-clauses have been fulfilled in the instant case. 14. It is contended by Mr. So, it cannot be said that such powers have been exercised arbitrarily or malafide or without taking into consideration the relevant materials. In my view, the conditions precedent for exercising powers under those two sub-clauses have been fulfilled in the instant case. 14. It is contended by Mr. Chatterji that the decisions of the Board and its Chairman to retire compulsorily 3,500 dock workers on the ad-hoc basis of an age group has got no nexus to the objects of the Scheme. Moreover, the figures of retiring surplus registered workers in the chart annexed to the affidavit-in-opposition have no factual or rational basis and the same is arbitrary and nothing more than an ad-hoc computation. The Board has taken into account wholly irrelevant or extraneous matters. It appears from the so-called scientific assessment Report made by the Chairman himself, that the impugned removal of dock workers of different categories was done in a completely arbitrary manner and the same was in no way related to any valid consideration as to the alleged surplus workers in any particular category, inasmuch as in certain categories the number of removed dock workers exceeded the figure of surplus workers, while in some categories, it fell short of such alleged figures. The Chairman proceeded arbitrarily and on an ad-hoc basis prepared his assessment report which is not based on any scientific investigation but contains incorrect figures not at all related to the essential factors connected with the economic requirements and the actual operations of the Calcutta Port. 15. My attention was drawn to a chart wherein it appears that number of surplus "sardars" as shown in annexure 'C' is 174 whereas 364 number of sardars have been compulsorily retired. Reliance was placed by Mr. Chatterji upon the decision of the Supreme Court in (2) Hochtif Gammon v. State of Orissa, AIR 1975 SC 2226 . 16. It is true that with respect to a particular category of workers the removals were made in excess of what was found to be surplus. Clause 40 of the Scheme lays down the obligations of the registered dock workers. 16. It is true that with respect to a particular category of workers the removals were made in excess of what was found to be surplus. Clause 40 of the Scheme lays down the obligations of the registered dock workers. Under clause 40(4)(b), a registered dock worker shall carry out the directions of the Administrative Body and shall accept any employment in connection with the dock work whether in the category in which he has been registered or any other category for which he is considered suitable by the Administrative Body. So, there is no bar under the aforesaid clause to inter-change the workers registered in a particular category to another category. 17. The reasons for taking the decision of compulsory retirement of a large number of dock workers have been elaborately disclosed in the affidavit-in-opposition. To exercise powers' under clause 7(1)(f) the circumstances are required to be disclosed. The correctness of the facts and figures of surplus workers or the factual basis of the assessment report prepared by the Chairman cannot be scrutinised by a writ court. This court is required to deal with the present application only on two limited grounds, viz. (a) whether the Dock Labour Board has powers and jurisdiction to decrease the number of dock workers of the Board and to remove their names from the registers or in other words, whether the Board is competent to issue notices of compulsory retirement, and (b) whether such powers have been exercised bonafide and not arbitrarily or malafide. From the materials placed before me, I am satisfied that there is no absence of bonafides on the part of the Dock Labour Board to exercise its powers to issue notices of compulsory retirement upon dock workers. I should mention here that some of the added petitioners who have been added subsequent to the filing of this writ petition under Order 1, Rule 8 C.P. Code have accepted the compensation offered to them in full and accordingly their names have been deleted from the writ petition. 18. In the Gammon's case (supra) referred to by Mr. Chatterji there was a reference made by the State Government under section 10 of the Industrial Disputes Act, 1947, to determine an issue to the Industrial Tribunal as to whether the workers of Hochtif Gammon are entitled to any bonus, and if so, what should be the quantum? 18. In the Gammon's case (supra) referred to by Mr. Chatterji there was a reference made by the State Government under section 10 of the Industrial Disputes Act, 1947, to determine an issue to the Industrial Tribunal as to whether the workers of Hochtif Gammon are entitled to any bonus, and if so, what should be the quantum? In that case, the appellant before the Supreme Court claimed that their contract with M/s. Hindusthan Steel Limited for execution of the foundation and civil engineering works of the Hot and Cold Rolling Mills at Rourkella was a cost contract, the company had to pay labour and while they had employed the workmen, the employer was really the company, viz. M/s. Hindusthan Steel Limited. Gammon filed an application before the State Government asking them to modify the earlier reference to the Industrial Tribunal by adding the company as a party to the reference and an additional clause as under: "If bonus is payable, who is the employer and who is responsible for payment of the bonus to the workmen?" 19. The Supreme Court observed that the Government had not applied their mind to the facts placed before them. Even if the Government thought that the company was not a necessary party the question as to who was liable to pay the bonus was a very relevant question and that made the company a necessary, or at least a proper party. In that context the Supreme Court observed: "The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matters nor should take into account wholly irrelevant or extraneous considerations. They should not misdirect themselves on a point of law. The courts have power to see that the Executive acts lawfully". Law is now well settled that if a party ran show that the refusal to refer a dispute is not bona fide or based on a consideration of wholly irrelevant facts and circumstances, a writ of Mandamus would lie even in respect of such an administrative order. In the present case, the Dock Labour Board did not misdirect itself on a point of law. It also did not refuse to consider any relevant matter. In my view, that decision of the Supreme Court has got no application to the facts and circumstances of the present case. 20. Lastly it is contended by Mr. In the present case, the Dock Labour Board did not misdirect itself on a point of law. It also did not refuse to consider any relevant matter. In my view, that decision of the Supreme Court has got no application to the facts and circumstances of the present case. 20. Lastly it is contended by Mr. Chatterji that it is abundantly clear from the materials on records that the surplus dock workers have been retrenched in the pretext of compulsory retirement. In the instant case, neither the condition precedent to retrench the workers nor the procedure for retrenchment as provided in sections 25F and 25G of the Industrial Disputes Act, 1947 have been followed. According to Mr. Chatterji the order of retrenchment or so-called compulsory retirement should be set aside on these grounds alone. 21. I have already said hereinbefore that there is no relationship of employer and employee between the Dock Labour Board and the Dock workers. Various provisions referred to in the Scheme clearly show that the registered employer to whom the labour force is allotted by the Board is the employer whose work of loading or unloading of the ship is being done by the dock workers allotted to them. 22. In (3) Vizagapatnam Dock Labour Board v. Stavedores Association, AIR 1970 SC 1626 , the Supreme Court held that the Board functioning under the Act and the Scheme, does not carryon any "industry" so as to attract the provisions of the Industrial Disputes Act. Before the Supreme Court the dispute was with regard to a claim for bonus by the dock workers against the Dock Labour Board. In my view, the Slime principle would be applicable in case of a retrenchment compensation under section 25F of the Industrial Disputes Act. Accordingly, I hold that the provisions of sections 25F and 25G of the Industrial Disputes Act, 1947. have got no application to the dock workers registered and employed under the Calcutta Dock Labour Board. 23. As all the points raised by the petitioners fail, this Rule is discharged. There will be no order for costs.