Madras Dock Labour Board Vs. the Government of Tamil Nadu and anr. - Court Judgment

Excerpt:
labour and industrial - applicability - sections 1 (5), 2 (1), 2 (9) and 5 of employee's state insurance act, 1948 - whether act applicable to employees of petitioner-board - act applicable to employees within meaning of act of 1948 - employees of petitioner board engaged in work of temporary nature and cannot be called employee within meaning of section 2 (9) of act - in view of legal position act not applicable on employees of petitioner board. - order1. this writ petition is for a mandamus for a direction to the second respondent relating to the communication bearing no. 51-36450-78 dated november 21, 1986 and to forbear the second respondent from enforcing the provision of the employees' state insurance act to the establishment of the petitioner as it is covered under g.o.ms. no. 1088 dated december 22, 1987 of the first respondent.2. the petitioner is the chairman of the madras port clearing and forwarding labour (regulation of employment) scheme. as per the tripartite agreement during february, 1972 between the madras customs clearing & shipping agents association, the madras port & dock workers' congress, madras port and dock workers progressive union and the madras harbour workers union, the workers engaged by the members of the petitioner were brought under decasualisation scheme called the madras port clearing and forwarding labour (regulation of employment) scheme (hereinafter referred to as 'the scheme'). the scheme came into force with effect from april 14, 1972. there are other categories of labour who handled the cargo inside the port. the other categories of labour who are also engaged in similar works are registered dock workers, shore workers and casual pool labourers. the nature of work for all these workers is to load and unload the goods in the harbour. the madras dock workers labour board has passed a resolution on january 30, 1980 recommending the take over of the stevedore association scheme and also clearing and forwarding labour scheme the latter being the petitioner herein by the madras dock labour board. a settlement was arrived at by the government of india with the national federations of port and dock workers union representing the workmen. as per the settlement dated april 11, 1984 the workers of madras stevedores association and clearing and forwarding labour scheme has to be transferred to madras dock labour board. the clearing and forwarding labourers i.e., the members of the petitioner got extended full medical cover by way of out-patient medical treatment and in-patient treatment at madras port trust hospital and other government hospitals. they are also paid for employment injury, half monthly compensation for temporary disablement and lump sum compensation for permanent disablement.3. the first respondent issued notification dated december 22, 1976 under sub-section (5) of section 1 of the employees' state insurance act, 1948 (hereinafter called 'the act'). the second respondent called upon the petitioner to furnish certain information during march, 1983 with reference to the said act. on march 10, 1983 the petitioner furnished all information sought for by the second respondent and also enclosed a copy of the scheme. on february 11, 1986 the petitioner was asked to clarify whether the central government is the appropriate government in relation to the establishment of the petitioner for the purpose of section 1(5) read with section 1 of the act. on march 12, 1986 a reply was sent by the petitioner stating that the scheme was framed under dock workers regulation of employment act, that the madras dock labour board has recommended to the government for taking over the scheme by the dock labour board. further it was pointed out that the medical facilities have been extended to the clearing and forwarding employees at the madras dock labour board dispensary on par with dock labour board workers. it was submitted that the act would not apply to the petitioner. even thereafter by a communication dated april 11, 1986, the second respondent pointed out that the petitioner establishment is covered by the scheme with effect from january 16, 1977. on october 21, 1986 the petitioner sent a written reply requesting the second respondent not to apply the act to the petitioner. but on december 31, 1986 the petitioner was called upon to remit a sum of rs. 12,34,566.30 by way of contribution for the period from january 16, 1979 to march 1986. hence, the writ petition has been filed for the above relief.4. respondents 1 and 2 have filed separate counter affidavit. in the counter affidavit of the first respondent, it is stated that the act is intended to provide for certain benefits to employees in case of sickness, maternity, employment injury and other ailments. the benefit conferred under the act cannot be compared with the scheme framed by the petitioner for provision of medical benefits. the first respondent issued a notification under the powers vested with it under section 1(5) of the act, bringing certain establishments under the provisions of the said act. the notification issued in g.o.ms. no. 1088 labour and employment dated december 22, 1976 came into force from the midnight of january 15, 1977. the second respondent decided that the establishment is covered by the act in terms of the notification mentioned above. the petitioner was asked to appear before the appropriate authority for personal hearing on february 19, 1987. there was no appearance. the notification issued by the government of tamil nadu mentioned above, brings into the fold of enactment, the petitioner's establishment which squarely falls under the definition 'establishment'. the petitioner's establishment is not an establishment of the central government undertaking. the question of take over by the central government will not amount to petitioner's establishment being called central government undertaking. hence the provision of the act applies. the workers of major ports crane within the definition mentioned in section 2(1) of the act which applies to port labour and dock labour. the employees of the petitioner