Calcutta High Court
The Master Stevedores' Association And ... vs Calcutta Dock Labour Board And Ors. on 11 October, 1988
Equivalent citations: (1989)1CALLT346(HC)
JUDGMENT Susanta Chattelji, J.
1. The present Rule was issued on 13th May, 1988 after the appearance of all the respondents. The Rule is taken up for hearing as agreed by all the parties concerned. The writ petitioners namely the Master Stevedores' Association and the Calcutta Master Stevedores' Association have filed the present writ petition praying inter alia for issuance of a Writ of Mandamus commanding and directing the Respondents and each of them, their servants and agents to forthwith withdraw, revoke, recall and/or cancel the resolutions bearing Nos. 62 and 65, dated September 6, 1985 and September 21, 1985 respectively and the approval granted by the Central Government and for permanent injunction to restrain the Respodents and/or their men and agents from giving effect to or taking any steps in terms of, or pursuant to the said Resolution Nos. 62 and 65 as aforesaid and the letter of approval, dated 21st November, 1985 issued by the Central Government and for other consequential reliefs in slhe manner as stated in the writ petition itself. The petitioners have emphasized their case in paragraphs 16 to 19 of the writ application as to the impugned circulars and the letter, dated November 21, 1985. To appreciate the case of the petitioners, the said Resolution Nos. 62 and 65 and the letter, dated November 21, 1985 are required to be considered. The said resolutions are quoted hereinbelow.
2. It is stated that the Respondent No. 1 Dock Labour Board passed the Resolution Nos: 62 and 65 in spite of objections raised by the representatives of the registered employers' present at the said meeting. The said Resolution Nos. 62 and 65 are as follows:
"Resolution No. 62, dated 6-9-85:
(a) Calcutta Dock Labour Board being licensed by the Calcutta Port Trust under Clause 4(a) of CPT bye-law be and is hereby registered as Stevedore/Employer for drawing all categories of workers from the Board for handling all types of cargoes under the Calcutta Dock Workers' (Regulation of Employment) Scheme, 1970 and the Calcutta Dock Clerical and Supervisor Workers (Regulation of Employment) Scheme, 1970.
(b) Calcutta Dock Labour Board be registered as employer under the Calcutta Chipping & Painting Workers' (Regulation of Employment) Scheme 1970, after obtaining necessary licence from the C.P.T.
(c) The Central Government be requested to examine the legal position in respect to (a) and (b) above, after obtaining clarification from the Central Government, above decisions will be given effect".
Resolution No. 65, dated 21-9-1985 :
Resolved that the Minutes of the 7th Meeting of the Calcutta Dock Labour Board for the year 1985-86 held on 6.9.85 be and are hereby confirmed subject to the following amendment:
(a) The words 'Calcutta Dock Workers' (Regulation of Employment) Scheme, 1970 appearing under Resolution No. 62, dated 6.9.85 in Page 525 be substituted by the words "Calcutta Dock Clerical and; Supervisory Workers' (Regulation of Employment) Scheme, 1970".
(b) The following words be added at the end of Resolution No. 62(a), dated 6.9.85 appearing at Page 526 : "Subject to (c) below, i.e., Government of India holding the view that it is legally permissible".
(c) The following paragraph be added at the end of Item No. 14(b) in Page 526 :
"Arising out of the above, employer members felt that it would be proper to adopt the resolution after obtaining Government's views".
Before considering any comments the D.O. Letter No. LDC/6O/85-LIV November 21, 1985 by the Respondent No. 4 is as follows :
"As contemplated in Clause 17(i) of the Calcutta Dock Workers' (Regulation of Employment) Scheme, 1970 legally there is no objection for the Calcutta Dock Labour Board to get itself registered as employer under these Scheme, subject to the provisions contained in the aforesaid Scheme".
3. In order to challenge the two aforesaid Resolution Nos. 62 and 65 and the D.O. Letter, dated 21st November, 1985 the writ petitioners have made out a case that both the registered Associations of Stevedores are duly registered with the Registrar of Trade Unions under the Trade Union Act, 1926. They are carrying on the business as Stevedores of the Port of Calcutta. It is stated that for regulating the employment of dock workers in the country the Parliament promulgated the Dock Workers (Regulation and Employment) Act, 1948. In accordance with the powers conferred by the Sections 3 and 4 of the said Act in or about 1970 the Central Government framed Calcutta Dock Workers' (Regulation and Employment) Scheme, 1970 (superseding the earlier schemes in this regard, the Calcutta Dock Clerical and Supervisory Workers' (Regulation of Employment) Scheme, 1970 and the Calcutta Chipping and Painting Workers' (Regulation of Employment) Scheme, 1970. The petitioners allege that as per the scheme the "Board" means the Calcutta Dock Labour Board constituted under the Dock Workers' (Regulation of Employment) Act, 1948 and "dock employer" means the person by whom a dock worker was employed or is to be employed ; and the "registered employer" means an employer whose name is, for the time being entered in the employer's register. According to the writ petitioners, a perusal of the provisions of the said Act and/or the Rules and/or the Schemes would make it apparent that the Respondent No. 1 Calcutta Dock Labour Board is required to administer on behalf of the Central Government, the said Schemes for the Port or Ports for which the Respondent No. 1 has been established. The petitioners go on submitting that it would further be seen therefrom that in the formation of the Respondent No. 1, the dock workers and the employers of dock workers are to be included in equal proportions. Thus, the