Judgment:
A.H. Joshi, J.
1. This is a petition by a person who claims to be authorised in respect of final settlement of assets and liabilities of the dissolved society, namely as described in the cause title.
Facts & Background
2. The respondent No. 6 filed writ petition in this Court bearing No. 261/1991 and sought declaration that workers engaged by Handling Agents through Mormugao Handling Agents Association herein after referred to for short as 'the Association' be absorbed in the employment of respondent No. 4 who was respondent No. 1 in the writ petition. The Union claimed that workers were employees of respondent No. 4 i.e. Mormugao Port Trust and in turn not the employees of either the Association or its members who were handling agents.
3. In said writ petition No. 261/1991 Court passed judgment and order on 20.9.2004 and gave a direction to the Central Government which reads as follows:
We, therefore, direct the respondent No. 3 to forward a copy of this petition to the concerned Labour Commissioner (Central Government) to treat the same as representation for the demands of the petitioner Union and consider the same for adjudication under the provisions of the Industrial Disputes Act, 1947. We hope that the Labour Commissioner concerned shall complete the conciliation proceedings within a time frame of about three months and record his decision within such a period of three months after the respondent No. 3 has referred the issue to him.
(quoted from page 42-43 of paper book)
4. The conciliation proceedings were commenced in compliance with these directions.
5. Respondent No. 1's demand was for relief in the nature of declaration that they are the employees of Mormugao Port Trust,i.e. The same with which it was pursuing in the writ petition.
6. In the minutes before the Conciliation officer held on 30.11.2004, copy whereof is on record of this petition at page 55, what it was recorded reads as follows:
The General Secretary of the Gomantak Mazdoor Sangh and Advocate Girish Sardesai submitted that they have no dispute or grievance against the Respondent No. 2 and 4 namely Mormugao Handling Agents Association, Goa and Mormugao Stevedores Association, Goa. The dispute is only between the Union and Mormugao Port Trust, Goa.
7. No settlement could be reached in conciliation. The Conciliation Officer has sent his Failure Report to the respondent No. 1 herein.
8. The respondent No. 1 referred the dispute to present respondent No. 2. The term of reference as originally passed by respondent No. 1 reads as follows:
Whether the Mini Pool workers are the employees of Mormugao Port Trust and whether the demand of the Gomantak Mazdoor Sangh to consider such workers who were engaged by an independent employer i.e. Mormugao Handling Agents Association as workmen of the Mormugao Port Trust justified? If so, to what relief the concerned workmen are entitled to?
(quoted from page 53 of paper book)
9. The petitioner had an objection and a grievance to the underlined words contained in the order of reference.
10. The petitioner herein then submitted a representation to the Government of India on 14.6.2007, and prayed for amending the terms of refrence in order to eliminate the dissolved society, from the involvement in the reference.
11. In the mean time the reference proceeded before the respondent No. 2. Petitioner herein applied before the respondent No. 2 for referring back to the Central Government the reference for amendment in the term of reference. The prayer in said application reads as follows:
It is therefore, prayed:
(a) From the Schedule in the captioned Reference Order, the qualifying clause: 'who were engaged by an independent employer i.e. Mormugao Handling Agents Association', be quashed and set aside.
Alternatively
(a) This Hon'ble Tribunal may intervene with the Central Government for dropping the said qualifying clause and correcting the mistake in the Reference Schedule.
(b) From the captioned Reference Order, the Party 'Employer' 2, the MHAA, be dropped.
12. CGIT-2 the respondent No. 2 has rejected petitioner's above referred prayer by order dated 21.8.2007.
13. Petitioner has filed present writ petition challenging order of reference involving the petitioner, and made various consequential prayers.
14. During pendency of present writ petition the Governement of India had issued corrigendum dated 17.3.2005 and had modified the term of reference.
After modification the amended schedule defining the reference, reads as follows:
Whether the claim of the Gomantak Mazdoor Sangh that Mini Pool Workers were not the workmen of Mormugao Handling Agents Association but should be considered as workmen of the Mormugao Port Trust is legal and justified. What relief the concerned workmen are entitled to?
(quoted from page 9 of MCA 48/09)
Petitioner has grievance in relation to the underlined portion thereof.
15. Petitioner has therefore amended the writ petition and challenged foregoing underlined part of the term of reference.
16. The foundation of petitioner's grievance in relation to inclusion of petitioner's society is based on what is quoted in foregoing paragraph No. 6, based on the minutes of conciliation proceedings, at page 55, of writ petition paper book.
17. Perusal of paragraph 15 of writ petition reveals that the stevedores had formed petitioner association, and had engaged various workers through the mechanism called Mini Pool which was operated through 'The Association'.
18. Petitioner's basic submission is that:
i. The workman have the claim that:
(a) they are the employees of the Port Trust.
(b) They are not the employees of the Association or its members.
ii. By including the name of the petitioner - Association in the term of reference, the Central Government has practically adjudicated that the workmen are employed by 'The Association', and that the demand is that they be treated as workmen of the Port Trust.
iii. Therefore now nothing is left to be decided by Tribunal as to 'The Association' being actual employer.
iv. Therefore term of reference needs to be amended to convey said meaning.
The Central Government did not adjudicate that status of association as employer of the workmen.
19. This Court has perused the record and heard respective advocates.
20. It is well known that what is referred for adjudication is a demand by Trade Union/workmen and dispute thereon.
What is done by Central Government as appropriate Government under the Industrial Disputes Act, is to form an opinion about 'existance of an industrial dispute' within the meaning of Section 2(k) of Industrial Dispute Act.
21. The scheme of Industrial Disputes Act does not complete such adjudicatory function, power or jurisdiction.
22. This Court finds that bare mention of the Association i.e. the dissolved society for whom present petition is filed, in the order of reference would not by itself amount to adjudication by Central Government.
23. The Industrial Tribunal is empowered and is competent to independently adjudicate whether the workmen are liable to be treated or considered or to be declared to be employees of the Port Trust considering law in vogue and the facts as would be proved and what would be just and proper between the parties.
24. The grievance of the petitioner about the effects of the language of reference is based on apprehensions which do not have factual or legal foundation.
25. This Court is confident that the tribunal is bound to take into account all pleas, aspects and clarification offered by respective parties.
26. With foregoing discussion, rule is accordingly discharged.
27. In the circumstances, parties shall bear own costs.