Madras Dock Labour Board by Secretary, vs Young Entrepreneursguild by P. Vijayakumar, Managing Partner and Another

Nainar Sundaram, J.—This appeal is directed against the order of Padmanabhan J. in Writ Petition No. 10144 of 1982. The Appellant herein is the second Respondents the first Respondent herein is the Petitioner and the second Respondent herein is the first Respondent in writ petition. We prefer to refer to the parties as they stood arrayed in the writ petition. The Petitioner prayed for the issue of a writ of certified mandamus, directing the Respondents to register the Petitioner as an employer under the Madras Unregistered Dock Workers (Regulation of Employment) Scheme, 1957, hereinafter referred to as the Scheme. The Petitioner addressed a letter on 23rd September 1982 to the Secretary of the second Respondent to enlist them as a dock employer under scheme. The Petitioner got a letter from one Mogul Line Limited on 30th September 1982, stating that the offer of the Petitioner for carrying out chipping and painting jobs in the Madras Port Trust will be considered provided they are registered with the Madras Dock Labour Board. The Petitioner addressed a letter on 30th October, 1982 to the Deputy Chairman of the second Respondent, stating that they are in a position to get substantial work of chipping and painting of various shipping companies and they also enclosed a copy of the letter received from Mogul Line Limited and requested for registration. The Petitioner followed this up with another letter addressed to the first Respondent on 1st November, 1982. Ultimately, on 20th November 1982, the Petitioner received a communication from the second Respondent, stating that at present there is no adequate chipping and painting work in the Port and the existing number of chipping and painting workers are being engaged for other works and in the said circumstances, it is not proposed to list any new employer for chipping and painting work, Aggrieved by this refusal to enlist them as a dock employer under the Scheme, the Petitioner approached this Court with the above writ petition.

Padmanabhan J., who heard the matter, considered clause 5 of the Scheme and in particular Sub-clause (3) thereof and the Learned Judge found that this Sub-clause would not mean that an absolute discretion is conference on the second Respondent to reject the application of an employer to be entitled. The learned Judge also took into consideration the fact that the Petitioner is having the prospects of obtaining the contract from Mogal Line Limited for chipping and painting work and held that in this view, the reasons given in the communication of the second Respondent, dated 20th November, 1982 cannot be accepted. The learned Judge further opining that the Petitioner had only sought a registration and not employment, held that the communication of the second Respondent dated 20th November, 1982 cannot sustained. In this view, the learned Judge allowed the writ petition. The learned Judge also considered the question as to whether the Petitioner should exhaust the alternative remedy of an appeal to the Central Government as provided Under Clause 15(2) of the Scheme and held that in view of the exigencies of the case, the alternative remedy need not be put against the Petitioner.

Mr. A.L. Somayaju learned Counsel appearing for the second Respondent, urges two aspects, coveting interference in appeal. One is that the second Respondent was not enabled to file a detailed counter affidavit in the writ petition dealing with the scope of the Scheme as well as the implications thereof, impressing upon the learned Judge that the second Respondent was justified in declining to enlist the Petitioner as a dock employer under the Scheme and the second Respondent took into consideration all the relevant factors and the matter was within the purview of the second Respondent to do so as enjoined by Sub-clause (3) of Clause 8 of the scheme. It is admitted that while an interlocutory application Writ Miscellaneous Petition No. 15264 of 1982, which was one for direction to the Respondents to temporarily register the Petitioner under the Scheme, came up for consideration the writ petition itself has been taken up for final disposal and it is not disputed before us that the second Respondent did not have the time to file a detailed counter-affidavit in the writ petition in the said circumstances. But, this need not deter us from considering the relevant aspects and we permitted the learned Counsel to argue the matter on all aspects.

The scheme as such came to be formulated pursuant to the powers conferred by Sub-section (1) of Section 4 of the Dock Workers (Regulation of Employment) Act (IX of 1948), hereinafter referred to as the Act. The very preamble sets out the policy behind the Act, and that is, the expediency to provide for regulating the employment of dock workers. Section 3(1) of the Act states that provision may be made by a Scheme for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or not, in a part, Sub-Section 2(c) contemplates that such a scheme may provide for regulating the recruitment and entry into the scheme of dock workers and the registration of dock workers and employers, including the maintenance of registers, the removal, either temporarily or permanently, of names from the registers and the imposition of fees for registration. Though the entire Scheme is portent, we feel obliged to refer to some of the relevant clauses in the Scheme for the purpose of appreciating the argument putforth on behalf of the second Respondent that the second Respondent acted within the scope and ambit of the Scheme and did consider it expedient and necessary to decline to enlist the Petitioner and no exception could be taken to its decision. Clause 4 deals with the functions of the Madras Dock Labour Board, which is defined as the Board under the Scheme. Sub-clauses (b) and (c) of Clause 4 are relevant and they read as follows:

The Board may with a view to regulating the employment of dock workers to whom this scheme applies take such measures as it may consider desirable including measures for;

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(b) determining and keeping under review the number of listed employers and listed dock workers from time to time on the lists and the increase or reduction to be made in the number in any such list;

(c) keeping and maintaining a list of dock employers entering or re-entering therein the name of any dock employer and where circumstances so require, removing from the list, the name of any dock employer, either at his own request or in accordance with the provisions of this Scheme.

