Calcutta High Court (Appellete Side)
Board Of Trustees For The Port Of Kolkata vs The Secretary on 8 September, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
Present :
THE HON'BLE MR. JUSTICE BISWANATH SOMADDER
WP 4376 (W) of 2014
with
WP 37504 (W) of 2013
with
WP 19053 (W) of 2014
Board of Trustees for the Port of Kolkata
Vs.
The Secretary, Government of India & Ors.
For the Petitioner : Mr. Arunava Ghosh, Senior Advocate,
Mr. Ashoke Kumar Jena, Advocate
For the Union of India : Mr. Kaushik Chanda, Ld. ASG
Mr. Arpa Chakraborty, Advocate.
For Respondent no. 4 in : Mr. Ranjit Kumar Jaiswal, Sr. Advocate,
WP 4376 (W) of 2014 Mr. Sekhar Pal,
Mr. Bimal Kumar Dutta .......Advocates
For Respondent no. 4 in : Mr. Supriyo Chattopadhyay,
WP 37504 (W) of 2014 Ms. Paromita Malakar,
& Mr. Chiranjib Roy.........Advocates
WP 19053 (W) of 2014
Date of Hearing : 8.1.2016, 11.3.2016, 8.4.2016, 6.5.2016, 9.7.2016, 23.9.2016,
4.11.2016, 18.11.2016, 25.11.2016, 6.1.2017, 3.2.2017, 24.2.2017, 17.3.2017, 7.4.2017, 4.8.2017 Date of Judgement : 08.09.2017 Biswanath Somadder, J.- The three writ petitions involve a common issue and as such they are taken up for consideration together. The only issue that comes up for consideration is whether the three references of the dispute to the Industrial Tribunal 2 made by the Central Government could be made at all without the Central Government, at first, determining the actual relationship between the management of Kolkata Port Trust and the retrenched workmen.
Before looking into the orders of reference, it is necessary to look into certain facts which are on record. The writ petitioners in all the three matters are Board of Trustees for the Port of Kolkata. The respondents in WP No.4376(W) of 2014 are (1) The Secretary, Government of India, service through the Regional Labour Commissioner (Central), (2) Regional Labour Commissioner (Central), (3) Deputy Chief Labour Commission (Central), (4) Kolkata Port Contractors Labour Congress, (5) ABG Haldia Bulk Terminal Pvt. Ltd., (6) The Central Government Industrial Tribunal. The respondents in WP No.37504(W) of 2014 are (1) The Secretary, Government of India, service through the Regional Labour Commissioner (Central), (2) Regional Labour Commissioner (Central), (3) Deputy Chief Labour Commission (Central), (4) Nationalist H.D.C. (CPT) Thika Sramik Mazdoor Union Sansad Kariyaloy, (5) ABG Haldia Bulk Terminal Pvt. Ltd., (6) The Central Government Industrial Tribunal. Lastly, the respondents in WP No.19053(W) of 2014 are (1) The Secretary, Government of India, service through the Regional Labour Commissioner (Central), (2) Regional Labour Commissioner (Central), (3) Deputy Chief Labour Commission (Central), (4) Nationalist H.D.C. (CPT) Thika Sramik Mazdoor Union Sansad Kariyaloy, (5) ABG Haldia Bulk Terminal Pvt. Ltd., (6) The Central 3 Government Industrial Tribunal and (7) Union of India, through the Secretary, Ministry of Labour and Employment, Government of India. ABG Haldia Bulk Terminal Pvt. Ltd. is the respondent no.5 in all the three writ petitions.
It is noticed from the records that although ABG Haldia Bulk Terminal Pvt. Ltd., being respondent no.5, was put on notice, they never entered appearance at any stage of the present proceeding.
The three orders of reference in the three writ petitions are set out hereinbelow:
" ORDER NO.. L-32011/01/2013 (IR(B-II) : WHEREAS the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of Kolkata Port Trust, and their workmen in respect of the matters specified in the Schedule hereto annexed; AND WHEREAS the Central Government considers it desirable to refer the said dispute for adjudication; NOW THEREFORE, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby refers the said dispute for adjudication to the Cent. Govt. Indus. Tribunal-cum-Labour Court, Kolkata. The said Tribunal shall give its award within a period of three months.
4The Schedule
(i) Whether the action of the management of HBT in retrenchment of 348 workmen w.e.f. 03/11/2012 who are working in Berth No. 2 and 8 of HDC are justified? If not, what relief the workmen are entitled to?"(ii) Whether the demand of the union for reinstatement of 348 retrenched workmen at HDC under KOPT for handling of cargo work is justified? If so, what relief the said 348 workmen are entitled to?"
