Calcutta Port Sharmik Union Vs. Calcutta River Transport Association & Ors
[1988] INSC 276 (13
September 1988)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Ojha, N.D.
(J)
CITATION:
1988 AIR 2168 1988 SCR Supl. (2)1034 1988 SCC Supl. 768 JT 1988 (3) 670 1988
SCALE (2)955
ACT:
Dock
Workers (Regulation of Employment) Act, 1948:
Section
2(b)--'Dock worker'--Whether includes bargeman-- 'Dandees' and 'Majhis'--Whether
bargeman entitled to receive wages and allowances recommended by Wage Board.
%
Industrial Disputes Act, 1947: Sections 7B and 10 ( IA)- - Tribunal--Reference
to presumption that there is a dispute between parties--Courts exercising
judicial review should sustain as Jar as possible the awards of
tribunals--Whether bargeman entitled to wages recommended by Wage Board--
Tribunal examining decision of Wage Board whether bargemen are
'workmen'--Whether valid.
HEAD NOTE:
The
Government of India set up a Wage Board for the port and dock workers at major
ports on November 13, 1964(1) to determine the categories of employees who
should be brought within the scope of proposed wage fixation, and (2) to work
out a wage structure for those employees on the basis of the guidelines laid
down by the Government. The Wage Board submitted its final report on November 29, 1969. The Wage Board did not choose to
make any recommendation in respect of bargemen, i.e., Dandees and Majhis at the
Port of Calcutta. According to the Wage Board, the bargemen were engaged
more in the transport of cargo rather than its handling and they therefore did
not fit in with the definition of 'dock worker'. Thereupon, the bargemen raised
an industrial dispute claiming the benefit of the Wage Board recommendations.
Accordingly, the Central Government on August 22, 197o constituted a National
Tribunal at Calcutta for adjudication whether the
recommendations of the Wage Board were applicable. to the bargemen, and if not,
to what relief with regard to wages and allowances were they entitled.
The
National Tribunal held that the bargemen were entitled to be paid wages and
allowance at the rates of wages recommended by the Wage Board on the ground
that the bargemen came within the meaning of the definition of 'dock worker'
and thus the recommendations of the Wage Board were applicable to them, and
alternatively, on the ground that PG NO 1034 PG NO 1035 they were entitled to
the same rates of wages and allowances even independently~ having regard to the
financial capacity of the management and all other relevant considerations
governing the determination of the wages.
Aggrieved
by the award of the National Tribunal, the managements filed two writ petitions
before the High Court at Calcutta questioning its validity on the
ground that it was beyond the scope of the reference.
The
learned Single Judge observed:
(1)
that the scope of the reference was to find out from the report of the Central
Wage Board itself whether the recommendations were applicable to the bargemen
or not, and it was not for the National Tribunal to criticise the report of the
Central Wage Board and to establish that the bargemen were dock workers within
the meaning of the Act;
(2) the
National Tribunal, in a round about way, made the recommendations of the
Central Wage Board applicable to the bargemen although apparently the
recommendations were not applicable to them, and
(3) the
National Tribunal having held that the recommendations of the Central Wage
Board were applicable to the bargemen, there was no scope for it to decide
independently the pay structure of the bargemen. The learned Single Judge
accordingly quashed the award as beyond the jurisdiction of the National
Tribunal.
The
Division Bench, on appeal, agreed with the Single Judge and further held that
the National Tribunal had failed to fix the wages in accordance with the
settled principles.
