Full Judgment Text
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PETITIONER:
VIZAGAPATAM DOCK LABOUR BOARD
Vs.
RESPONDENT:
STEVEDORES ASSOCIATION, VISHAKHAPATNAM & ORS.
DATE OF JUDGMENT:
01/09/1969
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SHELAT, J.M.
CITATION:
1970 AIR 1626 1970 SCR (2) 303
1970 SCC (2) 301
CITATOR INFO :
F 1973 SC2251 (12)
ACT:
Dock Workers Regulation of Employment Act,
1948--Vizakhapatnam Dock Workers (Regulation of Employment)
Scheme, 1959--Dock Labour Board if employer--Board if,
carries on "industry"--Industrial Disputes Act, 1947.
HEADNOTE:
The claim for bonus of the Dock Board Workers employed at
Vizakhapatnam was referred to the Industrial Tribunal. The
parties to the reference included the Vizagapatnam Dock
Labour Board (the appellant), the Stevedores Association,
and two Unions representing the workers. The Industrial
Tribunal after referring to the nature of the duties
performed by the Board as well as the Stevedores Association
and its members and their relationships with the Dock Labour
Board held that it was the Board that was the employer of
the dock workers and that the Board was liable for meeting
the claim for bonus. The Board in appeal to this Court,
contended, that (i) it was not liable for the payment of
bonus when the claim of the workers was against the
Stevedores Association and its members; and (ii) having
regard 10 the provisions of the Dock Workers (Regulation of
Employment) Act (9 of 1948), and the Vizagapatnam Dock
Workers (Regulation of Employment) Scheme, 1959 and the
functions discharged by the Board there was no
employer-employee relationship between the Board and the
workmen, and as such the Board could be made liable for the
claim. Accepting the contentions, this Court,
HELD: (i) Having regard to the nature. of the claim and
the basis on which the tribunal itself proceeded, the claim
for bonus was made by the unions specifically against the
Stevedores Association and its members and. as such, the
tribunal was not justified in making the Board liable.
(ii) The Board cannot be considered to be the. employer
of the Dock Labour Workmen. From the provisions of Dock
Workers (Regulation of Employment) Act and the Vizagapatnam
Dock Workers (Regulation of Employment) Scheme, it is
evident that the Board is a statutory body charged with the
duty of administering the scheme, the object of which is to
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ensure that greater regularity of employment for dock
workers arc available for the efficient performance of dock
work. The Board is an autonomous body, competent 10
determine and prescribe the wages, allowances and other
conditions of service of the dock workers. The purport of
the Scheme is that the entire body of workers should be
under the Control and supervision of the Board. The
registered employers are allocated monthly workers by the
Administrative Body and the Administrative Body supplies
whenever necessary, the labour force to the Stevedores from
the Reserve Pool. The workmen who are allotted to the
registered employers are to do the work under the control
and supervision of the registered employers and to act
under their directions. The registered employers pay the
wages due to the workers to the Administrative Body and the
latter. in turn, as agent of the registered employers, pay
them
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over to the concerned workmen. The registered employer
to whom the labour force is allotted by the Board is the
employer whose work to them. The functions of the Board
such as recruitment and registration of the dock labour
force, fixation of wages and dearness allowance, payment of
workmen’s compensation, taking of disciplinary action and
prohibition against employment of workers who were not
registered with the. Board do not establish a relationship
of employer and employee between the Board and the dock
labour. Further, the Board functioning under the Act and
the Scheme cannot be. said to carry on any industry so as to
attract the provisions of the Industrial Disputes Act. As a
claim for any type of bonus can be met only from the actual
employer in respect of any industry and as the Board is
neither the employer nor carries on any industry the
Tribunal was wrong in directing the Board to pay Bonus for
the years in question. [316 B--E; G-H; 320 C]
Gymkhana Club Union v. Management, [1968] 1 S.C.R. 742.
752, applied.
A. C. Roy & Co. Ltd. v. Taslim, 71 C.W.N. 531, referred to.
Kirlosker Oil Engines v. Hanmant Laxman Bihawej, [1963]
3 S.C.R. 514, distinguished.
C.V.A.Hydross & Son v. Joseph Senjon, 11967] 1 L.L.J.
509 disapproved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2113 of 1968.
Appeal by special leave from the Award dated May 24,
1968 of the Industrial Tribunal, Andhra Pradesh in I.D. No.
10 of 1967.
Niren De,. Attorney-General, S.K. Dholakia, R.H. Dhebar
and S.P. Nayar, for the .appellant.