establishment perform different work from those carried on by the dock labour and port labour. hence, the appropriate government is central government in the case of the petitioner.5. the second respondent in his counter states that as per notification under section 1(5) of the government of tamil nadu, the establishment of the petitioner is covered by the act. the benefits provided under the act are comprehensive in nature and cannot be compared with the scheme framed by the petitioner. medical and cash benefits are also available to the insured persons covered under the act. it is true that establishments are not covered by the provisions of the act by virtue of the notification of the government of tamil nadu under section 1(5) of the act. after enquiry a consideration of the reply sent by the petitioner, the petitioner was informed on april 11, 1986 that the establishment of the petitioner was covered by the act, by virtue of the tamil nadu government notification dated december 22, 1976. after complying with the provisions of the act contribution was calculated and arrived at rs. 12,34,556.30. the appropriate government under section 2(1) of the act means in respect of establishment under the control of the central government or a railway administration or a major port or a mine or oil field is the central government. in all other cases, the state government. the workers in respect of the port labour and dock labour, the appropriate government is the central government. in respect of employees under the petitioner establishment is state government because the works carried on by the petitioner workers are different. therefore, there is no substance in the writ petition.6. two main contentions have been raised by the learned counsel for the petitioner. one is that the appropriate government in respect of the petitioner establishment is the central government. the second is that the petitioner workers are not employees within the meaning of the act.7. i shall deal with the second contention first. the substance of the scheme has been set out in the memorandum of agreement in 1972. this agreement has been entered into between the administrative committee representing the madras customs clearing and shipping agents association on behalf of the clearing agents, contractors, importers and exporters on the one part and madras harbour workers' union, madras port and dock workers congress and madras port and dock workers progressive union on the second part.8. under this agreement an administrative committee is constituted for carrying out the day to day functions of the scheme. the said committee shall form a pool of c&f; workers with a view to ensure greater regularity of employment for the c&f; workers in the port of madras and to secure that an adequate number of c&f; workers is available for efficient performance of dock. all the workers under different names, after the scheme were called c&f; workers. the work is allotted by selecting workers from the port. the workers are allotted to the employers the administrative committee. the workers allotted should report to the employer to whom they are allotted and they have to perform duties in accordance with the direction of the employer or his representative or supervisors. the workers are allotted work by rotation. clause 11(ii) enables the administrative committee to allocate the worker or workers to the employer from outside. clause (15) provides for the date for payment of wages. the wages are paid by the administrative committee every month or at such intervals as may be agreed upon. clause (17) prohibits the worker not to work, with individual employer. similarly it prevents individual employer to engage a worker. clause (18) provides for disciplinary action by the committee against the worker. we may also note the definition of the employer contained in clause (1)(c) of the agreement, which is as follows : employer shall mean employer of c&f; workers in madras port (whether or not members of the association) who has been registered as employer under the madras port clearing & forwarding labour (reg. of employment) scheme.9. now we will refer to the definition of employee in the employees' state insurance act, 1948. section 2(9) defines the employee as follows :-employee means any person employed for wages in or in connection with the work of a factory or establishment to which this act applies. as per the definition, the employment must be for wages in or in connection with the work of a factory or establishment. the main ingredient is that the employee must work in or in connection with the work of a factory or establishment, to which this act applies. in the present case, as we have seen above, the work of the employees covered by the scheme is not for the administrative committee and in its office or establishment. but for different employers in the dock or harbour. another feature is that the wages are collected by the administrative committee from the employers and paid to the employees with whom were are concerned now.10. section 2(9)(i) of the act also refers to work of the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere. again the work has to be done for the factory or establishment.11. section 2(9)(ii) of the act also refers to the work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on or incidental to the purpose of the factory or establishment.12. thus sub-section 2(9)(iii) of the act appears to be some what applicable. but the work mentioned in the said sub-section is temporary in nature. therefore, the petitioners' workers cannot be said to be the employees/workers for work to be done or performed in or in connection with the factory or establishment.13. counsel for the respondent contended that even though the employees do not perform any work in the office or factory of the administrative unit, they perform the work assigned to them by the different employers, but the wages are paid by the administrative committee, since the wages are paid by the administrative committee for the various work done for different employers, it must be deemed that the employees are working in connection with the establishment. this strained and extended