Allowing
the appeal, it was,
HELD:
(l) The object of enacting the Industrial Disputes Act, 1947 and of making
provision therein to refer disputes to tribunals for settlement is to bring
about industrial peace. Whenever a reference is made by a Government to an
industrial tribunal it has to be presumed ordinarily that there is a genuine
industrial dispute between the parties which requires to be resolved by
adjudication In all such cases an attempt should be made by Courts exercising
power of judicial review to sustain as far as possible the awards made by
industrial tribunals instead of picking holes here and there in the awards on
trivial points and ultimately frustrating the entire adjudication process
before the tribunals by striking down awards on hyper-technical
grounds.[1042B-C] PG NO 1036
(2) In
order to decide the question whether the bargemen were dock workers or not the
National Tribunal had to examine incidentally the correctness of the decision
of the Wage Board on the question, and after taking into consideration all the
material before it the National Tribunal had come to the conclusion that the
bargemen were also dock workers and there was no justification for denying them
the benefit of the recommendations of the Wage Board. This part of the Award
could, therefore, be considered to be outside the scope of the reference made
to the National Tribunal. The finding recorded by the National Tribunal may be
right or wrong but it could not be considered as one recorded without
jurisdiction. [1048B-D]
(3)
The National Tribunal while holding that even independently of the
recommendations of the Wage Board, the bargemen were entitled to the same wages
and allowances which had been recommended by the Wage Board had observed that
it would not be beyond the capacity of the employers to pay. The criticism of
the award in this regard by the High Court was wholly unjustified. [1048E-F;
1049A]
(4)
The wages and allowances fixed by the National Tribunal were just and not at
all excessive. [1049E] Express Newspapers (Private) Ltd. and Anr. v. The Union of India and
Others, [1959] S.C.R. 12 referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 3564-65 of 1979.
From
the Judgment and Order dated 6.3.1979 of the Calcutta High Court in F.M. Appeal
Nos. 446 & 447 of 1978.
S.K. Nany
for the Appellant.
G.L. Sanghi,
D.P. Mukharjee, Praveen Kumar and G.S. Chatterjee for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. It is unfortunate that
nearly 15,000 bargemen, i.e., Majhis the Dandees working at the Calcutta Port
have been denied their right to receive reasonable wages and allowances for
nearly 12 years on account of a very narrow view taken by the Calcutta High
Court in the decision under appeal.
PG NO
1037 The Government of India set up a Wage Board for the port and dock workers
at major ports on November 13, 1964 and made a reference to the said Board of
the following terms, namely-- (a) to determine the categories of employees
(manual, clerical, supervisor, etc.) who should be brought within the scope of
proposed wage fixation (excluding, however, the Class I and Class II Officers);
and (b) to work out a wage structure based on the principle of fair wages as
set forth in the report of the Committee of Fair Wages.
In
making the reference the Central Government laid down guidelines as to how the
fair wages were to be determined and further directed the Board to submit its
recommendations in respect of interim relief pending submission of the final report.
The Wage Board submitted its recommendations regarding the interim relief on April 9, 1965 and in the course of the said
recommendations it observed that they would be applicable to certain categories
of employees and port and dock workers at major ports.
The
Wage Board submitted its final report on November 29,1969. Since the Wage Board had been authorised
under the terms of reference to determine the specific categories of dock
workers and employees who in the opinion of the Board should be brought under
the scope of the principles of wage fixation, the Wage Board had specified the
categories of workers who were entitled to relief at its hands even at the
stage of making of the interim recommendations, referred to above. At this
stage it is necessary to refer to the definition of the expression 'dock
worker' in the Dock Workers (Regulation of Employment) Act, 1948 (hereinafter
referred to as 'the Act'). Clause (b) of section 2 of the Act defines the
expression 'dock worker' thus:
"2(b).
'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 cargoes, or work in connection with the preparation of ships or
other vessels for the receipt or discharge of cargoes or leaving port. "
The above definition of 'dock worker' is of wide import and it includes all
categories of workers working in a port or in the vicinity, if they are
handling cargoes. But the Wage Board, however, did not choose to make any PG NO
1038 recommendation in respect of bargemen, i.e., Dandees and Majhis at the Port of Calcutta, who
were more than 15,000 in number. As a matter of fact there was an earlier
reference by the State Government of a dispute regarding the wages payable to
bargemen, i.e., Dandees and Majhis at the Port of Calcutta and the Industrial
Tribunal had by an award dated March 9, 1966 fixed their basic wages at Rs.110
and Rs.130 per month respectively. There were also certain ad hoc increments of
such wages by different interim agreements.