Clause 4-AA sets forth the responsibilities and duties of the Board in meeting and Clause (c) thereof makes the Board in meeting responsible for considering listing of new employers on the recommendations of the Chairman. Clause 6-A speaks about the constitution of the administrative body and Clause 6-B deals with the functions of the administrative body. We can refer to Sub-clauses (a), (b), (c) and (d) of Clause 6-B and they read as follows:

Without prejudice to the powers and functions of the Board, the Chairman .and the Deputy Chairman, the Administrative Body shall be responsible for the administration of this Scheme and in particular be responsible for-

(a) keeping, adjusting and maintaining a list of listed employers entering or re-entering therein the name of any listed employer and where circumstances so require, removing from the list the name of any listed employer either at this own request or in accordance with the provisions of this Scheme;

(b) Keeping, adjusting and maintaining from time to time such lists, registers or records as may be necessary, of listed workers including any lists, registers or records of listed workers who are temporarily rot available for dock work and whose absence has been approved by the Administrative Body and where circumstances so require removing from any register, list or record the name of any listed worker either at his own request or in accordance with the provisions of this Scheme;

(c) the employment and control of listed workers available for work when they are not otherwise employed in accordance with this scheme;

(d) the allocation of listed workers in the pools constituted under clause 9-A who are available for work to listed employees;

Clause 3 deals with listing of employers of dock workers and it would suffice our purpose if Sub-clauses (1) to (4) alone are extracted, which are as follows:

Listing of Employers of Dock Workers:

(1) The Board shall maintain a list of employers of dock workers to whom this schemes applies;

(2) Every person, who, on the date of commencement of this Scheme, is an employer of dock workers to whom this scheme applies, and who applies to the Board in this behalf on or before such date as may be fixed by the Board for this purpose shall be entitled to be listed under this Scheme;

Provided that no employer other than an employer of chipping and painting workers shall be listed who has not been licensed by the Madras Port Trust under its bye-laws.

(3) The Board may, if it considers expedient and necessary to do so, list employers other than those covered by Sub-clause (2).

(4) Where the Board refuses to list an employer, it shall communicate to the person concerned a copy of the order together with the reasons therefore.

Clause 9-A deals with classification of workers in the list. Clause 11 deals with obligations of listed employers. Clause 13 speaks about the restriction on employment'' Clause 13-B deals with guaranteed minimum wages in a month.

The array of the clauses and the implications thereof leave no room for doubt in our mind that the question of determining and keeping under review the number of listed employers from time to time in the list and increase or reduction to be made in the number in such list, are purely within the ambit of the powers of the second Respondent and it alone has to consider the expediency and necessity of enlisting of dock employers under the Scheme, In the present case, the question of listing could arise only under Sub-clause (3) of Clause 8, because listing under Sub-clause (2) is no longer available. Unless it is patently demonstrated that extraneous consideration weighed with the second Respondent and that it had acted with mala fides and discrimination with reference to a particulate applicant for enlisting, it is not possible for this Court to substitute its own judgment and hold that it is expedient and necessary to enlist a particular employer. The counter-affidavit filed in the interlocutory application, to a very great extent, sets forth the factors which weighed with the second Respondent when it declined to enlist the Petitioner. Paragraph 4, 5 and 6 need extraction and the run as follows:

(4) It is true that (he writ Petitioner requested the Respondents herein to list them as a chipping and painting employer. The Dock Labout Board rejected the request in view of the fact that there is no chipping and painting work warranting the listing of additional employers. As a matter of fact, there is no sufficient chipping and painting work even to engage the workers of the already listed chipping and painting employers. Consequently the chipping and painting workers are deployed as shore workers as well as stevedore labour. The chipping and painting labour get only 3 days employment in a month in the chipping and painting unit.

(5) The work of chipping and painting depends upon the whim and fancy of the Master of the vessel. Unlike the stevedoring work, the chipping and painting work is not regular. Most of the Masters of the vessel are declined to get the chipping and painting work done in Madras for want of dry-dock facility. Very minor work of chipping and painting which can''t brook delay alone is done by the Masters of the vessel in the Madras Port. The details given below relating to the employment potential of the workers and the man shifts engaged by the chipping and painting employers for the period from 1st June, 1982 to 31st October, 1982 will bear ample testimony to the bleak employment opportunity of chipping and painting labourers in the Madras port.

No. Name of Company Number of man shifts employers.

