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1993 Supreme(Bom) 239
IN THE HIGH COURT OF BOMBAY
Smt. Sujata Manohar , JJ.
Irkar D. Shahu another.... Petitioners.
Versus
The Bombay Port Trust others..... Respondents.
Writ Petition Nos. 108, 125, 158, 189, 589, 752, 321, 555, 170, 880, 107, 3436, 61 419 of 1992, decided on 6-10-1993.
Advocates appeared :
Miss Indira Jaisingh with Anand Grover with Vatsal Varma with Miss Poonam Udeshi i/b M/s. Halwasia Co., for the petitioners, in W.P. Nos. 108 of 1992.
U.J. Makhija i/b. Mulla and Mulla, for respondent Nos. 1, 2, 3 4 in W.P. Nos. 108, 125, 158, 189, 589, 321, 555, 107 61 of 1992.
M.O. Chinoy with Ramaswamy with Miss A. Chandurkar i/b Mulla and Mulla for respondent No. 2. 1, in W.P. Nos. 108, 125, 158, 189, 589, 752, 321, 555, 170, 880 107 of 1992 W.P. No. 419 of 1993.
Shekhar Naphade i/b Ms. Lata Desai, for respondent Nos. 3, 5, 6 9, in W.P. Nos. 108, 158, 189, 61 of 1992 W.P. No. 419 of 1993.
V.N. Lokur with H.V. Mehta i/b S. Sankaramakrishnan, for respondent Nos. 4, 1, 2, 5 3, in W.P. Nos. 108, 125, 158, 189, 589, 752, 321, 555, 170, 880, 107, 3436 61 of 1992.
S.M. Dixit, for respondent No. 5, 10 4, in W.P. Nos. 108, 125, 158, 189, 589, 752 61 of 1992.
D.C. Gomes with Venkateshwaran with Mrs. T.R. Krishnan, for respondent Nos. 6, 5 3, in W.P. Nos. 108, 88 61 of 1992.
J.P. Cama i/b H. Mehta for respondent in W.P. No. 419, J.P. Cama i/b Desai Berjis Chinoy, for intervenors with S.H. Nazareth, for respondent No. 2, in W.P. Nos. 108, 125, 158, 3436 of 1992 W.P. No. 419.
C.U. Singh i/b S.S. Pakle, for the petitioners for respondent No. 5, in W.P. Nos. 125, 189, 589 321 of 1992.
S. Venkateshwaran, for respondent Nos. 4, 5 7 in W.P. Nos. 125, 158 555 of 1992.
Miss Lata Desai, for respondent No. 5, in W.P. No. 158 of 1992.
Bhatkal i/b R.J. Kochar, for the petitioner, in W.P. Nos. 189 589 of 1992.
V.P. Bobde with S. Satpute, for the petitioners, in W.P. No. 752 of 1992.
D.Y. Chandrachud with Umesh Shetty, for respondent No. 3, in W.P. Nos. 752 880 of 1992 W.P. No. 419 of 1993.
A.V. Bukhari, for respondent No. 3, in W.P. No. 752 of 1992.
Kiran S. Bapat, for the petitioners, in W.P. No. 555 of 1992.
Dr. R.S. Kulkarni i/b I.A. Sayed i/b S.G. Apte, for the petitioners, in W.P. Nos. 170 880 of 1992.
Anand Grover, for the petitioner, in W.P. Nos. 107 3436 of 1992 Anand Grover i/b Halwasia Co., for applicants in W.P. No. 419 of 1993.
P. Ramaswamy, for respondent No. 1 2, in W.P. Nos. 3436 61 of 1991.
Gandhy with U.J. Makhija, for respondent No. 4, in W.P. Nos. 3436 61 of 1992.
K.H. Chopde, for the petitioners, in W.P. No. 61 of 1992.
Headnote:BOMBAY DOCK WORKERS REGULATION OF EMPLOYMENT SCHEME, 1956
Clause 17-Mabarashtra Mathadi Hamal and other Manual Workers (Regulation and Welfare) Act, 1969, Schedule Clause 3-Dock work excluded by Clause 3, Maharashtra Act, 1969 - Whether any conflict?