When
these categories of workmen found that the Wage Board had not made any
recommendation regarding the wages payable to them, they raised an industrial
dispute claiming the benefit of the Wage Board recommendations. Accordingly,
the Central Government on August 22, 1970 constituted a National Tribunal at
Calcutta and referred to it under section 7-B and section 10( 1A) of the
Industrial Disputes Act, 1947 the following issue for adjudication, namely,--
"Whether recommendations of the Central Wage Board for the Port and Dock
workers as accepted by the Central Government in their resolution No.
WB-21(7)/69 dated the
26th March, 1970 are
applicable to the bargemen in the matter of wages and allowances? If not to
what other relief with regard to wages and allowances are they entitled?'' In
the statement of claims filed by the trade union representing bargemen it was
contended that barges, lighters and boats performed the combined functions of
transit sheds, warehouses, jetties, quays, wharfs on a miniature scale and
enabled loading and unloading of cargoes into and from ships, and that they
carried almost all the cargoes from mills, factories and establishments located
at the back of the river as it was found to be advantageous and economical to
use barges, lighters and boats for loading and unloading of cargoes into and
from ships because of all round lower costs. Accordingly, the trade union
claimed that barges, lighters and boats were engaged in dock works and the
workmen concerned fully conformed to the definition of 'dock workers' as given
in the Act. It, therefore, claimed that the bargemen were also entitled to the
scale fixed by the Wage Board in Paragraph 7.2.108 of its final report.
Alternatively,
the union claimed that if their wages were to be assessed independently then
they were entitled to d minimum wage of Rs.206.40 paise on the very same
considerations which led the Wage Board in its recommendations to fix the
minimum wage figure as incorporated in Paragraphs 7.1.19 to 7.1.70. The
employers on the other hand and mainly the two Yassociations PG NO 1039
representing the employers in their counter statement made out a case that
bargemen did not come within the definition of 'dock workers' and were not
covered by the Wage Board recommendations since they were employed mainly in
the transportation of goods. According to them the bargemen were employed in
carrying jute and jute goods from jute mills to ships berthed in and around the
docks from mills to mills, jetties and ghats and also cargoes from ships to
various places in the State of West Bengal.
The managements claimed that the bargemen were neither wholly engaged in docks
and streams nor were they involved in the process of unloading and loading. In
support of this claim the managements depended upon the findings of an Expert
Committee appointed by the Central Government to the effect that bargemen were
engaged more in the transport of cargo rather than its handling and they
therefore did not fit in with the definition of 'dock worker.,'. In that view
the employers contended that the first part of the reference was totally
misconceived inasmuch as on the recommendations of the Wage Board itself the
bargemen did not come within its purview.
Secondly,
the employers disputed the correctness of the wage fixation as made by the Wage
Board with reference to certain alleged infirmities pointed out by them
including the infirmity of the Board not considering the capacity of the
industry to pay as laid down by the Courts. So far as the second part of the
reference was concerned, the employers urged that the wages of the bargemen had
been fixed by the Industrial tribunal on a reference by the Government of West
Bengal made on 4. l.1965 and that the wages so fixed had been revised from time
to time by agreement between the parties and there being no change in the
circumstances justifying any further revision thereof, there should be no
upward revision of the existing wage structure. They also pleaded that the
financial capacity of the employers did not permit any further enhancement in
the wages.
The
National Tribunal after overcoming certain preliminary obstacles placed before
it by the institution of a writ petition in the High Court of Calcutta by the
management questioning the validity of the reference itself, was able to pass
an award on 20.7.1976. The National Tribunal held that since the bargemen,
i.e., Dandees and Majhis were dock workers they were entitled to get wages and
allowances in accordance with the Wage Board recommendations. After taking into
consideration the relevant circumstances, the National Tribunal also held that
the Dandees and Majhis working under the members of the Calcutta River
Transport Association, and of the Bengal River Transport Association and under
the Port Shipping Co. Ltd. were entitled to payment of higher wages and
allowances PG NO 1040 w.e.f. 1.1.1976 even independently of the recommendations
of the Wage Board but at the same rates which had been recommended by the Wage
Board, which were considered by the National Tribunal reasonable in the
circumstances of the case. This part of the award was made pursuant to the
second part of the reference made to the National Tribunal.
