1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.272 OF 2009 Transport & Dock Workers Union, Mumbai. P.D’Mello Bhavan, P.D’Mello Road, Carnac Bunder, Mumbai 400 038 ...Petitioners. v. 1 The State of Maharashtra Through the Principal Secretary, Ministry of Labour & Employment Mantralaya, Mumbai. 2 The Commissioner of Labour, Maharashtra State, Having its office at 7th Floor, Commerce Centre, Tardeo, Mumbai 400 034. 3 The Chairman, The Railway goods Clearing and Forwarding Establishments Labour Board for Greater Bombay 84-A, Broach Sadan, Devji Ratanshi Marg, Dana Bunder, Bombay 400 009 4 Rashtriya Chemicals & Fertilizers Ltd., Chembur, Mumbai ...Respondents. Mr.S.N.Deshpande, adv. For the Petitioners. Mr.A.K.Jalisatgi, AGP For the Respondent Nos.1 and 2. Mr.S.C.Naidu i/by C.R.Naidu & Co., adv. for the Respondent No.3. Mr.Jamshed Lentin i/by M.S.Bodhanwala & Co., adv. for the Respondent 2 No.4. CORAM : F.I.REBELLO & J.H. BHATIA, JJ. DATED : 13th January , 2010. JUDGMENT: (Per F.I.Rebello, J.) 1 Petitioner/Union has preferred this petition on behalf of its members employed with the respondent no.4. Its members are registered with the respondent no.3 Board. 2 The state of Maharashtra has enacted the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 which hereinafter shall be referred to as the ‘Act’ and also the Railway Goods Clearing and Forwarding Un-Protected workers (Regulation of Employment and Welfare) Scheme, 1976, which hereinafter shall be referred to as the ‘Scheme’ in exercise of its powers conferred by Sub-section (1) of Section 4 of the said Act. Respondent no.3 is the the Railway goods Clearing and Forwarding Establishments Labour Board for Greater Bombay hereinafter shall be referred to as the ‘Board’ which is constituted by the respondent no.1 under the provisions of Mathadi Act and regulated by the Scheme. The board registered Mathadi workers in their records and allots them to the employers, who are registered with them. The Board collects levy fixed 3 from time to time from the registered employers and gave fringe benefits like provident fund, gratuity, bonus, etc. from the said levy and also maintains service record of the registered Mathadi workers. The said Board is also disciplinary authority. 3 The subject matter of the present petition is Clause 26 of the Scheme which reads as under: “Clause 26:- Disappointment money :- When a worker in the pool presents himself for work and for any reason the work for which he has been allotted cannot commence or proceed and no alternative work can be found for him and he is relieved within two hours of his attending for work, he shall be entitled to disappointment money from the employer at a rate as may be fixed by the Board as appropriate to the category to which he belongs. A worker detained for more than two hours shall be paid full wages inclusive of Dearness allowance.” 4 Case of the petitioner/union is that though they were allotted to the respondent no.4/employer, the said employer during the period June, 2006 and thereafter has not been allotting them work and consequently, they are entitled to payment of dis-appointment money. It is their case that the Board in spite of attention drawn to the fact that the respondent no.4 was not paying them dis-appointment money have not 4 been implementing Clause 26. Petitioners, therefore, took up the matter with the Second Respondent, who is the Commissioner of Labour, Maharashtra State. It is the petitioners’ contention that the second respondent categorically mentioned that the respondent no.3 Board is fully responsible to implement the scheme and the workers should be paid dis-appointment money. Petitioners referred to various representations they have made for implementing the scheme and more so clause 27 as they have failed to receive justice. Hence, the present petition. 5 On behalf of the Board, reply has been filed by Shri Dattatraya Hariba Choudhary, Secretary of the Board . It is set out that they have allotted 27 tolis directly to the respondent no.4 constituting of about 360 Mathadi workers. Rate of wages for work performed by the Madhadi is fixed by mutual discussion between the management of RCF and the office bearers of the union representing Mathadi workers in presence of the officials of the board. On the consensus, which is arrived at, wages were fixed and recorded by the settlement executed by the respective parties. Wage rate is on the piece rate basis and directly co- related to the tonnage loaded/ unloaded, measured, etc. According to the affidavit, wage rate payable by RCF are regulated by the agreement 5 dated 7th July, 2007. 