IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 881 OF 1998. 1. The Chairman, Bombay Port Trust, having his office at Vijay Deep, Shoorji Vallabhdas Marg, Ballard Estate, Mumbai – 400 038. 2. The Board of Trustees of the Port of Mumbai, a body Corporate, constituted under the provisions of the Major Port Trusts Act,1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having its principal place of business at “Vijay Deep”, Shoorji Vallabhdas Marg, Ballard Estate, Mumbai - 400 038. ..Plaintiffs. Versus Messrs. P. Madhvani & Co. (Stevedores) Pvt. Ltd., a Company registered under the Companies Act, 1956 having its Office at Mahavir Darshan, 4th floor, M.N. Koli Marg, Mumbai – 400 003. ..Defendants. .... Mr. U.J. Makhija, a/w. Mr. P. Khandhar, i/b. Mulla & Mulla for Plaintiffs. None for the Defendants. .... Coram: S. J. Kathawalla, J. Date: 4th May 2011. JUDGMENT: By this Suit, the Plaintiffs pray for an order and decree against the Defendants to pay to the Plaintiff an amount of Rs. 10,22,826.42 paise towards the claim for wage revision arrears and the variable dearness allowance as per the particulars of claim being 2 s-881-98 Exhibit “I” to the Plaint and to further pay to the Plaintiff interest on the said sum of Rs.10,22,826.42 paise at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation. Though the Defendants are served with the Writ of Summons and an Affidavit of service to this effect dated 29th July 2010 is filed in this Court, the Defendants have not filed their Written Statement and have also not come forward to defend the Suit. The Suit has therefore appeared under the caption “For Exparte Decree”. 2. Shri K.S. Sunil Kumar, Assistant Docks Manager and a Principal Officer of the Plaintiffs has filed his Affidavit in lieu of evidence dated 1st April 2011. The said Affidavit is taken on record and marked “X” for identification. A compilation of documents is also filed on behalf of the Plaintiffs. Shri K.S.Sunil Kumar has filed his evidence pursuant to the letter of authority dated 20th May 2010 issued by the Plaintiff in his favour. The said letter of authority is marked as Exhibit “P-1”. 3. It is stated in the Plaint as well as in the Affidavit in lieu of Evidence as follows:- 4. The Bombay Dock Labour Board was a Body Corporate constituted under the provisions of the Dock Workers (Regulation of Employment) Act, 1948, inter alia for enforcement of various schemes framed under the provisions of The Dock Workers (Regulation of Employment) Act, 1948. One of such schemes framed under the said Act is the Dock Workers (Regulation of Employment) Scheme, 1956, commonly known as “Stevedoring Scheme”. The original of the said 3 s-881-98 Docks Workers (Regulation of Employment) Act, 1948 is tendered in Court along with a Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the Photostat copy of the Docks Workers (Regulation of Employment) Act, 1948 is taken on record and marked as Exhibit “P-2”. The original of the said Docks Workers (Regulation of Employment) Scheme, 1956 is tendered in Court along with a Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the Photostat copy of the Docks Workers (Regulation of Employment) Scheme, 1956 is taken on record and marked as Exhibit “P-3”. 5. Under the said Scheme the registered employers were al- lowed to indent registered workers of the Bombay Dock Labour Board. Under the said Scheme, it was obligatory on the part of the registered employers to pay the wages of the workers in the register as also the levy payable under Clause 51(1) of the said Scheme. The cost of oper- ating the said Scheme was met by the registered employers to the Bombay Dock Labour Board and as per clause 7(1)(h) of the said Scheme, it was one of the functions of the Board to levy and recover from registered employers contribution in respect of the expenditure incurred under the said Scheme. 6. In the year 1990, due to drastic reduction in the import and export traffic, the liability of the Bombay Dock Labour Board in- creased on account of idle wages as well as minimum guaranteed at- tendance allowance payable to the workers registered under the said Scheme who could not be gainfully employed due to want of requisi- tion from the registered employers. The Bombay Dock Labour Board 4 s-881-98 was faced with stringent financial crisis and was unable to pay statu- tory dues to its workers. Writ Petitions were filed in this Hon’ble Court bearing No. 3106 of 1990 and 3208 of 1991 for directions to the Board to pay the arrears of wages due to employees. In the said writ petitions, order was passed on 2nd December 1991. The certified copy of the order passed in Writ Petition Nos. 3106 of 1990 and 3208 of 1991 is tendered before this Court along with a Photostat copy of the same. After comparing the two, the original certified copy is returned to the Plaintiffs and the Photostat copy of the certified copies of the order passed in Writ Petition Nos. 3106 of 1990 and 3208 of 1991 is taken on record and marked as Exhibit “P-4”. 