K. Srinivasamurthy and Naunit Lal, for respondents Nos. 1 to
12.
B.P. Maheshwari, for respondent No. 13.
The Judgment of the Court was delivered by
Vaidialingam, J. This appeal, by special leave, by the
Vizagapatam Dock Labour Board (hereinafter referred to as
the Board), is directed against the award, dated May 24,
1968 of the Industrial Tribunal, Andhra Pradesh, Hyderabad
in I.D. No. 10 of 1967 holding that the appellant should pay
the .Dock workers employed at Vizagapatam Port bonus for the
accounting years 1964-65, 1965-66 and 1966-67.
The Central Government, by its order dated April 13,
1967 referred for adjudication, to the said Tribunal, the
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question whether the demand for payment of bonus to Dock
Labour Board Workers employed at Visakhapatnam Port for the
acconting years
305
1964-65, 1965-66 and 1966-67 was justified and, if so, at
what rate should such bonus be paid. The parties to the
Reference included the Board, the Visakhapatnam Stevedores
Association, certain individual Stevedores and two Unions
representing workers. The two Unions were the Port Khalasis
Union and the Dock Workers Union.
Both the Unions filed statements of claim on behalf of
their workmen. They referred to the demands made by them
for payment. of bonus and the rejection thereof by the Board
and the Stevedores Association. They referred to certain
agreements having been reached in respect of bonus between
the workmen and the respective Stevedores Associations, in
Calcutta, Cochin, Madras and Bombay. They claimed that the
work done by the workmen at Visakhapatnam Port was exactly
similar to the type of work done by the Stevedores workmen
at Bombay, Calcutta, Cochin and Madras and that therefore
their claim for bonus was justified. They further referred
to the fact that the Board and the Stevedores Association
were all governed by the Dock Workers (Regulation of
Employment) Act 1948 (Act IX of 1948) (hereinafter referred
to as the Act) and the Vizagapatam Dock Workers (Regulation
of Employment) Scheme, 1959 (hereinafter referred to as the
Scheme), framed thereunder. The said Scheme is similar to
the Scheme obtaining in the areas where a settlement had
been entered into regarding bonus and the relationship
between the Stevedores and the Dock Labour Board was also
the same in all ports. The Unions claimed bonus at 14 paise
per ton for 196465, 15 paise per ton for 1965-66 and 16
paise per ton for 1966-67.
The Visakhapatnam Stevedores Association and its member
Stevedores filed statements contesting the claim of the
workmen. After referring to some of the provisions of the
Act and the Scheme, the Association urged that the Dock
Workers were the workmen of the Board as all the
ingredients of master and servant existed as between the
Board and the Dock Workers. The Association further urged
that the Dock Labour workers were not the employees of the
Stevedores and, as such no claim for bonus could be made as
against the Stevedores Association or its members. the
Association further pleaded that it. was an unnecessary
party of the Reference and the workmen had no claim as
against it in view of the fact that the Association or its
members were not the employers of the dock workers. They
also contested the claim of the workmen on merits.
The Board, represented by its Chairman, filed a written
statement contesting the claim of the Stevedores that they
were not the employers of the dock workers. The Board
claimed that it was a statutory body constituted under the
Act and governed by the
306
statutory Scheme in the discharge of its statutory
functions. According to it none of t,he functions discharged
by it under the Act or the Scheme could be characterised as
’carrying on of an industry’ so as to attract the provisions
of the Industrial Disputes Act. On the other hand, the
Board urged that it was the Stevedores and their Association
that carried on the stevedoring industry during the years
for which a claim for bonus was made by the workmen and
therefore, if at all, the liability for payment of bonus
should be that of the Stevedores and their Association. It
further urged that the claim, having been made by the
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workmen against the Stevedores, the latter should not be
allowed to convert. the said claim into one against the
Board. The Board also further pleaded that it was not a
necessary or proper party to the dispute. It filed an
additional written statement pointing out that the
Visakhapatnam Stevedores Association had been appointed by
the Central Government as the Administrative Body for the
purpose of carrying on the day-to-day administration of the
Scheme and that the said Administrative Body is deemed to
act as an agent for the employers, as would be evident from
the Scheme. After referring to the functions of the
Administrative Body under the Scheme, the Board claimed that
it had no further part to play in the proceedings before the
Tribunal.
