1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WITH WRIT PETITION NO. 1585 OF 2005 WITH WRIT PETITION NO. 1192 OF 2006 WITH WRIT PETITION NO. 837 OF 2008 WRIT PETITION NO. 1585 OF 2005 1. Mohan Sampatrao Torsale 2. Deidas Dagdu Jagdale 3. Mohan Pandurang Patil 4. Lala Ganpat Chn 5. Parsuram S. Rathod 6. Maruti Baba Kale 7. Subrao Manik Thorat 8. Vilas Digamber Hadanavar 9. Asaram Baburao Chavan 10. Harichandra Gopinath Devkate 2 11. Subhash Ranaji More 12. Ankush Ananda Kochale 13. Ramchandra Mitthu Jadhav 14. Tulsiram Bira Kolekar 15. Sarjerao Dada Sargar 16. Satyawan Nirvutti Waghmare 17. Tukuram Nivrutti Waghule 18. Ramhari Prabhu Lengare 19. Shahji Mohan Lade 20. Dinkar Sakharam Bhangre all having their common address at C/o. Bharatiya Container Nigam Ltd. Nanepada Road, Mulund Goregaon Link Rd, Mulund (E), Mumbai 400 080. .. Petitioners Versus 1. The Railway Goods Clearing & Forwarding Estb. Labour Board for greater Mumbai having its 3 office 84-A, Broach Sadan, Devji Ratansey Marg, Dana Bunder, Mumbai 400 009. 2. Mr.Jaywant Vitthal Bhandilkar Mukadam of Toli No.1B, Age 41 years, Occ. Labour residing at Gautam Wadi,Opp. Railway Building No.109, B.Cabin Shivaji Nagar, Naupada, Thane. 3. Maharashtra Mathadi and General Kamgar Union (Regd.No.KAUAH) Thane/447/93) Through their Secretary, having their office at 102 Anand Bhavan, 1st floor, Keshavji Naik Road, Chinchbandar, Mumbai 400 009. ..Respondents Mr. R.V.Desai, Senior Counsel with Mr. Pramod Kathane, Mr. S.R.Nargolkar, Mr. Gunyan Shah, Mr. Sachin Kamble, 4 Mr. S.A.Sawant and Mr. H.V.Kode for the petitioners. Mrs. Lata Desai for respondent No.1. Mr. S.P. Kadam for respondent Nos. 2 & 3. WITH WRIT PETITION NO. 1192 OF 2006 1. Mr.Jaywant Vitthal Bhandilkar Mukadam of Toli No.1B, Age 41 years, Occ. Labour residing at Gautam Wadi,Opp. Railway Building No.109, B.Cabin Shivaji Nagar, Naupada, Thane. 2. Maharashtra Mathadi and General Kamgar Union (Regd.No.KAUAH) Thane/447/93) Through their Secretary, having their office at 102 Anand Bhavan, 1st floor, Keshavji Naik Road, Chinchbandar, Mumbai 400 009. .. Petitioners 5 Vesus 1. Mohan Sampatrao Torsale 2. Deidas Dagdu Jagdale 3. Mohan Pandurang Patil 4. Lala Ganpat Chn 5. Parsuram S. Rathod 6. Maruti Baba Kale 7. Subrao Manik Thorat 8. Vilas Digamber Hadanavar 9. Asaram Baburao Chavan 10. Harichandra Gopinath Devkate 11. Subhash Ranaji More 12. Ankush Ananda Kochale 13. Ramchandra Mitthu Jadhav 14. Tulsiram Bira Kolekar 15. Sarjerao Dada Sargar 16. Satyawan Nirvutti Waghmare 17. Tukuram Nivrutti Waghule 6 18. Ramhari Prabhu Lengare 19. Shahji Mohan Lade 20. Dinkar Sakharam Bhangre all having their common address at C/o. Bharatiya Container Nigam Ltd. Nanepada Road, Mulund Goregaon Link Rd, Mulund (E), Mumbai 400 080. 21. The Railway Goods Clearing and Forwarding Estb., Labour Board for Greater Mumbai, having its office at 84-A, Broach Sadan, Devji Ratanshi Marg, Dana Bunder, Mumbai 400 009. 22. The State of Maharashtra Rspondents Mr. J.P.Cama, Senior Counsel with Mr. Kiran Bapat and Mr. S.P.Kadam for the petitioners. Mr. R.V.Desai, Senior Counsel with Mr. Pramod Kathane, 7 Mr. S.R.Nargolkar, Mr. S.A.Sawant & Mr. H.V.Kode for respondent Nos. 1 to 20. Mrs. Lata Desai for respondent No.21. WRIT PETITION NO. 837 OF 2008 Akhil Bhartiya Mathadi, Transport and General Kamgar Union, A registered Trade Union, having its Head Office situate at "Shroff Bhavan" 5th floor, 157, P.D'Mello Road, Carnac Bunder, Mumbai 400 001, and branch office at 502/503, Central Facility Building, 6th floor, Fruit Market, Vashi, Navi Mumbai 400 705. Petitioners Versus 1. Railway Goods Clearing 8 and Forwarding Estb., Labour Board for Greater Mumbai, having its office at 84-A, Broach Sadan, Devji Ratanshi Marg, Dana Bunder, Mumbai 400 009. 2. Container Corporation of India Limited, New Administrative Building, 5th floor, Central Railway, Mumbai CST, Mumbai 400 001 3. Shri Subrao Manik Thorat 4. Shri Lalu Ganpat Chavan 5. Shri Parshuram Sakhjaram Rathod 6. Shri Vilas Digambar Halankar 7. Shri Asaram Baburao Chavan 8. Shri Harishchandra Gopinath Deokate 9. Shri Ankush Ananda Kochale 10. Shri Subhash Ranoji More 11. Shri ramchandra Mithu Jadhav 12. Shri Tukaram Nivrutti Waghule 9 13. Shri Tulshiram Bira Kolekar 14. Shri Ramhari Prabhyu Lengare 15. Shri Sarjerao Dada Sargar 16. Shri Dinkar Sakharam Bhangare 17. Shri Shahaji Mohan Lade 18. Shri Satyan Nivrutti Waghmare 19. Shri Devidas Dagadu Jagdale 20. Shri Maruti Baba Kale 21. Shri Mohan Pandurang Patil 22. Shri Mohan Sampat Torsale 3 to 22 having their common address at C/o.Bharatiya Container Nigam Ltd. Nanepada Road, Mulund Goregaon Link Rd, Mulund (E), Mumbai 400 080. Respondents Mr. S.S.Pakale for the petitioners. Mrs. Lata Desai for respondent No.1. Mr. Rahul Poojari i/b. S. Mohamedbhai & Co. for 10 respondent No.2. Mr. R.V.Desai, Senior Counsel with Mr. Pramod Kathane, Mr. S.R.Nargolkar, Mr. S.A.Sawant & Mr. H.V.Kode for respondent Nos. 3 to 22. CORAM: FERDINO I. REBELLO AND R.S.MOHITE,JJ. JUDGMENT RESERVED ON 26.3. 