Calcutta High Court
Calcutta Dock Labour Board vs Master Stevedors' Association And Ors. on 23 September, 1997
Equivalent citations: (1997)IIILLJ1267CAL
JUDGMENT
1. At the root of the controversy in this appeal under Clause 15 of the Letters Patent is the interpretation that the Central Government has given to clause 3 of Regulation 56 of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1990 framed under the Dock Workers (Regulation of Employment) Act, 1948. It appears that a dispute is existing between the parties with regard to the sanctioning of levy exceeding 100% of the total wage bill as envisaged under Regulation 56 of 1970 Scheme. It also appears that the dispute has been in vogue since 1984. Various resolutions adopted by the Dock Labour Board, Calcutta constitute the backbone of the dispute. These resolutions formed the subject matter of two writ applications one being Matter No. 6196 of 1986: The Master Stevedors' Association v. Calcutta Dock Labour Board and others, decided by AJIT KUMAR SENGUPTA, J. (as he then was) on May 5, 1988 and the other being Matter No. 4567 of 1988 : The Master Stevedors' Association v. Calcutta Dock Labour Board decided by MONORANJAN MALLICK, J. (as he then was) on September 15, 1989. For our purpose the operative part of the judgment of MONORANJAN MALLICK, J. in Matter No. 4567 of 1988, is relevant. We reproduce hereinbelow the aforesaid operative part of that judgment which reads thus :--
"I would, therefore, dispose of the writ petition with this direction that the Respondent No. 1 shall within a fortnight from the date of communication of this order seek the approval of the fixation of levy at 202.67% by the Board's Resolution of the year 1984 and the Resolution No. 35, dated June 28, 1984 on which the box rate charges have been fixed for 20 TEU containers and after the approval of the same is obtained, the writ petitioners shall be at liberty to make their fresh claim for refund of the amount paid in excess and for which the Board has already resolved by the resolution dated July 29, 1987 to make the refund. There is no order for costs.
All parties including the Calcutta Dock Labour Board shall act upon the signed copy of the operative portion of this judgment."
2. Pursuant to the aforesaid judgment, and in compliance therewith, the Government of India in the Ministry of Surface Transport vide the communication dated April 12, 1990 under the signatures of the Joint Secretary refused to grant ex-post facto sanction to the resolutions in question, in furtherance of the judgment of JUSTICE MONORANJAN MALLICK on the ground that Regulation 56(3) of 1970 Scheme does not envisage ex-post facto approval since this para clearly provides for obtaining prior approval of the Central Government. Even while the aforesaid order dated April 12, 1990 was being passed, the third writ application being Matter No. 727 of 1990 came to be filed by the petitioners in which the learned single Judge vide judgment dated January 24, 1991, while allowing the writ application passed a judgment to the effect that the approval of the Central Government in terms of Regulation 56(3) of 1970 Scheme should be deemed to have been granted by the Central Government, notwithstanding the order passed on April 12, 1990 by the Government of India. The learned single Judge in the impugned judgment has taken the view that Regulation 56(3) of 1970 Scheme does not necessarily envisage written approval of the Central Government. Proceeding on the hypothesis that grant of written approval is not a necessary prerequisite or a mandatory requirement under Regulation 56(3), the learned single Judge also held, by interpreting the expression 'prior approval' and 'sanction', that the approval can be presumed by the silence of the Central Government in either not according the approval during all the relevant years or not conveying its rejection. On the premises, therefore, that approval under Regulation 56(3) can be presumed to have been accorded by either the conduct of the Central Government, or as the learned single Judge put it "by its silence", the learned single Judge also made the approval effective from a date which he considered reasonable, in the present case, one year from the date the resolutions are considered by him to have come into effect.
3. After hearing the learned advocates for the parties at length and considering all relevant aspects of the matter, we find ourselves in total disagreement with the view taken and the approach adopted by the learned single Judge in construing Regulation 56(3) to mean that the approval can be presumed to have been accorded by the Central Government as contemplated in that regulation, either by its silence in not doing anything or by its conduct during the relevant period and that, therefore, the approval should be deemed to have been accorded at the expiry of one year from the relevant date. We have no hesitation in holding that the law does not permit such a view to be taken because the according of approval as envisaged under Regulation 56(3) of 1970 Scheme is a positive act which has to be performed by the Central Government as in the context in which the expression 'prior approval' has been used in Regulation 56(3), the approval can neither be presumed nor inferred irrespective of the circumstances or the conduct of the Central Government. We, therefore, set aside the judgment of the learned single Judge on this ground alone.