The Industrial Tribunal, after referring to the nature
of the duties performed by the Board as well as the
Setvedores Association and its members and their
relationship with the Dock Labour Boards, held that it is
the Board that is the employer of the dock workers and that
the Board is liable for meeting the claim for bonus. The
Tribunal has proceeded on the basis that the bonus claim by
the workmen is ’tonnage bonus’ because while loading or
unloading cargo any particular gang or gangs of workmen may
not be working continuously for a given period for a
particular Stevedore and therefore the bonus that has to be
paid to the dock workers must be on the basis of the tonnage
handled by them. The Tribunal then considered the rate at
which bonus it to be awarded for the three years.
Ultimately it has held that the demand for bonus by the
workmen for the three years in question is justified and it
has to be paid by the Board at the rate of 13 paise per ton
for the year 1964-65, at 14 paise per ton for the year 1965-
66 and at 15 paise per ton for the year 1966-67.
The learned Attorney General, on behalf of the
appellant, raised two contentions: (i) That the Tribunal has
acted illegally and without jurisdiction in making the Board
liable for payment of bonus when the claim of the workmen
for such payment was against the Stevedores Association and
its members and; (ii) having due regard to the provisions of
the Act and the Scheme and the
307
functions discharged by the Board, the Tribunal should have
held that there is no employer-employee relationship between
the Board and the Dock Labour workmen and, as such the Board
could not be made liable for the claim.
Regarding the first contention, the learned Attorney
General invited our attention to the nature of the claim
made by the two Unions as well as the discussion contained
in respect of such claim in the award. The Attorney General
also referred us to the plea taken by the Board in its
written statement that a claim exclusively made by the dock
workers as against the Stevedores should not be allowed by
the Stevedores to be converted into a claim made as against
the Board and that no award could be passed against the
Board contrary to the claim of the workmen themselves.
Mr. K. Srinivasamurthy, learned counsel appearing for
the Stevedores Association, urged that the claim by the
Unions was for payment of bonus against the Board and
therefore the Board has been properly made liable.
Alternatively, the counsel urged that the claim by the
Unions was for payment of bonus and the Tribunal was
perfectly justified in considering which party was liable to
meet this claim. It was in considering such a claim that
the Tribunal had held the Board to be liable.
Having due regard to the nature of the claim and the
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basis on which the Tribunal itself has proceeded, we are
satisfied that the claim for bonus has been made by the
Unions specifically against the Stevedores Association and
its members and, as such, the Tribunal was not justified in
making the Board liable.
In the statement of claim filed by the Port Khalasis
Union, m paragraph 2 it is stated that since the Stevedores
are the registered employers of the Dock Labour Board, the
bonus should be settled by the Stevedores Association only.
In paragraph 14 the Union has stated that the plea of the
Stevedores at Visakhapatnam that they are not concerned with
the demand for bonus since the workers are registered
with the Dock Labour Board is wrong, baseless and aimed at
confusing the issue. After referring to the agreements
arrived at between the Stevedores workmen and the Stevedores
at Bombay, Calcutta, Cochin and Madras, the Union has stated
in paragraph 15 that the Stevedores at Visakhapatnam Port
are in no way different and they cannot disclaim their
responsibilities for payment of bonus to the workmen.
Similarly, the Dock Workers Union in its statement,
has referred to the fact that it has been agitating for many
years for the introduction of payment of bonus as obtaining
in Madras, Bombay, Calcutta and Cochin. The Union has
further stated that the Ste-
308
vedores of Visakhapatnam are the employers registered in the
Dock Labour Board as the real employers. It has further
stated that the Stevedore companies are private employers
who work for a consideration and derive large profits out of
the employment and the operations of the Stevedore workers.
The Stevedores have been resisting the claim of the workmen
for payment of bonus and have been postponing consideration
of the claim. The Union has further stated that payment of
bonus can be made by the Board on behalf of the Stevedores
and the Stevedoring business is very lucrative and
profitable. The Union further prayed the Tribunal to summon
the accounts of the Stevedores as the claim of the workmen
regarding the financial position of the Stevedores will be
fully found established.
The Stevedores Association no doubt has stated that the
Dock workers are the workmen of the Board as all the
ingredients of master and servant exist as between the Board
and the dock workers. The Board has categorically stated in
its written statement that the dock workers’ claim against
the Stevedores should not be allowed to be converted by the
Stevedores into a claim against the Board. The Board has
further specifically pleaded that no award could be passed
against it contrary to the claim made by the dock workers
themselves.