2009 JUDGMENT PRONOUNCED ON 14 .7.2009. JUDGMENT (PER FERDINO I.REBELLO,J.) 1. Rule had been issued in Writ Petition No.1855 of 2005 and Writ Petition No.1192 of 2006. Rule in Writ Petition No.837 of 2008. By consent of all parties represented before us, heard forthwith. The matters were heard and reserved for Judgment on 18.12.2008. Before Judgment could be dictated, Petitioners in W.P. No. 1192/2006 by their Precipe dated 5.02.2009 sought to place on record Government Notification dated 11 21.1.2009.In view of this, all the Petitions were again listed for hearing and parties heard. Some of the parties filed written submissions on 6th April,2009. 2. As the controversy arises from the resolution passed by the Railway Goods Clearing & Forwarding Establishment Labour Board for Greater Bombay (hereinafter referred to as "the Board") and as the reliefs sought are based on that resolution, all the Petitions are being disposed of by this common Judgment. The facts as set out in Writ Petition No. 1585 of 2005 are being referred to the extent relevant. Reference will also be made to the additional documents and pleadings in the other two Writ Petitions to the extent necessary. 3. The Board has been constituted under the provisions of the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 (hereinafter referred to as "the Act"). In terms of section 4 of the Act, a Scheme has been framed known as "The Railways Goods Clearing & Forwarding Un-protected Workers (Regulation of Employment and Welfare) Scheme, 1976 (hereinafter referred to as "the Scheme"). Writ Petition No.1585 of 12 2005 is by 20 registered workers registered with the Board, presently with Toli No.37 and earlier with Toli No.1-B. Writ Petition No.1192 of 2006 is by the Mukadam of Toli No.1B and Maharashtra Mathadi and Gerneral Kamgar Union purporting to represent the registered workers of Toli No.1B. Writ Petition No.837 of 2008 is by Akhil Bhartiya Mathadi, Transport and General Kamgar Union purporting to represent the workers of Toli No.37, who numbered about 151. 4. In Writ Petition No.1585 of 2005, the principal prayer is to give effect to the Board Resolution taken at its 115th Board Meeting held on 15.10.2004 and consequent thereto, to repatriate the 20 petitioners to their original Toli No.1B. In Writ Petition No.1192 of 2006, the petitioners seek a prayer directing the Board to withdraw or cancel the Resolution dated 15.10.2004 taken at its Board Meeting. In Writ Petition No.837 of 2008, the principal prayer is to stay the impugned order dated 19.6.2007 issued by the Secretary of the Board whereby the 20 workers, who are petitioners in Writ Petition No.1585 of 2005, have been asked to work in Toli No.37 with effect from 29.6.2007 until further orders. 13 5. During the pendency of this petition, on an application for interim relief, an order came to be passed on October 19, 2007. The relief sought was that the Board Resolution taken at its 115th Meeting be enforced. A learned Bench of this Court in its order observed as under :- “It is not necessary for us to discuss the merits and demerits of the contentions raised before us as we are concerned, at this stage, with prima facie what interim arrangements should be made. The Secretary of the Board has directed that the Petitioners in Writ Petition 1585 of 2005 be continued on the strength of Toli No.37. We direct that the same interim order shall continue, but subject to the condition that if finally Writ Petition No.1192 of 2006 is dismissed, in that event, all payments that have been made by Toli No.37 shall be reimbursed by Toli No.1B with effect from the date of the order. This order is without 14 prejudice to the rights and contentions of the parties." 