Aggrieved
by the award of the National Tribunal, the managements filed two writ petitions
before the High Court of Calcutta questioning the validity of the award. The
learned Single Judge, who heard the writ petitions, was of the view that the
award was liable to be set aside as it was beyond the scope of the reference.
The learned Single Judge observed in the course of his order dated 4.4.1978
thus:
"The
reference has two parts. One part relates to the applicability of the
recommendation of the Central Wage Board for Port and dock workers to the
Bargemen in the matter of wages and allowances, the other part relates to the
wages and allowances the Bargemen are entitled to if the recommendations of the
Central Wage Board are not applicable to the said Bargemen As regards the first
part, the scope of reference is, to find out from the report of the Central
Wage Board itself whether the recommendations are applicable to the Bargemen or
not The tribunal in exercising its jurisdiction is only bound by the terms of
reference. The Jurisdiction is confined to the actual points of disputes referred
to. In the instant case, the reference was whether the recommendation of the
Central Wage Board was applicable to the Bargemen or not. It is not for the
tribunal to criticise the report of the Central Wage Board and to establish
upon oral and documentary evidence that the Bargemen are dock workers within
the meaning of the Act, and as such they are entitled to the wage recommended
by the Central Wage Board lo the Bargemen of the Calcutta Port.
Rightly
or wrongly the Central Wage Board arrived at a particular conclusion. The
National Tribunal. it seems, acted as a Court of Appeal. found fault with the
recommendations arrived at by the Central Wage Board and criticised its
recommendation in saying that the word PG NO 1041 "wholly engaged"
did not find place in the definition of dock workers in Sec. 2(b) of the Act of
1948 and the Wage Board came to a wrong conclusion which was inconsistent with
the definition of the dock workers in the Act. In a round about way, the
National Tribunal made the recommendations of the Central Wage Board applicable
to the Bargemen although apparently the recommendations are not applicable to
them.
In my
view, in doing so and in making such an award the Tribunal has exceeded its
jurisdiction.
In
making the reference, the Central Government was conscious that the
recommendation of the Central Wage Board might not be applicable to the
Bargemen although the Bargemen made demand for implementation of the said
recommendation and raised a dispute. That is why, the second part of the
reference was there. The National Tribunal could have come to an independent
conclusion that the Bargemen are dock workers and they should be paid similar
wages as recommended by the Central Wage Board with respect to the Bargemen of
Calcutta port. The Tribunal answered the first part of the reference and held
that the recommendation of the Central Wage Board would be applicable to the
Bargemen, as such there was no scope for deciding the second part of the
reference although the Tribunal dealt within its Award the pay Structure of Dandees
and Majhis, which should not have been done.
On the
basis of the above findings the learned Single Judge quashed the award passed
by the National Tribunal.
Aggrieved
by the decision of the learned Single Judge, the trade union filed an appeal
before the Division Bench of the High Court. The Division Bench by its judgment
dated 6.3.1979 affirmed the judgment of the learned Single Judge.
The
Division Bench was of the view that there was a serious doubt as to whether all
dock workers answering the definition of 'dock workers' in the Act were
entitled to be brought within the scope of the proposed wage fixation by the
Wage Board. So far as the second issue was concerned, the Division Bench held
that the National Tribunal had failed to fix the wages in accordance with the
settled principles. It also agreed with the finding of the learned Single Judge
that the decision of the National Tribunal was beyond its jurisdiction. which
was controlled by the questions referred to it for adjudication. Aggrieved by
the PG NO 1042 decision of the Division Bench, the trade union has filed these
appeals by special leave under Article 136 of the Constitution of India.