6 On 29th May, 2006, an accident occurred in the premises of the respondent no.4 at the Ammonium Nitrate Phosphate (ANP) (Suphla 20:20:0) . On account of said accident, work at ANP plant had come to grinding halt . As a result of this accident and the stoppage of work, the concerned tolis allotted at the ANP plant did not have any work during the months June, July and August, 2006. Respondent No.4 was also unable to provide alternative work to the members of the said tolis. The Board held guilty the management of the RCF and office bearers of the Mathadi Union. With a view to find ways and means to give alternative work to the affected tolis and to work out compensation package for the period their services could not be engaged in the RCF, respondent no.4 vide their letter dated 24th July, 2006 made a proposal to provide alternative work to Mathadis, who were affected due to the accident at ANP Plant. Pursuant to that, respondent no.4 agreed that the work of bagging from Suphla 15:15:15 in excess of 1200 metric tonnes per day could be diverted to toli members, who have allotted to work at ANP Suphla 20:20:0. All the parties agreed to allot this work to the 13 tolis. Urea plant commenced in April, 2009 whereupon Mathadi workers deployed at the ANP Bagging plant were re-deployed at the Urea plant. 6 7 In the matter of payment of wages for the months of June, July and August, 2006 , it is set out that in the subsequent meetings held, it was agreed that on 26th December, 2006 that a sum of Rs.3,000/- per month per worker would be paid as ex-gratia by RCF. As the amount was paid as ex-gratia and was a special case, no levy was charged by the board on the aforesaid ex-gratia payment. Respondent no.4 has paid the amount in terms of the agreement arrived on 26th December, 2009. Amount of ex-gratia was accepted by the members of tolis without any protest. After interim arrangement, representatives of RCF and the petitioners held discussion for settlement of various disputes and have came to resolve by settlement dated 7th July, 2007. One of the clauses namely, clause 5 was the matter of implementation clause 26, i.e., the dis-appointment money. Settlement provided as under: “As agreed by the Unions in the meeting convened by shri B.D.Sanap, the Commissioner of Labour, Government of Maharashtra on 28.5.2007, the issue of dis- appointment money shall be kept aside.” The letter of Transport & Dock Workers Union is annexed as Annexure “A”. In that letter, the Union contended that the matter of dis- appointment wages would be taken up with the Government of 7 Maharashtra or the Court of law alongwith the issue of implementation of the Act and the Scheme. It is also set out that the alternative work performed by the workers, they earned wages each month which was above minimum wage in addition to the wages RCF, has paid additional amount of Rs.48.33 wages as levy. This has been disbursed amongst the workers as various benefits such as provident fund, gratuity, medical benefit, etc. As such it is submitted that for period from June, 2000 to August, 2009 compensation agreed by all the concerned parties and approved by the board has been paid to the concerned workers which has been received without any protest. It is, therefore, submitted that there is not merit in this petition, which should be accordingly dismissed. Affidavit was also filed on behalf of the respondent no.4. 8 Affidavit by way of rejoinder as also sur-rejoinder has been filed on behalf of the petitioner/union. In the said rejoinder, minimum wages as fixed by the State of Maharashtra for the category of work done under the provisions of the minimum wages act by the members of the petitioner/union has not been set out. What is set out is minimum wages computed based on the levy wages which they were drawing. To the affidavit, annexure chart is also annexed showing that on various other dates after September, 2006 till January, 2009 that no dis- 8 appointment wages has been paid on several dates as set out there. Workers were not given work though they were reporting duties of the respondent no.4. As this had come by way of sur-rejoinder, respondent no.3 board has not filed reply but the learned counsel pointed out to us in terms of the pleadings in the reply itself that the members of the petitioner union were being paid on the piece rate wages. Under the concept of piece-rate , they had to do particular tonnage per day and per month and they would be paid based on that tonnage. In the case of piece rate, as long as the members of the petitioners received the wages, the number of days they did work is immaterial. Considering the amount of wages received, they have received much more and in these circumstances, it is set out that petitioners are not entitled for any dis- appointment pay for the periods set out in the affidavit in sur rejoinder. 