Respondent No. 1 for all practical purposes is the authority for not only controlling the employment and/or non-employment of dock workers in the concerned Port but it is also the Supervising Authority over the employers and the employees of the said Port. They have emphasized upon the word "employer" as defined by Section 2(c) of the said Act to mean the person by whom the dock worker is employed or is to be employed. Similar definitions are given to "employer" in Clauses 3(8) and 3(f) of the Schemes respectively. Clauses 3(i), 3(8) and 3(h) respectively of the said Schemes defined "employers register" to mean register of Dock Employers to be maintained under the said Schemes. It is alleged that the Respondent No. 1 Calcutta Dock Labour Board is the Controlling Authority for registration or non-registration of an employer under the said Schemes as would be confirmed by Clause 3(b), 7(b), 7(c) respectively of the said Schemes. The said Schemes would indicate inter alia that only the Respondent No. 1 is the Appointing Authority but is also the Disciplinary Authority. It is also claimed that in fact, without the sanction of the Board, no registered employers including the members of the petitioners, can employ any dock worker and the employers like the members of the petitioners have also to comply with and/or act in respect of the said dock workers in terms of the directions and/or regulations fixed by the Respondent No. 1 and make payment to such dock workers in accordance with the provisions contained in the said Schemes, under the control and supervision of the Respondent No. 1. In the background of such function of the Board as provided in the statute, the Respondent No. 1 made the aforesaid resolution Nos. 62 and 65 respectively and obtained the approval of the Central Government thereof which are contrary to and/or inconsistent with the Act and the Schemes. The petitioners state that the said purported Resolution Nos. 62, dated 6.9.85 and the purported Resolution No. 65, dated September 71, 1985 and the purported approval granted by Letter, dated November 21, 1985 by the Central Government are arbitrary, illegal and mala fide. They are without and/or in excess of jurisdiction, and without the Authority of law. The writ petitioners have specifically challenged that the Respondent No. 1 cannot legally be registered as "employer" under the said Act and/or the said Scheme. They assert that there is no provision in the said Act and/or the said Scheme and/or the said Rules whereby the Respondent No. 1 can register itself and/or act an "registered employer". The said purported resolutions and/or the said purported approval are, therefore, ultra vires the said Act and/or the said Schemes and therefore, null and void and no effect can be given thereto and/or no steps taken on the basis thereof and/or thereunder.
4. The Respondent No. 1 Calcutta Dock Labour Board and its Chairman the Respondent No. 2 and the Deputy Chairman the Respondent No. 3 have strongly contested the writ application by filing an Affidavit-inopposition. They have controverted the allegations made by the writ petitioners in details after raising certain technical points as to the fundamental rights of the petitioners to sustain the writ application. It is disclosed that for sometimes the petitioners have been making certain wrongful demands for various concessions which could not be accepted by the Respondent No. 1, Calcutta Dock Labour Board as it was not possible. By a Letter, dated 28th August, 1985 the petitioners notified the Respondent No. 1 of their unanimous decision to the effect that they would stop requisition of registered dock workers from the Respondent No. 1 on and from 4th September, 1985 if their demands for concessions were not granted. The Convenor of the Consultative Committee of Stevedores in Calcutta Mr. D. S. Bose even made a press conference on 30th of August, 1985 in which he openly declared the said decision of the petitioners. The proposed measure of threat ineffect would result in complete stoppage of loading and unloading operations in the Port of Calcutta resulting in complete break down not only the work of the Calcutta Port but would also entail national loss and break down of the whole economy of the Eastern India which is the hinter-land of Calcutta Port as alleged. It is stated that the said threat of the petitioners was nothing but to put the Respondent No. 1 in particular, and the operations of the Calcutta Port in general to ransom. Taking note of the said threatened actions by the petitioners, the Respondent No. 1 being a statutory body with the large number of work force registered with it, have no alternative but to oppose the resolution empowering itself to function as a registered employer in the Calcutta Port in order to emergent eventuality and under extreme situation and not during normal working conditions of Calcutta Port. The Board meeting of the Respondent No. 1 held on October 10, 1985. The entire minutes of the meeting held on September 21, 1985 in which the impugned Resolution No. 62 formed part were confirmed without any objection from inside and not even from the side of the representatives of the petitioners who were very much present in the said meeting as claimed. The impugned resolutions have been passed and the approval of the Central Government has been obtained to safeguard the real interest of the Port and the decision has been taken for national interest. The acts done or caused to have been done are not contrary to the Calcutta Dock Workers' (Regulation and Employment) Act, 1948 and/or the Schemes made thereunder and/or the Rules framed thereto. An Affidavit-in-reply has been filed by the petitioners reiterating the stand taken in the main writ petition and denying the counter-allegations as made by the respondents in their Affidavit-inopposition.