Held. Clause 3 cannot be interpreted in a manner which renders it nugatory. The intention is clearly to give protection to manual workers who are not covered by any Scheme framed under the Dock Workers Act of 1948. Clause 3 also clearly indicates the intention of the legislators not to have any conflict between the Mathadi Act and Dock Workers Act of 1948. Therefore, as soon as the provisions of any Scheme under the Dock Workers Act, 1948 become applicable to a dock workers, such a dock worker will not be covered by the Mathadi Act The two Acts, therefore, which are both welfare legislation, should be construed harmoniously to further the object for which both have been enacted. Read in this light, the Mathadi Act can cover those workers employed in the docks in connection with loading, unloading etc. so long as such workers are not covered by any of the Scheme framed under the Dock Workers Act of 1948.
Clause 17-Word, "ordinarily performed"-Conservation of
It is, however, contended by the Bombay Port Trust and the Bombay Dock Labour Board as well as the Bombay Stevedores Association that since the General purpose Mazdoor is required to do any work that may be assigned to him from time to time, the work done by these petitioners can also be assigned to General Purpose Mazdoors. However, the Scheme of 1956 defines "Dock work" covered by the Scheme as meaning, "operation at places or premises to which the Scheme relates, ordinarily performed by dock workers of the classes or descriptions to which the Scheme applies." Clearly the Scheme would cover only such work as is ordinarily performed by dock workers covered by the Scheme, in the present case by the General Purpose Mazdoors. The words "ordinarily performed" have a clear reference to the work actually being performed by the dock workers and not to work which they may, in future, be called upon to perform, work which may be assigned to the General Purpose Mazdoors in future, or work which should have been performed by them but is not infact performed by them, cannot be considered as the work ordinarily performed by the General purpose Mazdoors. Hence, the Scheme of 1956 does not cover the work performed by these petitioners since it is not the work ordinarily performed by the General Purpose Mazdoors registered under the Scheme of 1956.
BOMBAY DOCKERS (REGULATION OF EMPLOYMENT) SCHEME, 1956
Clearing and Forwarding Scheme of 1983, Clause 2 (1), 2 (2) and 38 - Applicability of scheme.
It was contended by the petitioners that the Clearing and Forwarding Scheme of 1983 will not apply to them because the said Scheme only deals with the work of Clearing while the petitioners work can be correctly classified as the work of Forwarding workers which is not covered under this Scheme. This submission has no merit. Under clause 2, sub-clause (1) of the said Scheme, the objects of the Scheme are set out. These are to ensure greater regularity of employment of the Dock Clearing and Forwarding Workers. This would clearly indicates that the Scheme covers the work done by Dock Clearing and Forwarding Workers. It is true that under Clause 2 sub-clause (a), it is provided that the Scheme applies to all workers engaged in loading, unloading trans port of import and export goods for clearance in Bombay Docks. But the words "for clearance in the Bombay Docks" cannot be read as confining the Scheme only to the work of clearing the goods for customs or clearing them from the wharf and not to the work in the Docks beyond the stage of clearing the goods from the Docks on the customs The workers with reference to whom the scope of the work under the Scheme is defined are the Clearing and Forwarding Mazdoors Looking to the context in which the words "for clearance in Bombay Docks" are used in Clause 2 (2) the words cover both clearing and Forwarding work in the Bombay Docks in relation to the goods which are imported or exported. The very title of the Scheme refers to Clearing and Forwarding work. In fact, in the present case, it is an accepted position that the same work is being done by the registered Clearing and Forwarding Mazdoor.
Hence, under the Clearing and Forwarding Scheme of 1983, as under the Stevedoring Scheme of 1956 once the work is covered by this scheme, the Bombay Dock Labour Board can direct that the work shall be done only through the registered workers. Under Clause 3 of the Scheme. "No person other than" registered employer, shall employ any worker on dock work which this scheme applies; oar shall a registered employer engage, for employment or employ a worker on dock work to which this scheme applies unless "that worker is a registered dock worker". The employment of an unregistered dock worker, therefore, by a registered employer is prohibited. No relief, therefore, can be granted to the petitioners in this petition.
