Case: Vizagapatam Dock Labour Board Vs. Stevedores Association, Vishakhapatnam &amp; Ors

of retrenchment compensation to certain workmen who had registered themselves as workmen under the Dock Labour Board. They had filed a claim against the permanent Stevedores under whom they were working originally. The learned Judge, after a consideration of the Scheme framed for the Cochin Port, which is substantially similar to the one before us, held that the Board was the employer of the workmen. We are not inclined to agree with this decision.28. We may also refer to the decision of the Calcutta High Court in A. C. Roy and Co. Ltd. v. Taslim, 71 Cal WN 531 = (AIR 1968 Cal 114 ). There is no doubt the question arose in respect of a claim under the Workmens Compensation Act, 1923. The learned Chief Justice, after a brief analysis of the Act and the Scheme framed for the Calcutta Port, held that when the Administrative Body of the Board allocated a worker in the Reserve Pool to the registered employer, then for the time being and for the purpose of the work concerned, that worker becomes an employee under the registered employer; and in that decision the Court came to the conclusion that the particular worker concerned was at the material time under the employ of the Stevedore. When that is the position with regard to a workman in the Reserve pool, it stands to reason that the monthly worker who is engaged by a registered employer under a contract on a monthly basis is an employee of such registered employer.29. The matter can also be considered from another point of view, viz., can it be stated that the Board is carrying on an industry, so as to attract the provisions of the Industrial Disputes Act? We have already referred to the various circumstances which will show that there is no employment as such of the dock worker by the Board. As observed by this Court in Gymkhana Club Union v. Management 1968-1 SCR 742 at p. 752 = (AIR 1968 SC 554 at p. 561):"What matters is not the nexus between the employee and the product of the employers efforts but the nature of the employers occupation. If his work cannot be described as an industry his workmen are not industrial workmen and the disputes arising between them are not industrial disputes. The cardinal test is thus to find out whether there is an industry according to the denotation of the word in the first part. The second part will then show what will be included from the angle of employees."Dealing with the definition of industry, this Court further observed:"The definition of industry is in two parts. In its first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression industrial is intended to convey. This is the denotation of the term or what the word denotes. We shall presently discuss what the words business, trade, undertaking, manufacture or calling comprehend. The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. This part gives the extended connotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define industry. An industry is not to be found in every case of employment or service."Dealing with the expression industrial dispute in the Industrial Disputes Act, this Court further proceeds to state, in the above decision at p. 757 (of SCR) = (at p. 564 of AIR):"...the words are industrial dispute and not trade dispute. Trade is only one aspect of industrial activity; business and manufacture are two others. The words also is not industry in the abstract which means diligence or assiduity in any task or effort but a branch of productive labour. This requires co-operation in some form between employers and workmen and the result is directly the product of this association but not necessarily commercial".and wound up the discussion, at p. 758, thus:"Industry is the nexus between employers and employees and it is this nexus which brings two distinct bodies together to produce a result."30. Applying the above principles to the case on hand,in our opinion it is clear that it cannot be stated that the Board functioning under the Act and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act.As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held thatthe Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question.In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workman against the Stevedores Association and its members who are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I. D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law. The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the remand proceedings.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Having due regard to the nature of the claim and the basis on which the Tribunal itself has proceeded, we are satisfied that the claim for bonus has been made by the Unions specifically against the Stevedores Association and its members and, as such, the Tribunal was not justified in making the Board liable.11. In the statement of claim filed by the Port Khalasis Union, in paragraph 2 it is stated that since the Stevedores are the registered employers of the Dock Labour Board, the bonus should be settled by the Stevedores Association only. In paragraph 14 the Union has stated that the plea of the Stevedores at Visakhapatnam that they are not concerned with the demand for bonus since the workers are registered with the Dock Labour Board is wrong, baseless and aimed at contusing the issue. After referring to the agreements arrived at between the Stevedores workmen and