(SHEESH RAM) Section Officer T. No.-23473147 Email-
Copy forwarded for necessary action to :
*1. The Presiding Officer Cent. Govt. Indus. Tribunal-cum-Labour Court 20B, ABDUL HAMID STREET, FIRST FLOOR, BLOCK-I(H), Kolkata - 700069 *2. The Chairman, Kolkata Port Trust, 15 Strand Road, Kolkata.
Kolkata - 700001 *3. Chairman Cum Managing Director, 5 ABG Haldia Bulk Terminal Pvt. Ltd., 5th Floor Bhupati Chamber, 13 Mathow Road, Mumbai. MUMBAI -
*4. President, Kolkata Port Contractors Labour Congress, 10/2 Kabitirtha Sarani, Kolkata Kolkata - 700023"
" ORDER NO.. L-32011/2/2012 (IR(B-II) : WHEREAS the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of Kolkata Port Trust, and their workmen in respect of the matters specified in the Schedule hereto annexed;
AND WHEREAS the Central Government considers it desirable to refer the said dispute for adjudication;
NOW THEREFORE, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby refers the said dispute for adjudication to the Cent. Govt. Indus. Tribunal-cum-Labour Court, Kolkata. The said Tribunal shall give its award within a period of three months.
The Schedule "Whether the action of the management of Haldia Bulk Terminal Pvt. Ltd. to retrench their 275 no. of workmen deployed at berth No. 2 & 8 of Haldia Dock Complex (Kolkata Port Trust) without consulting the union and Principal 6 Employer, Kolkata Port Trust, is justified? What relief the workmen are entitled to?"
(SHEESH RAM) Section Officer T. No.-23473147 Copy forwarded for necessary action to :
*1. The Presiding Officer Cent. Govt. Indus. Tribunal-cum-Labour Court 20B, ABDUL HAMID STREET, FIRST FLOOR, BLOCK-I(H), Kolkata - 700069 *2. The Chairman, Kolkata Port Trust, 15 Strand Road, Kolkata.
Kolkata - 700001 *3. Shri Sakat Aggarwal CMD ABG Haldia Bulk Terminal Pvt. Ltd. 5th Floor Bhupati Chamber, 13 Mathow Road, MUMBAI - 400004 *4. The President Nationalist HDC(CPT) Thika Sramik Mazdoor Union Sansad Karyalaya, Uttarpally, PO: Durgachak, Dist:Purba Medinipur West Bengal -...."
7
" ORDER NO.. L-32011/03/2013 (IR(B-II) : WHEREAS the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of Kolkata Port Trust, and their workmen in respect of the matters specified in the Schedule hereto annexed; AND WHEREAS the Central Government considers it desirable to refer the said dispute for adjudication; NOW THEREFORE, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby refers the said dispute for adjudication to the Cent. Govt. Indus. Tribunal-cum-Labour Court, Kolkata. The said Tribunal shall give its award within a period of three months.
The Schedule "Whether the action of the management of Haldia Bulk Terminal Pvt. Ltd to retrench their 338 no. of workmen deployed at berth No.2 & 8 of Haldia Dock Complex (Kolkata Port Trust) without consulting the union and Principal Employer, Kolkata Port Trust, is justified? What relief the workmen are entitled to?"
(SHEESH RAM) Section Officer T. No.-23473147 8 Copy forwarded for necessary action to :
*1. The Presiding Officer Cent. Govt. Indus. Tribunal-cum-Labour Court 20B, ABDUL HAMID STREET, FIRST FLOOR, BLOCK-I(H), Kolkata - 700069 *2. The Chairman, Kolkata Port Trust, 15 Strand Road, Kolkata.
Kolkata - 700001 *3. Shri Sakat Agarwal, Chairman cum Managing Director ABG Haldia Bulk Terminal Pvt. Ltd.
5th Floor Bhupati Chamber, 13 Mathow Road, MUMBAI - 400004 *4. The President Nationalist HDC(CPT) Thika Sramik Mazdoor Union Sansad Karyalaya, Uttarpally, PO: Durgachak, Dist:Purba Medinipur Medinipur -...."