7. Pursuant to the said order and with the intervention of this Hon’ble Court, a Memorandum of Agreement was entered into be- tween the 2nd Plaintiff, Bombay Dock Labour Board, Union of Work- men and Bombay Stevedores’ Association as also Joint Secretary (Ports) in the Ministry of Surface Transport. This Memorandum of Agreement was dated 13th December 1991 and the Agreement was filed in Court in those proceedings. The photo copy of the said Memo- randum of Agreement bearing signatures of all parties to that Agree- ment is produced before this Court. The same is taken on record and marked as Exhibit “P-5”. 8. Thereafter a further order was passed in the said two Writ Petitions on 20th December 1991 after the Agreement was en- tered into as aforesaid, which was tendered in Court. Pursuant to the said Agreement, both the Writ Petitions were withdrawn. The certi- fied copy of the said order dated 20th December 1991 is tendered be- 5 s-881-98 fore this Court along with a Photostat copy of the same. After compar- ing the two, the original is returned to the Plaintiffs and the Photostat copy of the said order dated 20th December 1991 is taken on record and marked as Exhibit “P-6”. 9. Pursuant to the aforesaid Memorandum of Agreement dated 13th December 1991 further negotiations were entered into and ultimately these resulted in Memorandum of Settlement dated 25th January 1994 as a result whereof employees including the registered workers covered under the aforesaid Scheme were absorbed in em- ployment with the 2nd Plaintiff. The original of the said Memorandum of Settlement dated 25th January 1994 is tendered before this Court along with a Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the Photostat copy of the said Memorandum of Settlement dated 25th January 1994 is taken on record and marked as Exhibit “P-7”. 10. By two Notifications dated 25th February 1994 the Cen- tral Government superseded the Bombay Dock Labour Board for a pe- riod of one year and all powers and functions prior thereto exercised by the Bombay Dock Labour Board became vested in the 1st Plaintiff during the period of such supersession. The said supersession has been extended from time to time every year for a further period of one year each and the same has been extended till 31st December 2011. The originals of the said 3 Notifications, two dated 25th Febru- ary 1994 and the last notification dated 28th December, 2010 extend- ing the supersession upto 31st December 2011 are tendered before this Court along with a Photostat copies of the same. After comparing the 6 s-881-98 two, the originals are returned to the Plaintiffs and the Photostat copies of the said 3 Notifications, two dated 25th February 1994 and the last notification dated 28th December, 2010 extending the supers- ession upto 31st December 2011 are taken on record and marked as Exhibit “P-8”, Exhibit “P-9”, and Exhibit “P-10”. 11. In view thereof, the registered workers and employees of the erstwhile Bombay Dock Labour Board have been absorbed in em- ployment of the 2nd Plaintiff pursuant to the aforesaid Memorandum of Settlement dated 25th January 1994, with effect from 1st March 1994 and accounts are being separately maintained by the 2nd Plain- tiffs under the heading “Chairman, MBPT Account” from the period from the date of supersession of the said Board. 12. On 22nd June 1993 the Central Government constituted a Bipartite Wage Negotiation Committee for Class III and Class IV Dock Workers in which the representative of the Bombay Stevedores Associ- ation Limited was a member. A Wage Revision Settlement was reached on 6th December 1994 as a result of which wages / salaries of employees and registered workers of the Major Port Trust and Dock Labour Boards were revised with effect from 1st January 1993 to 31st December 1994. The original of the said Wage Revision Settle- ment dated 6th December 1994 is tendered before this Court along with a Photostat copy of the same. After comparing the two, the origi- nal is returned to the Plaintiffs and the Photostat copy of the said Wage Revision Settlement dated 6th December 1994 is taken on record and marked as Exhibit “P-11”. 