NIHAR KANTI DEY Vs. UNION OF INDIA

JUDGEMENT

(1.) Sri Nihar Kanti De and Md. Nazir, the two petitioners purports to represent 46 other stevedoring labourers carrying out work of loading and unloading of cargo from vessels within Calcutta Port Trust. Their case inter alia was that they were stevedoring labourers employed for last 30 years on permanent basis by registered employer under the Calcutta Dock Workers (Regulation of Employment) Scheme, 1970 (hereinafter refer-red to as the said scheme). That the respondent Nos. 2 and 3, as statutory authorities, are responsible for discharge of their public duty in protecting the rights of the petitioners. The respondent Nos. 4 and 5 are body corporate constituted under the Dock Workers (Regulation of Employment) Act, 1948. Under the statute the respondent Nos. 4 and 5 are also obliged to protect the interest of the petitioners. However, the petitioners did not claim themselves to be registered dock workers. However, they claimed to have been working under registered employer. In paragraph 16, it has been pointed out that vessels with G.R.T. less than 350 tones were exempted from engaging dock workers and that owners of such vessels were entitled to engage their own labourers. The Petitioners were originally engaged by M/s. Hauers Lines Pvt. Ltd. and then by M/s. Shanti Shipping Co. Ltd. At one point of time the vessels of Shanti Shipping were held to be above 350 G.R.T. upon such assessment they were no more entitled to appoint their own workers. In such circumstances Shanti Shipping had filed a writ petition being W.P. No. 5171(W) of 1998. However. subsequently though the vessels of Shanti Shipping were assessed to have higher G.R.T. still then they were allowed to continue with the old system of engaging their own labourers by a letter issued by the appropriate authority, Subsequently the vessels were now handled by the respondent Nos. 6 and 7 and Shanti Shipping was no more in the picture. It is alleged that the respondent Nos. 6 and 7 both of whom are registered employers were engaging their own workers without engaging the petitioners. Now, therefore, by means of this petition the petitioner claims for directions upon the respondents for registering the petitioners under the 1970 Scheme and for ensuring their engagement without engaging any outsider and to restore status quo in respect of the employment of the petitioners.

(2.) The learned Counsel for the petitioner had relied upon various provisions of law particularly the 1970 Scheme in order to substantiate her contention. According to her even if the petitioners are not registered dock workers still the respondent Nos. 6 and 7 being registered employers are bound to engage the petitioners without engaging any outsiders and by reason of the said Act and the Scheme the respondent Nos. 4 and 5 are bound to ensure engagement of the petitioner by compelling the respondent Nos. 6 and 7 to do so under the scheme and the respondent Nos. 2 and 3 has an obligation to issue appropriate direction of the respondent Nos. 4 and 5 for the implementation of the said scheme viz to engage the petitioners. Relying on paragraph 12 of the scheme the counsel had pointed out the obligations of the authorities. Relying on paragraph 20 she claims that the petitioner should be registered as registered dock worker. Relying on paragraph 41 she has pointed out the obligations of the registered employers and referring to paragraph 42 she pointed out the restrictions on employment. She also contends that by reason of Paragraphs 48 and 50 of the scheme the respondents exercise control over such workers. Therefore, it is the obligation of the respondent Nos. 4 and 5 vis-a-vis 2 and 3 to ensure employment or engagement of the petitioners and to compel the respondent Nos. 6 and 7 to engage the petitioners. She has also referred to certain decisions in support of her contentions to which reference would be made at appropriate stage.

(3.) The learned Counsel Mr. Alok Kumar Banerjee, for the respondent Nos. 4 and 5 on the other hand contended that the petitioners are claiming their right through Shanti Shipping on the ground that despite the scheme Shanti Shipping was exempted from the scope of the scheme and was entitled to engage their own labours namely the petitioners. The same exemption was allowed to continue even when the G.R.T. of the two vessels Island Queen and Island Princes of Shanti Shipping exceeded 350 tonnes respectively. Therefore, it was a relation between Shanti Shipping and the petitioners which was sought to be protected in the earlier writ petition being W.P. No. 5171 (w) of 1998. Therefore, in the absence of Shanti Shipping this writ petition cannot be maintained. He next contended that neither the Calcutta Port Trust nor the Dock Labour Board is the employer of the petitioners. At the same time the petitioners are not registered Dock workers. Therefore, the petitioners cannot thrust themselves upon the respondent No. 7 nor the Dock Labour Board hereinafter referred to as the Board can compel the respondents No. 7 or 6 as the case may be, to engage the petitioners. According to him unless the petitioner are registered dock workers the scheme has no manner of application. He also referred to various provisions of law as well as certain decisions to which reference would be made at appropriate stage. Thus he contended that the writ petition should be dismissed.