5. Mr. Bhaskar Gupta, the Learned Counsel appearing for the petitioners has mainly argued that the provisions in the three schemes framed in exercise of powers conferred by the Dock Workers' (Regulation of Employment) Act, 1948, would clearly indicate that the "Board" cannot become a "registered employer" and the stand taken by the Respondents is fallacious. According to him, the "Board" becoming a "registered employer" under the Schemes would be a collateral nature of activity, and it was not originally contemplated when the Act was enacted and the Schemes were framed thereunder. Such an activity cannot be termed as incidental or ancilliary functions. The function of the Board as envisaged under the Act and the Schemes must be understood for the purpose that the dock workers receive regular adequate employment and they are not exploited by the registered employer in this regard arid to see that the dock workers achieved efficiency of performance and attained satisfactory levels of activities. He has drawn the attention of the Court to Clauses 2(1), 7(1), 8(b), 8(m), Clause 41 sub-clause (5)(i), (6) and (8), Clause 48 (b) and Clause 52, Clause 55 and Clause 56 sub-clause (1) and (4) and Clause 59 of the Calcutta Dock Workers' (Regulation of Employment) Scheme, 1970 as well as various Clauses of Calcutta Dock Clerical and Supervisory Workers' (Regulation of Employment), Scheme, 1970 and also Calcutta Chipping and Painting Workers (Regulation of Employment), Scheme, 1970 to build up his argument that the impugned resolutions and the purported letter of approval of the Central Government are absolutely against the object of Dock Workers' (Regulation of Employment) Act, 1948 and the Schemes framed thereunder. He has emphasized that the object of the Dock Workers' (Regulation of Employment) Act, 1948 as would be seen from the preamble thereof is to regulate the employment of dock workers. He goes on submitting that there is no provision in the Act or in the Rules which provide or contemplate that the Board can act as the "registered employer." The Board is a creature of statute and its powers, duties and functions are circumscribed by the provisions of the said statute, thereby. The Board has been made responsible for administering Schemes. It is, therefore, obvious that such administration cannot effectively be done if the Board has to function as a "registered employer". He further contended that a perusal of the provisions of the Schemes would show that the Dock Workers are under complete control of the Board in all other matters and as such, the Board will be entitled to all the advantages of such Schemes and the powers granted to it by the Act, Rules and the Schemes for completely different purposes, and if cannot act in a way to the detriment of the other registered employers. This attempt cannot be said to be any incidental or ancilliary power but it is a collateral function or power which is not authorised by law.
6. Mr. Bhaskar Gupta has mainly built up his argument by referring the case of (Vizagapatnam, Labour Board v. Stevedores' Association, Vishakhapatnam and Ors.) . In this case, the Hon'ble Supreme Court considered Section 18 of the Industrial Disputes Act (1947).-Tonnage Bonus-claimed by Dock Workers and Vizagapatnam Port Master Stevedores' Association and its members, and in view of the pleadings and nature of claim it was held that there was no justification to make Vizagapatnam Labour Board, liable for same. The Hon'ble Supreme Court considered Dock Workers' (Regulation of Employment) Act, 1948, Vizagapatnam Dock Workers' (Regulation of Employment) Scheme, 1959 and the relationship between Vizagapatnam Dock Labour Board, and Stevedores' Association vis-a-vis Dock Labour Workers. After considering the provisions of the Act and the Scheme, it has been held that the 'Board' is not found to be the "Employer" of Dock Labour Workers. On the facts, it has further been found that the recruitment and the registration of Dock worker and for fixation of their wages and dearness allowances, payment of workmen's compensation, and taking off the disciplinary action and prohibition against employment of those who are not registered with the Board, are made by the Board and such functions do not establish the relationship of employer and employees between the "Board" and "Dock Labour". These functions ensure better regulation of employment of dock labour and consequently dock workers are employees of the registered employers to whom they are allotted by the Board. The said decision held that Vizagapatnam Dock Labour Board functioning under Dock Workers' (Regulation of Employment) Act, 1948 and Vizagapatnam Dock Workers' (Regulation of Employment), Scheme, 1959 is not an "industry" as defined under Section 2(j) of the Industrial Disputes Act, 1947. After examining the Act and the Schemes framed thereunder it was clearly found that it cannot be stated that the Board functioning under the Act and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act. Consequently, the decision was made that the Board is neither "employer" nor it carries any industry. According to Mr. Gupta, the Hon'ble Supreme Court had the occasion to examine the various aspects of Dock Workers' (Regulation of Employment) Act, 1948 and the Schemes framed under the Act and by effective examination and scrutiny it has been found without any ambiguity that the Board does not function as a registered employer and the existing workers cannot claim bonus against the Board as the function of the Board does not bring within the mischief of the definition of "industry". The said decision reported in 1970 S.C. (Supra) was referred in a recent Division Bench Judgment of this Court reported in 86 CWN, P. 113 (Calcutta Dock Labour Board v. Payment of Wages Authority and Ors.). The Bench presided over by the Hon'ble Mr. Justice Anil Kumar Sen (As His Lordships then was) relying upon the aforesaid decision of the Hon'ble Supreme Court found that Dock Labour Board not being the employer in relation to the applicants/dock workers, no application under Section 15(2) of the Payment of Wages Act could have been entertained by the authorities concerned against the Board and the entire proceedings before the Authority was totally beyond its jurisdiction. The attention of this Court has been drawn to another decision reported in 1977(1) C.L.J. P. 480 (Promode Ranjan Dutta and Ors. v. Union of India and Ors.). It was held that from the provisions of the Calcutta Dock Workers' (Regulation of Employment) Act, 1948 and the Schemes framed thereunder there is no relationship of employer and employee, between "Board" and the "Dock Workers". The functions entrusted on the Board under the Schemes are, to ensure greater regularity of employment of dock workers and to secure that an adequate number of dock workers is available for efficient performance and the adequate work. The Schemes provide for the registered employers paying to the Board such amounts by way of levy in respect of the "reserve pool" workers without paying the gross amounts of wages due from them under the provisions of the said Schemes. The decision also indicated that the Board functioning under the 1948 Act and the Schemes, does not carry on any "industry" so as to attract, the provisions of the Industrial Disputes Act, 1947 and accordingly the provisions of Sections 25F and 25G of the Industrial Disputes Act have no application to matters affecting the dock workers registered under the Calcutta Dock Labour Board.