The
object of enacting the Industrial Disputes Act 1947 and of making provision
therein to refer disputes to tribunals for settlement is to being about
industrial peace.
Whenever
a reference is made by a Government to an industrial tribunal it has to be
presumed ordinarily that there is a genuine industrial dispute between the
parties which requires to be resolved by adjudication. In all such cases an
attempt should be made by Courts exercising powers of judicial re,view to
sustain as far as possible the awards made by industrial tribunals instead of
picking holes here and there in the awards on trivial points and ultimately
frustrating the entire adjudication process before the tribunals by striking
down awards on hyper-technical grounds. Unfortunately the orders of the Single
Judge and of the Division Bench have resulted in such frustration and have made
the award fruitless on an untenable basis.
In the
present case the National Tribunal has held in Paragraph 27 of its award that
the reference related to the determination of the wage structure in respect of
bargemen, i.e., Dandees and Majhis working in or about the Calcutta Port and to
none other. There is no dispute on this question before us. We shall proceed on
that basis.
The
reference on made on 22.8.1970, The validity of the reference itself was
questioned by some of the managements in a writ petition filed in the High
Court. That writ petition was dismissed on 24.1.1972. Against the dismissal of
the writ petition a writ appeal was filed before the Division Bench of the High
Court which was unconditionally withdrawn on 11.7.1974. During this interval
there were atleast two strikes and some attempts at settlement between the
parties. The settlements did not conclusively put an end to the dispute. In the
aforementioned settlements which were only of interim character it was made
certain that the demands of the workmen concerned for the enhancement of wages
and allowances to be paid to the barge men, both on the basis of the
recommendation of the Wage Board as well as on the basis of their alleged
legitimate claim for enhancement in spite of the Wage Board award, were to be
decided by the National Tribunal. During the period of four years between the
date of the reference and the date on which the writ appeal was withdrawn from
the High Court there were changes in the Presiding Officers of the National
Tribunal- Shri B.N. Banerjee was the Presiding Officer of PG NO 1043 the
National Tribunal at the time when the reference was made. On his retirement on
24.6.1971 Shri S.N. Bagchi was appointed as Presiding Officer. On the retirement
of Shri S.N. Bagchi on 31.1.1974 Justice E.K. Moidu was appointed as the
Presiding Officer on 18.7.1974. The reference was finally heard and decided by
Justice E.K. Moidu.
When
the hearing of the reference was resumed by the National Tribunal after the
disposal of the Writ Appeal before the High Court some of the managements
raised several preliminary objections before the National Tribunal. They were
all rejected by the National Tribunal for the reasons given in the course of
its award (vide Paragraphs 10 to 15 of the award). The National Tribunal
rightly observed that the reference in question consisted of two distinct parts
viz. one part relating to wages and allowances to be paid to the bargemen on
the basis of the recommendations of the Wage Board and the other part relating
to the wages and allowances to be fixed in favour of the bargemen on the basis
of the demands made by the bargemen independently of the recommendations of the
Wage Board. The National Tribunal rejected the contention of the managements
that the second part of the reference could not be considered by it as under
the settlement dated 25.7.1970 what was sought to be referred to it was only
the dispute relating to the implementation of the recommendation of the Wage
Board and not the general claim made by the bargemen for enhancement of their
wages and allowances by fixing a wage structure.
The
National Tribunal pointed out that both parties had agreed in Exhibit M-5(a),
which was a settlement, that the Government should refer the dispute to an
appropriate tribunal and that right was left to be decided by the Central
Government. The Central Government thereafter had referred the matter to the
National Tribunal for its decision and hence, it could not be held that the
second part of the reference was without any basis. The National Tribunal then
proceeded to consider the two points referred to it independently. The first
part of the reference, as already stated, related to the application of the
Wage Board award to the bargemen, i.e., Dandees and Majhis. In order to decide
the said question the National Tribunal had to take into consideration the
recommendations made by the Wage Board. While the Wage Board had accepted that
the definition of the expression 'dock worker' found in the Act was relevant
for purposes of determining the scope of the reference made to it, it however
declined to make any recommendation in respect of the bargemen working in the
Port of Calcutta. even though it felt that the conditions of service and
emoluments of the bargemen at Calcutta were unsatisfactory. The Wage Board
observed in the course of its recommendation thus:
PG NO
1044 "Bargemen are engaged more in the transport of Cargo rather than in
its handling and they therefore do not fit in with definition of dock workers.
