Kolkata Port Trust & Ors vs Prabir Kumar Dhali & Ors
2022 Latest Caselaw 8675 Cal

             IN THE HIGH COURT AT CALCUTTA
               CIVIL APPELLATE JURISDICTION
                        (Appellate Side)



                                     MAT 554 of 2021
                                            with
                                       CAN 1 of 2021
                                (Through Video Conference)


                                 Reserved on        : 10.11.2022
                                 Pronounced on: 23.12.2022



Kolkata Port Trust & Ors.
                                                 ...Appellants

                              -Vs-

Prabir Kumar Dhali & Ors.
                                                  ...Respondents

Present:-

Mr. Tilak Kumar Bose, Senior Advocate Mr. Ashok Kumar Jena, Advocate ... for the Appellants

Mr. Sabyasachi Chaudhury, Mr. Saptarshi Banerjee, Mr. Satadru Lahiri, Advocates

Mr. Mainak Ganguly, Advocate

.....for the Respondent No.11

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

- 2- MAT 554 OF 2021

Rajarshi Bharadwaj, J:

1. By this appeal, the correctness of the judgement of the learned Single

Judge dated 07.04.2021 passed in W.P.A. No 15632 of 2019 (Sri Prabir Kumar

Dhali and others-versus-Kolkata Port Trust and others) has been questioned by

the appellants/respondent Nos. 1 to 3 of the writ petition.

2. The facts of the case are that the appellant No. 1, the Kolkata Port Trust

(KoPT), is a statutory body constituted under the Major Port Trust Act 1963. The

appellant No. 1 controls and manages the affairs of the Ports in Kolkata which

comprises of the Kolkata Dock System and the Haldia Dock Complex. In the

Kolkata Dock System, there are three docks, namely the Netaji Subhash Dock

(hereinafter referred to as "NSD"), the Kidderpore Dock (hereinafter referred to as

"KPD") and the Petroleum Wharves at Budge-Budge.

3. The respondents' No. 1-8/writ petitioners herein are the Berthing Masters

(Dock Pilots) and Assistant Dock Masters who operate the vessel once it crosses

the lock gate as per the codified Duties of the Officers and Employees and take

ships in and out through lock gates.

4. The Harbour Master (Port) issued a Circular being No 8/2014 indicating

that the maximum dimension of vessels acceptable at NSD was 565 feet LoA x

80 feet beam, and for KPD it was 515 feet LoA x 70 feet beam. The said

dimensions for both NSD and KPD also appeared in the Bore Tide Notifications

for the years 2015, 2016 and 2017 issued on behalf of Harbour Master (Port).

On June 1, 2018, the appellant No.3 herein the Director, Marine Department

convened a meeting of officers where it was held that a trial operation for a

period of six months is to be held to evaluate the prospect of admitting the

vessels exceeding the permissible beam of 80 feet, but not exceeding 82 feet with

a view to enhance its operational capability in the interest of trade.

5. On June 7, 2018 a "Technical Committee" was constituted at the initiative

of the appellant No.3 the Director, Marine Department with the approval of

appellant No.2, Chairman, Kolkata Port Trust and such increments were

granted to the writ petitioners herein for the Dock Pilots to smoothly operate

- 3- MAT 554 OF 2021

movement of vessels above 80 feet but below 82 feet. The Committee recorded

agreement on trial operations being held for a period of six months to evaluate

the prospect of admitting vessels exceeding the existing permissible beam width

of 80 feet. After six days the Technical Committee sat for revising the operational

parameters, both at NSD and KPD. By its report dated June 25, 2018, the

Committee increased the beam width at NSD to 82 feet however; it did not

increase the existing limit for KPD.

6. A trade notice was issued on July 10, 2018 communicating the decision of

the appellant No.1. By reason of the said trade notice, container ships above 80

feet but below 82 feet beam length which were already coming on a regular basis

till 2014 and on isolated basis between 2014 and 2018 stated coming to the

Netaji Subhas Dock on a regular basis.

7. In the meantime, the appellant No.1 through appellant No.3 issued

another circular granting incentive to officers of berthing services who would be

willing to handle vessels up to 82 feet beam at NSD and up to 72 feet beam at

KPD.

