Case: Calcutta Port Sharmik Union Vs. Calcutta River Transport Association &amp; Ors

2. The Government of India set up a Wage Board for the port and dock workers at major ports on November 13, 1964 and made a reference to the said Board in the following terms, namely(a) to determine the categories of employees (manual, clerical, supervisor, etc.) who should be brought within the scope of proposed wage fixation (excluding, however, the Class I and II Officers); and  (b) to work out a wage structure based on the principal of fair wages a set forth in the report of the Committee on Fair Wages3. In making the reference the Central Government laid down guidelines as to how the fair wages were to be determined and further directed the Board to submit its recommendations in respect of interim relief pending submission of the final report. The Wage Board submitted its recommendations regarding the interim relief on April 9, 1965 and in the course of the said recommendations it observed that they would be applicable to certain categories of employees and port and dock workers at major ports4. The wage Board submitted its final report on November 29, 1969. Since the Wages Board had been authorised under the terms of reference to determine the specific categories of dock workers and employees who in the opinion of the Board should be brought under the scope of the principles of wage fixation, the Wage Board had specified the categories of workers who were entitled to relief at its hands even at the stage of making of the interim recommendations, referred to above. At this stage it is necessary to refer to the definition of the expression dock worker in the Dock Workers (Regulation of Employment) Act, 1948 (hereinafter referred to as the Act)5. The above definition of dock worker is of wide import and it includes all categories of workers working in a port or in the vicinity, if they are handling cargoes. But the Wage Board, however, did not choose to make any recommendation in respect of bargemen, i.e. Dandees and Majhis at the Port of Calcutta, who were more than 15, 000 in number. As a matter of fact there was an earlier reference by the Sate Government of a dispute regarding the wages payable to bargemen, i.e., Dandees and Majhis at the Port of Calcutta and the Industrial Tribunal had by an award dated March 9, 1966 fixed their basic wages at Rs. 110 and Rs. 130 per month respectively. There were also certain ad hoc increments of such wages by different interim agreements. When these categories of workmen found that the Wage Board had not made any recommendation regarding the wages payable to them, they raised an industrial dispute claiming the benefit of the Wage Board recommendations6. In the statement of claims filed by the trade union representing bargemen it was contended that barges, lighters and boats performed the combined functions of transit sheds, warehouses, jetties, quays, wharfs on a miniature scale and enabled loading and unloading of cargoes into and from ships, and that they carried almost all the cargoes from mills, factories and establishments located at the back of the river as it was found to be advantageous and economical to use barges, lighters and boats for loading and unloading of cargoes into and from ships because of all round lower costs. Accordingly, the trade union claimed that barges, lighters and boats were engaged in dock works and the workmen concerned fully conformed to the definition of dock workers as given in the Act. It, therefore, claimed that the bargemen were also entitled to the scale fixed by the Wages Board in paragraph 7.2.108 of its final report. Alternatively, the union claimed that if their wages were to be assessed independently then they were entitled to a minimum wage of Rs. 206.40 paise on the very same considerations which led the Wage Board in its recommendations to fix the minimum wage figure as incorporated in Paragraphs 7.1.19 to 7.1.70. The employers on the other hand and mainly the two associations representing the employers in theirt made out a case that bargemen did not come within the definition of dock workers and were not covered by the Wage Board recommendations since they were employed mainly in the transportation of goods. According to them the bargemen were employed in carrying jute and jute goods from jute mills to ships berthed in and around the docks from mills to mills, jetties and ghats and also cargoes from ships to various places in the State of West Bengal. The managements claimed that the bargemen were neither wholly engaged in docks and streams nor were they involved in the process of unloading and loading. In support of this claim the managements depended upon the findings of an Expert Committee appointed by the Central Government to the effect that bargemen were engaged more in the transport of cargo rather than its handling and they therefore did not fit in with the definition of dock workers. In that view the employers contended that the first part of the reference was totally misconceived inasmuch as on the recommendations of the Wage Board itself the bargemen did not come within its purview. Secondly, the employers disputed the correctness of the wage fixation as made by the Wage Board with reference to certain alleged infirmities pointed out by them including the infirmity of the Board not considering the capacity of the industry to pay as laid down by the courts. So far as the second part of the reference was concerned, the employers urged that the wages of the bargemen had been fixed by the Industrial Tribunal on a reference by the Government of West Bengal made on January 4, 1965 and that the Wages so fixed had been revised from time to time by agreement between the parties and there being no change in the circumstances justifying any further revision thereof, there should be no upward revision of the existing wage structure. They also pleaded that the financial capacity of the employers did not permit any further enhancement in the wages7. The National Tribunal after overcoming certain preliminary obstacles placed before it by the institution of a writ petition in the High Court of Calcutta by the management questioning the validity of the reference itself, was able to pass an award on July 20, 1976. The National Tribunal held that since the bargemen, i.e., Dandees and Majhis were dock workers they