(1) (2) (3)

M/s. Ailed Miller .. ... 15

M/s. K. Damodaran and Company .. .. .. 521

M/s. Pachiappan .. .. ... 116

M/s. India Shipping ... ... 529

M/s. P.S. Sundaram ... ... 204

(6) Infect many finals individuals like (1) N. Palaniappan, Madras 13, (2) Ambekar Co-operative Labour Contract Society, (3) National Union of Sea Farers of India, Madras-1, (4) Seven Seas Agencies, Madras 13 (5) O. Hari Haran and individuals applied for listing as our employer of chipping and painting workers and the said requests could not be acceded to for the reasons referred to above. The Dock Labour Board is not obliged to list an employer unless they find as a result of review that there is increase in the volume of any class of dock work.

From the above, it is clear that the employment potential for chipping and painting workers for the period from 1st June, 1982 to 31st October, 1982, has been assessed and the second Respondent found no prospect of enlisting new dock employers. We find that no reply has been filed rebutting the allegations in the said counter affidavit and our attention has also not been drawn to any material which would go to demonstrate that the said averments are either false or not supported by factual and statistical data. It is not possible to state that in spite of the review done by the second Respondent which review shows that there is no prospect for new enlistment of dock employers, the second Respondent should be compelled to increase the strength of the dock employers in the concerned list.

These features have been obviously omitted to be taken note of by the learned single Judge and the attention of the learned Judge has not been drawn to the various clauses in the Scheme, whereby the duty of determining and keeping under review the number of listed employers, is cast upon the second Respondent and the learned Judge, construing only Sub-clause (3) of Clause 8, thought that no absolute discretion is conferred on the second Respondent to reject an application of employer to be enlisted. Learned Counsel for the second Respondent frankly admitted that the second Respondent could not do so for want of time to file a detailed counter-affidavit. The fact that the Petitioner is having a prospect of securing a contract for chipping and painting work need not necessarily be advanced as a factor to compel the second Respondent to enlarge the list, especially when there are various other circumstances which have to weigh with it, as can be seen from the clauses in the Scheme itself, and apparently, they did weigh with it.

Mrs. Ammu Balachandran, learned Counsel for the Petitioner, would submit that the second Respondent has always got the discretion to enlarge the list and the second Respondent need not have declined to enlist the Petitioner and the reasons given in the communication dated 20th November, 1982 are not convincing. We have found that factors which are relevant and which definitely bring conviction to our mind, have been taken into consideration by the second Respondent and it is not possible to substitute our judgment of that of the second Respondent on this question.

Mrs. Ammu Balachandran, learned Counsel for the Petitioner would submit that Sub-clause (3) of Clause 8 of the Scheme confers upon the second Respondent an unguided or uncontrolled discretionary power in the matter of listing. It is well settled that though a particular provision does not explicitly by its terms expatiate the rules and the norms for the exercise of the power, there may be adequate and sufficient guidance in the other provisions and such a guidance could also be gathered from the policy and the purpose of the enactment as a whole. The Act has got a purpose to serve and to achieve the purpose, the Scheme got framed for the Port of Madras. The policy and the purpose have been well brought out in the various clauses in the Scheme, and hence the second Respondent has to act, keeping in mind the purpose and the policy behind the Scheme, and the lack of delineation in so many terms of the forms for exercise of such power need not necessarily make the provision under which such power is exercised as violative of the Constitutional provisions The bare possibility that the power may be abased is no ground, for invalidating the provision. If, in a specific case, it is demonstrate that the authority has misused the power or arbitrarily declined to exercise the power in disregard of the purpose and policy behind the enactment, this Court will definitely strike down such exercise of power as offending the Constitutional provisions. On facts, we have found that such is not the case here.

The second aspect which Mr. A.L. Somayaju, learned Counsel for the second Respondent, wanted to urge is that Clause 15(2) of the Scheme provides for an alternative remedy and the Petitioner having not exhausted the same and having given no convincing explanation for not resorting to the alternative remedy this Court ought not to have interfered in writ jurisdiction. We must also point out that Mrs. Ammu Balachandran, learned Counsel for the Petitioner, submitted that the alternative remedy pointed out is not an efficacious one and the matter requires consideration at the bands of this Court to exercise of its jurisdiction under Article 226 of the Constitution of India. We have sustained the first submission urged by, the learned Counsel for the second Respondent on merits and it is unnecessary for us to go into this question.

For reasons set out by us, we are not able to concur with the view of the learned Judge and this obliged us to interfere in appeal and accordingly, this appeal is allowed, the order of Padmanabhan, J., in Writ Petition No. 10144 of 1982, dated 5th January, 1983 is set aside, and the said writ petition will stand dismissed. The parties are directed to bear their respective costs throughout.

At this stage, Mrs. Ammu Balachandran, learned Counsel for the Petitioner, seeks leave of us to take up the matter to the Supreme Court. We do not find that the case involves any substantial question of law of general importance and we are also not of the opinion that any question arising in this case needs a decision from the Supreme Court. Hence, leave is refused.