7. Mr. Gupta concluded his argument by referring to the oft-quoted decision (Ram Chandra Keshab Adke v. Govind Joti Chavare). It will appear therefrom that where power is given to a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. This Rule squarely applies where the whole aim and object of the legislature would be plainly divided if the command to do the thing in a particular manner did not imply a prohibition to do it in other way.
8. Mr. Subrata Roychowdhury, the Learned Senior Counsel appearing for Calcutta Dock Labour Board and its Chairman and Deputy Chairman argued that the case as made out by the petitioners is thoroughly misconceived. Looking to the objects and reasons of The Dock Workers' (Regulation of Employment) Act, 1948 and the Schemes framed under Section 3 of the Act it will be found that with a view to ensuring greater regularity of employment and for regulating the employment of dock workers the impugned resolutions have been made and there is no bar and/or impediment in making the resolutions and to obtain the approval of the Central Government in this behalf. He submitted by referring the decision reported in AIR 1962, Cal. P. 350 (Commissioners of the Port of Calcutta & Am. v. Asit Ranjan Mazumdar and Ors.) that there is no fundamental right to carry on business of Stevedoring at docks owned and controlled by Port Commissioners. A citizen of India has no fundamental right under Articles of the Constitution to carry on the particular business of Stevedoring at the docks owned and controlled by the Port Commissioners. General right to carry on the business is certainly there. It is also a fundamental right but the minimum claim is made to carry on a special and particular type of business available only within a particular area which is under the ownership and control of an individual or a statutory Corporation such as the Port, then such claim cannot be regarded as to assert the fundamental right to carry on the business within the meaning of the Constitution. He has broadly developed his submissions by drawing the attention of the Court to Lord Backburn's theory that a statutory authority endowed with statutory power, has, no common law powers at all. It can legally do only what the statute permits and what is not permitted, is forbidden. This strict doctrine of ultra vires and it applies in full force to most of the organs of the oGovernment. A statutory power will, however, be construed as impliedly authorising everything which can fairly be regarded as incidental or consequence of the power itself; this doctrine is not to be applied narrowly. The authorities will enjoy a wide (incidental power) and they may do anything which is calculated to facilitate or is consequential or incidental to the discharge of their functions. He has drawn inspirations from Wade's Administrative Law (5th Edition) Pages 216-217 and 436-437 to make his submissions more forceful. He has referred to Craies on Statute of Law at P. 281 to point one that in deciding what may be done under statutory powers, Courts of Law will always take into consideration the objects for which the statutory powers have been conferred. If the powers are conferred in order to enable a commercial concern to construct works which, of them of utility, will or to yield to the constructors a lucrative return that concerns will always be compelled to convene their operations strictly to the purposes contemplated by the enabling statute, whereas if the powers are granted to some public body, like a Corporation or Council solely to enable them to carry out some work of public utility or necessity, like making a new street or constructing a sewer, more latitude would be allowed in exercise of the powers which have been granted. He has reminded the Court as to the doctrine of ultra vires properly explained in the case of the (Attorney General & Ephrain Hatchings (Rector) v. The Directors & Ors. of the Great Eastern Railway Co.) as will appear from Law Reports (Appeal Cases) of 1880 (V) P. 473, to consider that whatever is fairly incidental to those things which the Legislature has authorised by an Act of Parliament ought not (unless expressly prohibited) to be held as ultra vires. In the same volume another case of (Frederick Guildar Julius v. Right Rev. The Lord Bishop of Oxford : The Rev. Thomas Thelluson Carter indicates infer aha that the words in a Statute "it shall be lawful" of themselves merely making with legal and possible of which where would, otherwise, be no right or authority to do. Their natural meaning is permissible and enabling only. The next case as referred is reported in Law Reports, Ch. Divn. 1932 (I) P. 562 (Attorney General v. Smethwick Corporation) laying down the principle, the acts with are incidental to or consequential upon whose things which the legislature has authorised, it ought not to be held to be ultra vires. The last English decision, he has. referred as to the case of (Franklin and Ors. v. Ministry of Town and Country Planning) reported in Law Reports (Appeal Cases) 1948 P. 87 during which objections to draft order-public legal enquiry-bias-functions of minister-conduct of enquiry. After discussing the principles of law and by referring to the objects and reasons of the Act 9 Of 1948 and the Schemes made thereunder and also by referring various clausestherein he tried to convince the Court that the powers of the Dock Labour Board cannot be circumscribed in the manner as challenged by the writ petitioners and the situations do warrant the Dock Labour Board to make the resolutions to enable the Board to work as a registered employer to the demand of the situation and such an act should be construed as incidental to and consequential upon the powers conferred by the legislature.
9. Patiently, this Court has heard the elaborate arguments advanced by the Learned Counsels appearing for the rival parties. This Court has also diligently considered the contentions made on behalf of the respective parties. This Court has very much appreciated the mutual admiration shown by the Learned Counsels appearing for the rival parties to each other. To pay respect and to command respect, is the real virtue of any dignified existence. The members of the Bar have the reputation to set up this example and to carry this tradition a longer way and will pave the way for the generation to follow with greater zeal and reverence. This Court records further that the Learned Counsels appearing for both the parties tried to assist the Court to remember that the Judgment really reflects the Bar.