were entitled to get wages and allowances in accordance with the Wage Board recommendations. After taking into consideration the relevant circumstances, the National Tribunal also held that the Dandees and Majhis working under the members of the Calcutta River Transport Association, and of the Bengal River Transport Association and under the Port Shipping Co. Ltd. were entitled to payment of higher wages and allowances w.e.f. January 1, 1976 even independently of the recommendations of the Wage Board but at the same rates which had been recommended by the Wage Board, which were considered by the National Tribunal reasonable in the circumstances of the case. This part of the award was made pursuant to the second part of the reference made to the National Tribunal9. On the basis of the above findings the learned Single Judge quashed the award passed by the National Tribunal. Aggrieved by the decision of the learned Single Judge, the trade union filed an appeal before the Division Bench of the High Court. The Division Bench by its judgment dated March 6, 1979 affirmed the judgment of the learned Single Judge. The Division Bench was of the view that there was a serious doubt as to whether all dock workers answering the definition of dock workers in the Act were entitled to be brought within the scope of the proposed wage fixation by the Wage Board. So far as the second issue was concerned, the Division Bench held that the National Tribunal had failed to fix the wages in accordance with the settled principles. It also agreed with the finding of the learned Single Judge that the decision of the National Tribunal was beyond its jurisdiction which was controlled by the questions referred to it for adjudication. Aggrieved by the decision of the Division Bench, the trade union has filed these appeals by special leave under Article 136 of the Constitution of India

Reasoning:
19. After giving our anxious consideration to the entire award and to the judgments of the learned Single Judge and the Division Bench of the Calcutta High Court we feel that both the learned Single Judge and the Division Bench of the High Court erred on the facts and in the circumstances of the case in setting aside the award passed by the National Tribunal. As observed by the learned Single Judge himself the first question, namely, whether the recommendations of the Central Wage Board for the port and dock workers as accepted by the Central Government were applicable to the bargemen in the matter of wages and allowances was referred to the National Tribunal by the Central Government as there were doubts regarding the question whether the bargemen came within the meaning of the definition of dock worker in the Act or not. Naturally in order to decide the said question the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question whether the bargemen were dock workers or not and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board. This part of the award cannot, therefore, be considered to be outside the scope of the references made to the National Tribunal. The learned Single Judge and the Division Bench of the High Court were therefore in error in finding that the National Tribunal had exceeded its jurisdiction while recording its findings on the above question. The finding on the said question recorded by the National Tribunal may be right or wrong but it cannot be considered as one recorded without jurisdiction. We are of the view that the said question clearly fell within the first part of the reference made to the National Tribunal. Having held that the finding that the bargemen were also dock workers had been recorded by the National Tribunal without jurisdiction the learned Single Judge proceeded to quash the finding recorded by the National Tribunal on the second question also by which the National Tribunal had held that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board having regard to the financial capacity of the managements and all other relevant factors governing the question of wages payable to them. The Division Bench also erred in observing that the National Tribunal had not applied the relevant principles governing the determination of fair wages. It erred in observing that the National Tribunal had taken into consideration the financial capacity of the port authorities to pay wages and allowances and not of the private employers like those who had challenged the award in the High Court. The Division Bench, however, has observed in the course of its order that no doubt in the award some reference was made to the financial capacity of some of the employers but that had been done only to support the conclusion that the minimum wage as fixed by the Wage Board should be admissible to these workmen and that it would not be beyond the capacity of the employers to pay the same. On going through the award we feel that the above criticism of the award made by the National Tribunal is wholly unjustified. It has dealt with the second part of the reference in paragraphs 37 to 44 of the award which are found in pages 146 to 157 of the paper book placed before us. The National Tribunal has given reasons as to why it has adopted, while answering the second part of the reference referred to it, the recommendations of the Wage Board20. The learned Single Judge and the Division Bench of the High Court should have seen that the National Tribunal was of the opinion that the bargemen were entitled to be paid wages and allowances at the rates of wages recommended by the Wage Board on the ground that the bargemen came within the meaning of definition dock workers under the Act and thus the recommendations of the Wage Board were applicable to them and alternatively on the ground that they were entitled to the same rates of wages and allowances even independently of the recommendations of the Wage Board as according to the National Tribunal they were entitled to be paid at those rates having regard to the financial capacity of the managements and all other relevant considerations governing the determination of the wages. In these circumstances we feel that the reasons given by the learned Single Judge and by the Division Bench of the High Court to set aside the award passed by the National Tribunal are wholly unsustainable. The wages and allowances fixed by the National Tribunal were just and not at all excessive.