The various averments contained in the statements
referred to above will clearly show that the claim for
payment of bonus by the dock workers was essentially and in
the main directed against the Stevedores Association and its
members. Otherwise a reference by the Union to the
prosperity and lucrative business conducted by the
Stevedores and the large profits mad.e by them wilt have no
relevancy at all. No doubt here and there are certain
averments regarding the Board, but so far as we could see,
no specific claim for payment of bonus as against the Board
has been made. On the other hand the claim is that the
Board ’on behalf of the Stevedores in Visakhapatnam’ can pay
the bonus claimed by the Unions. The statement filed by the
Stevedores Association also makes it clear that they
understood the claim by the workmen as directed against them
because it makes various averments to establish that the
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workmen have no claim as against them as the Stevedores
Association or its members are not the employers of the
workmen. The Board has specifically stated that a claim
made against the Stevedores should not be converted into a
claim made against the Board and no award can be passed
contrary to the claim’ of the workmen themselves. That the
Tribunal also understood that the claim of the workmen was
against the Stevedores Association and its members is also
evident from the state-
309
ment in para 4 of the award wherein’ the Tribunal observes
as follows:
"The claimants claim bonus for the three
years mentioned in the issue, and they claim
that it should be paid by the Stevedores.
They claim that it should be paid on the same
basis as adopted at the other ports viz.,
Calcutta, Bombay, Madras and Cochin."
That the claim for bonus in the four areas referred to above
was being met by the respective Stevedores
Associations--though on the basis of ,agreement--is not in
dispute. The observation extracted earlier shows that the
Tribunal has also proceeded on the basis that the claim by
the workmen has to be adjudicated upon on the basis that. it
is the liability of the Stevedores. But, unfortunately, in
the latter part of the award the Tribunal has mixed up the
discussion regarding the liability of the Board or the
Stevedores Association and has ultimately held that the
Board is liable for payment of bonus. No doubt the basis
for this conclusion is that the Board is the employer of the
dock workers. The correctness of the view about the Board
being the employer of the dock workers will be considered by
us when we deal with the second contention of the learned
Attorney General. To conclude on the first aspect the
learned Attorney General is well rounded in his contention
that in view of the pleadings and the nature of the claim
made by the workmen the award making the Board liable for
payment of 6onus is not correct.
Normally, our decision accepting the first contention of
the learned Attorney General is enough to dispose of the
appeal. But, as the Tribunal has adjudicated upon the
contention of the Board that. it is not the employer of the
dock workers and held against it, we shall proceed to
consider the second contention of the learned Attorney
General.
In order to appreciate the relationship between the
Board, the dock workers and the Stevedores Association, it
is necessary to refer to certain provisions of the Act and
the Scheme. But before we do so, we can broadly set out how
the work of loading and unloading of ships in the port of
Visakhapatnam is being done.. The Board maintains a Dock
Labour pool. The shipping companies have their agents at
Visakhapamam. The Stevedores enter into contracts with the
ship-owners for the loading and unloading of cargo. The
contracts contain clauses regarding the rate per ton of
cargo payable to the Stevedores who handle the loading or
the unloading of cargo. The shipping agents inform the
Stevedores about the ship that is due to arrive as also the
nature and’ quantity of the cargo to be loaded or unloaded.
The Stevedores inform the Board about the quantity of cargo
to be loaded or
L2SupCI/70--8
310
unloaded and place an indent stating the approximate labour
force that may be required for the said purpose. The Board
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supplies the labour force as asked for. Along with the
labour force the Board deputes two supervisors who are
called the loading mazdoors and the tindal. The Stevedores
employ one Foreman for the entire operation of either
loading or unloading. The duty of the Foreman appears to be
to see that the cargo is not damaged and that it is properly
handled by the labour force supplied by the Board. The
Stevedores have to carry on the work with the labour force
supplied by the Board and they cannot engage outside labour
for the work. The Stevedores pay to the Board for the
services of the workers supplied by it. Over and above the
wages due to the labourers and paid to the Board the
Stevedores have also to pay 105% of the actual wages to the
Board known as ’General & Welfare Levy’. The Board utilises
this additional amount for making certain payments to the
workers. The Stevedores cannot take any disciplinary action
against the workmen but, on the other hand, they have to
complain to the Board. The Board takes the necessary
disciplinary action against the workers concerned. It fixes
the rates of wages to be paid by the Stevedores and collects
the sam.e from them and pays to the workers. A particular
,gang of workmen may work for one Stevedore on a particular
day and on the next day they may work for another Stevedore.
In fact it may even happen that one gang of workmen work for
different Stevedores in the course of the same day.