8. By notice dated May 24, 2019 the appellant took action against the

respondent No. 6 herein the Assistant Dock Master on grounds of dereliction of

duty and gross misconduct in accordance with the Kolkata Port Trust

Employees' (Conduct) Regulations 1987. But by an impugned order by the

Learned Single Judge dated January 15, 2020 in W.P. No. 19 of 2020 the

authorities were granted liberty to proceed with the disciplinary proceeding but

not to pass any final order without obtaining leave of the Hon'ble Court.

9. Challenging the Trade Circular dated 10th July, 2018, Bore and Incentive

Notice dated July 10, 2018, the writ petitioners filed a writ petition wherein the

Learned Single Judge was pleased to refuse to pass any interim order.

Challenging the said order dated August 14, 2019, the respondents/writ

petitioners preferred an appeal wherein an interim order was passed and the

appeal and application were disposed of by remanding the writ petition before

the Learned Single Judge. On April 7, 2021 the writ petition was disposed of by

- 4- MAT 554 OF 2021

passing the impugned judgment wherein the impugned trade notice dated July

10, 2018 and all consequential notices pertaining to the increase of the beam

width of vessels for NSD to 82 ft. were set aside. However, a stay on the

judgement was granted by the Learned Single Judge for a period of 30 days from

the date of the passing of the judgement. Hence, being aggrieved by the

judgement passed by the Learned Single Judge the appellant/Kolkata Port Turst

(KoPT) filled the said appeal.

10. Learned Counsel appearing for the appellants submit:

I. The present case relating to movement of vessels in and out of lock

gates on the basis of a document having no legal force cannot be the

subject matter of writ petition as it does not violate Article 14 and

21 of the Constitution. The Respondents/writ petitioners have no

locus standi to file a writ petition regarding personal safety issues.

The Learned Single Judge has exceeded jurisdiction in passing the

order and judgment.

II. The well-informed decision to increase the maximum permissible

beam width for vessels from the previously existing width of 80 ft. to

82 ft. has been taken by the Competent Authority. The appellant

No.1 is an autonomous body under the control of the Ministry of

Shipping which is governed by The Indian Ports Act 1908 and The

Major Port Trusts Act 1963. The Board of Trustee of the Kolkata

Port Trust headed by the Chairman, Kolkata Port Trust being

appellant No.2 is appointed by the Central Government under the

provision of Clause- 7 of the Indian Ports Act 1908. This body is

solely responsible for providing necessary infrastructure for safe

movement of all vessels in the port. The Board of Trustees decide

the size, category of vessels to be called in this port, in relation to

available facilities, width and depth of channels and size of locks.

The Director General of Shipping being the appellant No.3 is vested

with the power by law to manage and control the movement, entry

- 5- MAT 554 OF 2021

and exit of vessels. An employee cannot challenge the decision of an

employer unless specific particulars are disclosed as to how and

why such decision affects the fundamental rights of the employee.

III. The decision to increase the maximum permissible beam width for

vessels from the previously existing width of 80 ft. to 82 ft. is made

on the basis of the recommendation of the Technical Committee,

practical reports from handling such vessels since 2001 and

subsequent reports made by experts in the field. A Technical

Committee was constituted at the initiative of the appellant No.3

and after the approval of appellant No.2 on June 7, 2018. The

increments were granted only after the respondent Nos. 1-7 and

Assistant Berthing Master had assured on June 1, 2018 to smoothly

operate movement of vessels above 80 feet but below 82 feet during

day time and at night. In addition, an Expert Report of Ocean

Engineering prepared by IIT (Madras) where it has been found that

vessels up to 25.24 meters of beam length can be accommodated at

the NSD which is more than 82 feet, has been relied upon detailing

such allowable vessel dimensions.

IV. The notice to initiate movement of 82 ft. vessels and also to test

movement of such vessels is in the nature of an administrative

policy decision of the appellants. As a general rule, policy decisions

and administrative actions, as long as those adhere to the principle

of reasonableness and have not been shown to be tainted by any

mala fide intention, ought not to have intervened with by the Court.

V. Keeping in view of the safety and welfare of the employees, the

appellants have incurred extensive expenditures amounting to Rs

14.38 crore for the upgradation and maintenance of lock gates.

