Judgment

PALEKAR, J.:- This appeal under Article 136 of the Constitution is from an Award dated June 29, 1968 made by the Central Government Industrial Tribunal, Bombay in Reference No. CGIT-73 of 1965. The reference of the Industrial dispute was as follows :

"Whether the management of M/s. Krishna Commercial Co., Bombay and M/s. Mahesh Transport Co., Bombay are justified in not implementing the interim recommendations of the Wage Board for Port & Dock Workers as published with the Government of India, in the Ministry of Labour and Employment Resolution No. W. B. 21 (13) 65 dated April 27, 1965 in respect of their Cement/ Clinker handling workers at Bombay Port? If not, to what relief are the workmen entitled to and from what date?"

The Tribunal, after taking evidence, came to the conclusion that the two Employers referred to in the reference were not justified in not implementing the interim recommendations of the Wage Board and, accordingly, passed an award in favour of the workers giving interim relief in accordance with the recommendations of the Wage Board.

Out of the two employers mentioned in the reference, only M/s. Mahesh Transport Co. has come in appeal. The other employer namely M/s. Krishna Commercial Co. has not.

The respondent in the present appeal is the Transport & Dock Workers Union representing about 29 Dock workers who were alleged to be the employees of the two firms referred to above.

2. The Government of India had constituted a Wage Board for the Port & Dock workers of major Ports and this Wage board, by its report, dated April 9, 1965, recommended interim relief. The Government accepted these recommendations and directed that the Port & Dock workers should be paid additional interim relief as recommended by the Board. The respondent workers were not paid the additional relief and hence a dispute was raised on their behalf with their employers. The employers did not co-operate in the Conciliation proceedings with the Labour Commissioner, whereafter, the Government of India referred the dispute to the Industrial Tribunal.

3. A number of questions were raised before the Tribunal. But we are not concerned with all of them. Mr. Hardy, who appeared on behalf of the appellants, contested the jurisdiction of the Tribunal to entertain and determine the dispute and argued that the concept of common employment was foreign to Industrial Law and, in particular, the Industrial Disputes Act, 1947 and, therefore, the very reference was incompetent u/S. 10 (1) (d) of the Industrial Disputes Act.

4. In order to appreciate the point raised, a few facts which are no longer in dispute, are necessary to be stated.

M/s. Krishna Commercial Co. was and is a partnership firm and for many years was engaged in the business of loading and transporting of Cement and Clinker at the Bombay Port on behalf of Digvijay Cement Co. Ltd. It appears that Cement and / or Clinker was brought by coastal vessels to the Bombay Port and after the same was unloaded on the wharf it was loaded into trucks and transported to the godowns of the Cement Company. This work had been entrusted by the Cement Company to M / s. Krishna Commercial, and M/s. Kerishna Commerial got the work of unloading and loading done by a gang of about 29 Dock workers who are now represented by the Respondents. The workers worked in two shifts. Some worked in the first shift from 8.00 A. M. to 5.00 P. M. and the others worked in the second shift from 5.30 P. M. to midnight. The workers were paid on piece rate basis. For loading and unloading Cement, they were paid at the rate of 45 p. per ton and for loading and unloading Clinker, they were paid at the rate of 65 p. per ton. This gang of about 29 workers, thus worked as employees of M/s. Krishna Commercial Co. for many years.

5. On 1-8-1965, however, i.e. after the Wage Board s recommendations were accepted by the Government of India, there came into existence the partnership firm of the appellants. We do not know if the formation of the