ORDER
SHEET CS3032005 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE CALCUTTA DOCK LABOUR BOARD Versus T. P. ROYCHOWDHURY & CO. PVT. LTD. BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date :
27. h March, 2015. Mr. D. Ghosh, Adv., with Mr. A. Mukherjee, Adv. and Mr. A.K. Jena, Adv., for plaintiff. Mr. A. Roy, Adv., with Mr. N. Dasgupta, Adv., and Mr. A. Debsarkar, Adv., for defendant. The Court : The plaintiff seeks to recover a principal sum of Rs.33,07,596.17 from the defendant on the ground that the plaintiff had paid such sum to the defendant by mistake. The plaintiff had collected levies for registered pool as well as monthly workers from the defendant. The dispute in the instant suit relates to wage revision for registered monthly workers. According to the plaintiff the defendant is liable to pay for wage revision for the registered monthly workers the period of January 1, 1998 till August 1, 2000. The plaintiff had allowed the defendant to adjust the quantum of the wage revision for registered monthly workers with levies payable by the defendant to the plaintiff on account of registered pool workers. The plaintiff seeks to recover such amount from the defendant along with interest claiming that the adjustment so allowed was by mistake and that the Comptroller and Auditor General had intimated the plaintiff of such mistake. The defendant has filed its written statement. The defendant claims that the parties are guided by the Calcutta Dock Clerical and Supervisory Workers (Regulation of Employment) Scheme, 1970. It had acted in accordance with such scheme and that the defendant did not receive any undue enrichment from the plaintiff plaintiff. and therefore is not liable to pay any amount to the The defendant disputes that the sum claimed by the plaintiff is payable by it and that such sum had been paid by the plaintiff to the defendant by mistake. The suit was taken up for hearing initially on March 23, 2015. issues were settled on that date.
“1. Whether clause Five Such issues are as follows:
50. of the Calcutta Dock Clerical and Supervisory Workers (Regulation Employment) Scheme, 1970 would be applicable to the wage revision for the period from 1998 to August 1, 2000 as alleged by the defendant in para 4 of the written statement?.
2. Whether wage settlement as arrived at and signed in the presence of Regional Labour Commissioner, Mumbai and Deputy Chief Labour Commissioner at New Delhi on August 2, 2000 under section 12(3) of the Industrial Dispute Act is binding upon the defendant?.
3. Whether plaintiff’s resolution dated February 27, 2001 was arrived at based on erroneous assumption?.
4. Whether the transaction of Rs.33,07,596.17 made in favour of the defendant was resulted in an unjust enrichment to the defendant?.
5. Whether the plaintiff is eligible to the reliefs, as prayed for?. At the instance of the defendant, thirteen additional issues were settled on March 25, 2015.
“1. Does Such issues are as follows: the plaintiff have any cause of action against the defendant?.
2. Is the claim of the plaintiff barred by limitation?.
3. Is the resolution dated February 27, 2001 passed by the plaintiff Board unlawful?.
4. Was the adjustment and credit of Rs.33,07,596.17 given by the plaintiff in favour of the defendant vitiated by any wrongful assumption of liability by the plaintiff, as alleged in paragraph 10 of the plaint?.
5. Whether the C & AG’s recommendation for the year ending 2003 suggests any recovery of arrear dues from the defendant on account of the wage revision under the wage settlement dated 2nd August, 2000?.
6. Has the reimbursement of Rs.33,07,596.17 by the plaintiff to the defendant in terms of the plaintiff’s resolution dated February 27, 2001 resulted in any unjust enrichment to the defendant, as alleged in paragraphs 12 and 14 of the plaint?.
7. Is the defendant bound by the resolution no.22 dated 10th December, 2004 passed by the plaintiff Board, as alleged in paragraph 13 of the plaint?.
8. Is the resolution dated 10th December, 2004 in consonance with the C&AG’2 recommendation for the year 2003?.
9. Did the defendant receive the sum of Rs.33,07,596.17 to the use of the plaintiff as alleged in paragraph 15 of the plaint?.
10. Is the defendant Rs.33,07,596.17 or liable any to part refund thereof to the said the sum of plaintiff, as alleged in paragraph 15 of the plaint?.
11. Is the plaintiff entitled to claim refund of the sum of Rs.33,07,596.17 or any part thereof from the defendant?.
12. Is the plaintiff entitled to claim interest either at the rate of 14$ per annum or at any other rate?.
13. Is the plaintiff liable to pay arrear wages on account of wage revision settlement dated 2nd August, 2000 to the registered workers in terms of clause 50 of Calcutta Dock Clerical and Supervisory Workers (Regulation of Enjoyment) Scheme, 1970?.”
