Indian Federation Of Port & Dock ... vs Union Of India (Uoi)
1999 Latest Caselaw 1031 Del

JUDGMENT

A.K. Sikri, J.

1. This is an application filed by the petitioner under Section 15 of the Civil Procedure Code for direction to the respondents to permit the petitioners to participate in the meetings of the Bipartite Wage Negotiation Committee and to allow it to sign the wage settlement and the reimbursement of Travelling Allowances. It is stated that the Committee is going to start its deliberations w.e.f. 4th November, 1999.

2. In support of the aforesaid application Dr. Sumant Bhardwaj, learned counsel appearing on behalf of the petitioner argued that on 3rd December, 1998, the then Minister of State had passed order to the effect that representative of the petitioner-union be included in Bipartite Wage Negotiation Committee (hereinafter referred to as BWNC, for short) and if that is not possible then atleast they may be allowed to participate in the deliberations of the BWNC as observers as was done in earlier meeting of BWNC. It is further stated that this decision was reiterated by the Minister of State on 20th May, 1999.

3. Reply to this application is filed by the respondents in which it is staled that percentage of strength, as per check up results, of the petitioner federation amongst the, port and dock workers in the major post and dock labour boards was found to be 0.84% only and therefore petitioner-federation is not one of the substantive or major federation which have a large following among the port and dock workers in the country. Along with the reply, statement showing the results of the check of system as

per 1998 figures of the ports and dock labours is filed as Annexure R-II. Respondents have also filed statement reflecting the position from about federation in the BWNC as Annexure R-III. In reply to the contention of the petitioner then Minister of State had passed the order on 3rd December, 1998 permitting the petitioner-union to participate in the deliberations of the BWNC as observer. Mr. Jayant Bhushan, learned counsel appearing on behalf of the respondents argued that noting of the Minister of State dated 3rd December, 198 is not an order and was merely a suggestion which was put to the then Union Minister but no final orders we passed thereon. He, therefore, contends that in view of the negligible membership of the petitioner-union, petitioner-union is not entitled to be included in BWNC or participate in the deliberations of BWNC as observer.

4. When the matter was heard on 1st November, 1999 in view of the aforesaid arguments of the parties particularly when the petitioner has relied upon orders of the Minister of State, I directed the respondents to produce the record in the court today. Mr. Jayant Bhushan has produced the records. From the records it is seen that on 3rd December, 1998 Minister of State had made the following noting in the file (this noting is also produced by the petitioner which is at page 68 of the paper book) which reads as under:-

Office of Minister of State for Surface Transport

Subject: Representation to IFPDW (ICL) and BPDMS (BMS) in BWNC.

Enclosed are the representations from Indian Federation of Port and Dock Workers (ICL), Calcutta and Bhartiya Port Dock Mazdoor Sangh (Bhartiya Mazdoor Sangh) under their No. IFPDW/BWNC/ 15 Dated 30.11.1998 AND BMS/C-14/1904/98 Dated 13.11.1998 respectively regarding inclusion of their representatives in the Bipartite Wage Negotiation Committee (BWNC) constituted vide No. LB.12011/3/97-R.O. dated: 10.9.1998

5. Since, these two Unions also have substantial following in the various Ports viz. Calcutta, Mumbai, Paradip etc., I am to suggest that their representatives may also be included in the BWNC. If it is not possible, then at least they may be allowed to participate in the deliberations of BWNC as 'Observers' as was done in the previous BWNC. The nest meeting is stated to be held on 7.12.1998 at Mumbai. .

6. The aforesaid noting clearly shows that Minister of State had made suggestion and thereafter put up the file to the Union Minister. The noting in the file further reveals that on 7th December, 1998. Union Minister had written "Please speak". Thereafter, before taking further action, the office was directed to put a brief note for the Minister along with the previous files bringing out the previous history. Note dated 13th January, 1999 was accordingly put up and the relevant portion thereof reads as under:-

"It may however be submitted that the claim of these Federations that they have a following of 25,000 workers in their support is not correct. As per 1998 Check Off, IFPDW had a membership strength of only 600 workers and the BPDMS has a strength of 785 members. In percentage terms it comes to 0.84% and 1.09% respectively.

It is a fact that IFPDW representative was included as an observer in the last BWNC. He was not entitled to any TA etc. In this connection views of IPA are awaited.