4. We now come to the communication dated April 12, 1990 in which we find that the Central Government has refused to grant approval on the ground that the granting of approval in this case would amount to ex-post facto approval and that, according to this order, Regulation 56(3) does not envisage the grant of ex-post facto approval since it is only with the 'prior approval' of the Central Government that the sanction of levy could have been effected by the Dock Labour Board.
5. We extracted the operative part of the judgment of JUSTICE MONORANJAN MALLICK (as he then was) and we find very clearly that the learned single Judge vide that judgment dated September 15, 1989 had clearly decided that in the facts and circumstances of the present case, since the Dock Labour Board had not obtained prior approval of the Central Government with respect to the resolutions adopted by it relating to the sanction of the levy the Dock Labour Board was to obtain approval from the Central Government. This judgment, therefore, in the facts and circumstances of the case, as it then existed, clearly held that the approval of Central Government being necessary for any such sanction to be made effective, the sanction cannot be brought into force unless the approval of Central Government was obtained. In the facts and circumstances of this case, therefore, this judgment cast an obligation upon the Calcutta Dock Labour Board to seek approval of the Central Government in respect of the resolutions in question. The net effect of the judgment, therefore, was that the Central Government was under a corresponding obligation to consider the question of according its approval to the resolutions in question, of course on the merits of the case. In this background, therefore, it can safely be said in the facts and circumstances of this case that this Court in its judgment dated September 15, 1989 had clearly indicated that ex-post facto approval was not something which was not to be considered in this case in respect of the resolutions in question. We wish to make it clear that whether in every case ex-post facto approval under Regulation 56(3) is envisaged or not, is not the issue before us and, therefore, we are not called upon to return a finding, this way or the other, on that question. The only issue before us is that in the judgment dated September 15, 1989 this Court had cast an obligation upon the Central Government by directing Calcutta Dock Labour Board to obtain the approval of the Central Government, to consider as to whether under the facts and circumstances and upon its merits, the Central Government would or would not grant approval in respect of the resolutions of the Dock Labour Board. Such being the case, therefore, it was not open to the Central Government to refuse to consider the very question of grant of approval on the ground that Regulation 56(3) did not envisage the grant of ex-post facto approval at all. In our considered opinion, such stand of the Central Government ran counter to the ratio and the findings of the judgment dated September 15, 1989. We have therefore, no hesitation in setting aside the order/communication dated April 12, 1990.
6. In the aforesaid background, therefore, while disposing of this appeal we direct the Central Government to consider the entire question regarding the grant or otherwise of its approval in respect of the resolutions in question, in the light of the aforesaid judgment of this Court dated September 15, 1989 in its totality and based upon all the relevant factors. We, therefore, make it clear that the question of grant of approval by the Central Government lies within its exclusive domain and this question shall be considered by the Central Government in the totality of circumstances, taking into consideration all the relevant aspects including the resolutions which are relevant to the point of controversy involved in that case and not by taking into consideration any resolution in isolation, it shall also be within the exclusive domain of the Central Government to also consider, alongside the question of grant or otherwise of the approval, as to whether the resolutions have to have retrospective effect from a particular date or should they be given prospective effect, if at all the Central Government decides to grant approval.
7. Since the issue involved regarding the grant of approval concerns the respondent primarily, we also direct that the Central Government viz. the authority competent to decide the issue regarding the grant of approval or otherwise, shall afford a personal hearing to a representative of the respondent Master Stevedors' Association. It shall be open to the representatives of the Dock Labour Board and the Central Government as well, if they so like and choose to present their view points before the aforesaid competent authority at the time the hearing is given to the representative of the respondent Master Stevedors' Association.
8. The entire exercise regarding the grant or otherwise of the approval shall be completed very expeditiously and in any event within four months from today and consequential orders shall he passed within the same period.
9. The appeal is disposed of. No order as to costs.
All parties are to act on a signed xerox copy of this dictated order on usual undertaking.