1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6979 OF 2008 Transport and Dock Workers Union, Mumbai through its Aurangabad Branch, through its Deputy Secretary Harishchandra Govind Pandhare .. Petitioner Versus The State of Maharashtra and others. .. Respondents --- Mr. Hemant Surve, Advocate for the petitioner, Mr. Amit B. Waikar, Advocate holding for Mr. V.I. Thole, Advocate for respondent NO.1 Mr. P.S. Dighe, Advocate holding for Mr. V.R. Dhorde, Advocate for respondent No.3 Mr. S.P. Deshmukh, Advocate for respondent NO.2. CORAM : B.R. GAVAI & N.D. DESHPANDE,JJ. DATE : 14TH AUGUST, 2009. ORAL ORDER : [PER B.R. GAVAI,J.] 1] By way of present petition, the petitioner/union prays for a declaration to the effect that the respondent NO.3 is liable to 2 pay the amount @ 2.14 per handled bag to the workers of the petitioners union during its period of contract. 2] It is the contention of the petitioner/union that the members of the petitioner union under the provisions of law are entitled for a rate of Rs. 2.14 per handled back, whereas, they are being paid an amount of Rs. 1,77 per handled bag. 3] It is the contention of the petitioner that this is in total contravention of the provisions of Section 25 of the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act. 1969. 4] Shri Dighe, learned counsel for the respondent No.3 submits that the rate which is being paid to the petitioners is at Rs. 1.77 per handled bag and it is as per the agreement which was entered into between the respondent No.3 and the representatives of the petitioner association on 2nd August, 2006. He further submits that as per the said agreement, rate was fixed before the representatives of the board and as such, the grievance of the petitioners is without substance. 2] Shri Dighe further submits that in the meeting dated 9/1/2007 wherein the representatives of the petitioners including Shri Harishchandra Pandhare, who has affirmed the present petition was present, it was agreed that the rates which are being paid to the workers while doing work at the respondent No.2 shall also be paid to the workers working at the Central Warehousing 3 Corporation, Aurangabad. 3] The petitioners have based their claim on Section 25 of the said Act, which reads thus : “ Contracting out :- Any contract or agreement, whether made before or after the commencement of this Act, whereby [ a registered unprotected worker] relinquishes any right conferred by or any privilege or concession accruing to him under this Act or any scheme, shall be void and of no effect in so far as it purports to deprive him of such right or privilege or concession .” 4] From the perusal of Section 25 it would reveal that the said provision prohibits any agreement whereby any registered unprotected worker relinquishes any right conferred by or any privilege or concession provided to him, under this Act or any scheme. 5] Section 3 of the Said Act provides that the State Government may frame a scheme providing for the registration of the employees/employer and unprotected workers in any scheduled employment and or provide for terms and conditions of work of registered unprotected workers and make provisions for the general welfare for such employment. Undoubtedly, in the registered employment in question, I.e. “Employment in Loading and unloading and carrying food grains into godown”, a scheme has been framed by the Government of Maharashtra on 19th August, 1992. Clause 32 of the said scheme requires that the rates, allowances, wages etc. to be payable to the 4 workers shall be as may be fixed by the Board for each category of workers. 6] The said rates are to be fixed after calling upon the Association of the employers, Trade Unions and Workers and in absence of there being no trade union, then representatives of said registered employees and taking into consideration their views. 7] In order to bring home the case within the ambit of Section 25 of the said Act, it is necessary for the petitioners to point out as to what right, privilege or concession, is assured to them either under the provision of the Act or under the scheme framed under the Act. 8] We are not in a position to see anything which is guaranteed to the petitioners under the Act and has been taken away by the act of the respondents. Though repeatedly, we have called upon the petitioners to point out as to whether any rate of wages has been determined by the Mathadi Board as required under clause 32 of the said scheme, nothing has been brought to our notice. In that view of the matter, we have no other option than to accept the contention of Shri Dighe, learned counsel appearing on behalf of the respondent no.3, that the rates which are being paid to the workers of the Association are fixed vide agreement between the representatives of the petitioners and the representatives of the respondent No.3 in the meeting dated 11th August, 2006. The minutes of the said meeting are produced on record at Page 171 of 5 the paper book. It is the specific contention of the respondent NO.3 that the said rates were fixed in presence of the Mathadi Board. An agreement to that effect is also duly signed by the respondent NO.3 and the representatives of the registered employers. Said agreement is also annexed and can be found at page 172 of the paper book. From page 174, it can also be seen that there was a meeting between the representatives of the present petitioners including the person who has sworn the petition, the representatives of the Hamal Sahakari Sanstha, Aurangabad and the respondent No.3 herein, wherein, it has been agreed that new 48 workers would be given work by the respondent NO.3 as and when they would be allotted the work at the Central Warehouse Corporation the same rates as are being paid while working at the establishment of the respondent No.2, would be paid. 9]. It is pertinent to note that the stand of the respondent No.3 is fortified by the respondent No.4 Board who is empowered under clause 32 of the said scheme to determine the rates. The respondent No.4 Aurangabad unprotected and Mathadi workers Board has specifically observed that in the affidavit in reply as under :- “ Aurangabad Hamal Sahakari Sanstha and the respondent No.3 signed a agreement dated 10/8/2006 and fixed rates of wages for the period from 21/5/2006 to 31/5/2008. I say that, after the agreement so placed with the respondent No.1, the respondent No.1 called a meeting on 11/8/2006 of the parties and verified that as to whether the agreement is signed amicably between the parties. Having 6 satisfied that the parties have amicably settled the rates of wages, the proceedings dated 11/8/2006 came to be written which are signed by the representatives of the workers society and the respondent No.3 alongwith the respondent No.1.” In the absence of petitioner's pointing out any right, privilege or concession, which has been assured to them either under the provisions of the Act, or the said agreement, we do not find that the petitioners have made out a case that any violation has been done by the respondents as provided by clause 32 of the said Act. In view of the specific averment assurance by the respondent No.3 and the respondent No.4 board that the rates paid to the workers are paid in accordance with the agreement entered between the respondent No.3 and the representatives of the petitioners as well as the Aurangabad Hamal Sahakari Sanstha and that the rates so fixed have also been paid to the workers, no case is made out for interference in the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. Hence, the writ petition is rejected. [N.D. DESHPANDE,J] [B.R. GAVAI, J.] grt/