meaning cannot be given to the employees defined under section 2(9) of the act. it is admitted that the work is performed in different establishments in the dock or harbour. from the scheme itself we have seen that the administrative committee is only to provide work. we have seen that the definition of employer is given in the scheme itself. as per the definition in the scheme employer means employer of c&f; workers in madras port trust who has been registered as 'employer' under the madras port clearing and forwarding labour scheme. therefore they are different persons or bodies and not the administrative committee.14. the learned counsel for the respondent cited the following decisions.in cochin shipping co. v. e. s. i. corporation : (1993)iillj795sc , and in new india maritime agencies (p) limited v. government of tamil nadu and another 1984 (64) f.j.r. 383 and contended that the provisions of the act would be applicable in terms of the notification issued by the government of tamil nadu under section 1(5) of the act. in new india maritime agencies (p) ltd. v. government of tamil nadu (supra) the petitioners were rendering services to the various shipping companies by securing cargo for transhipment from madras to various other places on a commission basis. therefore, the petitioners were rendering services in the premises to foreign shipping companies. in the said circumstances, a single judge of this court has taken the view that the petitioners establishment was a shop within the meaning as stated in entry (3) of para (3) of g.o.ms. no. 1038 labour and employment. in the said decision it is clear that the services were rendered by the employees in the establishment but in the case in which we are concerned the services are not rendered in the establishment.15. in another decision in cochin shipping co. v. e. s. i. corporation (supra) the cochin shipping corporation arranged for the loading and unloading of the goods under its supervision and for the survey of the goods despatched by its foreign principal at the ports on behalf of its foreign principals and on the goods being delivered to the central government it collects the price payable by the government and remits it to its foreign principals. all these activities are directed and controlled from its premises at secunderabad. it is further stated in the judgment that it was not necessary that the delivery of the goods to the purchaser should taken place at the premises in which the business of buying and selling is carried on to constitute the said premises into a 'shop'. the delivery of the goods to the purchaser is only one aspect of trading activities. negotiation of the terms of sale, carrying on of the survey of the goods imported, arranging for the delivery of the goods sold, collection of the price of the goods sold etc., are all trading activities.16. the factual distinction between this case and the case on hand is that the employees carried out the activities in the premises of the establishment as well as outside. secondly, the services rendered by the employee was of the establishment not of a different employer. the supreme court was concerned in the said case mainly about the commercial activities carried on by the appellant in the said case. the contention was that the commercial activities were not taken inside the premises of the establishment. therefore, the supreme court rejected the said contention. but the facts of our cases are distinguishable from the facts of the supreme court's case.17. another contention urged by the learned counsel for the petitioners is that the appropriate government with reference to the employees of the petitioner is the central government. in the affidavit the averments are that the petitioners/workers, work is to load and unload cargo inside the port from lorries/trailors/wagons etc. the import cargo is loaded on to the lorries/trailors/wagons etc. by the workers when cargo is delivered by the madras port trust from its custody. in case of export, cargo lorries/trailors/wagons etc. are unloaded and stacked by petitioner's workers in the transit sheds/warehouses inside the port premises and the port takes over charge of the cargo.18. in the counter affidavit of the first respondent it is stated as follows : as regards the averments mentioned in paragraph 13 of the affidavit, i submit that the work carried on by the dock labour and port labour are entirely different from those carried by the petitioner. the definition of appropriate government under section 2(1) of the employees' state insurance act means 'establishment' under the control of the central government or a railway administration or a major port or a mine or oilfild and in all other cases, the state government. the workers of a major port come within the definition of this section. therefore, in respect of the port labour and dock labour, the appropriate government is the central government. however, in respect of the employees under the petitioner's establishment, the state government is the appropriate government, and therefore, the notification issued by the government of tamil nadu is applicable to the establishment of the petitioner and all contentions to the contrary may be rejected.i do not find any distinction between the petitioner's workers and the port labour and dock labour workers. hence the appropriate government is the central government. during the argument it was mentioned that with effect from april 12, 1988, the petitioners/workers have been taken over by the dock workers. the demand notice issued to the petitioner cannot be sustained, because the appropriate government will be the central government as per section 1(5). therefore, they are now outside the jurisdiction of the respondents. this factor also adds to the conclusion that the petitioner/workers cannot be differentiated from the other category of workers in the harbour.19. for the foregoing reasons, i am of the opinion that a writ of mandamus to forbear from extending the provisions of the employees' state insurance act, 1948 to the establishment of the petitioner has to be issued. the writ petition is allowed. however, there will be no order as to costs.