. The plaintiff has adduced evidence through its chief accountant while the defendant has adduced evidence through its Managing Director. Both the witnesses were examined in chief and cross examined respectively. The plaintiff is constituted under the Dock Workers (Regulation of Employment) Act, 1948. The defendant is a registered employer within the meaning of Calcutta Dock Clerical and Supervisory Workers (Regulation of Employment) Scheme, 1970. The scheme of 1970 allows the plaintiff to impose levy for registered pool and monthly workers. For the relevant period, the plaintiff had collected levy of 353% of the wages for pool workers and 131% for the monthly workers. Wage Revision of registered monthly workers took place on August 2, 2000 with effect from January 1, 1998. By reason of such wage revision the defendant become obliged to pay Rs.33,07,596.17 to its registered monthly workers. The plaintiff had resolved to reimburse the defendant as well as other registered employers the difference of the wage revision in 12 equal monthly instalments by way of adjustment of periodical bills to each of the employers on submission of Demand note to the plaintiff. This resolution was adopted by mistake. This was corrected by the Resolution dated December 10, 2004. The plaintiff was initiated by the Comptroller and Auditor General as to such mistake. The plaintiff had thereafter demanded refund from the defendant. So far as the first issue settled on March 25, 2015 is concerned, it has not been demonstrated that the plaint does not disclose any cause of action or that the plaintiff does not have a cause of action to sue to defendant. claim of the plaintiff is on account of money paid by mistake. therefore discloses a cause of action. to sue the defendant. The The plaint The plaintiff also has a cause of action The first issue settled on March 25, 2015 is therefore answered in the affirmative and in favour of the plaintiff. The second issue settled on March 25, 2015 relates to limitation. It is an admitted position in the pleadings that the defendant had adjusted various amounts from the defendant’s liability to pay the plaintiff. The last of such adjustments took place on August 25, 2003 as would appear from one letter dated August 25, 2003 being a part of Exhibit N. presented and admitted on December 20, 2005. The instant suit was The plaintiff has therefore filed the suit within a period of three years from August 25, 2003. Consequently the second issue settled on March 25, 2015 is answered in the negative and in favour of the plaintiff. The third to the 11th issue settled on March 25, 2015 and the 1st to the 4th issue settled on March 23, 2015 are taken up together for the sake of convenience. Learned counsel for the defendant submits that the parties are guided by clause 50 of the Calcutta Dock Clerical and Supervisory Workers (Regulation of Employment) Scheme, 1970 (hereinafter referred to as “the scheme of 1970”.). He refers to clauses 35 and 39 of the scheme and various other provisions of the scheme in addition to clause 50 of the scheme of 1970 in support of the proposition that the monthly workers are covered under clause 50 of the scheme. It is the plaintiff’s liability to pay the wage revision from the levies that it had received from the registered employers. The defendant is a registered employer. time to time. It had paid the levies as imposed by the plaintiff from There is no allegation of default of payment of any levies by the defendant to the plaintiff. In such circumstances, when the defendant has paid the levies, the plaintiff cannot ask for any further payment from the defendant on account of wage revision. He points out that the wage revision in question has been given effect to from January 1, 1998 and relates to the period from such date till August 1, 2000. The wage revision was declared on August 2, 2000. He contends that the plaintiff is misconstruing the Comptroller and Auditor General’s recommendation being Exhibit E. He refers to the last paragraph of the communication of the Ministry of Shipping being Exhibit E and submits that an imprudent decision of the plaintiff was commented upon. Such comment made in the last paragraph of Exhibit E does not translate into a liability of the defendant to pay the wage revision. In this context, learned counsel for the defendant refers to two earlier resolutions of the plaintiff, dated December 24, 1987 and September 27, 1989 being Exhibit C. He submits that these two resolutions also relate to payment of wage revision which had been imposed retrospectively. He contends that on the previous occasions, the plaintiff did not call upon the defendant to pay for the wage revision. In such circumstances, he contends that his client did not receive any undue benefit from the plaintiff in the manner as sought to be contended by the plaintiff. Referring to Exhibit C being the agenda to the board meeting dated February 27, 2001 and to the resolution dated February 27, 2001, which is also a part of Exhibit C, he contends that neither the agenda nor the resolution foists any liability on the defendant. Neither the agenda nor the resolution being Exhibit C would be read to mean that the defendant had received any undue enrichment from the plaintiff. He therefore contends that no amount is payable by the defendant to the plaintiff. Learned counsel for the plaintiff refers to Exhibit C. He refers to the agenda to item 6 and submits that the levy of 131% realised from the defendant by the plaintiff comprising of 74% as general levy, 6% as Quadir Nawaz committee, 50% as welfare and 1% as workers welfare compensation fund. No component was realised in the 131% levy to provide for a wage revision. He contrasts