CALCUTTA DOCK LABOUR BOARD Vs. MASTER STEVEDORS ASSOCIATION

JUDGEMENT

(1.) At the root of the controversy in this appeal under Clause 15 of the Letters Patent is the interpretation that the Central Government has given to clause 3 of Regulation 56 of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1990 framed under the Dock Workers (Regulation of Employment) Act, 1948. It appears that a dispute is existing between the parties with regard to the sanctioning of levy exceeding 100% of the total wage bill as envisaged under Regulation 56 of 1970 Scheme. It also appears that the dispute has been in vogue since 1984. Various resolutions adopted by the Dock Labour Board, Calcutta constitute the backbone of the dispute. These resolutions formed the subject matter of two writ applications one being Matter No. 6196 of 1986: The Master Stevedors' Association v. Calcutta Dock Labour Board and others, decided by AJIT KUMAR SENGUPTA, J. (as he then was) on May 5, 1988 and the other being Matter No. 4567 of 1988 : The Master Stevedors' Association v. Calcutta Dock Labour Board decided by MONORANJAN MALLICK, J. (as he then was) on September 15, 1989. For our purpose the operative part of the judgment of MONORANJAN MALLICK, J. in Matter No. 4567 of 1988, is relevant. We reproduce hereinbelow the aforesaid operative part of that judgment which reads thus :--

(2.) Pursuant to the aforesaid judgment, and in compliance therewith, the Government of India in the Ministry of Surface Transport vide the communication dated April 12, 1990 under the signatures of the Joint Secretary refused to grant ex-post facto sanction to the resolutions in question, in furtherance of the judgment of JUSTICE MONORANJAN MALLICK on the ground that Regulation 56(3) of 1970 Scheme does not envisage ex-post facto approval since this para clearly provides for obtaining prior approval of the Central Government. Even while the aforesaid order dated April 12, 1990 was being passed, the third writ application being Matter No. 727 of 1990 came to be filed by the petitioners in which the learned single Judge vide judgment dated January 24, 1991, while allowing the writ application passed a judgment to the effect that the approval of the Central Government in terms of Regulation 56(3) of 1970 Scheme should be deemed to have been granted by the Central Government, notwithstanding the order passed on April 12, 1990 by the Government of India. The learned single Judge in the impugned judgment has taken the view that Regulation 56(3) of 1970 Scheme does not necessarily envisage written approval of the Central Government. Proceeding on the hypothesis that grant of written approval is not a necessary prerequisite or a mandatory requirement under Regulation 56(3), the learned single Judge also held, by interpreting the expression 'prior approval' and 'sanction', that the approval can be presumed by the silence of the Central Government in either not according the approval during all the relevant years or not conveying its rejection. On the premises, therefore, that approval under Regulation 56(3) can be presumed to have been accorded by either the conduct of the Central Government, or as the learned single Judge put it "by its silence", the learned single Judge also made the approval effective from a date which he considered reasonable, in the present case, one year from the date the resolutions are considered by him to have come into effect.

(3.) After hearing the learned advocates for the parties at length and considering all relevant aspects of the matter, we find ourselves in total disagreement with the view taken and the approach adopted by the learned single Judge in construing Regulation 56(3) to mean that the approval can be presumed to have been accorded by the Central Government as contemplated in that regulation, either by its silence in not doing anything or by its conduct during the relevant period and that, therefore, the approval should be deemed to have been accorded at the expiry of one year from the relevant date. We have no hesitation in holding that the law does not permit such a view to be taken because the according of approval as envisaged under Regulation 56(3) of 1970 Scheme is a positive act which has to be performed by the Central Government as in the context in which the expression 'prior approval' has been used in Regulation 56(3), the approval can neither be presumed nor inferred irrespective of the circumstances or the conduct of the Central Government. We, therefore, set aside the judgment of the learned single Judge on this ground alone.