L.MOHAPATRA, J & C.R.DASH, J. W.P.(C ) NOS.3204 & 5173 OF 2002 (Decided on 5.8.2010) PARADIP PORT & DOCK MAZDOOR UNION & ORS. ……….. Petitioners. .Vrs. UNION OF INDIA & ANR. ………. Opp.Parties. [[ MAJOR PORT TRUSTS ACT, 1963 (ACT NO. 38 OF 1963) – SEC.3. For Petitioner - M/s. Jagannath Patnaik, Banjit Mohanty, D.Mohanta. For Opp.Parties – Mr.Sailesh Chandra Samantaray (Central Govt. Advocate) M/s.S.K.padhi, Miss. D.Mohapatra, S.K.Mohapatra, B.K.Sahoo, D.Das, Gautam Mishra. L.MOHAPATRA, J. W.P.(C) No.3204 of 2002 has been filed by Paradip Port & Duck Mazdoor Union and W.P.(C) No.5173 of 2002 has been filed by 74 petitioners who are working as Clearing, Forwarding and Handling Workers in the Paradip Port Trust. Prayer in both the writ petitions is to allow the workers governed under the Paradip Port Clearing, Forwarding and Handling Workers (Regulation and Employment) Scheme, 1994 in the Election Process to the Board of Trustees of Paradip Port Trust. Therefore, both the writ petitions were taken up together for hearing and disposal. 2. The case of the petitioners is that representation of the workers representative to the Board of Trustees and Committees of Paradip Port Trust is being made by Voting right of the workers represented by their respective Unions. There are four categories of workers, namely, Departmental Workers, 1979 Scheme Workers, 1994 Scheme Workers and Female Cleaning Gang Workers. The writ petitions relate to the workers governed under 1994 Scheme. The 1994 Scheme was formulated on the basis of reports submitted by a Committee headed by Justice H.R. Khanna in pursuance of the judgment of the Hon’ble Supreme Court, reported in AIR 1990 SC 1125. The Committee constituted under the orders of the Hon’ble Supreme Court headed by Justice H.R. Khanna submitted the report in July, 1993 and the relevant recommendations for the purpose of the case contained in the report of the Committee are as follows: “15.23 As a result of the above, we direct that even though the 1979 Scheme would not apply to the workers who would be enlisted for C & F work, the same Scheme can operate as some kind of a model Scheme for working the Scheme for C & F work. The financial liability of working the proposed Scheme shall however be borne by the C & F agents and not by the Port Trust. For the smooth and effective working of the Scheme it is essential that it should be operated by a Management Committee consisting of three representatives of Employers and three representatives of workers. The Committee should be headed by a whole time Chairman who shall also have the right to vote. In addition to this, the Committee shall have also a whole time Secretary. Both the Chairman and the Secretary shall be officers of Paradeep Port Trust and shall draw their pay and allowance from Paradeep Port Trust. All decisions in regard to the administration of proposed Scheme shall be taken by the Management Committee. The Management Committee should frame scheme on the lines of Paradeep Port Cargo Handling Workers (Regulation and Employment) Scheme of 1979 looking to the requirement of C & F work. The Committee will collect wages levy or administrative charges and welfare charges as determined in the Management Committee from time to time for the supervisors and Mazdoors supplied to the C & F agents. The Scheme should be a self-financing scheme and the entire financial liabilities on account of these workers shall have to be borne by the C, F & H agents. Suitable provisions for listing of C, F & H workers, appropriate qualifications, medical examination, age restriction and selection for Mazdoors and Supervisors will be incorporated in the Scheme. Such of the Mazdoors and Supervisors, who do not fulfill the qualifications or conditions prescribed for listing will be retrenched by the present pool management after following necessary procedure and payment of terminal benefits as contemplated by law. The proposed Scheme should provide for obligations of workers disciplinary procedure, appeal provision, retirement, age etc. has been done in the Scheme of 1979.” In terms of the recommendation of the said Committee, the Paradip Port Trust framed a Scheme known as Paradip Port Clearing, Forwarding and Handling Workers (Regulation and Employment) Scheme, 1994. It is the further case of the petitioners that the Board of Trustees in Paradip Port is being constituted in terms of the Major Port Trust Act, 1963 and as provided therein the Board must include two elected representatives by the workers to protect the interest of the workers. For the purpose of election of the representatives of the workers, voters are to be identified and accordingly a procedure has to be adopted for identifying the voters. The grievance of the petitioners is that though workers covered under the 1979 Scheme and Female Cleaning Gang Workers are entitled to exercise their franchise in election of the workers representative to the Trust Board of Paradip Port Trust, about 1700 workers covered under the 1994 Scheme are debarred from exercising voting rights. It is also the case of the petitioners that to regulate and determine the strength of respective Unions in different Ports and their participation in respective Unions, the Ministry in its letter dated 26.3.1998 informed all the Major Port Trusts and Dock Labour Boards for introduction of the Scheme known as “Check-Off-System”. The Scheme provides for appointment of Labour Trustees in the Board of Major Port Trusts, appointment of members representing labour on the dock Labour Board, appointment of Labour representatives in Dock Workers Advisory Committee and appointment of Labour representatives in the bipartite wage Negotiation Committee. The workers who are eligible to participate in the process are all Class-III and Class-IV employees and workers of Major Port Trust and Dock Labour Boards who are paid out of the funds of Port Trust/Dock Labour Boards and also the workers mentioned in the subsidiary