It may be noticed that in the recital part of the three orders of reference, it has been stated that an industrial dispute exists between the employer relating to the management of Kolkata Port Trust (hereinafter referred to as "KoPT") and their workmen or any union of their workmen, and such is the cause upon which the 9 reference was made. It is noticed from the record that KoPT had awarded a contract to Haldia Bulk Terminal(hereinafter referred to as "HBT") as a contractor for supply, operation and maintenance of various cargo handling equipments at Berth nos. 2 and 8 at Haldia Dock Complex on or about 29th April, 2009 for a period of 10 years. This contract was unilaterally terminated by HBT by a communication dated 31st October, 2012. KoPT claimed that it had suffered huge losses owing to such termination of contract. The dispute with respect to claims of losses and damages between KoPT and HBT is currently pending before an arbitral tribunal. The two workmen's union, namely, Kolkata Port Contractors Labour Congress (in WP No.4376(W) of 2014) and Nationalist H.D.C. (CPT) Thika Sramik Mazdoor Union Sansad Kariyaloy (in WP No.37504(W) of 2014 and in WP No.19053(W) of 2014) raised dispute under section 2 (k) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "ID Act") primarily on the ground that HBT had illegally and unlawfully retrenched the services of a large number of workmen in the most arbitrary manner. This may be noticed from the letters dated 12th November, 2012, 8th November, 2012 and 26th September, 2012 written by the Regional Labour Commissioner(Central), Kolkata, referred to in WP 4376(W) of 2014, WP 19053(W) of 2014 and WP 37504(W) of 2013, respectively. The Regional Labour Commissioner initiated conciliation proceedings. Minutes of the meeting held before the Regional Labour Commissioner reveal that HBT had retrenched 346, 346 and 10 275 numbers of workmen referred in WP 4376(W) of 2014, WP 19053(W) of 2014 and WP 37504(W) of 2013, respectively and the workmen's unions demanded reinstatement with full wages / other benefit. The specific allegation of KoPT was that since these workmen were engaged by HBT, there was no employer-employee relationship between KoPT and the workmen in question. Notably, the minutes of the conciliation proceedings indicate that HBT stated that it had terminated its contract with KoPT. HBT also stated that it had retrenched its workmen after complying with the provisions of labour law, full compensation and notice to all concerned. Thereafter, the Regional Labour Commissioner informed the Secretary to the Government of India, Ministry of Labour and Employment, that industrial dispute had been raised by the workmen's union against the management of HBT and conciliation proceedings for the same resulted in failure. The Chairman, KoPT received the three orders of reference as quoted hereinabove, which are the subject matter of challenge in the three writ petitions.
It is the specific case of the KoPT that although in the recital portion of the three orders of reference, it has been stated that the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of KoPT and their workmen, there was no employer-employee relationship between the retrenched workmen of the two unions and KoPT. During the course of hearing of the matter, it was submitted on behalf of KoPT that on the 11 face of it, the orders of reference suffer from perversity, inasmuch as in the recital part it has been stated that workmen of KoPT were involved in the dispute which on the face of the record was not the case. It was the contract labour union which had raised dispute with regard to retrenchment of contract labourers by the contractors. According to KoPT, it is peculiar to note that when the admitted fact is that retrenchment has been made by HBT as the employer, which is evident from the schedule, reinstatement has been sought against KoPT. It is specifically contended on behalf of KoPT that reinstatement means employment to the original post under the employer which had retrenched the concerned workmen and not to another employer or the principal employer who was responsible for such retrenchment. However, according to KoPT, it is a statutory body, and has its own rights and regulations for employing its employees directly under it. The contractors' employees cannot get employment in KoPT ignoring or bypassing the rules of KoPT which has a statutory ingredient. Section 2 (k) of the ID Act, 1947 has been referred to in this context in order to submit that an industrial dispute covers any dispute of differences between employers and their workmen or between workmen themselves.
Admittedly, the workmen of KoPT had not raised any industrial dispute with its management. It was the contractors' union which had raised disputes against the contractor for illegal retrenchment and therefore under no circumstances were the workmen of KoPT involved in the dispute. Since there exists no industrial dispute 12 between KoPT and its direct workmen, the reference itself is bad. Further, the concept of a principal employer does not exist within the scope of the ID Act. Several judgements have been cited on behalf of the KoPT during the course of hearing of the matter, which are as follows:
(i) JT 2001 (1) SC 117 [Gouri Sankar Chatterjee & Ors. vs. Texmaco Limited & Ors.];
(ii) (2001) 3 SCC 36 [Indian Banks Association vs. Workmen of Syndicate Bank & Ors.];
(iii) (2000) 1 SCC 371 [National Engineering Industries Ltd.
vs. State of Rajasthan & Ors.];
(iv) (2000) 2 SCC 455 [Nedungadi Bank Ltd. vs. K. P. Madhavankutty & Ors.];
(v) AIR 1960 SC 1223 (V 47 C 215) [(1)State of Bombay (now Maharashtra)(in C. A. No.37 of 1957); (2) Firestone Tyre and Rubber Co., (in C. A. No.38 of 1957) vs. K. P. Krishnan & Ors.(In both the appeals)];
(vi) 1991 (61) FLR 645 [Jamshedpur Contractors Works Union vs. State of Bihar & Ors.];
(vii) 1992 (1) CHN 21 [M/s. Aaj Kaal Publishers Ltd. vs. State of West Bengal & Ors.];
(viii) (2015) 4 SCC 71 [Oshiar Prasad & Ors. vs. Employers in relation to Management of Sudamdih Coal Washery 13 of M/s. Bharat Coking Coal Limited, Dhanbad, Jharkhand];
(ix) (2007) 5 SCC 755 [U.P. Power Corporation Ltd. & Anr.
vs. Bijli Mazdoor Sangh & Ors.];
(x) AIR 1953 SC 53(Vol.40, C. N.15)[The State of Madras vs. C. P. Sarathy and another];
(xi) (2015) 7 SCC 263 [Chauharya Tripathi & Ors. vs. Life Insurance Corporation of India & Ors.];
(xii) (2014) 5 SCC 75 [Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors.].