the Stevedores at Bombay. Calcutta, Cochin and Madras, the Union has stated in Para 15 that the Stevedores at Visakhapatnam Port are in no way different and they cannot disclaim their responsibilities for payment of bonus to the workmen.The Stevedores Association no doubt has stated that the Dock workers are the workmen of the Board as all the ingredients of master and servant exist as between the Board and the dock workers. The Board has categorically stated in its written statement that the dock workers claim against the Stevedores should not be allowed to be converted by the Stevedores into a claim against the Board. The Board has further specifically pleaded that no award could be passed against it contrary to the claim made by the dock workers themselves.14. The various averments contained in the statements referred to above will clearly show that the claim for payment of bonus by the dock workers was essentially and in the main directed against the Stevedores Association and its members. Otherwise a reference by the Union to the prosperity and lucrative business conducted by the Stevedores and the large profits made by them will have no relevancy at all. No doubt here and there are certain averments regarding the Board but so far as we could see, no specific claim for payment of bonus as against the Board has been made. On the other hand the claim is that the Board on behalf of the Stevedores in Visakhapatnam can pay the bonus claimed by the Union. The statement filed by the Stevedores Association also makes it clear that they understood the claim by the workmen as directed against them because it makes various averments to establish that the workmen have no claim as against them as the Stevedores Association or its members are not the employers of the workmen. The Board has specifically stated that a claim made against the Stevedores should not be converted into a claim made against the Board and no award can be passed contrary to the claim of the workmen themselves.The observation extracted earlier shows that the Tribunal has also proceeded on the basis that the claim by the workmen has to be adjudicated upon on the basis that it is the liability of the Stevedores. But, unfortunately, in the latter part of the award the Tribunal has mixed up the discussion regarding the liability of the Board or the Stevedores Association and has ultimately held that the Board is liable for payment of bonus. No doubt the basis for this conclusion is that the Board is the employer of the dock workers. The correctness of the view about the Board being the employer of the dock workers will be considered by us when we deal with the second contention of the learned Attorney General. To conclude on the first aspect the learned Attorney General is well founded in his contention that in view of the pleadings and the nature of the claim made by the workmen the award making the Board liable for payment of bonus is not correct.15. Normally, our decision accepting the first contention of the learned Attorney General is enough to dispose of the appeal. But, as the Tribunal has adjudicated upon the contention of the Board that it is not the employer of the dock workers and held against it, we shall proceed to consider the second contention of the learned Attorney General.16. In order to appreciate the relationship between the Board, the dock workers and the Stevedores Association, it is necessary to refer to certain provisions of the Act and the Scheme.But before we do so, we can broadly set out how the work of loading and unloading of ships in the port of Visakhapatnam is being done. The Board maintains a Dock Labour pool. The shipping companies have their agents at Visakhapatnam. The Stevedores enter into contracts with thefor the loading and unloading of cargo. The contracts contain clauses regarding the rate per ton of cargo payable to the Stevedores who handle the loading or the unloading of cargo. The shipping agents inform the Stevedores about the ship that is due to arrive as also the nature and quantity of the cargo to be loaded or unloaded. The Stevedores inform the Board about the quality of cargo to be loaded or unloaded and place an indent stating the approximate labour force that may be required for the said purpose. The Board supplies the labour force as asked for. Along with the labour force the Board desputes two supervisors who are called the loading mazdoors and the tindal. The Stevedores employ one Foreman for the entire operation of either loading or unloading. The duty of the Foreman appears to be to see that the cargo is not damaged and that it is properly handled by the labour force supplied by the Board. The Stevedores have to carry on the work with the labour force supplied by the Board and they cannot engage outside labour for the work. The Stevedores pay to the Board for the services of the workers supplied by it. Over and above the wages due to the labourers and paid to the Board the Stevedores have also to pay 105 per cent of the actual wages to the Board known as General and Welfare Levy. The Board utilises this additional amount for making certain payments to the workers. The Stevedores cannot take any disciplinary action against the workmen but, on the other hand, they have to complain to the Board. The Board takes the necessary disciplinary action against the workers concerned. It fixes the rates of wages to be paid by the Stevedores and collects the same from them and pays to the