They are also workers who have to be attached to or employed at particular
barges (sic). We recommend that the Government should make an early
investigation into their conditions of services, emoluments, etc. which are
stated to be highly unsatisfactory (unanimous)." After the recommendations
of the Wage Board were received by the Government of India, the Government of
India by its order dated 26.5.1970 requested the Calcutta Dock Labour Board and
the Commissioners for the Port of the Calcutta and concerned employers to
implement expeditiously the recommendations of the Tripartite Expert Committee
in the light of the observation made by the Government. The Government of India
by a letter written by the Joint Secretary, Ministry of Labour, Employment and
Rehabilitation (Department of Labour and Employment) dated 15.6.1970 to the
Secretary, Government of West Bengal drew the attention of the Government of
West Bengal to the terms of reference under the Tripartite Expert Committee for
Calcutta Dock and the recommendations of the Committee pertaining to bargemen
and pointed out inter alia that the barge crew did not come under the term
'dock worker' as alleged by both the Central Wage Board as well as by the
Tripartite Expert Committee.
It,
however, requested the State Government to consider the question of setting up
a committee for bargemen of Calcutta Port and to keep the Central Government
informed of the developments. No action was taken on the basis of the above
letter. It was the case of the bargemen that they were dock workers as defined
in the Act and the denial of the benefits under the recommendations of the Wage
Board was wrong. It appears that at some stage even the Central Government was
not quite sure of the position whether bargemen, i.e., the Majhis and Dandees
could be classified as dock workers. The bargemen, therefore, thought that it
was proper to approach the Central Government to refer the dispute in question
to a tribunal.
The
National Tribunal after taking into account the above events and the evidence
recorded by it and the submissions made by the parties held that the definition
of 'dock worker' did include within its scope bargemen too but the Wage Board
had erroneously failed to make any recommendation with regard to the wages and
allowances payable to the bargemen. The National Tribunal held that "they
(bargemen) live in the barges, cook food and sleep PG NO 1045 there and stay in
the barges for 24 hours of the day. So, they form part and parcel of the dock
workers." In paragraphs 24 and 25 of the award the National Tribunal
observed thus:
"The
above evidence both on the union's side as well as on the management's side
establishes that Majhis and Dandees have been doing similar work of other Dock
Workers employed by the Calcutta Dock Labour Board in the matter of loading and
unloading of Cargo in and out of the barges. The Wage Board, however,
restricted the scope of the word "Dock Worker" with a view to exclude
the bargemen out of the definition of dock worker as defined in Act 9 of 1948.
In paragraph 4 of the Wage Board report the Board stated that the definition of
dock workers in Act 9 of the 1948 was very wide and may be construed to mean
all categories of workers working in a port or in the vicinity, if they are handling
cargo. But once the bargemen come into the purview of the definition of dock
workers as defined in Act 9 of 1948, there was no ground for excluding bargemen
from the definition. They had to admit that bargemen are also working in the
Ports. The most prominent activity in a port is cargo handling and it is in
this work that a lot of labour is employed. In most of the ports a fairly large
quantity of cargo is handled overside in the docks or in the stream by lightermen.
This aspect of the case had been understood by the members of the Board. They
had given a restricted meaning to the definition of dock worker . . .