We shall now refer to the salient features of the Act
and the Scheme. The object of the Act is to provide for
regulating the employment of dock workers. Section 2
defines inter alia the expressions ’Board’, ’Dock worker’,
’employer’ and ’scheme. The expression ’Dock worker’ in
brief means a person employed or to be employed in, or in
the vicinity of, any port on work in connect.ion with the
various matters referred to in the definition. ’Employer’ in
relation to a dock worker, means the person by whom he is
employed or to be employed as aforesaid. ’Scheme’ has been
defined to mean a scheme made under the Act. Section ’ 3
provides for the scheme being made 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, whether registered or not, in a port. A
perusal of clauses (a) to (k) of sub-s. (2) of s. 3 shows
that the scheme may take provision for various matters which
include regulating the recruitment and entry into the scheme
of dock workers, the registration of dock workers and
employers, the employment of dock workers as well as the
terms and conditions of employment, including rates of
remuneration etc. The scheme may also provide for the
manner in which, and the persons by whom, the cost of
operating the scheme is to be derrayed as well as for
constituting the autho-
311
rity to be responsible for the administration of the scheme.
Section 5 provides for the Central Government or the State
Government, as the case may be, when making a scheme,
constituting an Advisory Committee to advise upon such
matters arising out of the administration of the Act or any
scheme made under it as well as regarding its composition.
The Advisory Committee shall include an equal number of
members representing the Government, the dock workers and
the employers of dock workers and shipping companies.
Section 5A provides for the establishment of a Dock Labour
Board by the Government for a port or group of ports, as
well as its composition. Under s. 5B the Board is made
responsible for administering the scheme for the port or
group of ports for which it has been established and also
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the Board is to exercise such powers and perform such
functions as may be conferred on it by the scheme.
The Central Government has flamed a scheme under sub-s.
(1) of s. 4 of the Act for the Port of Vizagapatnam. Clause
2 states that the objects of the Scheme are to ensure
greater regularity of employment for dock workers and to
secure that an adequate number of dock workers is available
for the efficient performance of dock work. The Scheme
applies to the registered dock workers and registered
employers. Clause 3 definies the various expressions.
’Daily worker’ means a registered dock worker who is not a
monthly worker. Monthly worker’ means a registered dock
worker who is engaged by a registered employer or a group of
such employers on a monthly basis under a contract which
requirs for its termination at least 1 month’s not.ice on
either side. ’Dock employer’ means a person by whom a dock
worker is employed or is to be employed and also includes a
group of dock employers formed under cl. 14(1)(d).
’Registered dock worker’s means a dock worker whose name is
for the time being entered in the employers’ register.
’Reserve pool’ means a pool of registered dock workers who
are available for work and who are not for the time being in
the employment of a registered employer or a group of dock
employers as monthly workers. Clause 5 provides for the
Central Government appointing an Administrative Body for the
purpose of carrying on the day-to-day administration of
the Scheme. There is no controversy that. the Vizagapatam
Stevedores’ Association, in this case, has been appointed as
the Administrative Body.
Under cl. 7 dealing with the various functions of the
Board, the latter is authorised to take various measures for
furthering the objects of the Scheme. The measures
contemplated under subcls. (a) to. (i) of cl. 7(1) include
ensuring the adequate supply and the full and proper
utilisation of the dock labour, regulating the recruitmeant
and entry into and the discharge from the Scheme,
312
of dock workers, the allocation of registered dock
workers in the reserve pool to. registered employers,
maintaining the employers’ registers and dock register of
dock workers, the levying and recovering from registered
employers, contributions in respect of the expenses of the
Scheme, administering the Dock Workers Welfare Fund and
recovering from registered employers contribution for such
fund, administering a Provident Fund ’and a Gratuity Fund
for registered dock workers in the reserve pool. The
various functions enumerated show that the Board’s primary
responsibility is the administration of the Scheme and to,
see that the work in the dock is properly done and the
labour employed ,for such purpose is not exploited. Among
the responsibilities and duties enumerated in el. 8 are the
fixing of the number of dock workers to. be registered under
various categories, considering registration of new
employers, determination of the wages, allowance and other
conditions of service and fixing the rate of contribution to
be made by registered employers to the Dock Workers
Welfare Fund. Under el. 9 (1 )(k), the Chairman of the
Board is given power to take disciplinary action against
registered dock workers and employers in accordance with the
provisions of the Scheme. Under cl. 11, the Administrative
Body has been made responsible for the administration of the
Scheme and in particular of the various matters mentioned
in sub-cls. (a) to (k). Sub-cl. (e) thereof provides for
the Administrative Body allocating registered dock workers
in the reserve pool who are available for work to registered
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employers and for this purpose, under cl. (i) thereof the
Administrative Body is deemed to act as an agent for the
employer. Sub-cls. (i) and (ii) of cl. (f) cast the duty on
the Administrative Body of collecting the levy, contribution
to the Dock Workers Welfare Fund or any other contribution
from the employers as may be prescribed under the Scheme,
’as well as the collection of the registered dock
workers’ contribution to the Provident Fund, Insurance Fund
or any other fund which may be constituted under the Scheme.
