IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 622 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 M/s. C. K. Patel & Sons A firm carrying on business 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 Plaintiff. Mr. Niteen Prabhakar Deshpande, Asstt.Executive Engineer (W) present in person. 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 Plaintiffs an amount of Rs. 61,624.71 paise towards the claim for wage revision arrears and the variable dearness allowance and interest thereon as per the 2 s-622-98 particulars of claim being Exhibit “F” to the Plaint and to further pay to the Plaintiffs interest on the sum of Rs.43,416.71 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 10th March 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. Niteen Prabhakar Deshpande, Asstt.Executive Engineer (W) and a Principal Officer of the Plaintiffs has filed his Affidavit in lieu of evidence dated 25th 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 Niteen Prabhakar Deshpande has filed his evidence pursuant to the letter of authority dated 7th April 2011 issued by the Plaintiff in his favour. The said letter of authority is marked Exhibit “P-1”. 3. It is stated in the Plaint as well as in the Affidavit in lieu of Evidence as follows:- 4. The 1st Plaintiff is the Chairman of the 2nd Plaintiff. 5. Bombay Dock Labour Board was a Body Corporate constituted under the provisions of the Dock Workers (Regulation of Employment) Act, 1948. Amongst other Schemes framed under the said Act, a Scheme known as the Bombay Chipping and painting Workers (Regulation of Employment) Scheme, 1969, was also framed. 3 s-622-98 Under the said Scheme, an employer registered under the said Scheme was allowed to indent registered workers of the Bombay Dock Labour Board for which it maintained an adequate strength of such workers on its register. It was obligatory on the part of the registered employers to pay wages of the workers so indented as also to pay the levy payable under the Scheme and the gross wages due to the workers. The cost of operating the said Scheme were met by the registered employers to the Bombay Dock Labour Board and one of the functions of the said Board was to levy and recover from the registered employees contribution in respect of the expenditure incurred under the said Scheme. 6. In the year 1990 due to drastic reduction in import and export traffic, the liability of the said Board increased on account of idle wages as well as minimum guaranteed attendance allowance, weekly leave allowance etc. as workers though registered under the said Scheme could not be gainfully employed due to want of requisitions from the registered employers. Due to paucity of funds, the Bombay Dock Labour Board was faced with stringent financial position and was unable to pay statutory dues to its workers. Writ Petitions were filed by some workers for arrears of wages due to employees. Ultimately on suggestion of Hon’ble Bombay High Court a Memorandum of Agreement was entered between the 2nd Plaintiff, Bombay Dock Labour Board, Unions of workers and Bombay Stevedores Association Limited, as also the Joint Secretary (Ports) in the Ministry of Surface Transport. This Memorandum of Agreement was dated 13th December, 1991. This agreement on behalf of the Bombay Dock Labour Board was signed by its then Deputy Chairman 4 s-622-98 Mr. R. D. Joshi, on behalf of the Port Trust by its various Trustees including Mr. S.R. Kulkarni, the then Chairman of the Bombay Port Trust, Mr. Bansali, the Joint Secretary (Ports) Mr. Ashok Joshi and representatives of Stevedores Association. The witness submits that the Plaintiffs have a photo copy of the Memorandum of Agreement dated 13th December 1991. The photo copy of the said Memorandum of Agreement is produced before this Court. The same is taken on record and marked as Exhibit “P-2”. The original of the said 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-3”. The original Scheme i.e. Bombay Chipping and Painting Workers (Regulation of Employment) Scheme 1969 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 Bombay Shipping and Painting Workers (Regulation of Employment) Scheme, 1969 is taken on record and marked as Exhibit “P-4”. 7. Pursuant to the said Agreement, a Memorandum of Settlement dated 25th January 1994 was entered into under which employees of the Bombay Dock Labour Board including registered workers covered under the said Scheme were to be employed in the employment of the 2nd Plaintiff. The photo copy of the said Memorandum of Settlement is produced before this Court. The same is taken on record and marked as Exhibit “P- 5”. 5 s-622-98 8. Pursuant thereto the Government of India, issued two Notifications dated 25th February 1994. By one such Notification, the Government of India superseded the Bombay Dock Labour Board for a period of one year and all powers and functions exercised prior thereto by the Bombay Dock Labour Board became vested in the Chairman of the Mumbai Port Trust i.e. the 1st Plaintiff during the period of said supersession. By another Notification dated 25th February 1994 the Schemes framed under the Bombay Dock Labour (Regulation of Employment) Act, were revoked and the employees registered under the said Scheme were absorbed in the employment of the 2nd Plaintiff. The originals of the said 2 Notifications both dated 25th February 1994 are tendered before this Court along with Photostat copies of the same. After comparing the two, the originals are returned to the Plaintiffs and the Photostat copies of the said 2 Notifications, dated 25th February 1994 are taken on record and marked as Exhibit “P-6” and Exhibit “P-7”. 