*1* wp.772.11.906.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.772 OF 2011 The Board of Trustees of the Port of Mumbai. ..Petitioner -Versus- Transport and Dock Workers Union and others. ..Respondents .......... Mr.S.K.Talsania, Senior Advocate a/w Ms.Motiwala i/b Motiwala & Company, for the Petitioner. Mr.S.N.Deshpande, for the Respondent No.1. Mr.V.Narayanan, for the Respondent No.2. Mr.Mehendra Agavekar, for the Respondent No.4. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 13th September, 2011. P.C.: 1 This Writ Petition was placed for hearing the parties on the question of interim relief. The petition is already admitted by this Court. However, with the consent of the parties, who are appearing before this Court through their Advocates, the Writ Petition itself is taken up for hearing and disposed of by this order. 2 The Respondent Nos.1, 2 and 4 are represented by the Advocates. The service on the Respondent No.5 is dispensed with. As far as the Respondent No.3 is concerned, the affidavit proving service is filed and it is pointed out that thereafter, the said Union has not entered any appearance. 3 By this Writ Petition under Article 226 of the Constitution of India, the Petitioner (The Board of Trustees of the Port of Mumbai) is *2* wp.772.11.906.sxw challenging the award made by the Central Government Industrial Tribunal No.2 at Mumbai in Reference No.CGIT-2/117/2001. By this award, the learned Presiding Officer has directed that the Petitioner must give benefit of overtime which was prevailing before change of the working conditions of the workers working in Mobile Crane Section of Chief Mechanical Engineering Department. This direction was given consequent on declaration that the change notice w.e.f. 26.08.2001 in staggering the weekly day of rest and changing the shift timings of the workmen working in Mobile Crane Section of Chief Mechanical Engineering Department, is illegal and not justified. Thus, the reference came to be allowed in these terms by the impugned order and award dated 24.11.2009. 4 Mr.Talsania, learned Senior Counsel appearing in support of this Writ Petition, submitted that the impugned award and operative order suffers from an error apparent on the face of record and is also vitiated by non application of mind. The Tribunal failed to appreciate that in the Mechanical Engineering Department and particularly the Mobile Crane Section, the workers have to work in conjunction with the Traffic Department to meet the requirements of cargo handling gear in the Docks. The workers in the Traffic Department from the Shore Workers to Shed Superintendents observe the staggering weekly day of rest. In these circumstances, the practice of giving Sunday as a fixed weekly day of rest for the staff of Mobile Crane Section, was required to be altered or changed. To over come this uneconomic practice and also to rationalize the manning pattern in the Section, a notice proposing changes in Deployment Pattern/ Manning Scale and staggering weekly day of rest, was issued under section 9-A of the Industrial Disputes Act, 1947 on 11.01.2001. The change was to come into effect from 01.02.2001 for *3* wp.772.11.906.sxw operational staff. The Respondent No.1 to this Writ Petition opposed this notice of change in so far as changes proposed in relation to deployment on the ground that the manning scale issue was pending before the National Tribunal, but did not oppose other change i.e. staggering weekly day of rest. In these circumstances, the Petitioner issued the notice on 08.05.2001 to rearrange the shift timings for the Operational and Maintenance staff without affecting the total weekly working hours and introducing staggering weekly day of rest. Even this was objected by the Respondent No.1 Union and they raised an industrial dispute. The Respondent No.2 Union also joined in and there was a threat of strike. The Petitioner, therefore, immediately addressed a letter dated 24.05.2001 to the Regional Labour Commissioner (Central) and the Assistant Labour Commissioner (Central). They pointed out as to how the notice came to be issued and in what situation. Even the Respondent No.3 also raised an industrial dispute by letter dated 02.07.2001. The dispute, according to the Petitioner, was pending before the Conciliation Officer, therefore, the proposed changes were not effected. Mr.Talsania places heavy reliance on these letters because in his submission the finding of fact that the Petitioner effected the changes during the pendency of the conciliation proceedings is perverse because it ignores the material in the form of these letters and documents. Mr.Talsania next submitted that the proceedings went on before the Conciliation Officer and ultimately, a failure report came to be submitted. The Petitioner having intimated to the authorities that there is no conciliation possible, the dispute was referred for adjudication and the order of reference is dated 10.08.2001. It was received by the Petitioner only on 15.10.2001. The date 10.08.2001 is, therefore, erroneous because in the order of reference it is mentioned that the change has been effected w.e.f. 26.08.2001. Mr.Talsania submits *4* wp.772.11.906.sxw that the order of reference has been made after 26.08.2001. Thus. on the date the change came into effect i.e. 26.08.2001, no proceeding was pending. Mr.Talsania invites my attention to the order of reference, copy of which is at Annexure-L to the petition, and submits that the Tribunal committed patent error in arriving at the conclusion that during the pendency of the proceedings the change has been brought into effect. In these circumstances, according to Mr.Talsania, whole foundation upon which the Tribunal proceeds is erroneous and incorrect and therefore, the award is vitiated and must be set aside. 