Sub-cl. (iii) makes the Administrative Body responsible for
payment as agent of the registered employer to each daily
worker of all earnings properly due to the dock worker from
the employer and the payment to such workers of all monies
payable by the Board to those workers in accordance with the
Scheme. Two points emerge from cl. 11 (viz.) when
allocating registered dock workers in the reserve pool for
work to registered employers, the Administrative Body is
deemed to act-as agent for the employer; and the payment to
each daily worker of all earnings properly due to him from
the employer is made by the Administrative Body as ,agent of
the registered employer.
Clause 14 deals with the maintenance of Employers.’
Register and the Workers’ Registers. Clause 18 deals with
promotion and
313
transfer of workers. Sub-cl. (3) thereof deals with the
transfer of a monthly worker to the reserve pool at the
request of the employer or the worker, ’but such transfer is
made subject to the fulfilment of any contract subsisting
between the monthly worker and his employer. Sub-cl.
(4)provides for considering the request for transfer to a
reserve pool by a monthly worker whose services have been
terminated by his employer for an act of indiscipline or
misconduct.
Clauses 30, 31 ’and 33 deal with the payment of
guaranteed minimum wages. to a worker in the reserve pool
register, payment of attendatnce allowance and
disappointment money to such worker, respectively. Clause
36 deals with the obligations of registered dock workers and
cl. (2) thereof states that a registered worker in the
reserve pool who is available for work shall be deemed to
be in the employment of the Board. We have already seen
that under el. 11 (e), when allocating registered dock
workers in the reserve pool for work to registered
employers, the Administrative Body shall be deemed to act as
’an agent for the employer. Under sub-el. (5) of el. 36 a
registered dock worker when allocated for employment under a
registered employer is bound to carry out his duties in
accordance with the directions of such registered
employer or his authorised representative or supervisor ’and
the rules of the port or place where he is. working. Clause
37 enumerates the obligations of registered employers. They
are prohibited from employing a worker other than a dock
worker who has been allocated to him by the Administrative
Body under el. Il(e). The registered employers are also
bound to pay the Administrative Body the levy under cl.
51(1) as well as the gross wages due to a daily worker.
They are also bound to make contributions to the Dock
Workers Welfare Fund under el. 53.
Clause 38 deals with restriction on employment.
Registered employers are prohibited from engaging workers on
dock work unless they are registered dock workers. It also
prohibits persons other than registered employers employing
any worker on dock work. Under cl. 40 it is provided that
it shall be an implied condition of contract between a
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registered worker (whether in the reserve pool or on the
monthly register) and’ ’a registered employer that the
rates o,f wages, ’allowances and overtime, hours of work
shall be such as may be prescribed by the Board for each
category of workers and the fixation of wage periods etc.,
shall be in ’accordance with the provisions of the Payment
of Wages Act, 1936. Clause 44 deals with disciplinary
procedure to be followed in taking action against a
registered employer and a registered dock worker. Clause 46
deals with termination of employment. Clause 51 provides for
the cos.t of operating the Scheme being defrayed by payments
made by registered employers to the Board.
314
It provides ,for the registered employer 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 cl. 37(5)(i). Clauses 52 and 53 provide for Provident
Fund and Gratuity and Dock Workers Welfare Fund
respectively.
We have rather elaborately gone into the various
matters dealt with under the Act and the Scheme as that will
give a true picture of the nature of the functions and
duties that the Board discharges in respect of the work
carried on in the port. From the various provisions of the
Act ’and the Scheme referred to above, it is evident that
the Board is a statutory body charged with the duty of
administering the Scheme, the object of which is to ensure
greater regularity of employment for dock workers and to
secure that an adequate number of dock workers are available
for the efficient performance of dock work. The Board is
an ’autonomous body, competent to determine and prescribe
the wages, allowances and other conditions of service of the
Dock workers. The purport of the Scheme is that the entire
body of workers should be under the control and supervision
of the BOard. The registered employers are allocated monthly
workers by the Administrative Body and the Administrative
Body supplies whenever necessary, the labour force to the
Stevedores from the Reserve Pool. The workmen who are
allotted to the registered employers ’are to do the work
under the control and supervision of the registered
employers and to act under their directions. The
registered employers pay the wages due to the workers to
the Administrative Body and the latter, in turn, as agent of
the registered employers, pay them over to the concerned
workmen.
