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Export of iron ore is a major item of export from Mormugao port. The loading of the ore on the ocean going vessel is being done manually by conventional method or mechanically. For the purpose of manual loading the barge carrying the ore conies alongside the vessel which is anchored mid- stream and the ore is loaded on the vessel normally by two units of winch drivers and gang workers, each unit being constituted by four winch drivers and then gang workers per crane and operating by shifts of 8 hours each. The gang workers manually load the ore from the barge on net slings which are lifted by the ocean-going vessel's cranes operated by the unit's winch drivers to its holds. Loading is done mechanically by the mechanical ore handling plant that has been set up at Berth No. 9 at Mormugao port in 1979 as well as by grab cranes. The mechanical ore handling plant can, however, fully load vessels upto 65,000 DWT only and vessels with larger capacity are partly loaded at Berth No. 9 by mechanical ore handling plant and thereafter they are taken to mid-stream where they are loaded to their full capacity either by a vessel fitted with grab cranes which is called "transhipper" or by grab cranes fitted on the ocean going vessel itself. For loading by a transhipper the iron ore is carried to the ocean going vessel in a barge and the transhipper moves between the barge and the ocean-going vessel. The ore is removed from the barge by use of grab cranes fitted to the transhipper and is placed on a conveyor belt and is directly taken to the holds of the ocean-going vessel by the conveyor belt. Where the ocean-going vessel itself is fitted with grab crane the barge containing the ore is brought adjacent to the ocean going vessel and the grab crane of the vessel lifts the ore from the barge and places it directly in the hold of the vessel. Both these forms of loading require only winch drivers to operate the grab crane and they do not require any gang worker to load the ore because the ore is collected and picked by the grab crane itself.

The committee that was constituted by the Board for rationalization of levy structure, in its report dated September 30, 1983, has expressed the view that vessels fitted with grab cranes be classified into two categories based on the biting capacity and it has recommended that the levy be charged at Rs. 3.25 per tonne in respect of ore loaded through grab cranes upto 7 tonnes biting capacity and Rs. 3.75 per tonne in respect of ore loaded through vessels fitted with grab cranes above 7 tonnes biting capacity. The Committee also recommended that in case of lumpy ore loaded through vessels fitted with grab cranes such rates be reduced by 25 paise per tonne in respect of both the categories. The committee further recommended that these levy rates be subject to change every year proportionate to the increase in the levy rates in respect of ore loaded through winches/cranes with the help of gangworkers and winch drivers. According to the committee, there was no difference in the FOB rates in respect of ore loaded through ship's gear either through cranes/winches or grab cranes and that the cost of loading in respect of vessels fitted with grab cranes was such cheaper then the one through, cranes/winches and, there-fore, there was much scope for increasing the levy rate in respect of ore loaded through vessels fitted with grab cranes.