6. We may now set out a few relevant facts from the pleadings of the parties. . The petitioners in Writ Petition No.1585 of 2005, during the period 1984-85, were working at the Mulund Railways Yard within the jurisdiction of the Board as registered Mathadi workers in Toli No.1- B. Those allotted to Toli No.1A were doing the work at the Container Yard of Container Corporation of India Ltd. (for short "Concar") in August 1994. As per the demand of workers of Toli No.1A and 1B, the Board permitted the workers of Toli No.1A and 1B to work in the said Yard in rotation upto December, 1995. As there was increase in work, Concar requested for more registered workers. A meeting was held on 2.12.1995 wherein representatives of Maharashtra Rajya Mathadi Transport & General Kamgar Union as also Maharashtra Mathadi and General Kamgar Union were represented and it was decided that 16 workmen each from Toli Nos.1A and 1B as selected by the respective 15 Unions as per the seniority, would be formed into a new Toli No.37. It was also decided that Mathadi workers of newly formed Toli No.37 be given a chance to go back to their original Toli. In terms of the translation of the minutes as placed before us the workers had to exercise the option of going back within 3 months from the date of the minutes being recorded. On such option and after such workers went back to their original toli, a decision was to be taken by the Board to fill in the ensuing vacancies. This was agreed to by the representatives of the Toli Nos.1A & 1B. On 8.7.1996, considering the availability of work in the Container Yard, Toli No 37 was constituted, consisting of 16 Mathadi workers each from Toli No.1A and 1B. On 30.7.1996, the Board issued an order of allotment to CONCAR As there was increase in the volume of work in the Container Yard, the Board transferred another 66 Mathadi workers from Toli No.1A and 1B to Toli No.37, by issuing an order of allotment to M/s. Shreenath and Sons, a registered employer. 7. By 2004, the work in the Container Yard was drastically reduced. Concar also started unloading at Dronagiri Terminal. In response to the query from the Board, the Board was informed that the 16 Dronagiri Rail Terminal and Mulund are different entities. Though the nature of work at both yards was the same, but there was no shifting of work from Mulund to Dronagiri. While passing the order dated 27.7.2000, it was informed to the employer that a majority of workers in Toli No.37 had given their consent to work in cement yard and 66 workers from Toli Nos.1A and 1B were transferred to Toli No.37. On 27th August, 2004, about 22 workers of Toli No.37 had been transferred to Toli No.1A & 1B as there was increase in work in cement yard. The work in Toli No.37 though started diminishing considerably whereas there was increase of work of Toli Nos.1A and 1B. As a result, the Workers in Toli No.37 were getting less wages, wheres the workers of Toli Nos.1A and 1B were getting higher wages. There were 66 posts which had become vacant on account of transfer of the workers to Toli No.37 from Toli Nos.1A and 1B. As no worker was employed against those vacancies, some workers of Toli No.37 requested that they be transferred back to Toli No.1A and 1B. By letter dated 30.8.2004, three other workers also made a request to be transferred from Toli No.37 to Toli Nos.1A and 1B. 8. On 21.9.2004, 142 workers of Toli No.37 made a 17 representation that as the work of Toli No.37 had decreased considerably since the last one or two years and as there was no possibility of improvement in the near future, they requested the Board, that those workers who were willing to go to Toli Nos.1A and 1B should be sent to their old Tolis. Board was reminded of the fact that 82 vacancies were still available as not a single worker had been recruited in the place of the transferred workers. Further correspondence was also exchanged. 9. At the 115th Meeting held on 15.10.2004, the Board noted the contentions raised by Shri Gulabrao Jagtap that work at Mulund Container Yard is extremely less and also noted why Toli No.37 had been created and that vacancies created by transfer of workers from Toli No.1A and 1B were still vacant. 30 workers from Toli No.1A and 1B had submitted a proposal for transfer. It was also noted that there was less work at Mulund Container Yard. The Minutes mentioned that all the members present discussed the issue and the Board passed the following Resolution :- "Since there is less work in Mulund container 18 yard where toli No.37 is working, in which Toli in the year 2000, from Toli No.1-A & 1-B, 82 workers were transferred, of which 30 workers have asked for their transfer again in their original toli, the Board should take action according to their demand." One of the registered contractors were M/s. Vijay and Co. They also made a grievance to the Respondent-Board that due to inadequacy of manpower, their work is not completed as per the schedule and on account of that they have to pay heavy penalties to the Railways and, therefore, there was necessity of increasing workers in the tolis. Though the resolution was passed, no action was taken. 