7 s-881-98 13. The Bombay Dock Workers (Regulation of Employment) Scheme, 1956 commonly known as Bombay Stevedoring Scheme com- prised interalia of registered stevedores employers and employees. The Defendant company carried on business of Stevedoring and was one of the registered employers of the erstwhile Bombay Dock Labour Board covered by the said Stevedoring Scheme. As a registered em- ployer under the said Stevedoring Scheme, the Defendant used to in- dent registered employees from the Bombay Dock Labour Board until the employees became the employees of the 2nd Plaintiff. On the basis of such indent and as registered employer, the Defendant was liable to pay charges due to the Bombay Dock Labour Board and thereafter to the 1st Plaintiff since the powers and functions of the Bombay Dock Labour Board were vested with the 1st Plaintiff. 14. As a result of Wage Revision Settlement, the arrears payable for the period from 1st January 1993 to 31st December 1994 were paid to eligible employees and workers who were members of the erstwhile Bombay Dock Labour Board. These payments were to be reimbursed by the registered employers including the Defendant, since these bills were to be charged to the stevedores but the bills were not raised originally upon them. Wage arrears bills were accord- ingly raised by the 1st Plaintiff on the registered Stevedores including the Defendants in respect of the Labour actually utilized by them for the period from 1st January 1993 to 28th February 1994. Accordingly, the bill No. 9 in the sum of Rs.6,78,847.65 paise was raised upon the defendants for the period from 1st January 1993 to 28th February 1994 as per the said Wage Revision Settlement dated 6th December 1994. The said bill was dispatched to the Defendants on 11th September 8 s-881-98 1995. The said bill was signed by Shri J.G.Shetty J.A.O on behalf of the Financial Advisor and Chief Accounts Officer of the 2nd Plaintiff. Mr. K.S. Sunilkumar has deposed that he is familiar with the signature of Mr. J.G. Shetty and identifies the same. He further submits that the contents of the said Bill bearing No. 9 are true and correct. The office / carbon copy of the said bill No. 9 is produced before this Court. The same is taken on record and marked as Exhibit “P-12”. 15. The Plaintiffs then received a letter dated 23rd September 1995 from the Bombay Stevedores Association Limited referring to the 14 bills submitted to the members of the Bombay Stevedores Associa- tion Limited asking for an aggregate payment of Rs.3,81,64,909.10 paise. By the said letter the said Association alleged that their mem- bers were not liable to pay the said amount and called upon the plain- tiffs to withdraw the bills under advise to the members to whom the bills were addressed. Mr. K.S. Sunilkumar has deposed that the Photo- stat copy of the said letter was taken by him form the original and was placed by him in file of each member. The Photostat copy of the said letter dated 23rd September 1995 is produced before this Court. The same is taken on record and marked as Exhibit “P-13”. 16. By a letter dated 5th October 1995 addressed to the Exec- utive President of the Bombay Stevedores Association Limited, the Fi- nancial Adviser and Chief Accounts Officer of the plaintiffs pointed out that there was no reason for disputing the said bills and that the members were liable to pay the said amount according to Wage Set- tlement. It was further pointed out that the wage arrears for the said period i.e. Prior to absorption of Bombay Dock Labour Board workers 9 s-881-98 and staff was Rs.6.06 crores in respect of Stevedore and Food Grain workers, out of which the Plaintiffs had billed for work wages to the extent of Rs.4.02 crores which included Rs.3.81 crores payable by the members of the Bombay Stevedores Association Limited since it was their liability. The witness Mr. S.K. Sunil Kumar has deposed that pho- tocopies of the said letters were taken by him and were placed in each file from whom the demands were made. The said letter was signed by Mr.C.M.Hegde, Financial Adviser and Chief Accounts Officer. Mr. K.S.Sunil Kumar has deposed that he is familiar with the signature of Mr.C.M.Hegde and identifies the same. The photocopy of the said let- ter dated 5th October 1995 produced before this Court. The same is taken on record and marked as Exhibit “P-14”. 