10. Considering the Learned arguments of both sides this Court finds that the only problem that is required to be answered in this case is whether the Dock Workers' (Regulation and Employment) Act, 1948 and Calcutta Dock Workers' (Regulation and Employment) Scheme, 1970 and the Calcutta Dock Clerical and. Supervisory Workers' (Regulation of Employment), Scheme, 1970 and the Calcutta Chipping and Painting Workers' (Regulation of Employment), Scheme, 1970 permit the Calcutta Dock Labour Board to make the Resolution No. 62, dated 6th September, 1985 and the Resolution No. 65, dated 21st September, 1985 and whether such Resolutions can be regularise and/or approved by the communication dated 21st November, 1985 by the Ministry of Transport, Government of India. It is not the case that in view of the Act and the Schemes framed thereunder the Dock Labour Board is functioning as a registered employer and/or there is a relationship of employer and employee between the Dock Labour Board and a Dock Workers and/or the functions of the Dock Labour Board would be equated to that of an industry. These aspects have been considered by several decisions. In particular, the Hon'ble Supreme Court in the case of (Vizagapatnam Dock Labour Board v. Stevedores' Association, Vtshakhapatnam), AIR 1970 SC (Supra) has scrutinised and/or examined several provisions of the Act and various causes of the Schemes to find out that there is no relationship of employer and employee between the Dock Labour Board and the Worker. Relying upon the definition of "industry" as envisaged in the Industrial Disputes Act of 1947 it has found that the Dock Labour Board itself is not an industry. The subsequent research work as would be evidenced in 86 CWN P. 113 (Calcutta Dock Labour Board v. Payment of Wages Authority) and 1977(1) CLJ (Promode Ranjan Dutta v. Union of India) proceeded to find out that the existing affairs and functions of the Board as a supervisory organ and the position of a Dock Worker under a Stevedore being a registered employer. The answer was accordingly found that Board is not an employer, nor an industry and there is no relationship of employer and employee between the Dock Labour Board and the dock worker. There is another tier in between the two entities in order to rule out the claim for bonus by the Port worker against the Board or the liability of the Board as to the Payment of Wages Act' and there is no application of Section 15(2) of the Payment of Wages Act and Section 2K of the Factories Act in holding that the Board is not an employer nor the Board is a factory. This Court has anxiously considered the entire pleadings of the parties and the study of the said Act and the Schemes through the decisions cited by the Learned members off the Bar to find out that at no point of time it was considered as to within the scope and framework of the Dock Workers (Regulation and Employment) Act, 1948 and various Schemes framed thereunder as indicated above is it permissible for the Board to make the Resolution Nos. 62 and 65 and to obtain any approval from the Government of India as also indicated above to enable the Dock Labour Board to become a "registered employer" in view of the pending situation as made out by the respondents and/or argued by Mr. Subrata Roychowdhury. This aspect as to whether the entire object of the Act and the Schemes framed thereunder has the flexibility to make the impugned Resolutions. It has to be seen and to examine and to decide as to whether the Act and the Schemes confer any such power to enable the Board to become a "registered employer" or such an act may be construed incidental to or consequential upon the existing powers already conferred. It is also to be considered as to whether by looking to the entire scope of the Acts and the Schemes to find out whether there is any embargo or there is any bar or it is practically prohibited to permit the Board to make itself to be the "registered employer". With great respect to all the decisions cited from the Bar, this Court does not find that there is any decision covering this point that it is studied that such a possibility is ruled out, or whether it is possible or not. This Court feels that in the instant case such a point has got to be closely studied and mis aspect of case is put to acid test and alkali test. The expression is obviously of scientist and with this rhetoric this Court tries to find out whether the Resolutions made and the approval obtained by the respondents are warranted in law or not. It is strongly argued that the Stevedores' Association being registered as a registered employer is duly discharging its functions and the Board cannot claim itself to be a registered employer to affect the rights of the Stevedores' Association while the Act and the Scheme do not permit the same. The Dock Labour Board has however, argued that the Stevedores' Association is, in fact, taking out the cream with lucrative business ventures and standing in between the Board and the dock workers. They are threatening to paralyse the function of the Board itself by regulating the workers and likely to cause disruption to the loading and unloading and several operations of the dock with a great impact upon the function of the Board and the national economy. The Board had to make out the alternative by registered itself as a "registered employer" with the control of the dock workers as its own employees to meet the challenge Of a serious situation and/or to face the eventualities while the Stevedores' Association threats to stop work. It is with the spirit that in an emergent situation the Board can function directly and the Stevedores' Association cannot stand in the way. Incidentally, it is observed that by the impugned resolutions, the existing functions of the petitioners Stevedores' Association are not immediately interferred with. It is the apprehension of the petitioners that ultimately the petitioners' business will be affected and their existence will be prejudiced and more so they have challenged that such a resolution is not permissible under the law and the impugned resolutions are absolutely ill-motivated, unreasonable and ultra vires to the Act and the Scheme framed thereunder.