CLEARING AND FORWARDING SCHEME OF 1983
Clauses 2 (1), 2 (2) and 38-See Bombay Dockers (Regulation of Employment) Scheme 1956.
DOCK LABOURS BOARD AGREEMENT WITH WORKERS UNION, 1991.
See, Maharashtra Mathadi Hamal and other Manual Workers (Regulation of Employment & Welfare) Act, 1969.
DOCK WORKERS REGULATION OF EMPLOYMENT ACT, 1948.
Bye-Lays 2 (A) & 117-Bombay Port Trust-Empowered to regulate entry to docks-Unregistered workers cannot get entry permits-Docks.
Expression work of a Stevedor-Definition and description of.
The definition of the word "Stevedore" in Whartons Law Lexicon, page 954 : "Stevedor" : (frestivar, sp. to stow) a person employed to stow a cargo an board a ship. In Chambers Dictionary at page 22339 "Stevedo.re" is defined thus: "(Sp. estavador packer, stower, frestivar to pack stow) ; one who works at or one who is responsible far the unloading of a ship in part. (2) to work at or undertake responsibility far the loading and unloading of a ship. Maclachlans Treatise an the Law of Merchant Shipping, at page 336, in the footnote, states, "Stevedore is a word used to denominate a person whose business is to. undertake the stowage far discharge of cargos with a gang of workmen whom he hires and pay is responsible far."
Jowitts Dictionary of English Law, Volume-2 at page 1683, defines "Stevedor" as "a person employed to stow a cargo on a board a ship" and makes a reference to the Merchant Shipping (Steve dares and Trimmers) Act, 1911. It further says that a Stevedor is a person whose business is to undertake stowage or discharge of cargos with gang of men wham he hires and pays and is responsible for.
The definitions undoubtedly refer to stowage or cargo an board a ship. But they also, refer to unloading of cargo with the help of a gang of men. None of these definitions state that only the work of loading and unloading done an board a ship will be considered as stevedoring work The Preamble to the English Merchant Shipping (Stevedores and Trimmers) Act, 1911, states that it is an act to enlarge the remedies of persons having claims for work done in connection with the stowing or discharging of ships, cargos or the trimming of coal on board ships. It is contended that the last words "on board ships" should be read as restricting the work of discharging cargo only on board ships. There is nothing in the Act to warrant such an interpretation. The Act throws no light on the question which is before us.
In Halsbury Law of England, Volume 43, paragraph 588 the employment of a stevedore is dealt with. Paragraph 588 states that where the actual work of loading the goods is delegated to stevedore, he is usually to be regarded as the employee of the ship owner, who, as being the person primarily responsible for the loading, is liable to the shipper, in the absence of an exception covering the stevedores negligence, for the manner in which the stevedore performs his work. And also to the stevedore for his charges. These statements do not carry the case any further.
These definitions undoubtedly state that a "Stevedore" is a person who is responsible for stowing cargo on board a ship. But the definitions and description of the work of a stevedore do not restrict the work of a stevedore only to the work on board a ship. The term is defined with reference to the work of loading and unloading of cargo. Whether this work is done on board or a ship or on the wharf will not change the nature of work. In fact, under the Stevedoring Scheme of 1956 itself, the categories of workmen which are covered by the Scheme clearly include those engaged in work on the wharf also. For example, the work of a Godown Khalasi included in the Stevedoring Scheme by an amendment of 1988 is work in the docks and not on the ship itself. It would not, therefore, be correct to say that the stevedoring Scheme will not apply to work which is done in the Docks. So long, as the work is connected with loading and unloading of cargo from the ship, it can be considered as stevedoring work.
MAHARASHTRA MATHADI HAMAL & OTHER MANUAL WORKERS (REGULATION OF EMPLOYMENT & WELFARE) ACT, 1969
Dock Labours Board Agreement with workers Unions, 1991-Mathadl workers-Not party to agreement-Hence not bound by it.