Judgment:
ORDER

1. This writ petition is for a mandamus for a direction to the second respondent relating to the communication bearing No. 51-36450-78 dated November 21, 1986 and to forbear the second respondent from enforcing the provision of the Employees' State Insurance Act to the establishment of the petitioner as it is covered under G.O.Ms. No. 1088 dated December 22, 1987 of the first respondent.

2. The petitioner is the Chairman of the Madras Port Clearing and Forwarding Labour (Regulation of Employment) Scheme. As per the tripartite agreement during February, 1972 between the Madras Customs Clearing & Shipping Agents Association, the Madras Port & Dock Workers' Congress, Madras Port and Dock Workers Progressive Union and the Madras Harbour Workers union, the workers engaged by the members of the petitioner were brought under decasualisation scheme called the Madras Port clearing and forwarding Labour (Regulation of Employment) Scheme (hereinafter referred to as 'The Scheme'). The Scheme came into force with effect from April 14, 1972. There are other categories of labour who handled the cargo inside the port. The other categories of labour who are also engaged in similar works are registered dock workers, shore workers and Casual pool labourers. The nature of work for all these workers is to load and unload the goods in the harbour. The Madras Dock Workers Labour Board has passed a resolution on January 30, 1980 recommending the take over of the Stevedore Association Scheme and also Clearing and Forwarding Labour Scheme the latter being the petitioner herein by the Madras Dock Labour Board. A settlement was arrived at by the Government of India with the National Federations of Port and Dock Workers Union representing the workmen. As per the settlement dated April 11, 1984 the workers of Madras Stevedores Association and Clearing and Forwarding Labour Scheme has to be transferred to Madras Dock Labour Board. The Clearing and forwarding labourers i.e., the members of the petitioner got extended full medical cover by way of out-patient medical treatment and in-patient treatment at Madras Port Trust Hospital and other Government Hospitals. They are also paid for employment injury, half monthly compensation for temporary disablement and lump sum compensation for permanent disablement.

3. The first respondent issued notification dated December 22, 1976 under sub-section (5) of Section 1 of the Employees' State Insurance Act, 1948 (hereinafter called 'the Act'). The Second respondent called upon the petitioner to furnish certain information during March, 1983 with reference to the said Act. On March 10, 1983 the petitioner furnished all information sought for by the second respondent and also enclosed a copy of the Scheme. On February 11, 1986 the petitioner was asked to clarify whether the Central Government is the appropriate Government in relation to the establishment of the petitioner for the purpose of Section 1(5) read with Section 1 of the Act. On March 12, 1986 a reply was sent by the petitioner stating that the Scheme was framed under Dock Workers Regulation of Employment Act, that the Madras Dock Labour Board has recommended to the Government for taking over the scheme by the Dock Labour Board. Further it was pointed out that the medical facilities have been extended to the clearing and forwarding employees at the Madras Dock Labour Board Dispensary on par with Dock Labour Board Workers. It was submitted that the Act would not apply to the petitioner. Even thereafter by a communication dated April 11, 1986, the second respondent pointed out that the petitioner establishment is covered by the Scheme with effect from January 16, 1977. On October 21, 1986 the petitioner sent a written reply requesting the second respondent not to apply the Act to the petitioner. But on December 31, 1986 the petitioner was called upon to remit a sum of Rs. 12,34,566.30 by way of contribution for the period from January 16, 1979 to March 1986. Hence, the writ petition has been filed for the above relief.