the agenda being part of Exhibit C with the subsequent recording in such agenda for the next period. He points out that for the next period, the committee recommended levy of 149% in which 24% component on wage revision fund was sought to be incorporated. He contrasts these two and submits that in 131% levy a component of 24% wage revision was not contemplated and therefore not realised from the defendant. registered employer. Payment of wages is the primary liability of the Wage revision will therefore be the primary liability of the defendant. He refers to (1981) 2 CLJ275(Calcutta Dock Labour Board –vsPayment of Wages Authority & Ors.) for the proposition that monthly workers are the employees of the registered employers. He submits that by Exhibit E, the imprudent decision of the plaintiff to reimburse the expenses on account of arrear of wage revision of monthly workers without generating compensatory revenue was pointed out by the Ministry of Shipping. recovery. Immediately, the plaintiff set into motion the means of The plaintiff issued demand notices which are Exhibit H and Exhibit I to the defendant. The defendant did not pay, necessitating the plaintiff to file the instant suit. On the interpretation of clause 50 of the scheme of 1970, he submits that the board has to have a fund in the first place for it to pay for the wage revision. In the particular period which is under consideration and for the particular accruals of the workers, the board did not receive any fund from the registered employers by levy or otherwise for the board to have a fund to pay for the wage revision. There are various categories of workers, one of them being pool workers. For the purpose of accumulating funds for the pool workers, the plaintiff had called upon the registered employers including the defendant to pay levy of 353%. Since the plaintiff did not have the requisite fund to pay for the wage revision, the plaintiff allowed registered employers to pay its registered workers after wage revision and to adjust such payment with the liability of the registered workers to pay the plaintiff 353% on account of pool workers. The plaintiff is seeking to recover this payment which the plaintiff had allowed the registered employers including the defendant to retain or adjust under mistake. Clauses 35, 49 and 50 of the scheme of 1970 have been referred to and relied upon by the respective counsel during hearing. Such clauses are as follows:
“35. Obligations of registered employers(1) Every registered employer shall accept the obligations of the Scheme. (2) Subject to the provisions of clause 36(1) and the relaxation given in clause 36(2), a registered employer shall not employ a worker other than a Dock Clerical and Supervisory Worker who has been allocated to him by the Executive Officer in accordance with the provisions of clause 10(i). (3) A registered employee shall in accordance with arrangements made by the Executive Officer submit all available information of his current and future worker requirements. (4) A registered employer shall supply to the executive Officer such data and information in respect of the registered workers engaged by him as the executive Officer may require from time to time. (5) (i) A registered employer shall pay to the Executive Officer in such manner and at such times as the Board may direct the levy payable and such other administrative charges under clause 49 and the gross wages due to daily workers. (ii) A registered employer shall make payments as contributions to the Dock Clerical & Supervisory Workers Welfare Fund under Clause 52. (iii) (a) A registered employer shall pay to the Board the monthly provident fund subscriptions recovered from the wages of registered the workers employers and the thereon, contribution repayment of by the provident Fund loan and interest on Provident Fund loan within 15 days from the date of each recovery. (b) The cost of maintaining the Provident Fund amounts of the monthly workers shall be defrayed by payments to the Board made by the Registered Employers in the manner and on the basis as might be fixed by the Board from time to time. (6) A registered employer shall keep such records as the Board may require and shall produce to the Board or to such persons as may be designated by the Board upon reasonable notice all such records and any other documents of any kind relating to registered dock workers and to the work upon which they have been employed and furnish such information relating thereto as may be set out in any notice or directions issued by or on behalf of the Board. (7) In keeping with the objects of the Scheme and in accordance with the clause 19(5), every registered employer is expected to maintain at least 75% of this total requirement of workers under the Scheme on his monthly register within 2 years of the commencement of the Scheme. With this end in view the registered employer shall agree to accept such additional allocation of workers from the Pool to his monthly register as the Chairman or Deputy Chairman may decide from time to time in consultation with the Executive Officer. (8) (i) A registered employer meaning stevedore employer/contractor, a group of such employers is permitted to use Registered Dock Clerical and Supervisory Worker only under a direct stevedoring agreement with the ship-owners, shipping agents or shipping companies. (ii) The Board may at any time demand production of such agreement documents pertaining to work on any ship, from any such employer for the purpose of verification. (9) A registered employer shall not pay a Registered Dock Clerical and Supervisory Worker anything in cash or otherwise in excess of the wages normally and actually due to that worker.”
