P.V. Kakade, J.
1. Both these writ petitions are being disposed of by this common judgment as they arise out of the impugned Order dated December 30, 1998, passed by the Labour Court, Mumbai. Parties as well as learned counsel appearing in both the petitions and issues involved therein are the same.
2. Both the writ petitions are aimed against the Order dated December 30, 1998 passed by the Presiding Officer, Labour Court, Mumbai, whereby Application (IDA) No. 239 of 1995 filed by the respondent in Writ Petition No. 493 of 1999 and petitioner in Writ Petition No. 777 of 1999, was partly allowed. By the said application under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter called as the said Act), the claimant-worker had claimed total dues of Rs. 22,475/- under five heads viz., one month's salary in lieu of notice, retrenchment compensation, bonus for the year 1993-94, bonus for the year 1994-95 and leave encashment for 60 days. The Labour Court granted the claim under the first two counts and rejected the claim under the last three counts. Writ Petition No. 493 of 1999 is filed by the petitioner- company against the grant of the said first two counts, whereas the employee has filed Writ Petition No. 777 of 1999 against the rejection of his latter three claims.
3. I have heard the learned counsel for both the sides. Perused the record along with the documents annexed to the petitions and affidavits-in-reply.
4. The facts giving rise to the dispute, in brief, are thus:
The petitioner in Writ Petition No.493 of 1999 (hereinafter called as the employer) is a firm engaged in providing services to shipping companies operating at me ports of Mumbai, Calcutta and Kandla. The activities of the petitioner-company are directly related to the work of a major port and, therefore, as per the provision of the Industrial Disputes Act, is an industry carried out under the authority of the Central Government. The respondent in Writ Petition No. 493 of 1999 (hereinafter called as the worker) was an employee of the said company. According to the company, theworker resigned of his own volition from the services of the company for better prospects effective from September 17, 1994 after giving intimation of his desire to resign from July 1994 i. e. after giving 1 1/2 months advance notice.
According to the company all the legal dues including wages for the days actually worked for the month of September 1994 and a service certificate were handed over to the worker consequent to the determination of his servicesupon resignation. However, the worker in order to extract monies out of the company, it is alleged, filed a false application under Section 33-C(2) of the said Act, claiming monetary benefits on the ground that his services were retrenched. By the said application the employee claimed one month's notice pay and retrenchment compensation on the basis that his services were retrenched and also proceeded to claim leave encashment as set out therein. The said application was registered as Application (IDA) No. 239 of 1995 and marked before the Labour Court, Mumbai. Due notice was given to the company and it filed its written statement. The Labour Judge, Mumbai, while adjudicating the application concluded that it had jurisdiction to entertain and try the application. It further concluded that the worker had the existing right to make claim and proceeded to hold that the company was liable to pay the notice pay of Rs. 3,500/- and retrenchment compensation of Rs. 5,250/- to the worker with interest at the rate of 12% per annum from the date of the application within one month from the date of the order, The further claims of the worker, however, regarding bonus for two years and encashment of leave salary came to be dismissed for want of sufficient evidence in support of the claim. Hence, both the parties have filed the present writ petitions.
5. At the outset the company submitted that the application under Section 33-C(2) of the said Act was not maintainable before the Labour Court for want of jurisdiction to try and entertain the same under the Industrial Disputes Act, in so far as the company was concerned. According to the company the appropriate Government in relation to it is the Central Government under Section 2(a) of the said Act. It is the case of the company that its operations are directly connected with the Bombay Port Trust, Bombay, Nhava Sheva and Uran. The activities of the company, therefore, are directly related to the work of a major port. It was further submitted that the said industry is carried out under the authority of the Central Government and the activities of the opponent-company involves direct nexus with the said industry. The industrial dispute, therefore, was in relation to the industrydirectly connected with the activities of the Central Government and, therefore, the appropriate Government involved was the Central Government. On the other hand, it was urged on behalf of the worker that he was working as Accounts Clerk in the company's office located at Mumbai and the five employees of the company located at Mumbai had nothing to do and had no concern with the business of the company which consisted of Ship Management, Consultancy and Allied Services connected with shipping. In view of this position, it was submitted on behalf of the worker that the appropriate Government for the purpose of his claim under Section 33-C(2) of the said Act was the State Government and, therefore, the Labour Court, Mumbai had jurisdiction to entertain and try the claim.
6. Now, it is apparent from the record that the work of the company is manning the ships. These ships are normally at Port at Mumbai. The manning is done at Singapore and other places abroad. It is also submitted that for entering in Bombay Dock a permit is required and it is called a Dock Entry Permit and it is given for regular work. It is given by Mumbai Port Trust to the company and it is true that Hanif Modak was issued such a permit because of his work as manning agent. The manning agent's work was done in Mumbai Dock. Therefore, it is undisputed that the company is engaged in the business of ship management and consultancy and allied services since the year 1981, and its office staff consists of five employees, including the said worker, to carry out all the activities at the Mumbai Office. On the background of these facts, my attention was invited to the provision of Section 2(a) of the said Act, which reads thus:
'2. Definitions - In this Act, unless there is anything repugnant in the subject or context.