10. A representation was made to give effect to the resolution. On 9.7.2005. The Secretary passed an order which noted that the Board had passed a resolution whereby 30 workers have been transferred from Toli No.37 to their previous Toli Nos.1A and 1B. A joint meeting had been held with the concerned authorities to implement the resolution. However, the workers of Toli No.1B had taken strong objection 19 and had created a tense situation amongst the workers. As a result, in order to resolve the dispute by persuasion, the implementation of the resolution was kept pending. Reference was made to the petition filed and it was set out that since there was sufficient work in the cement yard, 20 registered Mathadi workers out of the 66 workers of Toli No.37 transferred from cement yard earlier, are transferred back to their original Toli No.1B with effect from 12.7.2005. Until further orders the workers should be included in the Toli as per the aforesaid directions. 11. On 19.6.2007, an order was passed noting the order of the Board dated 9.7.2005 transferring 20 workers of Toli No.37 to Toli No.1B to which workers in Toli No.1B had objected. It further stated that though the Board had tried to sort out the matter, no solution was arrived. As the workers of Toli No.1B had not allowed the 20 transferred workers of Toli No.37 to give them work they were without any work from July 2005. As they were not getting salary, their families were not getting two square meals and these workers had requested that pending the hearing and final disposal of the petition, they be sent back to Toli No.37. In view of the situation, until further orders, 20 the workers were sent back to Toli No.37 with effect from 29.6.2007. 12. On behalf of the workers of Toli No.1-B who are objecting to the transfer of workers from Toli No.37, numbering 20, their principal contention is that the 66 workers from Toli No.1A and 1B had voluntarily opted to be transferred from Toli No.37 and that their transfer was covered by Board Circular dated 22.11.1995, which is a complete guideline for transfer of workers. Reference is then made to the meeting that took place on 5.2.1997 and also to the order of voluntary transfer dated 27.7.2000. It is mentioned that before transferring, the consent of majority of workers in Toli No.37 was obtained. In the instant case, neither consent was obtained from Toli No.1B nor any opportunity was given to them to submit their objections before Resolution dated 15.10.2000 was passed. On the contrary, the letters submitted by the workers of Toli No.1B dated 7.10.2004 and 8.10.2004 registering objections for transfer of any worker from Toli No.37 to their toli have been overlooked. It is pointed out that there was no vacancy in Toli No.1B and that there is no demand from workers of Toli No.1B for any new of workers. The salary earned by respondents 1 to 20 would further clearly show that they cannot be termed as unemployed 21 registered workers. The average salary earned by the members of the Toli No.37 for the last several months is ranging between Rs.7000/- to Rs.9,000/-. These are based on averments made in the Petition on 20.8.2005 involving reduction of work in Toli No.37. All this has happened on account of the willful negligence on the part of workers of Toli No.37. The Board ought to have sent workers from Toli No.37 to the Dronagiri Container Yard earlier, which would have increased the salary of Toli No.37 considerably. However, instead, for ulterior motives of Toli No.37, the Board officials allowed registration of 254 new workers. 13. We may now refer to some of the resolutions passed by the Board as that would be relevant for considering the controversy in issue. On 30.9.1995, a direction was issued under Section 7(4) of the Act. In terms of the directions if the workers registered with the Board were jobless and there was increase of work elsewhere and if it was necessary to increase the number of workers at that place, then first priority shall be to give jobs to jobless workers registered with the Board. Till such time those workers on given option refused to work at the said place, no new worker should be registered and be given 22 jobs. At a meeting held on 5.2.1997 in terms of the minutes recorded before the Minister (Labour), certain decisions were taken, the relevant portion of one such decision reads as under :- "While making registration on vacant post if  ` Mathadi' worker's son, real brother, nephew (real brother's son) or son-in-law (daughter's husband), out of these relations if anyone is not available then registration of the person suggested by that worker shall be made on that post by taking written permission of minimum 2/3 workers of the toli." Insofar these minutes are concerned even if assuming they are held to be binding on the Board, it is only for registration of a new worker in a vacant post where permission of 2/3 workers of the toli was required. 