11. Looking at the objects and reasons of The Dock Workers' (Regulation of Employment), Act 1948 it will appear that the demand for dock labour is intermittent depending on the arrival and departure of vessels, the size and nature of the cargo as well as seasonal and cyclical fluctuations. In the Ports, therefore, there is an usually labour in excess of making requirements and the general tendency on the part of employer is to ensure larger reserves than necessary in order to provide ample margin against the emergencies. The main Port connected with dock labour is to device measures so as to reduce the hardship due to unemployment or underemployment to the utmost extent possible. The Roy Commission on Labour recommended as far back as 1931 that a policy of decasualisation of dock labourers in accordance with requirements and to ensure that the distribution of employment depends not on the caprice of intermediaries but on a system which, as far as possible, gives of efficient men and equal share. Government had accepted the recommendation and efforts were made to induce Port Trust to formulate necessary schemes of decasualisation. The voluntary attempt was not, however, a success and a scheme for compulsory registration was formulated in 1939 but was not proceeded with due to outbreak of War. Although the operation of certain measures introduced during the War such as rationing and organised distribution of foodstuffs, facilitated the registration of labour at Major Ports, the problem, in the main remained unsolved. It was proposed to undertake legislation giving power to the Central Government in respect of Major Ports and Provincial Governments in respect of other Ports, to frame a scheme for the registration of dock workers with a view to securing greater regularity of employment and for regulating the employment of dock workers whether registered or not, including rates of remuneration, hours of work and conditions as to pay holidays. It may also provide for payment to registered workers of minimum pay days on which work may not be available to them and for their training and welfare. The provision was made in the Bill for the Constitution of an Advisory Committee consisting of not more than 15 members representing the Government, the dock workers and the employers of dock workers in equal proportion. In the framing and administration of the Schemes the appropriate Government will take advice of the Committee. The said Act of 1948 has been amended by Act 8 of 1962, 31 of 1970 and 49 of 1980.
12. Looking at the Act, it will be found that "Board" means a Dock Labour Board established under Section 5A. The said Section 5A provides. inter alia:
(i) That the Government may, by notification in the Official Gazette, establish a Dock Labour Board for a Port or groups of Ports to be known by such as may be specified in the notification.
(ii) Every such Board shall be a body Corporate with the name aforesaid, having perpetual succession and common seal with power to acquire, hold and dispose of property and to contract and may by that name, sue and be sued.
(iii) Every such Board shall consist by a Chairman and such number of other members as may be appointed by the Government provided, that every such Board shall include an equal number of members representing :
(i) The Government
(ii) The Dock Workers and
(iii) The employers of dock workers and shipping companies.
(iv) The Chairman and a Board shall be one members appointed to report Government and nominated in his behalf by the Government.
13. It will also be found that in Calcutta Dock Workers' (Regulation of Employment), Act, 1948, Section 5B of the Act 9 of 1948 as aforesaid lays down the functions of a Board :
(i) A Board shall be responsible for administering the Scheme for the payment or group of Ports for which it has been established and shall exercise such powers and perform such function as may be conferred on it by the Scheme.
(ii) To indicate in the exercise of its powers and the discharge of its functions a Board shall be bound by such direction as the Government may for reasons to be stated in writing to it from time to time.
14. Looking again to the Calcutta Dock Workers' (Regulation of Employment) Scheme, 1970 it will be found from Clause IV that the Board shall be constituted in accordance with the Rules 3 to 7 of the Dock Workers' (Regulation of Employment) Rules, 1962.
Clause 7 : Functions of the Board :
(1) The Board may take such measures as it may consider desirable for furthering the objectives of Scheme set out in Clause 2, including measures for:
(a) ensuring the adequate supply of the full and proper utilisation of of dock labour for the purpose of facilitating the rapid and economic turn round of vessels and the speedy transit of goods through the port ;
(b) fixing, subject to the approval of the Central Government, the number of workers to be registered under various categories, after determining the number required under such category;
(c) regulating the recruitment and entry into and the discharge from the Scheme of dock workers and the allocation of registered dock workers in the reserve pool to registered employers ;
(d) determining and keeping under review, in consultation with the Administrative Body, the number of registered employers and registered dock workers from time to time on the registers or records and to increase or decrease, as may be necessary, the numbers in any such registers or records if the said review warrants the same in keeping with anticipated requirement and for better efficiency and economy of operations; '
(e) keeping, adjusting and maintaining the employers' registers, entering or re-entering therein the name of any dock employer and where circumstances so require, removing from the register the name of any registered employer, either at his own request or in accordance with the provisions of the Scheme;
(f) keeping, adjusting and maintaining from time to time such registers or records, as may be necessary of dock workers including any registers or records of dock workers who are temporarily not available for dock work and whose absence has been approved by the Administrative Body, and, where circumstances so require, removing from any register or record the name of any registered dock worker either at his own request or in accordance with the provisions of the Scheme ;
(g) the grouping or re-grouping of all registered dock workers into such groups as may be determined by the Board after consultation the Administrative Body, and thereafter reviewing the grouping of any registered dock worker on the application of the Administrative Body or of the registered dock worker;
(h) restricting the number of categories, in the event of new registrations, by having as much flexibility of employment of workers as possible; , .
(i) making provisions for the training and welfare of registered dock workers including medical services, in so far as such provision does not exist apart from the Scheme;
(j) levying and recovering from registered employers, contributions in respect of the expenses of the Scheme;
(k) making provisions for health and safety measures in places where dock workers are employed in so far as such provisions does not exist apart from the Scheme;
(l) maintaining and administering a Provident Fund, a Gratuity Fund, a Voluntary Retirement Fund and any other fund/funds created for specific purposes for registered dock workers;
(m) borrowing or raising money and issuing debentures or other securities and, for the purpose of securing any debt or obligation, mortgaging or charging all or any part of the property of the Board.