(a) 'Appropriate Government' means -(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to anindustrial dispute concerning [a Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 or Industrial Finance Corporation of India Limited -formed and registered under the Companies Act, 1956 or the Employees' State Insurance Corporation established under Section 3 of the Employees' State Insurance Act, 1948 or the Board of Trustees constituted under Section 3-A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948, or the Central Board of Trustees and the State Boards of Trustees constituted under Section 5-A and Section 5-B respectively of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, or the Life Insurance Corporation of India established under Section 3 of the Life Insurance Corporation Act, 1956 or the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956, or the Deposit Insurance and Credit Guarantee Corporation established under Section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 or the Central Warehousing Corporation established under Section 3 of the Warehousing Corporation Act, 1962, the Unit Trust of India established under Section 3 of the Unit Trust of India Act, 1963 or the Food Corporation of India established under Section 3 or a Board of Management established for two or more contiguous States under Section 16 of the Food Corporation Act, 1964 or the Airport Authority of India constituted under Section 3 of the Airport Authority of India Act, 1994 or a Regional Rural Bank established under Section 3 of the Regional Rural Banks Act, 1976 or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Corporation of India Limited]; or an air transport service or a banking or an insurance company, a mine, an oil field, a Cantonment Board, or a major port, the Central Government, and
(ii) in relation to any other industrial disputethe State Government.'
Therefore, it is apparent there from that the appropriate Government in relation to any industrial dispute concerning a major port would be Central Government and in relation to any other industrial dispute it would be the State Government. On the basis of this definition, it was submitted on behalf of the company that the appropriate Government for the purpose of this dispute raised by the workman would bethe Labour Court established specifically for the purpose i.e. CGIT (Central Government Industrial Tribunal) and not the Labour Court formulated under the State laws.
Now it is not disputed that the dispute between the company and the worker is an industrial dispute. The only question therefore is whether it is an industrial dispute concerning the major port. Theword 'concerning' according to the WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY means 'relating to, regarding, respecting about - an affair that concerns one .......' It is, therefore a word of wideamplitude and prima-facie, any industrial dispute affecting or connected with the major port would fall within the said definition. This is the interpretation contended on behalf of the company. Thelearned counsel for the company put heavy reliance on the decision of the Division Bench of this Court in the case of Tulsidas Khimji v. Jeejeebhoy, reported in : (1961)ILLJ42Bom . In the said ruling it wasobserved that so far as the activities of the godown department were concerned it was admitted that 25 per cent of the space in the godown was utilized for storing the goods for clearing and shipping. In view of allthese circumstances, it could not be said that the activities of the godown department had no relation to major port. On critical perusal of the said ruling, it is obvious that the ratio laid down in the said ruling aptly fits to thepresent case. It was urged on behalf of the worker that he was one of the five workers who were assigned the office work at the office in Bombay and had absolutely no concern with the business activities of the company relating to the major port. However, in my considered view, it cannotlie in the mouth of the petitioner that he had no concern with the business activities of the company in relation with the Mumbai Port Trust, because the very establishment had come into being for the business as manning agent as well as ship management and consultancy and allied services since the year 1981 and, therefore, the work of the employee had definitely attracted nexus with the activity of the business activity of the company which had direct bearing with the activities of the major port. In my view, therefore, enacting Section 2(a) the intention of the Legislature appears to make the Central Government the appropriate ] Government in relation to industrial dispute concerning works in major ports. In the absence of any elaboration in the Industrial Disputes Act, the Central Government would be an appropriate Government for our purpose when the dispute is between the management and the worker employed in works considered as incidental to or connected with operations in the major port.
7. Both the parties have led oral as well as documentary evidence and perusal thereof leaves no doubt whatsoever that the work of the said employee was incidental to and connected with operations in the major ports as the company, was involved in the business of manning the ships and other ship management and consultancy and allied services since 1981. Therefore, I have no doubt whatsoever that the Labour Court had no jurisdiction to entertain and try the said application made by the employee under Section 33-C(2) of the said Act.
8. Once we reach this conclusion, the remaining issues become more or less academic in nature. The learned counsel for the worker vehemently urged that it was the case of retrenchment and therefore that claim of retrenchment was made which was competent in law. On the other hand, it is the case of the company that the worker had resigned from the services and therefore, there was no question whatsoever of paying any retrenchment compensation especially when other dues were duly settled consequent upon the resignation. In this regard, cross-examination of the workeris worth to note. He has clearly admitted that there was no termination order issued to him and management had no grievance against him at all. He has further stated that his services were orally terminated by the management but he had no evidence to show that it was so orally terminated. Further, he has admitted that he has no desire to work under any employer. According to him he does not desire to workwith the said company though the company had offered work to him but he had refused to accept it. Further he has admitted that he has signed the voucher Exhibit 'C-3' and has received the money mentioned in the voucher.
According to the company on his resignation,he was paid his dues along with service certificate which is admitted by the worker himself. In my considered view, if it was a case of retrenchment and not of resignation oral or written - then it cannot be conceived that anyemployer would issue and any employee would demand service certificate. It is clear position as established from the record that the worker left the services for better prospects for which he had obtained the service certificate from thecompany. Therefore, having considered pros and cons of facts and circumstances revealed from the record, it does not appear to be a case of retrenchment at all. In other words, on preponderance of probabilities the case of thecompany appears to be acceptable. Therefore, I hold that the Labour Court, while passing the order dated December 30, 1998 partly allowing the application of the worker under Section 33-C(2) of the said Act, committed an error inholding that it had jurisdiction to try and entertain the claim as well as granting payment partly holding that it was the case of retrenchment. Under the circumstances I have no option but to set aside the order of the Lower Court.
9. For the reasons recorded above Writ Petition No. 493 of 1999 is allowed and the rule is made absolute in terms of prayer Clause (a). The petitioner in Writ Petition No. 493 of 1999 shall be entitled to withdraw the amount whichwas deposited in the Court under the order dated March 3, 1999 with interest.
10. Writ petition No. 777 of 1999 stands dismissed.