Chairman Cum Managing Director, Ennore ... vs V. Manoharan And Ors.

3) In order to appreciate the issues involved in these appeals, it is necessary to set out the relevant facts hereinbelow.

4) There are two Port Trusts in Chennai. One is known as “Chennai Port Trust” and the other is known as “Ennore Port Trust”, now called “Kamarajar Port Trust”.

7) In 1987, these workers made a demand to regularize their services in the set up of the Port Trust. Since their demands were not acceded to, they (160 or so) filed a writ petition (W.P. No.9011 of 1987) in the High Court at Madras seeking therein a relief of regularization of their services in the set up of Chennai Port Trust.

10) The matter was then referred to arbitration which resulted in passing of an award dated 22.10.1994. The award was published in the Government of India Gazette on 24.12.1994. The 4 award, inter alia, directed the parties to enter into a Memorandum of Understanding (MOU) for settlement of the disputes. Accordingly, the Association and the Chennai Port Trust entered into a MOU on 02.05.1995. (Annexure-P-1)

13) In the light of the aforementioned background facts arising in the case, one writ petition (Public Interest Litigation) came to be filed in the Madras High Court (W.P. No.11747/2002) by some public-spirited persons against the State, Chennai port Trust and Pollution Board complaining therein that due to heavy and reckless handling of coal and iron ore and heavy movement of dusty cargo every 7 day in Chennai Port Trust (handling plant) premises, the activity is emitting, huge quantity of dust and several chemical particles in the air are polluting the entire environment which, according to the writ petitioners, was harmful to the life of human being and especially to those, who are residing in the nearby area of the Port. It was complained that such activity being hazardous and equally injurious to the health of human beings, should be stopped forthwith or, in any case, be regulated in the larger public interest including considering shifting of activity to some other Port, if considered feasible and practicable so that hazards of the environmental pollution which is prevailing in the locality is considerably reduced. It is essentially to espouse this cause, the PIL (writ petition) was filed for claiming appropriate remedial relief(s) for the benefit of the larger public good. The State and the Chennai 8 Port Trust contested the writ petition on several grounds.

14) By order dated 11.05.2011, the High Court allowed the writ petition and gave five directions to the Chennai Port Trust and Ennore Port Trust for ensuring their compliance. These directions are reproduced hereinbelow:

(e) With regard to the traders, like the impleaded respondents 6 to 8 also, both the Chennai Port and the Ennore Port are directed to protect their rights and interest, in accordance with law.” 10

17) The Chennai Port Trust contested the writ petition, inter alia, again contending that there was no relationship of employee and employer between the writ petitioners and the Chennai Port Trust and, therefore, the writ petitioners are not entitled to claim any relief much less the relief of regularization in the services of Chennai Port Trust.

18) The Single Judge, by order 22.07.2016, dismissed the writ petition holding that there did not exist any relationship of employer and employee between the parties and hence no relief can be granted to the writ petitioners much less the one claimed in the writ petition. The writ petitioners felt aggrieved and filed writ appeal before the Division Bench of the High Court.

23) In our considered opinion, a question whether a particular person is in the employment of any establishment and whether he is entitled to claim regularization of his services in such establishment (as in this case Port Trust) and, if so, from which date is essentially a question of fact.

25) If one person is able to prove his case of regularization qua establishment from a particular date that does not necessarily mean that other person’s case is also automatically proved alike other person.

31) Fourth, assuming that the writ petitioners are not held to be the members of the Association as they now claim in the writ petition (see ground (e) in the writ petition at page 125-126), whether the writ petitioners (90 in number) are still entitled to claim any relief and, if so, against which Port Trust and of which nature.

32) Fifth, assuming that the writ petitioners are held members of the Association or let us say eligible members by virtue of their qualifications prescribed in the MOU, whether they are entitled to claim any 17 relief against any Port Trust and, if so, of which nature.

33) Sixth, If the writ petitioners (whether all or some) are able to prove that they are/were in the employment of Chennai Port Trust and that relationship of employee and employer between them does exist notwithstanding execution of MOU, then whether such persons are entitled to claim regularization in the service of Port Trust and, if so, since when and with what benefits or their cases are still governed by MOU as its members and lastly, what eventual reliefs, if any, can be granted to the writ petitioners.

34) In our view, the aforesaid questions could not be decided in the writ petition but could be adjudicated more effectively by a fact-finding body empowered to record evidence.

35) Since in this case parties have agreed to refer the matter to the Arbitral Tribunal in the event of any dispute arising between them, we are of the view that it would be in the interest of justice that the parties are relegated to take recourse to the arbitration proceeding remedy for adjudicating the disputes.

37) Once the disputes are referred to the Arbitral Tribunal, the writ petitioners and the Port Trusts would be at liberty to raise all the issues on facts/law 19 in support of their respective contentions including adducing evidence (oral and documentary).

38) In view of the foregoing discussion, we are unable to sustain the impugned order, which in the facts of this case should not have been passed.

39) As a consequence, we allow the appeals, set aside the impugned judgments of the Division Bench and the Single Judge, dismiss the writ petition out of which these appeals arise and grant liberty to the writ petitioners and the Port Trusts to approach the Court for appointment of Arbitral Tribunal in terms of Clause 31 of MOU for deciding the questions framed by this Court supra.

40) Parties are also at liberty to appoint the Arbitral Tribunal with mutual consent, if they so wish, without taking recourse to appointment of Arbitral Tribunal through Court.

41) The Arbitral Tribunal once appointed will embark upon the reference on the questions framed by this Court and would be free to frame any more questions after consultation of the parties/stakeholders, if such questions also arise and need to be decided to give quietus to the long pending disputes.

42) The Arbitral Tribunal will afford full opportunity to all the parties (stakeholders) concerned to file their response/statements and lead evidence in support of their respective stands and then pass a reasoned award in accordance with law on the basis of the evidence adduced by the parties (oral/documentary) uninfluenced by any observations made by Single Judge and the Division Bench.

43) Since the case is old and concerning about a large number of workers, efforts be made to complete 21 the proceedings within six months from the date of appointment of Arbitral Tribunal.

………………………………..J (R.K. AGRAWAL) ..………………………………J. (ABHAY MANOHAR SAPRE) New Delhi, February 15, 2018 22