(2) The income and property of the Board from whatever source derived shall be applied solely towards the objects of the Scheme including health, safety, training and welfare measures for dock workers (including assistance by way of grant of loan or otherwise to Co-operative Societies formed for the exclusive benefit, of dock workers and the staff of the Board) and no portion thereof shall be paid to transfer directly or indirectly by way of dividend, bonus or otherwise by way of benefit to the members of the Board provide that nothing herein shall prevent the payment of reasonable and proper remuneration and expenses to any officer or servant of the Board or to any member of the Board in return for any services actually rendered to the Board, nor prevent the payment of interest at a reasonable rate on money lent or reasonable and proper rent for premises demised or let, by any member to the Board nor prevent the incurring of expenditure on welfare measures, if any, for the staff of the Board.
(3) The Board shall cause proper accounts on the cost of operating the Scheme and of all receipts and expenses under the Scheme.
(4) The Board shall submit to the Central Government:
(i) As soon as may be after the first day of April in every year and not later than the thirty-first day of October an annual report on the working of the Scheme during the preceding year ending the thirtyfirst day of March together with an audited Balance Sheet; and
(ii) copies of proceedings of the meeting of the Board.
15. Thus looking at the aforesaid definition of the Board and its function and or its constitution thereof it has to be found that whether there is any bar and/or impediment for the Dock Labour Board to claim itself tobe a registered employer. We shall find from Section 2(C) of the Act of 1948 that the "employer" in relation to a Dock Workers means the person by whom he is employed or to be employed as aforesaid. The "Dock Worker" means 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 cargos, or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargos or leaving Port. The Act and the Schemes have thus clearly provided the position of a "Board",, "employer" and a "Dock Worker".
16. At the very outset this Court finds that there is no problem as to the functioning of the Board, employer, and a dock worker. It has been scrutinised that the Dock Labour Board is not an employer. There is no Us between the Dock Labour Board and the Dock Worker within the meaning of Industrial Disputes Act, and the Payment of Wages Act. The question has1 been posed as to whether it is possible for the Dock Labour Board to step into the position of a registered employer.
17. The real interpretation which requires that a Constitutional provision must be construed not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilised but remains flexible enough to meet the newly emerging problems and challenges. Reference may be made to the observation made by the Hon'ble Mr. Justice P. N. Bhagwati (as His Lordship then was) in Francis Goralie Mullin v. Administrator, Union Territory of Delhi, .
18. For the purpose of interpretation of Statute and to appreciate the intentions attributed to legislature, it has to be remembered that no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobe- dience. It is the duty of Courts of Justice to try to get at the real functionof legislatures by carefully attending to the whole scope.
19. It is true that a century ago, in Taylor v. Taylor 1875 (1) Ch. Divn. P. 426 Gessel M. R. adopted the Rule that where a power is given to it a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This Rule has endowed and stood the test of time. This Rule squarely applies when "where" needed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply with prohibition to do it in any other way. Reference may be made to Maxwell's Interpretation of Statutes, 11th Edn. P. 362-363.
20. In the instant case there are two dimensions. One has to be considered as to whether the entire Act and the Schemes permit the Dock Labour Board to assume the function as a registered employer. Secondly, whether there is any express prohibition or by looking to the scope and object of the entire Act and the Scheme, there is any implied prohibition for the Board to assume such a role.
21. The Court has to consider whether the proposed step sought to be taken by the Board by making the impugned Resolutions is by way of incidental function or consequential upon the powers already conferred or this is somewhat a collateral function which is otherwise not permissible. It is not disputed or doubted that a statutory authority cannot exercise a power beyond the bound for the Statute. There cannot be any collateral consideration. Reference may be made to the case of Pratap Singh v. State of Punjab, AIR 1957 SC 705. But at the same time, this Court has to examine if the proposed steps are by way of incidental to and consequential upon the powers already conferred. Then there must be a green signal to go ahead and the journey should not be punctuated by any judicial check.