5 On the other hand, Mr.Deshpande, learned counsel appearing on behalf of the Respondent No.1, Mr.Narayanan, learned counsel appearing on behalf of the Respondent No.2 and Mr.Agavekar, learned counsel appearing on behalf of the Respondent No.4, supported the impugned award and contended that there is no error or non application of mind as urged. They invited my attention to the annexures to this Writ Petition and argued that the finding of fact recorded in paragraph 10 of the award is not vitiated and equally, further finding being based on oral and documentary evidence, should not be interfered with. For these reasons and for non compliance with section 9-A of the Industrial Disputes Act, 1947 the subject change has been held to be illegal and such an award should not be set aside in writ jurisdiction. Therefore, the Writ Petition be dismissed. 6 With the assistance of the learned counsel appearing for the parties, I have perused the petition and annexures thereto. Annexure-A to the petition is a communication/ notice dated 11.01.2001 which makes reference in its Annexure about Deployment Pattern and Weekly Day of Rest. Upon the Petitioner receiving a copy of the letter dated 25.01.2001 and in the light of further correspondence, the Petitioner took a decision *5* wp.772.11.906.sxw and displayed the notice dated 08.05.2001 wherein it clarified that as far as the first item in the earlier notice is concerned, namely, Deployment Pattern of workers/manning scale is concerned, that is matter under adjudication and therefore, implementation thereof has been postponed in terms of the Industrial Disputes Act, 1947. In these circumstances, perusal of this notice would mean that the award indicates that the Tribunal failed to apply its mind to the fact that the first item of the notice with regard to the Deployment Pattern was concerned, that was not an issue between parties nor any dispute remained for adjudication. The order of reference, therefore, rests on the second aspect, namely, pattern of staggering weekly day of rest for all workers in Mobile Crane Section. As far as this aspect is concerned, it is common ground that the matter was taken in conciliation and on 21.05.2001 a communication was addressed to the Chairman of the Petitioner by the Mumbai Port Trust General Workers’ Union threatening that they will go on strike on expiry of the notice period in case the changes as proposed in notice dated 08.05.2001 and particularly with regard to staggering weekly day of rest are brought into effect. The Mumbai Port Trust Docks General Employees Union also issued similar notice on 24.05.2001 and the Mumbai Port Trust Mazdoor Sangh addressed a communication dated 02.07.2001 protesting about the changes, to the Assistant Labour Commissioner (Central). In the light of all this and when the proceedings could not be concluded in conciliation as no agreement was reached on failure of conciliation, a report dated 27.07.2001 was forwarded whereafter the order of reference came to be issued on 10.08.2001. That order reads thus:- “No.L-31011/7/2001 (IR(M), Whereas the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of Mumbai Port Trust, the Chairman, Shoorji Vallabhadas Marg, and their workmen in respect *6* wp.772.11.906.sxw of the matters specified in the Schedule hereto annexued; And whereas the Central Government considers it desirable to refer the said dispute for adjudication; Now therefore, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby refers the said dispute for adjudication to the Cent. Govt. Indus. Tribunal-cum-Labour Court, Mumbai. The said Tribunal shall give its award within a period of three months. The Schedule “Whether the action of the management of Mumbai Port Trust, Mumbai in staggering the weekly lay of rest and also changing the shift times of the workmen employed in Mobile Crane Section of Chief Mechanical Engineering Department w.e.f. 26.08.2001 is legal and justified? if not, to what relief the said workmen are entitled? and from which date onwards?”” 7 In pursuance thereof, the dispute was referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Mumbai. The parties filed their claims and the Written Statement. There was oral evidence, so also, number of documents were produced. The Tribunal framed necessary issues and as far as Issue No.1 is concerned, it rendered a finding in negative thereby holding that the action of the Petitioner in staggering weekly day of rest and also changing the shit timings of the workers in Mobile Crane Section w.e.f. 26.08.2001 is not legal and justified and that the change was declared illegal. However, while doing so the Presiding Officer held in paragraph 10 of the impugned award that the witness examined by the Management, namely, S.V.Salvi admitted that by a letter dated 25.05.2001 the change introduced by notice dated 11.01.2001 was withdrawn. There is reference to the further admission that by letter dated 20.08.2001 the change was *7* wp.772.11.906.sxw introduced from 26.08.2001 and therefore, in paragraph 13 of the impugned award it is held that there is no notice of change in existence when the change was introduced. Further, it is held that if by a letter dated 20.08.2001 the change was introduced w.e.f. 26.08.2001, but while the conciliation proceedings were going on and the date of 01st June, 2001 was fixed by the Conciliation Officer, the notice of change was displayed on Notice Board on 08.05.2001, that means the notice of proposed change was given on 08.05.2001 before the conciliation proceedings were concluded by the Conciliation Officer and therefore, that change is held to be illegal. 8 Reliance is placed before me by Mr.Talsania on these communications and it is submitted by him that there is nothing therein which would indicate that the conciliation proceedings were pending, yet, the change was effected. Mr.Talsania submitted that the Presiding Officer failed to apply its mind that on 27.07.2001, failure of conciliation report came to be forwarded in which also, there is no reference to that fact. Further, in the pleadings of the parties, there was no case made out of any illegal change and particularly during the pendency of the conciliation proceedings, yet, by misreading and misinterpreting the oral and documentary evidence, the Tribunal held that the change is illegal and unjustified. 