9. Since the Registered workers and employees of the erstwhile Bombay Dock Labour Board have been absorbed in the employment of the 2nd Plaintiff pursuant to the aforesaid Memorandum of Settlement dated 25th January 1994 with effect from 1st March 1994, the accounts of the Bombay Dock Labour Board are being maintained separately by the 2nd Plaintiff under the Heading “Chairman, Mumbai Port Trust” from the date of supersession of the said Board. 10. By subsequent Notifications issued from time to time the said supersession has been extended and the 1st Plaintiff continues to 6 s-622-98 exercise all powers exercised by the erstwhile Bombay Dock Labour Board. The supercession has been extended till date. 11. A letter dated 24th May 1995 from Mr. D. P. Bhatnagar, Under Secretary to the Government of India addressed to the 1st Plaintiff is tendered before this Court along with Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the photostat copy of said letter is taken on record and marked as Exhibits “P-8”. 12. The letter dated 11th September 1995 signed by Mr. V. K. Agarwal, Desk Officer in the Ministry of Surface Transport addressed to the 1st Plaintiff and Chairman and Deputy Chairman of all Major Ports is tendered before this Court along with Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the photostat copy of said letter is taken on record and marked as Exhibits “P-9”. 13. Pursuant to the said Agreement, there was a Wage Revision Settlement entered into on 6th December 1994 which was arrived at by a Bipartite Wage Negotiation Committee for Class III and Class IV Dock Workers and the Central Government on 22nd June 1993. The photo copy of the said Wage Revision Settlement is produced before this Court. The same is taken on record and marked as Exhibit “P-10”. 14. The Defendants carried on business of Chipping and Painting and were one of the erstwhile employers covered by the said 7 s-622-98 Scheme under the Bombay Dock Labour Board. As a registered employer, the Defendants used to indent registered employees from the Bombay Dock Labour Board until the employees became the employees of the 2nd Plaintiff. On the basis of such indent as registered employers, the Defendants were liable to pay wages to the Bombay Dock Labour Board and thereafter to the 1st Plaintiff since all the powers and functions of the Bombay Dock Labour Board were vested with the 1st Plaintiff. This suit has been filed for recovery of the amounts due and payable by the Defendants under the provisions of the said Scheme. 15. As a result of the Wage Revision Settlement, wage arrears for the period from 1st January 1993 to 31st December, 1994 became payable to the eligible employees and workers who were members of the erstwhile Bombay Dock Labour Board, which was in turn to be reimbursed by the registered employer including the Defendants. Since these arrears bills were to be charged to the employers but the bills were not raised earlier, wage revision bills were accordingly raised by the 1st Plaintiff on registered employers including the Defendants in respect of the labour actually utilized by them for the period 1st January 1993 to 28th February1994. Accordingly the bill dated 31st March 1995 for wage revision arrears in the sum of Rs.38,477/- was raised upon the Defendants for the period from 1st January 1993 to 28th February 1994 as per the Wage Settlement. The said bill was signed by Mr. J.G Shetty, Accounts Officer, for the Financial Adviser and Chief Accounts Officer of the 2nd Plaintiff. The witness submits that he is familiar with the signature of Mr. J.G. Shetty and identifies the same. The office copy of the said bill 8 s-622-98 is tendered before this Court and the same is taken on record and marked as Exhibit “P-11”. 16. By a letter dated 20th October, 1995 the Secretary of the Chipping and Painting Employers Association Pvt. Ltd. referred to various bills addressed to employers including the Defendants and alleged that the Association and/or its members were not liable to pay the amount. The said letter dated 20th October 1995 is tendered before this Court along with Photostat copy of the same. After comparing the two the original is returned to the Plaintiffs and the photo copy of the same is taken on record and marked as Exhibit “P- 12”. 17. The Plaintiffs thereafter received a letter dated 14th February 1997 from M/s. Desai, Berjis & Chinoy, Advocates and Solicitors for the Chipping & Painting Employers Association Private Limited and its Members with regard to the correspondence carried on between the Plaintiffs and the said Association and/or its Members. The said letter dated 14th February 1997 is tendered before this Court along with photostat copy of the same. After comparing the two the original is returned to the Plaintiffs and the photo copy of the same is taken on record and marked as Exhibit “P-13”. 18. By the aforesaid letter dated 11th September, 1995, from the Government of India, Ministry of Surface Transport (Wage Revision) Cell, conveyed its decision to extend the dearness allowance formula as applicable to Public Sector Undertaking to Class III and Class IV Port and Dock Workers with retrospective effect from 1st 9 s-622-98 January 1992. Accordingly, the Plaintiffs paid arrears to the ex employees of the Bombay Dock Labour Board for the period from 1st January 1992 to 31st October 1995 and bills were thereafter raised on the employers with the approval of the 1st Plaintiff for recovery of the dearness allowance arrears which formed part of the gross wages which was paid to the registered employees including the supervisory staff actually employed by the registered employers for the period from 1st January 1993 to 28th February 1994 i.e. the date prior to the date of absorption of the workers of the Bombay Dock Labour Board. Accordingly bill was raised on the Defendants to pay variance in dearness allowance arrears amounting to Rs.4,939.71 paise and the Defendants were called upon to pay the said amount. The office copy of the said bill is tendered before this Court. The calculations made in the bill are correct. The same is taken on record and marked as Exhibit “P-14”. 