17. The Plaintiffs then received a letter dated 23rd November 1995 from M/s. Desai, Berjis & Chinoy Advocates & Solicitors for Bombay Stevedores Association Ltd. in which they raised untenable contentions and denied the liability of members of the said Associa- tion to pay the amount claimed from them. The witness Mr. S.K. Sunil Kumar has deposed that photocopies of the said letters were tak- en by him and were placed in each file of the stevedores. The Photo- stat copy of the said letter dated 23rd November 1995 is produced be- fore this Court. The same is taken on record and marked as Exhibit “P-15”. 18. The Plaintiffs then received a letter dated 25th February 1997 from M/s. Desai Berjis & Chinoy, Advocates & Solicitors for Bombay Stevedores Association Limited who wrote on behalf of vari- ous Stevedores on whom demands were made for payment of arrears 10 s-881-98 alleging that they were not liable to pay the said amounts. The wit- ness Mr. S.K. Sunil Kumar has deposed that photocopies of the said letters were taken by him and were placed in each file of the steve- dores. The Photostat copy of the said letter dated 25th February 1997 is produced before this Court. The same is taken on record and marked as Exhibit “P-16”. 19. By a letter dated 15th March 1997 the Chief Law Officer and Advocate of the 2nd Plaintiffs replied to M/s. Desai, Berjis & Chi- noy, setting out the correct facts. The witness Mr. S.K. Sunil Kumar has deposed that photocopies of the said letters were taken by him and were placed in each file of the stevedores. He further submits that the photocopies are compared with the original. The photocopies are true and correct photocopies of the original. He further submits that the contents of the said letter are true and correct. The photocopy of the said letter dated 15th March 1997 is produced before this Court. The same is taken on record and marked as Exhibit “P-17”. 20. The Plaintiffs then received a letter dated 3rd May 1995 from the Under Secretary to the Government of India in the Ministry of Surface Transport conveying sanction of the Central Government under Section 98(7) of the Major Port Trusts Act to expenses incurred. The witness Mr. S.K. Sunil Kumar has deposed that photocopies of the said letters were taken by him and were placed in each file of the stevedores. He further submits that the photocopies are compared with the original. The photocopies are true and correct photocopies of the original. The photocopy of the said letter dated 3rd May 1995 is 11 s-881-98 produced before this Court. The same is taken on record and marked as Exhibit “P-18”. 21. The Plaintiffs then received a letter dated 11th September 1995 from the Desk Officer, Government of India, Ministry of Surface Transport with regard to the new dearness formula. The witness Mr. S.K. Sunil Kumar has deposed that photocopies of the said letter were taken by him and were placed in each file of the stevedores. He fur- ther submits that the photocopies are compared with the original. The photocopies are true and correct photocopies of the original. The pho- tocopy of the said letter dated 11th September 1995 is produced be- fore this Court. The same is taken on record and marked as Exhibit “P-19”. 22. The Plaintiffs then furnished to the Defendants a bill bearing No. 166 dated 1st August 1997 in respect of variable dearness allowance from 1st January 1993 to 28th February 1994 amounting to Rs.3,43,978.77 paise and called upon them to settle the same by 16th August 1997. The said bill was signed on behalf of the Plaintiffs by Shri M.D.Pawar for Dy. Docks Manager. Mr. K.S. Sunil Kumar has de- posed that he is familiar with the signature of Mr. M.D. Pawar and identifies the same. He further submits that the contents of the said bill are true and correct. The office / carbon copy of the said bill is produced before this Court. The same is taken on record and marked as Exhibit “P-20”. 23. The Plaintiffs then received a letter dated 13th August 1997 from M/s. Udwadia, Udeshi, Desai, Berjis & Chinoy, Advocates & 12 s-881-98 Solicitors for Bombay Stevedores Association Ltd. and its members al- leging that their clients were not liable to pay the amounts claimed and calling upon the Plaintiffs to cease and desist from making de- mands upon the members. Mr. K.S. Sunil Kumar deposed that photo- copies of the said letter were prepared by him and after comparing the same with the original, he placed a photocopy in the file of each steve- dore. The photocopy of the said letter dated 13th August, 1997 placed by Mr. K.S. Sunil Kumar in the file of the Defendants is produced be- fore this Court. The same is taken on record and marked as Exhibit “P-21”. 