VI. The respondents/writ petitioners have established no specific

instances of accident in Lock Gates without any evidence or basis.

The writ petition does not disclose the hazard or danger being faced

- 6- MAT 554 OF 2021

by the Respondents/Writ petitioners due to the increase of beam

width. The allegations made by the Respondents/Writ petitioners

are, thus, vague in nature because no specific case of mala fide

action on the part of appellants or particulars of alleged mala fide or

arbitrariness or illegality with regard to the Trade Notice and other

notices relating to movement of ships of 82 ft. beam width has been

made out in the writ petition. The writ petition does not disclose the

hazard or danger being faced by the respondents/writ petitioners

due to the increase of beam width. The reference to the incidents by

the respondents / writ petitioners involving two vessels namely PAC

AQUARIUS and TZAREVETZ is made in a malafide manner by the

petitioners. As per records, TZAREVETZ caused damage to a fender

at the approached jetty in the year 2007 and PAC AQUARIUS

caused falling of a stone of the approached jetty in the year 2010.

Both the incidents took place before the entry of the vessel in the

lock when it was under pilotage by a Harbour Pilot without a dock

pilot on board.

VII. The lock-gate is admittedly 90 ft. wide and the beam width has been

fixed at 82 ft., leaving 8 ft. space to maneuver. Such change will

ensure the benefit of the trade and commerce of the Port and the

non-allowance of vessel of beam length of 82 ft. will result in huge

loss to the trade and commerce. The Port is a revenue-generating

authority and has to consider evolving at every stage. Vessels have

become technically advanced, considering which the impugned

direction was passed. Beam width had been sought to be increased

with a commercial intent and the same cannot be faulted for being

commercial in nature and violative of Article 14 & 21 of the

Constitution of India.

- 7- MAT 554 OF 2021

11. Submissions of the Learned Counsel for the respondents are that:

I. The appellants by issuing trade notices allowed vessels upto 82 feet

when admitted by lock gate width is 90ft and the increase of

maximum permissible beam width for vessels at the Netaji Subhas

Dock (NSD) from the previous existing width of 80ft to 82ft, without

any scientific study or data analysis, forced the respondent

No.1/writ petitioners and other dock workers to unnecessary risk of

life and limb.

II. On June 1, 2018 a six-member committee was formed, in order to

identify the issue that needed to be addressed for taking vessels in

excess of the existing maximum permissible permissible limit of 80

ft. but not exceeding 82ft. inside NSD. The committee recorded

agreement on trial operations being held for a period of six months

to evaluate the prospect of admitting vessels exceeding the existing

permissible beam width of 80 ft. Such period of six months was to

expire on December 1, 2018. However, instead of waiting for six

months, after only six days, the Director constituted a "Technical

Committee" for revision of operational parameters both in the NSD

and the Kidderpore Dock (KPD) was unjust and without any

reasonable basis.

III. The report of the "Technical Committee" dated June 25, 2018

increased the beam width of vessels of NSD to 82 ft. but did not

increase the existing limit for KPD. Thus, there is no reasonable

basis for such patent contradiction with the decision dated June 1,

2018 of the earlier committee of six members.

IV. The increase of beam width is patently dangerous since the Kolkata

Port Docks are more than 150 years old and have not undergone

any modernization to suit the increase of beam width of vessels.

Operations are still being carried out manually for controlling and

navigating the ships inside the Port by tugs.

                                   - 8-                     MAT 554 OF 2021


V.     Furthermore, the appellant no.3 does not have the authority to

unilaterally take such a decision, which squarely violates Article 21

of the Constitution of India and seriously jeopardizes the lives of the

writ petitioners and all other dock workers, apart from causing

threat to the Port property.

VI. The appellant authorities sought to legitimize such illegal increase

by providing incentives for the dock pilots and other officers who are

willing to handle oversized vessels while, on the other hand,

withdrawing legitimate allowances of the dock pilots and other

officers and issuing show-cause notices to the writ petitioners and

other persons not willing to take such risk, who are otherwise

entitled, by reason of their refusal to handle oversized vessels.