All these circumstances, in our opinion, prima facie
establish that the Board cannot be considered to be the
employer of the Dock Labour workmen. In fact the 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 ships is done by the dock workers allotted to them.
Mr. Srinivasamurthy, learned counsel for the
respondents, referred us to certain circumstances to support
his contention that the relationship. of employer-employee
exists between the Board and the dock workers. Some of
those circumstances are recruitment and registration of the
dock labour force, fixation of wages and dearness allowance,
payment of workmen’s compensation, taking of disciplinary
action and prohibition against employment of workmen who are
not registered with the Board. These circumstances, in our
opinion, do not establish a relationship of employer and
employee between the Board and the dock labour.
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The functions referred to above are discharged by the
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Board under the Scheme, the object of which, as mentioned
earlier, is to ensure greater regularity of employment for
dock workers and to secure that an adequate number of dock
workers is available for the efficient performance of dock
work. It is with this purpose in view that the Scheme has
provided for various matters and considerable duties and
responsibilities are cast on the Board in this regard. But
we have also ’already pointed out that under sub-cl. (5) of
cl. 36 a registered dock worker when allotted for employment
under a registered employer, shall carry out his duties in
accordance with the directions of such registered employer
and cl. 11 (e) also makes it clear that in the matter of
allocation of registered dock workers in the Reserve Pool to
registered employers, the Administrative Body shall be
deemed to act as agent for the employer. Though the
contributions for the Dock Workers’ Welfare Fund as well as
the wages and other earnings due to a worker are paid by the
registered employer to the Board at the rates fixed by it,
the latter p.asses on the same to the dock worker concerned,
as agent of the registered employer, under cl. 1 l(f)(iii).
Further, the definition of the expression ’dock worker’
and ’employer’ under s. 2(b) and (c) respectively of the Act
and the definition of ’dock employer’ and ’monthly worker’
in cls. 3(g) and (k) respectively of the Scheme and the
obligation cast under s. 36(5) of the Scheme on a registered
dock worker when allocated for employment under a registered
employer to carry out his duties in accordance with the
directions of the latter and the provisions contained in cl.
37(5) of the Scheme regarding payment by ’a registered
employer to the Administrative Body of the gross wages due
to the dock worker and the implied condition of contract
between the registered dock worker and the registered
employer under cl. 40, read along with the provisions
regarding the functions of the Board, in our view, clearly
lead to the conclusion that the Board cannot be considered
to be the employer of the dock workmen and there is no
relationship of master and servant between the two.
Mr. Srinivasamurthy, learned counsel, referred us to the
decision of this Court in Kirloskar Oil Engines v. Hanmant
Laxman Bibawe(1) in which, according to him, an inference of
relationship of master ’and servant was not drawn, though
for all practical purposes a person was working under the
directions of another. The question that arose for
consideration in that case was whether a watchman deputed to
work by the Police Department under a private individual on
the basis of a Scheme could be considered to be the employee
of the latter, after considering the salient features of the
scheme framed by the Police Department and after
(1) [1963] 3. S.C.R.514.
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observing that a decision on the question as to the
relationship of employer-employee has to be determined in
the light of relevant facts ’and circumstances and that it
would not be expedient to lay down any particular test as
decisive in the matter, this Court held that a relationship.
of master and servant, between the watchman and the private
employer, did not exist, notwithstanding the fact that the
private employer was enitled to issue orders to the watchman
deputed to work under him. The scheme dealt with in this
decision was entirely different from the Scheme before us.
The learned counsel then referred us to a decision of a
Single Judge of the Kerala High Court in C.V.A. Hydross &
Son v. Joseph Sanjon(1). That decision had to consider the
question regarding payment of retrenchment compensation to
certain workmen who had registered ’themselves as workmen
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under the Dock Labour Board. They had filed a claim against
the permanent Stevedores under whom they were working
originally. The learned Judge, after a consideration of the
Scheme framed for the Cochin Port, which is substantially
similar to the one before us, held that the Board was the
employer of the workmen. We are not inclined to agree with
this decision.