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“49. Cost of operating the Scheme (1) The cost of operating the Scheme shall be defrayed by payments authorised made by agents registered as approved employers by the or Board. their Every registered employer shall pay to the Board such amount by way of levy or such other administrative charges in respect of Reserve Pool workers together with and at the same time as or earlier than the payment of gross wages due from time under clause 35 as the Board may, from time to time, prescribe by a written notice to registered employers and the amount payable by way of such levy or other administrative charges shall not be less than such amount as the Board may fix minimum payable by every registered employer. as the tHe Board may also require any registered employer to pay such amount by way of levy in respect of monthly workers at such rate as it may determine. Provided that, where wages are payable to workers at an interval of less than a month, the Board may at its discretion allow the amounts, other than gross wages payable under this sub-clause to be paid monthly by such time as the Board may prescribe in this behalf. (2) In determining what payments are to be made by registered employers under sub-clause (1), the Board may fix different rates of levy or other administrative charges for different categories of work or workers. Provided that the levy shall be so fixed that the same rate of levy will apply to all dock employers who are in the like circumstances. (3) The Board shall not sanction any levy or other administrative charges exceeding hundred percent of the estimated total wage bill calculated on the basis of the daily time rate wage inclusive of allowances without the prior approval of the Central Government. (4) A registered employer shall on demand make a payment to the Board by way of deposit, or provide such other security for the due payment of the amount referred to in sub-clause (1), as the Board may consider necessary. (5) The executive Officer shall furnish, from time to time, to the Board such statistics and other information as may reasonably be required in connection operation and financing of the scheme. with the (6) If a registered employer fails to make the payment due from him under sub-clause (1) or under clause 35(5)(1) any other amount due and payable to the Board in any other capacity or account within the time prescribed by the executive Officer, the Executive Officer shall serve a notice on the employer to the effect that unless he pays his dues within three days from the date of receipt of the notice, the supply of registered Dock Clerical and Supervisory Workers to him shall be suspended. On the expiry of the notice period, the Executive Officer shall suspend the supply of registered Dock Clerical and Supervisory Workers to a defaulting employer and charge interest on the amount due at such rate and from such date as the Board may decide, until he pays his dues. If the employer fails to pay his dues within 45 days of the date of issue of the notice, his name shall be liable to be removed from the Employers’ Register.
50. Arrears of dearness allowance, wages and other allowances: In case of any revision of dearness allowance or grant of revised wages or other allowances, with retrospective effect, in pursuance of any Award or recommendation of any Board or Body set up, or of any order made, by the Central Government, the Board may, out of its funds, pay the registered workers arrears upto the date of the Award or, as the case may be or the recommendation or order, if the Board so decides.”
. To my reading, clause 50 of the scheme of 1970 allows the board, the plaintiff herein, to pay the registered workers the arrears of dearness allowance or revised wages or other allowances upto the date of the award. This clause contemplates that the plaintiff will make such payment out of its funds. The plaintiff therefore has to generate funds for such payment. It is not the case of the parties before me that funds have been put in by any external entity such as the Central Government or any other entity to the plaintiff for the purpose of meeting the exigency on account of wage revision. The registered employers such as the defendant have also not put the plaintiff in funds for wage revision. Clause 50 as rightly pointed out by the plaintiff relates to all kinds of workers. In the instant case, the suit relates to wage revision on account of monthly workers. The question is whether the plaintiff had generated fund for the purpose of payment of monthly workers on account of wage revision or not. That the monthly workers are the employees of registered employers, the defendant being one of them, is an admitted position. In Calcutta Dock Labour Board (supra) it has been held that the registered stevedors or the registered employers are the employers of dock workers. As employer therefore it is the primary responsibility of a registered employer such as the defendant to pay the wages as well as any revision of wages. The defendant contents that the plaintiff has to pay for the wage revision from out of the funds in terms of clause 50 of the scheme of 1970. The defendant contends that the funds contemplated under clause 50 of the scheme of 1970 did not contain a component of wage revision for the relevant period and therefore the adjustment allowed to be made by the defendant was erroneously allowed under mistake. It appears from the agenda that item no.6 being a part of Exhibit C that the