24. By a letter dated 17th February 1997 addressed to the de- fendants it was pointed out that the bill bearing No. 9 dated 31st March 1995 amounting to Rs.6,78,847.65 paise was still pending to- wards wage arrears and called upon them to pay the said amount. The said letter was signed by Shri A.U. Kshirsagar, Dy. Manager. Mr. Sunil Kumar has deposed that he is familiar with the signature of Shri A.U.Kshirsagar and identifies the same. He further submits that the contents of the said letter are true and correct. The office / carbon of the said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-22”. 25. The witness submits that under the provisions of Section 123 of the Major Port Trusts Act, 1963, the Board of Trustees of the 2nd Plaintiffs have amended Bombay Port Trust (Licensing) of Steve- dores and Allied Matters) Amendment Regulations 1989 which has re- ceived sanction of the Central Government. The original Bombay Port Trust (Licensing) of Stevedores and Allied Matters) Amendment Regu- 13 s-881-98 lations 1989 is produced before this Court along with a Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the Photostat copy of the said Bombay Port Trust (Li- censing) of Stevedores and Allied Matters) Amendment Regulations 1989 is taken on record and marked as Exhibit “P-23”. 26. Prior to 1st March 1994 the erstwhile Bombay Dock Labour Board used to have workmen on their registers and they were in the reserve pool meaning thereby that they were not allocated to any particular stevedore on the monthly register of such stevedores. As and when requisitioned by stevedores, workers of various cate- gories like gang workers, tindel, winchman, signaler, tally clerk etc. used to be supplied by the Bombay Dock Labour Board to stevedores depending upon the requirements of the stevedores. In addition, su- pervisory staff was also requisitioned by stevedores and were supplied to stevedores by Bombay Dock Labour Board. 27. In respect of gang workers and pool staff supplied to stevedores, periodical bills were submitted by Bombay Dock Labour Board to such stevedores. Since wages of workers and pool staff were not equal, bills used to be prepared on the basis of highest wage in the categories of workers or supervisory staff supplied to stevedores. The bills in respect of gang workers were prepared 3 times in a month and for supervisory staff once a month. Two types of bills were sent to stevedores, one for wages and the other for piece rates. Both these bills used to be sent periodically and such bills used to be paid. Entries used to be made in respect of the bills furnished and payments re- ceived in what is known as “bill register”. There are two bill registers 14 s-881-98 in respect of stevedores for two periods, i.e. from 1st January 1993 to 31st March 1993 and thereafter from 1st April 1993 to 28th February 1994. This is because from 1st March 1994, the Bombay Dock Labour Board workers were absorbed in the work force of the Bombay Port Trust. The original of the said two bill registers are tendered before this Court along with Photostat copies of the same. After comparing the two, the originals are returned to the Plaintiffs and photocopies of the original pages of the said Bills Registers are taken on record and marked as Exhibit “P-24” and Exhibit “P-25” respectively. 28. From the above bill registers, Mr. S.K. Sunil Kumar has prepared two summary statements of the bills that were submitted to the Defendants during the relevant period from 1st January 1993 to 28th February 1994, one for gang workers and another for supervisory staff. Mr. S.K. Sunil Kumar submits that the said statements indicate the amount of the bills sent periodically and when the payment has been received and how payment was received. He further submits that the said statements have been verified by him from the bill registers which have been produced by him herein above. Mr. S.K. Sunil Kumar has signed the said statements at the foot thereof. He has submitted that the statements made therein are correct. The said two summary statements are produced before this Court. The same are taken on record and marked as Exhibit “P- 26” and Exhibit “P- 27” respec- tively. 29. During the relevant time, all the workers in the reserve pool were not requisitioned by the stevedores, some workers used to remain idle and they were paid attendance allowance, minimum guar- 15 s-881-98 anteed wages and other allowances by the Bombay Dock Labour Board and since they were not allocated to any particular stevedore, a General Ledger was maintained in which all ledger Accounts including idle wages paid to such workers in reserve pool such as minimum guaranteed, attendance allowance, weekly off, holidays wages and leave wages etc. The ledgers were known as “Stevedore