VII. There have been at least two specific instances of accident and the

Accident Register was called for but not produced by the

appellant/respondent authorities. It has also not been explained by

the authorities as to why no such vessel was permitted after the

year 2013. Certain illegal entries of oversized vessels on previous

occasions cannot be cited as justification for increasing the regular

maximum permissible size merely for the purpose of increasing the

trade of the appellant/respondents.

VIII. Rule 12 of the Kolkata Port Rules empowers the Director General to

prescribe the manner in which a person shall moor a sea-going

vessel, and not to determine the dimensions of the vessels to be

allowed through the lock gate of the NSD. Such a decision, having

grave impact on the safety standards, ought to have been taken at

the highest level, at least involving the Board of Trustees and

Chairman of the KoPT, that too, after extensive research on the

safety measures and infrastructural development as well as

modernization required for increasing the beam width. In the

absence of any such measures, the Director, Marine Department

- 9- MAT 554 OF 2021

shall not have the authority to implement such a major decision in

hot haste, thereby endangering the lives of the employees.

IX. The added respondent i.e. the respondent no.6 is the sole employee

of the KoPT against whom departmental proceedings have been

initiated for alleged non-compliance and violation of the decision to

allow vessels beyond 80 ft. beam width to ply inside the lock gate at

NSD and has been placed under suspension by an order dated

July 9, 2019, which is still continuing. As a result, the added

respondent is receiving only substantial allowance at present. The

added respondent therefore, cannot be coerced with purported

disciplinary proceedings or threat of suspension to succumb to

illegal acts that exposes the respondents to serious threat to life.

12. Having heard the learned counsel for the parties and on perusal of the

records this Court finds that there is no document on record showing the loss of

life of any Dock master or Berthing Master (Dock pilot) owing to any accident

caused due to increase in the beam size of the vessels. Thus, the Learned Single

Judge was incorrect in appreciating that the fundamental right to life and

personal liberty as enshrined under Article 21 of the Constitution of India of the

writ petitioners were infringed. Moreover, the writ petitioners/ respondents have

handled many vessels over 80 ft. beam at NSD prior to the issuance of the

circular in 2018 without any accident. Therefore, there could be no better audit

than the practical experiences gained from more than 330 movements till 2018.

Moreover, the trade circular issued by the appellant No.1, Kolkata Port Trust

(KoPT) is purely a decision taken by an administrative authority and as decided

in T.C. Tanwar v. High Court for the States of Punjab & Haryana reported in

(2013) SCC Online P&H 16009, a writ court should not interfere with the

administrator's decision unless it is illogical or suffers from procedural

impropriety or is shocking to the conscience of the court, in the sense that it

was in defiance of logic or moral standards. The scope of judicial review is

limited to the deficiency in the decision-making process and not the decision. In

-10- MAT 554 OF 2021

the present case, this Court shall not go into the merits of the trade circular

dated July 10, 2018 issued by the KoPT on other technical issues as the

decision is based on the reports of a Technical Committee that was constituted

with the approval of the competent authorities for the purpose of considering

and vetting a study report initiated through the Department of Ocean

Engineering, IIT Madras to consider the maximum dimension of vessel that

could be acceptable at the lock barrel of KoPT and NSD. According to the report

referred to the Technical Committee vessels up to 25.24 meters of beam length

can be accommodated at the NSD, which is more than 82 ft. Therefore, as

decided in Vasu Dev Singh v. Union of India reported in (2006) 12 SCC 753 and

in Neha Indurkhya v. M.P. Board of Secondary Education, Bhopal reported in

(2003) SCC MP 261 that when an expert body has already examined the

questions herein the upper limit of the beam length, it is not open for the Courts

to interfere into the matter as there is no material on record to negate in judicial

review.

13. Therefore, this Court shall not interfere with the trade circular dated

July 10, 2018 issued by the Kolkata Port Trust (KoPT) herein the appellant No.1

as it is an administrative action adhered with the principle of reasonableness

and not tainted by any mala fide intention. Thus, the impugned order passed by

the Learned Single Judge is set aside and quashed.

14. For the foregoing reasons, the appeal is allowed. All pending applications

are also accordingly disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE Kolkata 23.12.2022 PA(BS)