The High Court has rejected the contention urged on behalf of the petitioners that the impugned circulars are violative of Article 14 of the Constitution, The High Court has pointed out that in vessels fitted with grab cranes the services of the reserve pool winch drivers are required during the loading operation only where as the owners of the transhippers use winch drivers employed by them throughout the year as monthly workers and the liabilities of the Board towards the latter workers are much lower than the liabilities towards the former and that apart from the liability for the payment of the dues to the reserve pool workers the Board has also to incur expenses in order to keep in readiness an adequate number of reserve pool workers to satisfy the needs of the registered employers as and when required, even though the services of the reserve pool workers may be required for only two or three days at a time and, therefore, it could not be said that grab crane fitted vessels and tranship-pers are equals. According to the High Court though both use mechanised method for loading of cargo on the ocean-going vessels the dissimilarities resulting from different systems of engaging dock workers are so marked, significant and of such import that make them unequal and a classification distinguishing them one from another was reasonable and justified. In this context, the High Court has also mentioned that a registered employer engaging monthly worker like the transhipper has to pay all the dues such as salary, provident fund, gratuity, etc. whereas in the case of reserve pool worker the burden to pay all the dues including disappointment money and the attendance allowance is borne by the Board and that these two factors have a direct impact on the cost of operating the scheme and the liability of the Board. The High Court has also rejected the contention that the levy which involves imposition in respect of notional employment of gang workers is unreasonable and arbitrary since no gang worker is employed for handling cargo in the grab crane fitted vessels. The High Court has pointed out that use of grab crane method gave cause to unemployment of gang workers in an increasing proportion and that while under the conventional method the maximum output of a unit of tour winch drivers and ten gang workers is 300 tonnes of cargo per hook per shift, the cargo handled by grab crane fitted vessels is on an average 2520 tonnes per grab crane per shift and that this gives cause to a higher rate of unemployment of dock workers (both winch drivers and gang workers) from the reserve pool with the consequent increase in the liabilities of the Board if the grab crane method of handling cargo is used. The High Court has observed that the responsibility for such unemployment was impliedly admitted by some users of the grab crane method of cargo handling inasmuch in the agree-ment that was entered into on October 17,1970 it was agreed that when-ever gangs are not booked for work the employer shall pay double the levy to the Board chargeable for one gang for each working grab crane which implies that the principle of charging levy on notional employment of gang workers was found to be reasonable and fair by the trade, labour and the Board. While upholding the validity of the impugned circulars the High Court has, however, held that the said increased levy could not be raised with retrospective effect and can only operate prospectively. In this context, the High Court has pointed out that in view of Clause 54(3) of the Scheme prior approval of the Central Government was required before the Board could sanction any levy exceeding 100% of the estimated total wage bill calculated on the basis of daily wage rate and that the increase in the levy under the impugned circular exceeded 100% of the estimated total wage bill and, therefore, the levy could only be imposed after obtaining the approval of the Central Government. According to the High Court Clause 54(3) of the Scheme denotes that the Board cannot fix the levy retrospectively and since the approval of the Central Government is a condition precedent to the levy and without it no levy could be imposed the resolu-tion passed by the Board on October 30, 1982 has no value since it has to be preceded by the approval of the Central Government. The High Court has, therefore, held that the impugned circular regarding enhancement of the general levy and welfare levy could not have retrospective effect from October 30, 1982 and it could take effect only from March 19, 1983. Similarly as regards the special levy the High Court has observed that the said levy could only take effect from July 14, 1983 the date of the resolution clarifying the matter and not from March 14, 1983 as communicated by the impugned circular.

Coming to the other contention based on Article 14 of the Constitution we are in agreement with the view of the High Court that grab crane fitted vessels cannot be equated with transhippers fitted with grab cranes for the purpose of levy and that there are features which indicate that they cannot treated at par. In this context, it has to be noted that transhippers employ regular winchmen to operate the grab cranes fitted on the tranship- per as their monthly workers and are responsible for paying all their dues such as salary, provident fund, gratuity, etc. Ocean going vessels fitted with grab cranes on the other hand utilise the services of reserve pool workers for operating the grab cranes and the Board has to bear the burden for such workers. Moreover, the owners of transhippers have to engage other staff to operate the transhipper as required under the Merchant Shipping Act and they have to incur expenses for maintaining the said vessel apart from the heavy amount which has been invested in the vessel itself. It can also not be ignored that ever since the introduction of grab cranes for the purpose of loading the ore at Mormugoa port in 1970, the ocean going vessels fitted with grab cranes have been treated differently from transhippers fitted with grab cranes in the matter of amount payable to the Board. The amount payable by ocean going vessels fitted with grab cranes is governed by the settlement dated October 17, 1970 while the transhippers are governed by the various agreements of 1977 which have been revised from time to time. Having regard to all these circumstances we are unable to accept the contention urged on behalf of the petitioners that since transhipper as well as the ocean going vessels fitted with grab cranes both use grab cranes for the purpose of loading the ore they should be treated alike in the matter of imposition of levies by the Board.