On the other hand, on behalf of the workmen's union, it was submitted that hundreds of workmen were engaged by HBT for the purpose of cargo handling at berth nos.2 and 8 which was under the control, supervision and operation of Haldia Dock Complex. It was further submitted that KoPT had categorically acknowledged
- save and except that non-payment of PF and ESI, if any, by HBT - it had no liability. The process of cargo handling was a continuous process and if the contractor / agency was changed, the workers / employees remain the same. This is the convention and usages in KoPT and is still in practice for more than three decades. That apart, it is under Haldia Dock Complex premises that control and cargo operations are carried out. So, KoPT cannot shake off their responsibilities towards their workmen. Several judgements of the Supreme Court had been referred 14 to and relied upon on behalf of the workers' union, which included (i) AIR 1953 SC 53 (Vol. 40, C. N.15) [The State of Madras vs. C. P. Sarathy & Anr.]; (ii) 2000(1) SC 454 [The Secretary Indian Tea Association vs. Ajit Kumar Barat & Ors.];
(iii) (2002) 4 SCC 490 [Sharad Kumar vs. Govt. of NCT of Delhi & Ors.]; (iv) AIR 1985 SC 860 [The M. P. Irrigation Karamchari Sangh vs. State of M. P. & Anr.]; (v)2006 AIR SCW 1108 [ A. P. S. R. T. C. & Ors. vs. G. Srinivas Reddy & Ors.]; (vi)AIR 1978 SC 1088 [Shambu Nath Goyal vs. Bank of Baroda]; (vii) AIR 1978 SC 1410 [Hussainbhai vs. The Alath Factory Tezhilali Union & Ors.];
(viii)(1989) 3 SCC 271 [Telco Convoy Drivers Mazdoor Sangh & Anr. vs. State of Bihar & Ors.]; (ix) 2008(4) CHN 592 [Birla Corporation Ltd.(Unit Soorah Jute Mill) Sramik Union vs. Birla Corporation Ltd. & Ors.].
During the course of hearing of the matter, three corrigenda of identical nature
- corresponding to the three orders of reference - were handed over to the Court by the learned Additional Solicitor General of India, one of which reads as follows:
" CORRIGENDUM NO..L-32011/03/2013 (IR(B-II)): The first paragraph line No.2 of the Adjudication Order of even number dated 12/8/2013 may be read as Haldia Bulk Terminal Private Limited and Kolkata Port Trust instead of Kolkata Port Trust."
15If one looks at it carefully, it will be apparent that the recital in the three orders of reference will now read as follows:-
"WHEREAS the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of Haldia Bulk Terminal Private Limited and Kolkata Port Trust, and their workmen in respect of the matters specified in the Schedule hereto annexed;"
Therefore, the three orders of reference - upon amendment - in terms of the corrigenda dated 23rd February, 2017 (No.L-32011/03/2013); 30th August, 2017 (No.L-32011/03/2013) and 30th August, 2017 (No.L-32011/02/2012) do not define KoPT as the sole employer. As such, none of the judgements cited by the respective parties would be applicable in the facts of the present case.
It is an admitted position that in the facts and circumstances of the instant case, there exists an industrial dispute. However, even though the Central Government has referred such a dispute for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Kolkata, the amendment of the orders of reference - after the issuance of the three corrigenda - casts a mandate upon the tribunal to decide a question as to whether liability rests only on HBT or KoPT or can both be held jointly liable in such a situation. Thus, the preliminary issue to be decided must 16 be on the lines of whether the dispute lies exclusively between the workmen and HBT or workmen and KoPT or both, before the Tribunal proceeds to adjudicate upon the terms of reference as contained in the schedule thereunder.
At this stage, it may be observed that during the course of arguments it has been contended that the concept of a principal employer does not exist in the Industrial Disputes Act and therefore, the obligations or duties thrust upon a principal employer by law has no bearing on KOPT. In so far, as this contention is concerned, the question is left open for adjudication by the tribunal.
The writ petitions stand disposed of accordingly. Urgent photostat certified copy of this judgement and order, if applied for, be supplied to the parties on priority basis.
(BISWANATH SOMADDER, J.)