The
definition of the dock workers has to be under-stood in the light of not only
their work in the port but also consistent with the definitions of cargo,
vessel, employer and the port in the Acts referred to above. The terms,
loading, unloading and movement of persons employed in any port in connection
with the preparation of Ships or Vessels for the receipt or discharge of cargo
would indicate that the work of the bargemen came rightly within the definition
of dock workers as defined in Act 9 of 1948. There is plenty of evidence in the
case that their main work and activity is within the Port. The fact that one of
the companies had made use of them to go beyond the port by itself does not in
any manner bring down their description to make them less as dock workers. The
Shipping Company has caused to be produced PG NO 1046 Ext. M-44. They are
printed copies of bills. Most of these bills came into existence after the
controversy had set in.
It is
true that there are some bills of the years, 1964 and 1965. But it is not
possible from those bills to make out whether the Shipping Company used barges
or other crafts for the purpose of carrying goods to distant places. The inner
foils of these printed slips had also not been produced.
There
is nothing to show that they are genuine slips maintained by the persons who
issued the same. In the absence of correct material it is difficult to hold
that the Shipping Company had taken its barges outside the Port limits. Any
way, even assuming that they had taken the barges outside the Port limits that
circumstance alone will not make the bargemen less Dock Workers in the facts
and circumstances of this case. l have gone through the evidence in its
entirety and I am satisfied from the available evidence and records that the
Wage Board as well as Chatterjee Committee deviated from the definition of the
Dock Workers as defined in Act 9 of 1948 and came to a wrong conclusion which
is inconsistent with the definition of the dock worker in that Act with the
result that the bargemen were deprived of their due share of wages to be paid
to them on the basis of the recommendation they made in the report of the Wage
Board. I am satisfied that the evidence in the case leads to the only
conclusion that the bargemen are dock workers within the meaning ot dock
workers as defined in Act 9 of 1948. It follows therefore that the bargemen
would be entitled to all the benefits by way of wages and allowances which the
Wage Board recommended in their report.'' Having held that the bargemen, i.e., Majhis
and Dandees were also dock workers, the National Tribunal observed that the
recommendations made by the Wage Board were applicable to the bargemen also and
they were entitled to be paid the wages and allowances in accordance with the
said recommendation.
Alternatively
the National Tribunal took up for consideration the second question referred to
it, namely.
that
if for any reason the bargemen were not entitled to the benefits under the
recommendations made by the Wage Board to what other relief with regard to the
wages and allowances they were entitled? In that connection the National
Tribunal observed at paragraph 37 of its award thus:
PG NO
1047 "37. The next question for consideration is the second part of the
reference. i.e., whether the Dandees and Majhis would be entitled to enhanced wages,
and allowances and if so what would be the rate of their monthly wages and
allowances. This has to be decided independently of the recommendations of the
Wage Board on the materials available on record. The rates of wages and
allowances under the 2nd part of the Award has to be determined as if the rate
under the Wage Board is fair wage and not minimum wage. Taking into
consideration the evidence and all other facts and circumstances borne out from
the records of this case there is justification for fix-ing the rate
recommended by the Wage Board as the fair wage due to be paid to the Dandees
and Majhis with effect from 1-1-1976. " In deciding the second question
the National Tribunal placed before itself the principles laid down by this
Court in Express Newspapers (Private) Ltd. and Anr. v. The Union of India and Ors.,
[1959] S.C.R. 12 which had laid down the relevant criteria for the fixation of
rates of wages for workmen and considered the evidence placed before it in the
light of the said principles. It took into consideration the financial capacity
of the various managements who were involved in the case, the prevailing
conditions of service in Calcutta and other questions governing the
determination of the fair wages. It also took into consideration the
observations made by the Wage Board which for purposes of fixing wage rates had
taken into consideration the relevant matters while making its recommendations
with regard to certain categories of workmen working in the Calcutta Port.
It
found that almost all the managements who had given evidence before it were
capable of bearing the financial burden which would have to be borne by them on
account of the payment of fair wages to be fixed by it. It found that having
regard to all the circumstances of the case that the fair wages and allowances
payable to the bargemen with effect from 1- 1- 1976 should be the same as the
fair wages payable pursuant to the recommendations made by the Wage Board.