22. Looking to the Clauses 2,7,8,10,11,17,41 and 42 of the Calcutta Dock Workers' (Regulation of Employment) Schemes, 1970 it is found that the Board has wide powers and the capacity of the Board can be expended. In particular, Clause 7 is very relevant and the same is set down hereinbelow :
Cl. 7: Functions of the Board: (1) The Board may take such measures as it may consider desirable for furthering the objectives of the Scheme set out in Clause 2, including measures for :
(a) ensuring the adequate supply and the full and proper utilisation of dock labour for the purpose of facilitating the rapid and economic turn round of vessels and the speedy transit of goods through the port;
(b) fixing, subject to the approval of the Central Government the number of workers to be registered under various categories after determining the number required under each category;
(c) regulating the recruitment and entry into and the discharge from the Scheme of dock workers and the allocation of registered dock workers in the reserve pool to registered employers;
(d) determining and keeping under review, in consultation with the Administrative Body, the number of registered dock workers from time to time on the register or record and to increase or decrease, as may be necessary, the numbers in any such registers or records if the said review warrants the same in keeping with anticipated recruitment and for better efficiency and economy of operations;
(e) keeping, and maintaining the employers' registers, entering or reentering therein the name of any dock employer and where circumstances so require, removing from the register the name of any registered employer, either at his own request or in accordance with the provisions of the Scheme ;
(f) keeping, adjusting and maintaining from time to time such registers or records, as may be necessary of dock workers including any registers or records of dock workers who are temporarily not available for dock work and whose absence has been approved by the Administrative Body, and, where circumstances so require removing from any register or record the name of any registered dock worker either at his own request or in accordance with, the provisions of the Scheme ;
(g) the grouping or re-grouping of all registered dock workers into such groups as may be determined by the Board after consultation with the Administrative Body and thereafter reviewing the grouping of any registered dock worker on the application of the Administrative Body of the registered dock worker;
(h) restricting the number of categories, in the event of new registrations, by having as much flexibility of employment of workers as possib
(i) making provisions for the training and welfare of registered dock workers including medical services, in so far as such provision does not exist apart from the Scheme;
(j) levying and recovering from registered employers, contributions in respect of the expenses of the Scheme;
(k) making provisions for health and safety measures in places where dock workers are employed in so far as such provisions does existing apart from the Scheme;
(l) maintaining and administering a Provident Fund, a Gratuity Fund, a Voluntary Retirement Fund and any other fund/funds created for specific purpose for registered dock workers;
(m) borrowing or raising money and issuing debentures or other securities and, for the purpose of securing any debt or obligation, mortgaging or charging all or any part of the property of the Board.
(2) The income and property of the Board from whatever source derived shall be applied solely towards the objects of the Scheme including health, safety, training and welfare measures for dock workers (including assistance by way of grant of loan or otherwise to Co-operative Societies formed for the exclusive benefit of dock workers and the staff of the Board), and on portion thereof shall be paid to be transferred directly or indirectly by way of dividend, bonus or otherwise by way of benefit to the members of the Board provided that nothing herein shall prevent the payment of reasonable and proper remuneration and expenses to any officer or servant of the Board or to any member of the Board in return for any services actually rendered to the Board, nor prevent the payment of interest at a reasonable rate of money lent or reasonable and proper rent for premises demised or let, by any member to the Board nor prevent the incurring of expenditure on welfare measures, if any, for the staff of the Board.
(3) The Board shall cause proper accounts to be kept on the cost of operating the Scheme and of all receipts and expenses under the Scheme.
(4) The Board shall submit to the Central Government -
(i) as soon as may be after the first day of April in every year and not later than the thirty-first day of October an annual report on the working of the Scheme during the preceding year ending the thirty-first day of March together with an audited balance sheet; and
(ii) copies of proceedings of the meeting of the Board.
23. In this regard, the next relevant Clause 17 may be read together which provides maintenance of registers. It is also set down for proper appreciation :
Cl. 17 : Maintenance of Registers, etc. (1) Employers Register -
(a) There shall be a register of employers who are deemed to have been registered or registered, under item (b) or item (e) as the case may be.
(b) In so far as the application of the Scheme to categories (a) to (m) of Schedule-I is concerned, every employer of dock workers who on the date of enforcement of the Scheme is already registered or listed under the Calcutta Dock Workers' (Regulation of Employment) Scheme, 1956 or Calcutta Unregistered Dock Workers' (Regulation of Employment) Scheme, 1957 shall be eligible for registration as an employer under this Scheme with regard to those categories of dock labour for which they had been registered or listed under the said 1956 or 1957 Scheme.
(c) Persons or firms other than those who are deemed to have been registered under item (b) shall not be registered as employers unless the Board considers it expedient and necessary to do so and in no case shall a person or firm be registered unless he or it has been licensed in that behalf by the Calcutta Port [Trust].
(d) If the license issued to an employer is not renewed by the Calcutta Port [Trust] for any reason, it shall automatically result in the name of the employer being suspended from the employers' register.
(e) [* *] (2) Workers' Register-(a) The Workers' register shall be maintained In the forms prescribed by the Board for this purpose.
(b) [Reserve Pool Register-Register of workers on the register maintained by the Dock Labour Board shall be known as Reserve Pool Register. In this register the names workers shall be arranged categorywise and as per seniority. There shall be no gangs of workers formed for the purpose of daily allocation to employers].
24. Thus looking to the Act and the Scheme and their relevant Sections and Clauses it may be found that Clause 41 indicates the obligation of registered employer, Clause 5 provides the definition of administrative propriety and the Clause 7 lays down the Board's function. Similarly, Clause 12(8) indicates allocation of registered workers. Looking in between the lines of the entire Act and the Schemes this Court does not find that there is any bar and/or impediment for the Board to assume the role of the registered employer.
25. The Court has to be an active catalyst to broaden the horizon of law and to make a liberal interpretation, if permissible under the rule of interpretation of statute. Given a wider meaning of the Statute in this case, this Court finds that in a proper situation for effective management of the Port and to meet any challenge, if the situation demands, the Dock Labour Board can assume the role of a registered employer and can control the working force for smooth functioning and operation at the Port. The impugned resolutions have been put to serious test by this Court by looking to the entire background of the Major Port Trusts Act and the Dock Workers' (Regulation of Employment) Act, 1948 and several Schemes as discussed above to find out that the impugned Resolutions are not violative of the existing law. This Court does not find anything otherwise or inconsistency. Accordingly, this Court is not inclined to interfere with the matter and the writ petition fails. All interim orders are vacated. There will be no order as to costs. There will be an order of status quo as on date till one week after the Puja vacation.