plaintiff had noted that the realisation of 131% as levy from the registered employers such as the defendant did not comprise of any wage revision component. The break up of 131% is 74% for general levy, 6% for Quadri Nawazi committee, 50% for welfare and 1% for workers welfare compensation fund. No material has been placed before me by the defendant to establish that the plaintiff had received a levy which had contained a component on account of wage revision. In the absence of the plaintiff receiving any wage revision component from the defendant, the plaintiff ought not to have allowed the defendant to adjust payment of levy on account of pool workers with that of the liability of the defendant to pay for the wage revision. such adjustment to be done erroneously. The plaintiff has therefore allowed This mistake of the plaintiff has been pointed out by the Ministry of Shipping writing through the Principal Director of Audit. This communication is Exhibit E. Exhibit E considered the scheme of 1970 and all relevant clauses therein. It ultimately comes to a finding that the decision of the Board to allow reimbursement and/or adjustment was imprudent and that it resulted in undue benefit to the registered employers. The Court had put a query to the witness of the plaintiff as to whether the plaintiff had initiated proceeding for recovery of the entire quantum from the registered employers as noted in Exhibit E or not. In reply, such witness has stated that the plaintiff has done so. The Court had put such query finding that the Exhibit E notes an undue benefit of Rs.125.91 lakhs, and that the instant suit relates to recovery of principal sum of Rs.33,07,596.17. I find that, upon the mistake being pointed out, the plaintiff took steps for the purpose of realization of the amount due to the defendant, which the plaintiff had allowed to adjust by mistake. The defendant not having paid for the wage revision in the 131% levy which the defendant had to pay to the plaintiff, the defendant cannot claim that the plaintiff has to pay for the wage revision from out of fund generated in terms of Clause 50 of the Scheme, 1970. The 131% levy imposed by the plaintiff on the defendant was earmarked for the specific purpose. It is not for the plaintiff to divert earmarked portion of the levy for the purpose other than such earmarked head. It is no defence to the defendant, to call upon the plaintiff to pay the wage revision from out of any other funds available with the plaintiff. The payment of wage revision is the primary liability of the defendant. The defendant not having discharged such liability either by paying to the workers directly or by generating the fund kept with the plaintiff for such purpose, the defendant cannot claim that the plaintiff has to pay for the wage revision from out of the fund available to the plaintiff. An issue is raised with regard to the resolution dated February 27, 2001 being part of Exhibit C on the ground that it is unlawful. During the hearing nothing was placed to establish that the resolution dated February 27, 2001 passed by the plaintiff is unlawful. Exhibit F relates to a resolution dated December 10, 2004. Such resolution was adopted by the plaintiff to initiate process for recovery of arrear wage payment from registered employers including the defendant. The representatives of the Central Governemnt workers as well as the registered employers were present in the Board meeting of the plaintiff being Exhibit F. Exhibit F allows the plaintiff to initiate appropriate action for recovery of its dues. In view of the discussions made above, the third issue settled on March 25, 2015 is answered in the negative and against the defendant. The 4th issue settled on March 25, 2015 is answered in the affirmative and in favour of the plaintiff. Similarly, the 5th, 6th, 7th, 8th, 9th, 10th and 11th issues settled on March 25, 2015 are answered in the affirmative and in favour of the plaintiff. The 1st, 2nd, 3rd and 4th issues settled by the order dated March 23, 2015 are answered in the affirmative and in favour of the plaintiff. The 12th issue settled by the order dated March 25, 2015 is taken up for consideration. It relates to the claim on account of interest. The plaintiff has claimed interest at the rate of 14% per annum. The nature of transactions had between the parties being commercial, such claim of interest at such rate is reasonable. Such claim is allowed. In such circumstances, 12th issue is answered in the affirmative and in favour of the plaintiff. The 5th issue settled on March 23, 2015 is answered by holding that the plaintiff has put in the Court fees of Rs. 25,000/-. The plaintiff is entitled to costs of the suit in addition to the Court fees. Such costs are assessed at Rs.25,000/-. The plaintiff will, therefore, be entitled to an aggregate amount of Rs.50,000/- which are The plaintiff is, assessed costs and Court fees from the defendant. therefore, entitled to a decree for a sum of Rs.33,07,596.17 from the defendant. The plaintiff will also be entitled to a decree for interest at the rate of 14% per annum on the sum of Rs.33,07,596.17 on and from August 25, 2003 being the date when the last adjustment took place until realization. The plaintiff will also be entitled to a decree for costs of Rs.50,000/against the defendant as provided herein. CS No.303 of 2005 is decreed accordingly. The Department is directed to draw up and complete expeditiously. The prayer for stay is considered and refused. (DEBANGSU BASAK ,J.) tk/snn. the decree