After
giving our anxious consideration to the entire Award and to the judgments of
the learned Single Judge and the Division Bench of the Calcutta High Court we
feel that both the learned Single Judge and the Division Bench of the High
Court erred on the facts and in the circumstances of the case in setting aside
the Award passed by the National Tribunal. As observed by the learned Single
Judge himself' PG NO 1048 that the first question, namely, whether the
recommendations of the Central Wage Board for the Port and Dock workers as
accepted by the Central Government were applicable to the bargemen in the
matter of wages and allowances was referred to the National Tribunal by the
Central Government as there were doubts regarding the question whether the
bargeman came with in the meaning of the definition of 'dock worker' in the Act
or not. Naturally in order of decide the said question the National Tribunal had
to examine incidentally the correctness of the decision of the Wage Board on
the question whether the bargemen were dock workers or not and after taking
into consideration all the material before it the National Tribunal had come to
the conclusion that the bargemen were also dock workers and there was no
justification for denying them the benefit of the recommendations of the Wage
Board. This part of the Award cannot, therefore. be considered to be outside
the scope of the reference made to the National Tribunal. The learned Single
Judge and the Division Bench of the High Court were therefore in error in
finding that the National Tribunal had exceeded its jurisdiction while
recording its findings on the above question. The finding on the said question
recorded by the National Tribunal may be right or wrong but it cannot be
considered as one recorded without jurisdiction. We are of the view that the
said question clearly fell within the first part of the reference made to the
National Tribunal. Having held that the finding that the bargemen were also
dock workers had been recorded by the National Tribunal without jurisdiction
the learned Single Judge proceeded to quash the finding recorded by the
National Tribunal on the second question also by which the National Tribunal
had held that even independently of the recommendations of the Wage Board, the
bargemen were entitled to the same wages and allowances which had been
recommended by the Wage Board having regard to the financial capacity of the
managements and all other relevant factors governing the question of wages
payable to them. The Division Bench also erred in observing that the National
Tribunal had not applied the relevant principles governing the determination of
fair wages. It erred in observing that the National Tribunal had taken into
consideration the financial capacity of the port authorities to pay wages and
allowances and not of the private employers like those who had challenged the
Award in the High Court. The Division Bench, however, has observed in the
course of its order that no doubt in the Award some reference was made to the
financial capacity of some of the employers but that had been done only to
support the conclusion that the minimum wage as fixed by the Wage Board should
be admissible to these workmen and that it would not be beyond the capacity of
the employers to pay the same. On going through the Award PG NO 1049 we feel
that the above criticism of the Award made by the National Tribunal is wholly
unjustified. It has dealt with the second part of the reference in paragraphs
37 to 44 of the Award which are found in pages 146 to 157 of the Paper Book
placed before us. The National Tribunal has given reasons as to why it has
adopted, while answering the second part of the reference to it, the
recommendations of the Wage Board.
The
learned Single Judge and the Division Bench of the High Court should have seen
that the National Tribunal was of the opinion that the bargemen were entitled
to be paid wages and allowances at the rates of wages recommended by the Wage
Board on the ground that the Bargemen came within the meaning of definition
dock workers under the Act and thus the recommendations of the Wage Board were
applicable to them and alternatively on the ground that they were entitled to
the same rates of wages and allowances even independently of the
recommendations of the wage Board as according to the National Tribunal they
were entitled to be paid at those rates having regard to the financial capacity
of the managements and all other relevant considerations governing the
determination of the wages. In these circumstances we feel that the reasons
given by the learned Single Judge and by Division Bench of the High Court to
set aside the Award passed by the National Tribunal are wholly unsustainable.
The wages and allowances fixed by the National Tribunal were just and not at
all excessive. We, therefore, set aside the judgment of the Division Bench of
the High Court and also the judgment of the learned Single Judge of the High
Court and restore the award passed by the National Tribunal. The award passed
by the National Tribunal should now be enforced by the authorities concerned in
accordance with law. These appeals are accordingly allowed.
The
appellant is entitled to costs which we quantify at Rs.5,000.
R.S.S.
Appeals allowed.
Back