GOMANTAK MAZDOOR SANGH Vs. MORMUGAO PORT TRUST

JUDGEMENT

(1.) THIS petition filed under Article 226 of the Constitution as amended from time to time seeks the following substantial reliefs :-

(2.) THE petitioner claims to be a registered Trade Union under the Trade unions Act 1926 and represents purportedly 350 out of 450 Mini Pool workers and it further claims to be concerned with the welfare, security of tenure and all other terms and conditions of the said workmen. Respondent No. 1 is a major port as defined in the Indian Ports Act, 1908 as well as the major Port Trusts Act 1963. The terms and conditions of employment of all dock workers in India were originally governed by the Dock workers (Regulation of Employment) Act 1948 (the Act for short) and a scheme by name of Dock Workers (Regulation of employment) Scheme 1965 (the Scheme of 1965 for short) was framed by the Ministry of Labour and Employment, Government of india vide Notification dated 10th April, 1965 and in exercise of the powers conferred by section 3 and Section 4 (1) of the said Act the employment of labour in the dock premises was governed by the said Scheme. Section 5-B of the Act stipulates the functions of the board and it shall be responsible for administering the Scheme for the Port or group of Ports for which it has been established and shall exercise such powers and perform such functions as may be conferred on it by the Scheme. Under the scheme Mormugao Dock Labour Board (MDLB) was constituted under clause 7 and an administrative body under clause 5. The petitioner Union claims that the workmen it had represented from the Mini Pool were registered Dock workers within the meaning of clause 3 (n) and in terms of clause 3 (p)"reserved Pool" means a pool of registered dock workers who are available for work and who are not for the time being in employment of registered employers or a group of dock employers as monthly workers. Reference has been made to the provisions of clauses 10, 18, 19, 28, 29, 32, 33, 35, 38, 39 and 41 of the Scheme in support of the claim that the said workers represented by the Union were working for respondent No. 1 through the agency of respondent No. 2, an association of registered goods handling employers. However, originally respondent No. 2 did not exist and the issue of introduction of listing scheme for decasualisation of dock workers engaged in handling operations on wares, sheds and godowns in the premises of respondent No. l Mormugao Port Trust was under consideration of the MDLB. On 17th march, 1979 the Deputy Chairman of MDLB had called a meeting of the representatives of Handling Agents as well as the Trade unions. In the said meeting it was agreed that the Scheme drafted and circulated among the handling Agents would invite views and accordingly a draft was prepared by MDLB which was forwarded to the Handling Agents by letter dated 8th January, 1983 signed by the Deputy Chairman of the said Board. Ameeting of the Handling Agents was also held and the Handling Agents namely M/s. Agenda Ultramarina Pvt. Ltd. M/s. Hiralal and co. and M/s. Chowgule Brothers were present and were called upon to study the cost factor in the formation of a pool of clearing and forwarding workers under a Clearing and forwarding Agents Association and to submit its report by end of February, 1983. Several meetings were held in 1983 and 1984 and after deliberations the MDLB and the Handling agents decided to form an Association of handling Agents consisting of M/s. Agencia commercial Maritima, M/s. Agencia ultramarina Pvt. Ltd. , M/s. Chowgule brothers, M/s. Elisbao Pereira and Sons, M/s. Hiralal and Co. , M/s. Machadeo and Sons agents and Stevedores Pvt. Ltd. And M/s. V. S. Dempo and Co. Pvt. Ltd. Accordingly an association under the name and style of mormugao Handling Agents Association (Respondent No. 2) was formed and registered under the Societies Registration act, 1860 and all these workers were being employed in the premises of respondent No. 1 through the said Association, though they continued to be the workers of the respective agents. The Union was requested to go through the details of records of the respondent No. l relating to casual handling workers for the purpose of maintaining their pools for deciding their seniority and work out a procedure to regulate their employment and conditions of service etc. A medical board consisting of medical officers of MDLB and mormugao Port Trust Hospital was constituted to determine the fitness of handling workers. And finally a pool of workers who were found fit was constituted. This pool is called as "mini Pool" and the workers were registered with respondent No. 2 on its formation.

(3.) HOWEVER, the Government of india enacted another Act namely the Dock workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 (for short the Act of 1997) and the Dock Workers (Regulation of Employment) Act, 1948 ceased to operate in relation to respondent No. 1 from the appointed day i. e. 31st March, 1998. It is the contention of the petitioner Union that in terms of the provisions of Sections 3 and 4 of the Act of 1997 all the registered workers who were covered by the Scheme of 1965 were required to be absorbed by the respondent No. l as its employees and a settlement was signed to that effect on 4th february, 1998. However, a large number of workers from the Mini Pool were not given the benefit of the settlement and, on the other hand, from first week of 1999 the registered employers started engaging private workers in spite of the clarification issued that MDLB or respondent No. 1 had no such private workers were allowed to be engaged in the premises of respondent No. 1. Being aggrieved by the refusal to absorb the Mini Pool workers as employees of respondent No. 1 as well as the engagement of private workers by the handling Agents, this petition was moved for the reliefs as stated hereinabove.