9 My attention was invited by Mr.Deshpande to an affidavit which has been filed opposing this Writ Petition and it is submitted by him that the Industrial Tribunal was required to decide as to whether, the change effected by the Petitioner w.e.f. 26.08.2001 was legal or not. The reference order was made on 10.08.2001 and the change has been effected by the Petitioner w.e.f. 26.08.2001 and that is during the pendency of the reference and that is how reliance is placed on section *8* wp.772.11.906.sxw 33(1)(a) of the Industrial Disputes Act, 1947. My attention is also invited to paragraph 6(i) of this affidavit, wherein, it is stated that in the notice dated 08.05.2001 (which is at page 31 of Writ Petition), there is no reference to the earlier notice of change dated 11.01.2001 and thus, the notice dated 08.05.2001 is an independent notice and which is not a notice of change as prescribed and envisaged under section 9-A of the Industrial Disputes Act, 1947. Similarly, in the affidavit that has been filed on behalf of the Respondent No.2, it is contended that the Management witness, namely, S.V. Salvi has, in his cross examination, admitted that it is true that by letter dated 25.05.2001 a notice dated 11.01.2001 was withdrawn. 10 Upon a query from the Court in the light of the complaints of Mr.Talsania as to whether, the findings are based on the pleadings of the parties, the learned counsel appearing for the Unions could not point out anything to the above effect and particularly in their affidavits before this Court, in the statement of the claim which was filed on behalf of the Unions represented by them. Thus, there is merit in the contention of Mr.Talsania that without any proper pleading or any evidence consistent therewith, the findings of fact have been rendered and declaration is issued that the changes proposed are illegal. Mr.Talsania has invited my attention to the statement of claim and has also submitted that the evidence of witness S.V.Salvi has not been perused in its entirety. Had it been so perused, there is no admission therein, but there is a clear denial of the above facts. 11 To my mind, there is substance in the contention of Mr.Talsania. Ultimately, whether, the change was effected during the pendency of the conciliation proceedings or whether, it was effected during the pendency of the reference before the Central Government *9* wp.772.11.906.sxw Industrial Tribunal and therefore, illegal, are findings which could be rendered consistent with the pleadings. It has to be pleaded by pointing out specific dates and events including inviting attention of the Presiding Officer to certain documents that the notice was issued during the pendency of the conciliation proceedings. If the argument is that the order of reference is dated 10.08.2001 and the changes were brought into effect from 26.08.2001, that would mean that they are brought into effect during the pendency of the reference, then, once again this is an aspect which must be pleaded. It was open for the Unions to seek amendment to the statement of claim, however, they did not do so. In these circumstances, on what basis and foundation, these findings have been rendered has not been clarified at all. If there was no material before the Presiding Officer to hold that the change was illegal, as contended by Mr.Talsania or is it a case of a typographical error in the order of reference as is now urged by the Petitioner, then, this vital issue could have been gone into and decided only if there were proper pleadings and evidence consistent therewith. This position not emerging from the record, the impugned award suffers from a patent error and is also vitiated by non application of mind. In such circumstances, the same cannot be sustained and upheld. I would be failing in my duty if I proceed to uphold it and not set aside it. 12 In the result, the Writ Petition succeeds. The impugned award is quashed and set aside. The reference shall be heard denovo by the Central Government Industrial Tribunal or Presiding Officer to whom it is assigned, from the stage of filing of the pleadings, meaning thereby if the Unions desire to amend the claim or statement of claim, they may do so by making appropriate application. Upon such an application, after hearing the Petitioner, the Presiding Officer may pass appropriate orders. *10* wp.772.11.906.sxw The reference shall then proceed in accordance with law. Needless to state that if no application for amendment is made, the Tribunal shall proceed from the stage at which the pleadings are filed and on the basis that there is no amendment thereto. However, it will permit the parties to lead oral and documentary evidence and render a fresh award after hearing their argument. In no case, the Tribunal shall, while rendering a fresh award, be influenced by its earlier findings and conclusions. All contentions of parties in relation to the merits of the claims are kept open. It is clarified that this Court has not expressed any opinion, but only to emphasize the conclusion that the impugned award is vitiated by error apparent on the face of record and by non application of mind, that detailed submissions have been recorded. It is only to enable this Court to pass an order of remand back to the Tribunal, that the contentions have been noted and beyond that no opinion is expressed thereon. 13 Mr.Narayanan, submits that the Presiding Officers have been appointed to both Courts in the Central Government Industrial Tribunal. Considering that this is a reference of 2001 and bearing in mind that the award has been rendered after 08 years of the date of its institution, but which award has been set aside in the above circumstances, the interest of justice would be served if the Presiding Officer to whom the matter will be referred for adjudication, shall make an endeavour to dispose of the same as expeditiously as possible and within a period of six months from the date of receipt of a copy of this order. 14 The Writ Petition is, accordingly, allowed. No costs. (S.C. Dharmadhikari, J)