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TMI Blog1969 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1966-67 was justified and, if so, at what rate should such bonus be paid. The parties to the Reference included the Board, the Visakhapatnam Stevedores Association, certain individual Stevedores and two Unions representing workers. The two Unions were the Port Khalasis Union and the Dock Workers Union. Both the Unions filed statements of claim on behalf of their workmen. They referred to the demands made by them for payment. of bonus and the rejection thereof by the Board and the Stevedores Association. They referred to certain agreements having been reached in respect of bonus between the workmen and the respective Stevedores Associations, in Calcutta, Cochin, Madras and Bombay. They claimed that the work done by the workmen at Visakhapatnam Port was exactly similar to the type of work done by the Stevedores workmen at Bombay, Calcutta, Cochin and Madras and that therefore their claim for bonus was justified. They further referred to the fact that the Board and the Stevedores Association were all governed by the Dock Workers (Regulation of Employment) Act 1948 (Act IX of 1948) (hereinafter referred to as the Act) and the Vizagapatam Dock Workers (Regulation of Employment) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment pointing out that the Visakhapatnam Stevedores Association had been appointed by the Central Government as the Administrative Body for the purpose of carrying on the day-to-day administration of the Scheme and that the said Administrative Body is deemed to act as an agent for the employers, as would be evident from the Scheme. After referring to the functions of the Administrative Body under the Scheme, the Board claimed that it had no further part to play in the proceedings before the Tribunal. The Industrial Tribunal, after referring to the nature of the duties performed by the Board as well as the Setvedores Association and its members and their relationship with the Dock Labour Boards, held that it is the Board that is the employer of the dock workers and that the Board is liable for meeting the claim for bonus. The Tribunal has proceeded on the basis that the bonus claim by the workmen is tonnage bonus because while loading or unloading cargo any particular gang or gangs of workmen may not be working continuously for a given period for a particular Stevedore and therefore the bonus that has to be paid to the dock workers must be on the basis of the tonnage handled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the statement of claim filed by the Port Khalasis Union, m 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 confusing 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 paragraph 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. Similarly, the Dock Workers Union in its statement, has referred to the fact that it has been agitating for many years for the introduction of payment of bonus as obtaining in Madras, Bombay, Calcutta and Cochin. The Union has further stated that the Stevedores of Visakhapatnam are the employers registered in the Dock Labour Board as the real employers. It has further stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed contrary to the claim of the workmen themselves. That the Tribunal also understood that the claim of the workmen was against the Stevedores Association and its members is also evident from the statement in para 4 of the award wherein the Tribunal observes as follows: The claimants claim bonus for the three years mentioned in the issue, and they claim that it should be paid by the Stevedores. They claim that it should be paid on the same basis as adopted at the other ports viz., Calcutta, Bombay, Madras and Cochin. That the claim for bonus in the four areas referred to above was being met by the respective Stevedores Associations--though on the basis of ,agreement--is not in dispute. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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% of the actual wages to the Board known as General 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 sam.e 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 shall now refer to the salient features of the Act and the Scheme. The object of the Act is to provide for regulating the employment of dock workers. Section 2 defines inter alia the expressions Board , Dock worker , employer and scheme. The expression Dock worker in brief means a person employed or to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause 3 definies the various expressions. Daily worker means a registered dock worker who is not a monthly worker. Monthly worker means a registered dock worker who is engaged by a registered employer or a group of such employers on a monthly basis under a contract which requirs for its termination at least 1 month s not.ice on either side. Dock employer means a person by whom a dock worker is employed or is to be employed and also includes a group of dock employers formed under cl. 14(1)(d). Registered dock worker s means a dock worker whose name is for the time being entered in the employers register. Reserve pool means a pool of registered dock workers who are available for work and who are not for the time being in the employment of a registered employer or a group of dock employers as monthly workers. Clause 5 provides for the Central Government appointing an Administrative Body for the purpose of carrying on the day-to-day administration of the Scheme. There is no controversy that. the Vizagapatam Stevedores Association, in this case, has been appointed as the Administrative Body. Under cl. 7 dealing with the various functions of the Board, the latter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und which may be constituted under the Scheme. Sub-cl. (iii) makes the Administrative Body responsible for payment as agent of the registered employer to each daily worker of all earnings properly due to the dock worker from the employer and the payment to such workers of all monies payable by the Board to those workers in accordance with the Scheme. Two points emerge from cl. 11 (viz.) when allocating registered dock workers in the reserve pool for work to registered employers, the Administrative Body is deemed to act-as agent for the employer; and the payment to each daily worker of all earnings properly due to him from the employer is made by the Administrative Body as ,agent of the registered employer. Clause 14 deals with the maintenance of Employers. Register and the Workers Registers. Clause 18 deals with promotion and transfer of workers. Sub-cl. (3) thereof deals with the transfer of a monthly worker to the reserve pool at the request of the employer or the worker, but such transfer is made subject to the fulfilment of any contract subsisting between the monthly worker and his employer. Sub-cl. (4)provides for considering the request for transfer to a reserve pool ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. Clause 51 provides for the cos.t of operating the Scheme being defrayed by payments made by registered employers to the Board. It provides ,for the registered employer paying to the BOard such amount by way of levy in respect of the Reserve Pool Workers when paying the gross amount of wages due from them under cl. 37(5)(i). Clauses 52 and 53 provide for Provident Fund and Gratuity and Dock Workers Welfare Fund respectively. We have rather elaborately 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 worker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Welfare 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 p.asses on the same to the dock worker concerned, as agent of the registered employer, under cl. 1 l(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 s. 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 and the implied condition of contract be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of a claim under the Workmen s 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, 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 G. vmkhana Club Union v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roductive labour. This requires cooperation 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. 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 10 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 that the 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 workmen 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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