list maintained by the Paradip Port and the lists of casual employees maintained by Kandla 2 Port. After introduction of the aforesaid “Check-off System”, the workers working under 1994 Scheme were not allowed to avail such benefits and representations were made to different authorities including the Ministry. As per the check-off system, the respective employees are to intimate the Port Trusts about their membership in their respective Unions and are also required to give authorization to that effect on the basis of which the strength of the respective Unions shall be ascertained and they would be asked to furnish the names of two persons to whom they propose to be nominated as workers representatives in the Board of Trustees. When this procedure was being adopted for the purpose of workers representatives to the Board of Trustees, the Ministry introduced the system of ‘Secret Ballot’ for nomination of the workers representatives. In view of the above, the Paradip Port Trust sought for clarification from the Ministry as to whether the “Check-off System” is to continue any further in view of the introduction of the “Secret Ballot”. Even after introduction of the Secret Ballot system, representations were being made by the Unions to allow 1994 Scheme workers to participate in the election process on the ground that the workers governed under the 1979 Scheme and 1994 Scheme are treated equally in respect of all aspects except participation in the election process. However, their repeated demands having not been considered, these two writ petitions have been filed for a direction to the opposite parties to allow the workers governed under the 1994 Scheme to participate in the election process in the matter of representations of two workers representatives in the Board of Trustees of Paradip Port Trust. 3. The Paradip Port Trust has filed a counter affidavit. It is stated in the said counter affidavit that the workers covered under the 1994 Scheme are the workers under the Management Committee and not the workers of Paradip Port Trust. There is no master and servant relationship between such workers and the Paradip Port Trust and the workers covered under the 1994 Scheme do not receive any remuneration from the Paradip Port Trust. It is also stated in the counter affidavit that the eligibility of workers who are to be included in the “Check-off System” has been clarified by the Government of India and it has been specifically indicated that all Class-III and Class-IV employees and workers of the Major Port Trusts/Dock Labour Boards, who are directly paid by the Port Trust/Dock Labour Boards shall only be eligible to participate in the election process. It is also stated that all the workers mentioned in the subsidiary list maintained by the Paradip Port Trust and list of casuals maintained by Kandala Port Trust will also be eligible to participate in the election process. It is disclosed in the counter affidavit of the Paradip Port Trust that the petitioner in W.P.(C) No.3204 of 2002 had submitted a representation to the Ministry to allow the Cargo Handling Workers to participate in the Secret Ballot system. The matter was brought to this Court in O.J.C. No.2657 of 2002 and the Court directed to take steps expeditiously for holding the election adopting Secret Ballot system. On 11.9.2002, the Government of India appointed the Regional Labour Commissioner (Central) as the Returning Officer for verification of membership of Unions operating in the Paradip Port Trust and on 18.10.2002, the election schedule was notified. The final voters list had been prepared and nominations have been submitted and therefore, there was no cause of action on the part of the petitioners to file these writ petitions. 4. Shri Jagannath Patnaik, the learned Senior Counsel appearing for the petitioners in both the writ petitions referred to the High Power Committee report and submitted that the High Power Committee was of the opinion that the workers in the standby list have 3 more weighty claim compared to the claims of other workers and in considering the claims of various categories of workers, their claims should be considered on merit and not on the basis of their affiliation or membership of a particular Union. At the same time if these workers in the standby list want to be included in the list of workers who are being enlisted for C & F work, they shall have to give up their claim as constituents of standby list. The Committee, therefore, suggested that all the mazdoors in the standby list should be given an option to indicate their unequivocal willingness in writing to give up any entitlement present or future as constituent of standby list for work under 1979 Scheme and agree to work as C & F workers under the proposed Scheme on the terms and conditions that will be stipulated by the concerned authorities. Such of the standby list workers, who give such an option can be considered for meeting the additional requirement of C & F workers. If the number of workers opting to come over to the C & F Section is more than the requirement, selection should be made on the basis of their inter se seniority among the standby list workers. In absence of record of seniority, the authorities concerned may select from out of the willing mazdoors in the standby list on the basis of test and interview to adjudge their suitability for the jobs to be entrusted to them. In pursuance of such recommendation, several mazdoors in the standby list opted to work as C & F workers and they have been engaged as such. According to Shri Patnaik, the learned Senior Counsel appearing for the petitioners, there is no difference between the 1979 Scheme and the 1994 Scheme prepared on the basis of the High Power Committee report and therefore, both the Schemes having been prepared in the same line, the standby workers who had a right to participate in the election process under the 1979 Scheme are also entitled to participate in the same election process under 1994 Scheme. The learned counsel appearing for the Paradip Port Trust submitted that only those workers be it C & F or otherwise who are paid from the funds of the Paradip Port Trust are entitled to participate in the election process as envisaged under the 1994 Scheme and such decision has been taken in terms of the provisions contained in the Major Port Trust Act. The petitioners who are in the standby list under the 1979 Scheme and have opted to work as C & F workers are not paid by the Paradip Port Trust and therefore, under the 1994 Scheme, they are not entitled to participate in the election process. 