9 From the above pleadings, two issues arise: a. Whether the members of the petitioners are entitled to be paid dis-appointment wages in terms of Clause 29 of the Scheme for the months of June, July and August, 2006; b. Whether the members of the petitioner union are also entitled to be paid dis- appointment wages for the days shown in the annexure sur-rejoinder for the days they were not provided employment; 9 10 The first question for re-consideration , therefore, is whether the petitioners have made out the case for dis-appointment money wages for their members in terms of Clause 27 of the Scheme for the months of June, July and August, 2006. We have also produced Clause 26. In terms of Clause 26, dis-appointment money has to be paid at the rate as may be fixed by the Board when the worker is regular. In other words, rate of dis-appointment money has to be fixed by the Board. In that context, we find on 26.12.2006 a joint meeting had taken place between the representative of the petitioners, Mathadi Board and the others as reflected in the minutes. On that day, it was agreed considering that no work could be given due to the closure of ANP plant that the management was to give ex-gratia amount of Rs.3,000/- per month to each worker for the months of June, July and August, 2006 for the period of stoppage of work to the concerned workers in the ANP Plant. Subsequent to that, a settlement was signed between the petitioner/union, the board as also the management as also another union. In this settlement, no doubt in terms of Clause 5, it was agreed that the issue of dis-appointment money shall be kept aside. That was recorded by the 10 petitioner/union by the letter of 23.6.2007. Stand of the Board has been that this payment of ex-gratia amount would be in terms of Clause 26. It is specifically set out that this was agreed by the board and consequently, the amount has been paid to the workmen. Paragraph 35 as of the affidavit of the Board clearly states this position. It is, therefore, clear that once the Board itself has taken the stand that the issue of compensation for the period for which members of the petitioner/union were not allotted work for the months of June, July and August, 2006, has been fixed and paid, it will not be possible to accept the contention that dis-appointment money has not been paid. That contention must be rejected. The Court must also bear in mind that for the ten months , the plant was shut. 10 We then come to the second issue of whether the petitioners are entitled for dis-appointment wages in terms of the annexure to the sur-rejoinder, it is true that in terms of the annexure 5 based on the information supplied by the Board itself, it appears that no work was allotted to the workmen for the said days. In so far as this contention is concerned, we may once again, refer to the affidavit of the board. The workmen have been paid on the basis of piece-rate wages. In the affidavit of the Secretary, it is set out as under: 11 “ The wage-rate is on the piece-rate basis and is directly related to tonnage loaded, unloaded, measures, etc.” It is further set out that the wage rates payable presently were in terms of the tonnage loaded, unloaded, measures, etc. Petitioners on the basis of the piece rate have been paid wages for the relevant months, which they would be entitled to. In these circumstances, it is set out that even if on some days, work was not allotted, members of the petitioner/union have been paid wages for the month based on piece-rate basis. Once that be so, question of paying dis-appointment money would not arise. It is, thus, clear that workmen had not been paid for every working day but the wages were fixed on piece-rate basis and they have been paid such wages for the relevant months. Once that be the case, the second contention also does not survive. 11 In the light of that, rule discharged. There shall be no order as to costs. (J.H. BHATIA,J.) (F.I.REBELLO, J.)