There are about 70,000 workers in Ports & DLBs as per 1998 Check Off. Present BWNC consists of 12 members from the workers side. For each percentage strength of 8.33 members, one representative was allowed. Thus, the percentage strength of these two federations is negligible to allow a regular member in the BWNC. This may also have repercussions as other federations may demand for more number of members."

7. Thereafter file was processed at various levels and ultimately file was put up before Minister of State again on the basis of representations of President of the petitioner-union. Minister of State again requested for looking into the matter and consider inclusion of representation of two unions (including petitioner-union) in the BWNC on the ground that they had considerable following in various major ports. On this noting Union Minister gave the following remark on 25th May, 1999 "Please examine and put up".

8. The details were again given by the Desk Officer on 27th May, 1999 reiterating earlier position and stating that since petitioner-union did not have sufficient membership it would be impractical to include them in BWNC. It was also stated that Indian Ports Association and INTUC federation were also opposed to the inclusion of these unions (including the petitioner-union) in the BWNC. Before this note cold be put to Minister of State he resigned and the matter is now again put up before the present Minister of State with the suggestion that it will not be appropriate to include the name of the petitioner-union in BWNC or allow it to participate in the deliberations in BWNC as observer.

9. The aforesaid discussion would clearly show that Minister of State had only given his suggestion to allow petitioner-union to participate in the deliberations of BWNC as observer. The same is the position in respect of note date 20th May, 1999. Therefore it cannot be said that any orders were passed by Minister of State to the effect that petitioner Union be allowed to participate in the meeting of BWNC as observer.

10. In so far as right of 6th petitioner-union to participate in the meeting of BWNC as observer, de hors the order of Minister, is concerned as per the counter affidavit the petitioner- union enjoys the membership by 0.84% and since it is much less than 8.33% which is required to have one name included in the meeting of BWNC, the petitioner-union cannot be allowed to participate in the proceedings.

11. It is argued by Dr. Sumant Bhardwaj that on 4th March, 1999 order was passed wherein it was noted that the Minister of State had allowed the petitioner-union to participate in the proceedings and therefore the respondent cannot go against that order and if respondents had any grievance respondents could have filed appeal against the same. In support of his plea he relied upon he judgment of Supreme Court in the case of States of U.P. v. Brahm Dutt Sharma . To appreciate this contention it would be useful to reproduce order dated 4th March, 1999:-

"The learned counsel for the petitioners states that in view of the order dated 3.12.98 passed by the Minister of State for Surface Transport this writ petition has become infructuous. The same is, accordingly disposed of as having been rendered infructuous. If the petitioner has any grievance subsequently it will be open to him to seek redressal in accordance with law".

12. A perusal of the aforesaid order shown that it was a statement of the petitioner that in view of the order dated 3rd December, 1998 passed by Minister of State for Surface Transport, writ petition has become infructuous and accordingly the writ petition was disposed of having been rendered infructuous, giving petitioner right to seek redressal in accordance with law, if any grievance arises subsequently. This court had not passed any order. If petitioner thought that the order dated 3rd December, 1998 passed by Minister of State for Surface Transport was in its favour and thereby got the present petition disposed of as infructuous, that was petitioner's own understanding of the order dated 3rd December, 1998. Infact as noticed above, it is only a note dated 3rd December, 1998 of Minister of State giving certain suggestion and placing the matter before the Union Minister. Moreover, petitioner was given right to raise its grievance in accordance with law if any grievance subsequently arises. In view thereof judgment in the case of State of U.P. v. Brahm Dutta Sharma (supra) cited by the petitioner rather goes against him in as much as it is held in para 10 thereof, to which reference was invited by counsel for petitioner, that once the matter is finally disposed of CM is not maintainable in the same petition and therefore it was appropriate for the petitioner to file substantive petition. Therefore CM is dismissed as not maintainable as well as on merits.

13. As far as CM. 5057/99 filed by respondent for recalling of the order dated 4th March, 1999 is concerned, counsel for the respondent states that he does not press the said application. It is accordingly dismissed as not pressed.

14. I may state that the file is to be put up before the present Minister and Minister can take appropriate decision without being influenced by that order. It is hoped that the decision would be taken expeditiously. With these observations, both CM.5057/99 and CM. 9971/99 are dismissed.