4. Respondents 1 and 2 have filed separate counter affidavit. In the counter affidavit of the first respondent, it is stated that the Act is intended to provide for certain benefits to employees in case of sickness, maternity, employment injury and other ailments. The benefit conferred under the Act cannot be compared with the scheme framed by the petitioner for provision of medical benefits. The first respondent issued a Notification under the powers vested with it under Section 1(5) of the Act, bringing certain establishments under the provisions of the said Act. The notification issued in G.O.Ms. No. 1088 Labour and Employment dated December 22, 1976 came into force from the midnight of January 15, 1977. The Second respondent decided that the establishment is covered by the Act in terms of the notification mentioned above. The petitioner was asked to appear before the Appropriate Authority for personal hearing on February 19, 1987. There was no appearance. The Notification issued by the Government of Tamil Nadu mentioned above, brings into the fold of enactment, the petitioner's establishment which squarely falls under the definition 'establishment'. The Petitioner's establishment is not an establishment of the Central Government undertaking. The question of take over by the Central Government will not amount to petitioner's establishment being called Central Government undertaking. Hence the provision of the Act applies. The workers of major ports crane within the definition mentioned in Section 2(1) of the Act which applies to port labour and dock labour. The employees of the petitioner establishment perform different work from those carried on by the dock labour and port labour. Hence, the appropriate Government is Central Government in the case of the petitioner.

5. The second respondent in his counter states that as per notification under Section 1(5) of the Government of Tamil Nadu, the establishment of the petitioner is covered by the Act. The benefits provided under the Act are comprehensive in nature and cannot be compared with the scheme framed by the petitioner. Medical and cash benefits are also available to the insured persons covered under the Act. It is true that establishments are not covered by the provisions of the Act by virtue of the Notification of the Government of Tamil Nadu under Section 1(5) of the act. After enquiry a consideration of the reply sent by the petitioner, the petitioner was informed on April 11, 1986 that the establishment of the petitioner was covered by the Act, by virtue of the Tamil Nadu Government Notification dated December 22, 1976. After complying with the provisions of the Act contribution was calculated and arrived at Rs. 12,34,556.30. The appropriate Government under Section 2(1) of the Act means in respect of establishment under the control of the Central Government or a railway administration or a major port or a mine or oil field is the Central Government. In all other cases, the State Government. The workers in respect of the port Labour and Dock Labour, the appropriate Government is the Central Government. In respect of employees under the petitioner establishment is State Government because the works carried on by the petitioner workers are different. Therefore, there is no substance in the writ petition.

6. Two main contentions have been raised by the learned counsel for the petitioner. One is that the appropriate Government in respect of the petitioner establishment is the Central Government. The second is that the petitioner workers are not employees within the meaning of the Act.

7. I shall deal with the second contention first. The substance of the scheme has been set out in the memorandum of agreement in 1972. This agreement has been entered into between the Administrative Committee representing the Madras Customs Clearing and Shipping Agents Association on behalf of the Clearing Agents, contractors, Importers and Exporters on the one part and Madras Harbour workers' Union, Madras Port and Dock Workers Congress and Madras Port and Dock Workers Progressive Union on the second part.

8. Under this agreement an Administrative committee is constituted for carrying out the day to day functions of the scheme. The said committee shall form a pool of C&F; Workers with a view to ensure greater regularity of employment for the C&F; Workers in the Port of Madras and to secure that an adequate number of C&F; workers is available for efficient performance of dock. All the workers under different names, after the scheme were called C&F; workers. The work is allotted by selecting workers from the port. The workers are allotted to the employers the Administrative committee. The workers allotted should report to the employer to whom they are allotted and they have to perform duties in accordance with the direction of the employer or his representative or supervisors. The workers are allotted work by rotation. Clause 11(ii) enables the Administrative Committee to allocate the worker or workers to the employer from outside. Clause (15) provides for the date for payment of wages. The wages are paid by the Administrative Committee every month or at such intervals as may be agreed upon. Clause (17) prohibits the worker not to work, with individual employer. Similarly it prevents individual employer to engage a worker. Clause (18) provides for disciplinary action by the committee against the worker. We may also note the definition of the employer contained in clause (1)(c) of the Agreement, which is as follows :

Employer shall mean employer of C&F; workers in Madras port (Whether or not members of the Association) who has been registered as employer under the Madras Port Clearing & Forwarding Labour (Reg. of Employment) Scheme.

9. Now we will refer to the definition of employee in the Employees' State Insurance Act, 1948. Section 2(9) defines the employee as follows :-

employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies. As per the definition, the employment must be for wages in or in connection with the work of a factory or establishment. The main ingredient is that the employee must work in or in connection with the work of a factory or establishment, to which this Act applies. In the present case, as we have seen above, the work of the employees covered by the scheme is not for the Administrative Committee and in its office or establishment. But for different employers in the Dock or Harbour. Another feature is that the wages are collected by the Administrative Committee from the employers and paid to the employees with whom were are concerned now.