19. The Defendants have availed of the services of the registered workers of the Bombay Dock labour Board at Mumbai. As such the Defendants were bound and liable to pay to the erstwhile Bombay Dock Labour Board and now to the Plaintiffs a sum of Rs. 38,477/- being the wage revision arrears for the period from 1st January 1993 to 28th February 1994 in accordance with the Wage Settlement arrived on 6th December 1994 together with the sum of Rs.4,939.71 paise being the variable dearness allowance for the period from 1st January 1993 to 28th February 1994 in accordance with the decision conveyed by letter dated 11th September 1995, aggregating to Rs.43,416.71 paise. 10 s-622-98 20. The Plaintiffs have demanded the said amount from the Defendants. Inspite of the letters of demand, the Defendants have failed to pay the said amount of Rs.43,416.71 paise or any part thereof. The Plaintiffs have therefore filed the present suit to recover from the Defendants a sum of Rs.43,416.71 paise being the wage revision arrears and variable dearness allowance arrears and accrued interest till the date of the suit. The Plaintiffs have also claimed interest at the rate of 18% per annum on the sum of Rs. 43,416.71 paise from the date of the suit till payment or realization and costs of the suit. The Particulars of Claim annexed and marked Exhibit ‘F’ to the Plaint are correct. 21. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of documents filed by the Plaintiffs. From Exhibit “P-2”, it is established that there was a Memorandum of Agreement dated 13th December 1991 and an Agreement was entered into on 20th December 1991, pursuant to which Writ Petitions filed by Trade Unions were withdrawn. From Exhibit “P-5“, it is established that Memorandum of Settlement dated 25th January 1994 was entered into, pursuant to which the erstwhile employees of Bombay Dock Labour Board were absorbed with the Mumbai Port Trust. From Exhibit “P-7 “, it is established that the Central Government superseded the Bombay Dock Labour Board and that the 1st Plaintiff has powers and functions exercised prior thereto by the Bombay Dock Labour Board during the supersession and such supersession continues till 31st December 2011. From Exhibit “P-10“, it is established that the wage revision settlement was reached on 6th December 1994, pursuant to which, the 11 s-622-98 wages/salaries of the employees and registered workers of the Mumbai Port Trust and Bombay Dock Labour Board were revised with effect from 1st January 1993 till 31st December 1994 and that arrears were payable to the registered employees of the erstwhile Bombay Dock Labour Board for the period 1st January 1993 till 28th February 1994 by the registered employers including the Defendants in respect of labour actually utilized by them from the period from 1st January 1993 to 28th February 1994 and the same amounted to Rs.38,477/- and in respect thereof, Bill bearing No.1 dated 31st March 1995 was dispatched to the Defendants and received by them. From Exhibit “P-9“ it is established that Government of India, Ministry of Surface Transport revised Variable Dearness Allowance payable to employees for the period from 1st January1993 to 28th February 1994 which was payable after the revision effected by the Government and that the amount payable by the Defendants as Variable Dearness Allowance in respect of the employees indented by them from Mumbai Port Trust for the period 1st January 1993 to 28th February 1994 amounted to Rs. 4,939.71 paise and from Exhibit “P -14“, it is established that bill dated 1st August 1997 was raised by the Plaintiffs upon the Defendants and which has been received by the Defendants. From Exhibit “P-12” and “P-13” it is established that there was correspondence between the parties in respect of the payment of wage arrears and Variable Dearness Allowance but the same was not paid by the Defendants. 22. As set out hereinabove, though the Defendants are served with the Writ of Summons, and an affidavit of service to this effect dated 10th March 2010 is filed in this Court, the Defendants have not 12 s-622-98 filed their Written Statement and have also not come forward to defend the Suit. In view thereof, what is stated by the Plaintiffs has gone unchallenged. There is no reason why what the Plaintiffs have stated in the Plaint as well as in the Affidavit in lieu of Evidence should not be accepted. 23. In the above circumstances, in my view, the relief’s sought by the Plaintiffs are required to be granted. In view thereof, I pass the following order:- (i) The Defendants are ordered and decreed to pay to the Plaintiffs as per the Particulars of Claim being Exhibit “F” to the Plaint a sum of Rs.38,477/- being the wage revision arrears for the period from 1st January 1993 to 28th February 1994 in accordance with the Wage Settlement arrived on 6th December 1994 together with Rs.4,939.71 paise being the variable dearness allowance for the period from 1st January 1992 to 28th February 1994 in accordance with the decision conveyed by letter dated 11th September 1995, aggregating to Rs.43,416.71 paise and further interest on the sum of Rs. 43,416.71 paise at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation; (ii) The Defendants to pay costs to the Plaintiffs of this Suit; (iii) The Suit is accordingly disposed of in favour of the Plaintiffs and against the Defendants. [ S. J. KATHAWALLA, J. ]