ASIT RANJAN MAJUMDAR Vs. CALCUTTA DOCK LABOUR BOARD

JUDGEMENT

(1.) The petitioner carries on business inter alia as a stevedore, and is a member of the Calcutta Port Stevedores Association. He had in the past, worked as a stevedore while being connected with Messrs. Liners (Agency) Ltd. and Messrs, B. Chose and Co. Private Ltd. registered stevedores. Now he wants to set up as a stevedore himself. In 1948, was enacted the Dock Workers (Regulation of Employment) Act, 1948 (Act No. IX of 1948) being an Act, the object of which was to provide for regulation of the employment of dock workers. Under this Act, a Dock-Labour Board has been constituted and a Scheme is to be made for the registration of dock workers with a view to ensuring greater regularity of their employment. Such a Scheme has been framed,, called the Calcutta Dock Workers (Regulation of Employment) Scheme, 1956. Certain provisions in clause 15(1) of the said Scheme is of importance and are set out below:

(2.) It will be observed that Sub-clauses (b) and (c) deal with the case of stevedores. Under Sub-clause (b), those stevedores who were already registered under the 1951 Scheme, continue to be registered under the 1956 Scheme. The petitioner was not so registered and, therefore, his case comes under Sub-clause (c). This Sub-clause requires a licence to be obtained from the Commissioners for the Port of Calcutta, which is a statutory body constituted under the Calcutta Port Act, 1890 (Bengal Act, III of 1890). At the time when this Scheme came into operation, there was no provision made under the Calcutta Port Act or any Bye-law made under it, to issue any licence to stevedores. The 1956 Scheme came into operation on or about the 8th October, 1956. On 8th August, 1957 a Bye-law numbered 4A, framed by the Commissioners for the Port of Calcutta, was published in the Calcutta Gazette. This Bye-law, which shall presently set out, dealt with the question ot the issuance of licences to stevedores. On or about 28th January, 1959 the petitioner applied to the Port Commissioners for the issue of a stevedore's licence, and on 2nd February, 1959 the petitioner made an application to the Dock Labour Board for registration as a stevedore employer. Although the Bye-law No. 4A was published in August, 1957, even in 1959 the Port Authorities were blissfully ignorant of it. On the 17th February, 1959 the Traffic Manager actually wrote to the petitioner that the matter of issuance of licences to stevedores by the Commissioners was "still under consideration". On the 28th February, 1959 the petitioner wrote to the Calcutta Dock Labour Board and referred to this letter of the Traffic Manager and claimed that there was no existing practice of issuing licences by the Port Autliorities and, therefore, the petitioner's name should be registered, even without a licence. On the 19th/20th February, 1959 the Secretary to the Dock Labour Board replied to this by referring to Clause 15(c) of the 1956 Scheme, and stated that no person or firm could be registered unless licensed by the Port Commissioners and that the Board could not take any action "until the matter is disposed of by the Calcutta Port Commissioners". On the 2nd March, 1959 the Traffic Manager wrote to the petitioner stating that he should approach the Secretary, Dock Labour Board "for necessary information". On the 29th April, 1959 the Deputy Chairman of the Calcutta Dock Labour Board was informed bv the Ministry of Labour and Employment. New Delhi that the Commissioners for the Port of Calcutta had already prescribed rules for the issuing of licences to stevedores under the Bye-law No. 4-A, Thereupon, the Secretary to the Calcutta Dock Labour Board, in- formed the petitioner that such a Bye-law existed and subsequently the Dock Labour Board has again taken the position that the petitioner could not be registered as an employer under Clause 15(1)(c) unless he has been licensed by the Calcutta Port Commissioners. The Port Commissioners, who are respondents before me, have not granted the application of the petitioner for the issue of a licence. While the application was being heard I had suggested that the petitioner's application for a licence-might be dealt with and disposed of, because if a licence is granted, then there is no further necessity of proceeding with the application. The respondent No. 2, however, does not propose to grant a licence to the petitioner because, it is said, that the petitioner has failed to comply with the provisions of the Bye-law No. 4-A. The petitioner has in this application finally taken the stand that the Bye-law No. 4-A is bad, because it constitutes an unreasonable restriction on the fundamental right granted to the petitioner for carrying on business, under Article 19(1)(g) of the Constitution. As a necessary corollary it is argued that the provision of Clause 15(1)(c) of the 1956 Scheme is also bad, because it also constitutes an unreasonable restriction on the fundamental right granted to the petitioner to carry on business under Article 19(l)(g) of the Constitution. According to the petitioner, if these two provisions of law are out of the way, his application would have to be considered under Clause I5(1)(a), as laid down by me in Matter No. 61 of 1959 Kesab Lal Banerjee v. Calcutta Dock Labour Board, Matter No. 61 of 1959, D/-10-9-1959:.

(3.) I have already set out the relevant provisions of Clause 15(1)(c) of the Scheme. I shall now proceed to consider the Bye-law No. 4-A. Before I set out the relevant provisions of the said Bye-law, I must mention that pending the disposal of this application, the old Bye-law No. 4-A has been substituted by another Bye-law. This Bye-law was proposed by the Commissioners for the Port of Calcutta, and the proposal was published in the Calcutta Gazette Dated March 31, I960 It was confirmed by the Central Government on 29th July, 1960 and the proposal as confirmed was published in the Calcutta Gazette on August 18, 1960. If this procedure is in accordance with law, then, of course, the Bye-law No. 4-A framed in August 1957 stands repealed, and we have to consider the new Bye-law No. 4-A and not the old one. In my opinion, however, the new Bye-law No. 4-A has not been framed in accordance with law and, therefore, is invalid. The power to frame Bye-laws has been conferred upon the Commissioners for the Port of Calcutta under Section 126 of the Calcutta Port Act. Under Sub-section (1) of the said section, the Commissioners have been granted the power to make Bye-laws. Under Sub-section (2) they may, from time to time, repeal, alter or add to any Bye-law so made. Under Subsection (3), no Bye-law, repealed or altered shall have effect until the same is confirmed by the Central Government. Under Sub-section (4) no Bye-law and no repeal or alteration of, or addition to any Bye-law, shall be confirmed until the same has been published for two weeks successively in the. Official Gazette and until fourteen days have expired from the date on which the same has been fist published in that Gazette. The proposal for the new Bye-law No.4-A, in substitution of the existing Bye-law mentioned above, was published in the Calcutta Gazette dated March 31, 1980. On the 18th August, 1960 the Bye-law No. 4-A as confirmed was published in the Calcutta Gazette. It appears, however, that the Bye-law No. 4-A as confirmed by the Central Government is substantially different to the proposal made by the Port Commissioners as published in the Calcutta Gazette of March 31, I960. I shall now proceed to point out how this is so. Under the proposed Bye-law it was stated that the grant of stevedoring licences shall be subject to the applicant's fulfilling certain conditions. One of the conditions was as follows: "(a) That the applicant has in his employ such number of qualified and fully trained permanent staff, to execute proper supervision of work on board vessels, as is considered essential by the Commissioners and stipulated by them....." This condition, as confirmed by the Central Government and published in the Calcutta Gazette on August 18, I960 reads as follows: