N. Kannappan and Others vs Chairman, Chennai Port Trust and Others

P. Jyothimani, J.—In Writ Petition No. 12543 of 2002 has been filed by the petitioner challenging the order of the third respondent dated

December 18, 2001, under which the pension amount has been sanctioned to the petitioner by taking his pensionable service period of 3 years 7

months and 22 days and also for a direction to the first and second respondents to pay pension to the petitioner in terms of the Memorandum of

Settlement dated August 2, 2000 treating the petitioner as a person retired from Chennai Dock Labour Board and Chennai Port Trust in the Grade

of Class-IV with effect from July 8, 2001.

Similarly, in W. P. No. 12544 of 2002 the petitioner has challenged a similar order passed by the third respondent by taking his pensionable

service of 3 years. The relief claimed in both the writ petitions is almost similar.

The case of the petitioners is that they have joined the first respondent''s establishment as Watchmen and retired on attaining superannuation of

60 years, in the case of the petitioner in Writ Petition W. P. No. 12543 of 2002, on July 8, 2001 and in the case of the petitioner in Writ Petition

W. P. No. 12544 of 2002, on June 30, 2000 having rendered a service of 33 years each. According to the petitioners, they joined service in the

first respondent''s establishment in the Madras Port Steamer Watchman Association, which is controlled by the first respondent. The Madras

Stevedorers'' Association was replaced in the year 1998 as Madras Port Steamer Watchman Association, the second respondent herein and same

is controlled by the Traffic Department of the first respondent establishment.

It is the case of the petitioners that on creation of the second respondent, they were absorbed in the second respondent establishment as

Watchmen and worked there till their date of retirement. It is also the case of the petitioners that some of the workers in the Madras Stevedorers''

Association were sent to Madras Dock Labour Board as general purpose mazdoors. The petitioners would state that the second respondent has

not maintained true and proper accounts in respect of their salaries. The first respondent entered into a wage revision settlement with the All India

Port and Dock Workers Federation (HMS) on August 2, 2000 by which the first respondent committed itself with various Unions and Federations

to pay the revised pay scales with effect from January 1, 1997. The said settlement also contemplated a formula to be adopted for computation of

pension apart from family pension. It is also the case of the petitioners that in the reply notice dated November 7, 2001 sent by the second

respondent in response to the advocate notice sent on behalf of the petitioners, the second respondent has admitted that the pay scales have been

paid to the employees of the second respondent institution on par with the employees of Madras Dock Labour Board which is functioning under

the control of the first respondent institution. The petitioners were permanent employees of the first respondent institution and issued with identity

cards bearing specific numbers and photographs. It is also the specific case of the petitioners that the first respondent had dealt with the Provident

Fund papers of Madras Stevedores Watchman Association. The communication from the Office of the Provident Fund Commissioner dated

October 17, 2001 would also fortify the case of the petitioners that their Provident Fund have been dealt with by the first respondent from whom

the third respondent has received the provident fund papers. The petitioners have cited some instances to show that in respect of similarly placed

employees, the pensionary benefits were paid on the basis of the settlement as that of the first respondent. According to the petitioners, the third

respondent has fixed their pensionary benefits by taking the age of superannuation of 58 years, whereas in respect of Clause 4 employees, the

superannuation is 60 years. The conduct of the third respondent in mechanically fixing the age is not proper and they should be treated as

employees of the first respondent. Therefore, the undertaking of pension by the third respondent is against law and against computation as agreed

to in the settlement dated August 2, 2000. It is also stated by the petitioners that there is no dispute that the first respondent is their principal

employer and therefore, the benefits should be given on par with that of the employees of the first respondent. It is on the basis of the above

averments the writ petitions are filed before this Court.

The second respondent, under whom the petitioners are employed has filed a counter. In the counter, the second respondent has made it very

clear that the petitioners in both the writ petitions are neither the employees of the Madras Port Trust, nor the employees of the Dock Labour

Board, but they were engaged as watchman by Madras Port Steamer Watchman Association, a body registered under Tamil Nadu Societies

Registration Act and functioning as private body without the control of the Port Management. On that basis, the second respondent prays for the

dismissal of the Writ Petition. It is also the case of the second respondent in the counter affidavit that an agreement stated to have been entered has

nothing to do with the petitioners who cannot make any claim under the said agreement. It is also the specific case in the counter affidavit that the

petitioners are not entitled to claim pension under the Port Trust Pension Regulation as they are not covered under the Pension Regulations at all.

I have heard the learned Counsel for the petitioners and the respondents. The learned Counsel for the petitioners in both the Writ Petitions

would urge that the petitioners should be treated as employees of the first respondent especially when they have been issued with the identity cards

by the first respondent. I have perused the said identity card by the Madras Port Trust. Learned counsel appearing for the first respondent would

contend that the identity cards would be issued to any one who is working within the Port Trust and it does not mean that anybody having the

identity card are employees of the first respondent. It is also found in the said identity cards itself that it is on behalf of the Madras Stevedorers''

Associations, the petitioners are issued with the identity cards by the Madras Port Trust. Therefore, it is clear that based on the identity card the

petitioner in both the writ petitions cannot come under the control of the first respondent. Learned counsel appearing for the first respondent further

submits that when the Madras Un-registered Dock General Pool Workers (Regulation of Employment) Scheme, 1988 was passed by the first

respondent by notification, the Government of India classified the workers defined under the said scheme who are eligible for the benefit of the said

Scheme which, was based on the Settlement. It does not include the category of watchman even though it includes the categories of Mazdoors,

Basket Menders, Trimming Stitchers, Cleaning Mazdoors, Net Sling Mazdoors, Carpenter and Rigging Mazdoors. Therefore, according to the

learned Counsel for the first respondent apart from the fact mat the petitioners in both the writ petitions are not employees of the first respondent,

since even the said category of Watchman is not included. Therefore, by no stretch of imagination the petitioners can claim any right over the first

respondent. Except for the identity cards, both the writ petitioners have not produced document to show that they were either under the control of

employment of the Dock Labour Board or the Chennai Port Trust. They were employed only by the second respondent. To prove that they are

governed by the ''regulations relating to the employees of the first respondent a letter of the third respondent dated October 17, 2001 is relied

upon, under which the third respondent states as follows:

As regards Sri. S. Selvaraj his settlement had already been made to the tune of Rs. 2,33,521.00 in 9/2000. The transfer-in amount of Rs.

39,671.00 received from the Madras Port Trust has also been included in the Final payment made in 9/2000. His pension papers (Form-10D)

were taken up for process during 3/01 by calculating the service from March 1, 1989 i.e., date of entry in FPF Scheme up to the date of leaving

service.

Similar letter has been found in respect of the other writ petitioner also.

Learned counsel appearing for the petitioners states that when the third respondent himself admitted that they have received the transferred

amount from Madras Port Trust which is included in the final demand, it goes without saying that they are the employees of the first respondent.

Learned counsel appearing for the first respondent would reply stating that after the second respondent has become defunct, all the records relating

to the second respondent were sent to the first respondent and are in their custody and when the third respondent calls for the particulars relating

to the second respondents, the details were sent to the third respondent and it does not mean that they are the employees of the first respondent.

Therefore, the entire facts and circumstances of the case show that there is absolutely no evidence or proof to show that the petitioners in both

the writ petitions are the employees of the first respondent either directly or indirectly. In such circumstances, it is not open to the petitioners to

claim the benefits on par with the employees of the first respondent/Port Trust.

In my opinion, the orders impugned in both writ petitions which are passed based on the actual averments made by the petitioners being the

employees of the second respondent is perfectly in order. In the result, the writ petitions fails and both the writ petitions are dismissed. No costs.