workers. A particular gang of workmen may work for one Stevedore on a particular day and on the next day they may work for another Stevedore. In fact it may even happen that one gang of workmen work for different Stevedores in the course of the same day.We have rather elaborately gone into the various matters dealt gone into the various matters dealt with under the Act and the Scheme as that will give a true picture of the nature of the functions and duties that the Board discharges in respect of the work carried on in the port.From the various provisions of the Act and the Scheme referred to above, it is evident that the Board is a statutory body charged with the duty of administering the Scheme, the object of which is to ensure greater regularity of employment, for dock workers and to secure that an adequate number of dock workers are available for the efficient performance of dock work. The Board is an autonomous body, competent to determine and prescribe the wages, allowances and other conditions of service of the Dock workers. The purport of the Scheme is that the entire body of workers should be under the control and supervision of the Board. The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies, whenever necessary, the labour force to the Stevedores from the Reserve Pool. The workmen who are allotted to the registered employers are to do the work under the control and supervision of the registered employers and to act under their directions. The registered employers pay the wages due to the workers to the Administrative Body and the latter, in turn, as agent of the registered employers, pay them over to the concerned workmen.24.All these circumstances, in our opinion, prima facie establish that the Board cannot be considered to be the employer of the Dock Labour workmen. In fact, the various provisions referred to in the Scheme clearly show that the registered employer to whom the labour force is allotted by the Board is the employer whose work of loading or unloading of ships is done by the dock workers allotted to them.25.Mr. Srinivasamurthy, learned counsel for the respondent,referred us to certain circumstances to support his contention that the relationship ofs between the Board and the dock workers.Some of those circumstances are recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmens compensation, taking of disciplinary action and prohibition against employment of workmen who are not registered with the Board. These circumstances, in our opinion, do not establish a relationship of employer and employee between the Board and the dock labour. The functions referred to above are discharged by the Board under the Scheme, the object of which, as mentioned earlier, is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work.It is with this purpose in view, that the Scheme has provided for various matters and considerable duties and responsibilities are cast on the Board in this regard. But we have also already pointed out that under(5) of cl. 36 a registered dock worker, when allotted for employment under a registered employer, shall carry out his duties in accordance with the directions of such registered employer and cl. 11 (e) also makes it clear that in the matter of allocation of registered dock workers in the Reserve Pool to registered employers, the Administrative Body shall be deemed to act as agent for the employer.Though the contributions for the Dock Workers Fund as well as the wages and other earnings due to a worker are paid by the registered employer to the Board at the rates fixed by it, the latter passes on the same to the dock worker concerned, as agent of the registered employer, under cl. 11 (f) (iii). Further, the definition of the expression dock worker and employer under S. 2 (b) and (c) respectively of the Act and the definition of dock employer and monthly worker in cls. 3 (g) and (k) respectively of the Scheme and the obligation cast under cl. 36 (5) of the Scheme on a registered dock worker,when allocated for employment under a registered employer to carry out his duties in accordance with the directions of the latter and the provisions contained in cl. 37 (5) of the Scheme regarding payment by a registered employer to the Administrative Body of the gross wages due to the dock worker andthe implied condition of contract between the registered dock worker and the registered employer under cl. 40, read along with the provisions regarding the functions of the Board, in our view, clearly lead to the conclusion that the Board cannot be considered to be the employer of the dock workmen and there is no relationship of master and servant between the two.We are not inclined to agree with thishave already referred to the various circumstances which will show that there is no employment as such of the dock worker by the Board.Applying the above principles to the case on hand,in our opinion it is clear that it cannot be stated that the Board functioning under the Act and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act.As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held thatthe Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question.In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workman against the Stevedores Association and its members who are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I. D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law. The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the remand proceedings.