The petitioners are not dock workers covered by the Scheme of 1956; nor is their work covered by the Scheme of 1956. They are outside the purview of the Bombay Dock Labour Board. They are not parties to the agreement of 13th December, 1991 and their work does not from a part of any of the Schemes framed by the Bombay Dock Labour Board. Hence, in view of the legitimate work performed by them in docks, they would be entitled to Entry permits provided they comply with the Terms and Conditions set out by the Bombay Port Trust to regulate the issue of such Entry Permits.
Schedule, Clause 3-See Bombay Dock Workers Regulation of Employment Scheme, 1956, Clause 17.
Clause 3 of Schedule-Clause 3 very wide-It covers work at all stages of operation in the dock.
There is nothing in the Mathadi Act or in Clause 3 of the Schedule to the Mathadi Act which limits the application of the Mathadi Act to work in the docks after the cargo is cleared from the customs and conversely up to the point when the export cargo is brought to the customs. The wordings of Clause 3 of the Schedule to the Mathadi Act is very wide and it covers operations in the docks at all stages so long as such dock work is not covered by any Scheme framed under the Dock Workers Act.
Smt. SUJATA MANOHAR, J.:-In 1948, the Dock Workers (Regulation of Employment) Act, 1948 was enacted for regulating the employment of Dock Workers. Under section 2(b) of this Act a dock worker is defined to mean "a person employed or to be employed in, or in the vicinity of, any port on work 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." Under section 2(c) an "employer" in relation to a dock worker is defined to mean "the person by whom he is employed or to be employed." Section 3 of this Act (hereinafter referred to as the Dock Workers Act) provides for schemes to be framed for registration of dock workers and employers with a view to ensure greater regularity of employment and for regulating the employment of dock workers whether registered or not in a port. Under section 3(2) such a scheme may provide, inter alia, for the application of the scheme to such classes of dock workers and employers as may be specified therein. Under section 3(2)(f) the scheme may also provide for prohibiting, restricting or otherwise controlling the employment of dock workers to whom the scheme does not apply and the employment of dock workers by employers to whom the scheme does not apply.
2. Under the Dock Workers Act, a Dock Labour Board for a group of ports can be established by the Central Government by Notification in the Official Gazette. Accordingly, the Bombay Dock Labour Board has been established under the Dock Workers Act. It is necessary to note that the Dock Workers Act, by itself, does not give any protection to a dock worker. It sets up a machinary for giving such protection through schemes which may be framed under the Dock Workers Act.
3. In 1956, the Bombay Dock Workers (Regulation of Employment) Scheme, 1956 was framed by the Central Government under the Dock Workers Act.
4. Clause 2(2) of this Scheme provides as follows :
"2(2) The scheme relates to the port of Bombay and applies to the classes or description of dock work and dock workers set out in schedule I.
Provided that the scheme shall not apply to any dock worker unless he is employed or registered for employment as a dock worker."
Clause 2(3) states that the scheme shall apply to registered dock workers and registered employers. Schedule I of the scheme gives classes or description of dock work and dock workers to which the scheme applies. Clause 1 of Schedule I describes the dock work to which the scheme applies. This is "stevedoring work other than coal, passenger baggage and mail work." Clause 2 gives categories of stevedoring workers to whom the scheme applies. In 1956, the categories of stevedoring workers covered by the scheme and enumerated in Clause 2 were 8 in number.
5. Clearly, therefore, this scheme (hereinafter referred to as the scheme of 1956) is a scheme which relates to stevedoring work other than coal, passenger baggage and mail work and it applies to certain categories of stevedore workers enumerated in schedule I and the stevedoring work done by them. This is also borne out by Clause 3(i) of the scheme of 1956 which defines "dock work" to mean, "operations at places or premises to which the scheme relates, ordinarily performed by dock workers of the classes or descriptions to which the scheme applies." (Italics ours).
6. The scheme provides for registration of employers as well as workers. The Bombay Dock Labour Board is required to maintain a register of employers as also a register of workers covered by the scheme. Under Clause 17, the Bombay Dock Labour Board in consultation with the Administrative Body is required to determine, before the commencement of registration in any category, the number of workers required in that category. Under Clause 18, as it was then in force, any dock worker who was already registered under the previous Bombay Dock Workers (Regulation of Employment) Scheme 19