5. The sole question that requires consideration is as to whether the petitioners and the members of one of the petitioner Union who are now working as C & F workers having opted for the same in terms of the High Power Committee recommendation, can have a right to participate in the election process. It is not in dispute that these workers while continuing in the standby list under the 1979 Scheme had a right to participate in the election process. The High Power Committee recommended that such standby workers have to opt for working as C & F workers and once they exercise their option, they have to give up their claim as constituents of the standby list. Therefore, having opted to work as C & F workers, the petitioners have given upon their claim as constituents of standby list and are automatically governed under the 1994 Scheme. Admittedly the 1994 Scheme provides that those workers who are paid out of the funds of Paradip Port Trust are to be taken into consideration for the purpose of participating in the election process. There is nothing on record to show that any of the petitioners is being paid from the funds of the Paradip Port Trust. Shri Patnaik, the learned Senior Counsel appearing for the petitioners submitted that all these petitioners are doing the 4 same work as that of others who are being directly paid from the funds of the Paradip Port Trust and their work is incidental to all types of work undertaken in the Port Trust area. On the above basis, it is submitted that there cannot be any discrimination between the same category of workers who are involved in discharging the same type of duties merely because some of them are paid from out of the funds of the Port Trust and some of them are paid by the C & F agents. The decision relied upon by the learned counsel for the petitioners is the case of M/s. J.K. Cotton Spinning and Weaving Mills Col. Ltd. v. The Labour Appellate Tribunal of India, reported in AIR 1964 Supreme Court 737. While considering the definition of the term “Employed in any industry”, the Hon’ble Supreme Court held that the expression cannot be construed literally and it shall include persons employed in operations incidental to main industry. The facts in the said reported case are completely different than the present case. The contention before the Hon’ble Supreme Court was that the worker involved in the case was working as gardener and accordingly is not workman within the meaning of the definition of ‘workman’ under the Industrial Disputes Act. There was no dispute that the said gardener was the employee of the Company. Considering the nature of job, the Hon’ble Supreme Court held that the work discharged by such employees being incidental to the work of the main industry, they are to be construed to have been employed in the industry. The distinguishing feature is that the gardener therein had been directly employed by the employer and was being paid by the employer. The dispute in this case is as to whether the petitioners who are working as C & F workers and whose salaries, wages are not paid from out of the funds of the Paradip Port Trust are entitled to participate in the election process of election of two worker Representatives to the Board of Trustees of Paradip Port Trust. Section 3 of the Major Port Trusts Act, 1963 provides for Constitution of Board of Trustees. The Board of Trustees shall consist of a Chairman to be appointed by the Central Government, one Deputy Chairman or more, as the Central Government may deem fit to appoint and except in Bombay, Calcutta and Madras not more than seventeen persons. Proviso to the Section prescribes that two of the Trustees will be workers representatives. These two Trustees representing the workers are to be elected by the workers. There is no dispute that those workers who are paid from out of the funds of the Paradip Port Trust are entitled to cast vote in the election process and the dispute only relates to the present petitioners who are not paid from out of the Paradip Port Trust funds. The said Section provides that labour employed in the Port are entitled to participate in the election process and also can be elected as a Trustee representing the workers. If the decision of the Hon’ble Supreme Court in the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. (supra) is taken into consideration, the petitioners who are discharging work incidental to the work undertaken by the Paradip Port Trust, may come within the meaning of “employed in the Port”. But the 1994 Scheme has specifically excluded those who are not paid out of the funds of the Paradip Port Trust. Since the petitioners opted to work as C & F workers and accepted the terms and conditions of the 1994 Scheme, it shall not be open for them now to turn back and say that the benefits availed by them under the 1979 Scheme has to continue merely because most of the benefits granted under the 1979 Scheme are more or less similar to 1994 Scheme. Having accepted the terms and conditions of the 1994 Scheme, the petitioners cannot claim participation in the election process considering the fact that the 1994 Scheme excludes those from participating in the election process who are not paid from out of the funds of the Paradip Port Trust. 5 6. Both the writ petitions being devoid of merit are dismissed. Writ petition dismissed. 6