We may also refer to the decision of the Calcutta High
Court in A.C. Roy & Co. Ltd. v. Taslim(2). There no. doubt
the question arose in respect of a claim under the Workmen’s
Compensation Act, 1923. The learned Chief Justice, after a
brief analysis of the Act and the Scheme framed for the
Calcutta Port, held that when the Administrative Body of the
Board allocated a worker in the Reserve Pool to the
registered employer, then for the time being and for the
purpose of the work concerned, that worker becomes an
employee under the registered employer; and in that
decision the Court came to the conclusion that the
particular worker concerned was at the material time under
the employ of the Stevedore. When that is the position with
regard to a workman in the Reserve Pool, it stands to.
reason that the monthly worker who is engaged by a
registered employer under a contract on a monthly basis is
an employee of such registered employer,
The matter can also be considered from another point of
view, viz., can it be stated that the Board is carrying on
an industry,, so as to attract the provisions of the
Industrial Disputes Act ? We have already referred to the
various. circumstances which will show that there is no
employment as such of the dock worker by the Board. As
observed by this Court in G. vmkhana Club Union v.
Management ( 3 ).
(1) [1967] 1 L.L.J. 509. (2) 71 C.W.N. 531.
(31 1968] 1 S.C.R. 742.752.
317
"What matters is not the nexus between the
employee and the product of the employer’s
efforts but the nature of the employer’s
occupation. If his work can not be described
as an industry his workmen are not industrial
workmen and the disputes arising between
them are not industrial disputes. The
cardinal test is thus to find out whether
there is an industry according to the
denotation of the word in the first part. The
second part will then show what will be
included from the angle of employees."
Dealing with the definition of ’industry’, this Court
further observed:
"The definition of ’industry’ is in two
parts. its first part it means any business,
trade, undertaking, manufacture or calling of
employers. This part of the definition
determines an industry by reference to
occupation of employers in respect of certain
activities. These activities are specified by
five words and they determine what an
industry is and what the cognate expression
’industrial’ is intended to convey. This is
the denotation of the term or what the word
denotes. We shall presently discuss what the
words ’business, trade, undertaking,
manufacture or calling’ comprehend. The second
part views the matter from the angle of
employees and is designed to include something
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more in what the term primarily denotes. By
the second part of the definition any calling,
service, employment, handicraft or industrial
occupation or avocation of workmen is included
in the concept of industry. This part gives
the extended connotation. If the activity can
be described as an industry with reference to
the occupation of the employers, the ambit of
the industry, under the force of the second
part, takes in the different kinds of activity
of the employees mentioned in the second part.
But the second part standing alone cannot
define ’industry’. An industry is not to be
found in every case of employment or service."
Dealing with the expression industri’al dispute’ in the
Industrial Disputes Act, this Court further proceeds to
state, in the above decision, at p. 757:
"... the words are ’industrial dispute’
and not ’trade dispute’. Trade is only one
aspect of industrial activity; business and
manufacture are two others. The word also is
not industry in the ’abstract which means
diligence or assiduity in any task or effort
but a branch
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of productive labour. This requires
cooperation in some form between employers and
workmen and the result is directly the product
of this association but not necessarily
commercial."
and wound up the discussion, at p. 758, thus:
"Industry is the nexus between employers
’and employees and it is this nexus which
brings two distinct bodies together to produce
a result."
Applying the above principles to the case on hand, in
our opinion it is clear that it cannot be stated that the
Board, ,functioning under the Act and the Scheme, carries on
any industry so as 10 attract the provisions of the
Industrial Disputes Act. As a claim for any type of bonus
can be met only from the actual employer in respect of any
industry and as we have held that the Board is neither the
employer nor carries on any industry, it follows that the
Industrial Tribunal was wrong in directing the Board to pay
bonus for the years in question. In this view the order of
the Industrial Tribunal, dated May 24, 1968 has to be set
aside. But, as the claim of the workmen against the
Stevedores Association and its members who ’are parties to
the Reference has to be considered and adjudicated by the
Industrial Tribunal, I.D. No. 10 of 1967 has to be remanded
to the Industrial Tribunal concerned for disposal according
to law. The Tribunal will be at liberty to call upon the
parties concerned to file supplementary statements and
permit them to adduce further evidence, oral and
documentary, which may be considered necessary; but it is
made clear that the Dock Labour Board, the appellant, will
be completely out of the picture in the rein’and
proceedings.
In the result, the order of the Industrial Tribunal,
Andhra Pradesh, Hyderabad, dated May 24, 1968 is set aside,
and this appeal allowed. I.D. No. 10 is remanded to the
said Tribunal to be dealt with ’and disposed of, according
to law and the directions contained in this judgment.
Parties will bear their own costs of this appeal..
Y.P. Appeal allowed.
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