14. The next direction issued under Section 7(4) of the Act is dated 21.2.2001. The direction pertained to registration of new 23 workers if the work at any place increased. There is no direction that in such a case permission of 2/3rd workers is required. However, the proposal of the Mathadi Board was to be forwarded along with the justification to the Labour Commissioner for his approval and only after his approval, the new worker should be registered. 15. A further direction was then issued under Section 7(4) of the Act on 25.9.2006, wherein while referring to the earlier directions, it was noted that those directions have been modified. On there being increase in work load, first priority should be given to the jobless worker registered with the Board. Instead of the proposal being submitted to the Labour Commissioner, the approval ought to be sought of the Government. On 8.1.2008, another direction was issued under Section 7(4) of the Act. Reference was made to the earlier direction of 25.9.2006 and the modifications to that order. It was set out that registration of new workers in five districts should be sent for approval to the Government and in respect of the rest of the districts, the proposal would be as per the earlier order dated 22.1.2001. On 19.3.2008, the next direction was issued under Section 7(4) of the Act. After referring to the earlier orders, it was mentioned in supersession 24 of earlier Government Resolutions dated 25.9.2006 and 8.1.2008, in case there is increase in work, it is necessary to increase the strength of the workers with the consent of the workers of the concerned toli and if registration of the labourers should be made on the compassionate basis and in respect of others i.e. in place of the worker who tendered resignation and it was required to transfer the labourers of the toli, then the concerned Mathadi Board should take action at their level. The direction was applicable only to the Mathadi Boards of five districts as set out therein. 16. Then comes the order dated 21.1.2009 after filing of the Petitions wherein it is mentioned that there is a need to modify the earlier orders. The Government, therefore, in supersession of the order dated 19.3.2008, was issuing a fresh resolution. This covers both registration of new Mathadi workers as also Mathadi workers transferred from one toli to another toli. One of the requirements is condition No.5 which reads as under :- "5) If mathadi Workers are to be exchanged from  one Toli to another Toli, then Mathadi Workers 25 should be registered after complying with below mentioned things." 1. If a Mathadi Worker is to be transferred   from one Toli to another Toli, then demand and consent of 2/3rd (Two third) of the workers of the Toli to which he is to be transferred should be obtained and thereafter, he should be registered." 17. Before answering the issue, we would like to advert to some of the provisions of the Scheme. Let us examine the powers of the Board to effect transfers of mathadi workers, from one Toli to another and also to grouping and re-grouping the said workers. They are as follows : a) Under section 7(1) of the Maharashtra Mathadi  Hamal & Other Manual Workers (Regulation of Employment & Welfare) Act 1969, the Board is responsible for administering the Scheme and 26 shall exercise such powers and perform such functions as may be conferred on it by the Scheme. b) In exercise of powers vested in it under section 3(3) of the  Mathadi Act, the State Government has framed a Scheme known as The Railway Goods Clearing & Forwarding Un- protected Workers (Regulation Of Employment & Welfare) Scheme 1976 (hereafter referred to as the Scheme). The mathadi workers involved in the present petition are registered under the above Scheme. c) Clause 6 of the Scheme reads as under :  6.  Functions of the Board: 1) The Board may take such measures as it may consider desirable for carrying out the objectives of administering the Scheme set out in clause 2 including measures for :- i) .....  27 ii) regulating the recruitment and entry into,  and the discharge from, the Scheme of workers and allotment of registered workers in the pool to registered employers. iii) determining and keeping under review the  number of registered workers from time to time, on the registers or records and the increase or reduction to be made in the number of registered workers; iv) ...  v) ...  vi) grouping or re-grouping of all registered  workers into such groups as may be determined by the Board, and reviewing the grouping of any registered worker on the application of a 28 registered worker; ...... The Board may -  i) fix