10. Section 2(9)(i) of the Act also refers to work of the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere. Again the work has to be done for the factory or establishment.

11. Section 2(9)(ii) of the Act also refers to the work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on or incidental to the purpose of the factory or establishment.

12. Thus sub-section 2(9)(iii) of the Act appears to be some what applicable. But the work mentioned in the said sub-section is temporary in nature. Therefore, the petitioners' workers cannot be said to be the employees/workers for work to be done or performed in or in connection with the factory or establishment.

13. Counsel for the respondent contended that even though the employees do not perform any work in the office or factory of the Administrative Unit, they perform the work assigned to them by the different employers, but the wages are paid by the Administrative Committee, since the wages are paid by the Administrative committee for the various work done for different employers, it must be deemed that the employees are working in connection with the establishment. This strained and extended meaning cannot be given to the employees defined under Section 2(9) of the Act. It is admitted that the work is performed in different establishments in the dock or harbour. From the scheme itself we have seen that the Administrative Committee is only to provide work. We have seen that the definition of employer is given in the scheme itself. As per the definition in the scheme employer means employer of C&F; workers in Madras Port Trust who has been registered as 'employer' under the Madras Port Clearing and Forwarding Labour Scheme. Therefore they are different persons or bodies and not the administrative committee.

14. The learned counsel for the respondent cited the following decisions.

In Cochin Shipping Co. v. E. S. I. Corporation : (1993)IILLJ795SC , and in New India Maritime Agencies (P) Limited v. Government of Tamil Nadu and another 1984 (64) F.J.R. 383 and contended that the provisions of the Act would be applicable in terms of the Notification issued by the Government of Tamil Nadu under Section 1(5) of the Act. In New India Maritime Agencies (P) Ltd. v. Government of Tamil Nadu (supra) the petitioners were rendering services to the various shipping companies by securing cargo for transhipment from Madras to various other places on a commission basis. Therefore, the petitioners were rendering services in the premises to foreign shipping companies. In the said circumstances, a single Judge of this court has taken the view that the petitioners establishment was a shop within the meaning as stated in entry (3) of Para (3) of G.O.Ms. No. 1038 Labour and Employment. In the said decision it is clear that the services were rendered by the employees in the establishment but in the case in which we are concerned the services are not rendered in the establishment.

15. In another decision in Cochin Shipping Co. v. E. S. I. Corporation (supra) the Cochin Shipping Corporation arranged for the loading and unloading of the goods under its supervision and for the survey of the goods despatched by its foreign principal at the ports on behalf of its foreign principals and on the goods being delivered to the Central Government it collects the price payable by the Government and remits it to its foreign principals. All these activities are directed and controlled from its premises at Secunderabad. It is further stated in the judgment that it was not necessary that the delivery of the goods to the purchaser should taken place at the premises in which the business of buying and selling is carried on to constitute the said premises into a 'shop'. The delivery of the goods to the purchaser is only one aspect of trading activities. Negotiation of the terms of sale, carrying on of the survey of the goods imported, arranging for the delivery of the goods sold, collection of the price of the goods sold etc., are all trading activities.

16. The factual distinction between this case and the case on hand is that the employees carried out the activities in the premises of the establishment as well as outside. Secondly, the services rendered by the employee was of the establishment not of a different employer. The Supreme Court was concerned in the said case mainly about the commercial activities carried on by the appellant in the said case. The contention was that the commercial activities were not taken inside the premises of the establishment. Therefore, the Supreme Court rejected the said contention. But the facts of our cases are distinguishable from the facts of the Supreme Court's case.

17. Another contention urged by the learned counsel for the petitioners is that the appropriate Government with reference to the employees of the petitioner is the Central Government. In the affidavit the averments are that the petitioners/workers, work is to load and unload cargo inside the port from lorries/trailors/wagons etc. The import cargo is loaded on to the lorries/trailors/wagons etc. by the workers when cargo is delivered by the Madras Port Trust from its custody. In case of export, cargo lorries/trailors/wagons etc. are unloaded and stacked by petitioner's workers in the transit sheds/warehouses inside the port premises and the port takes over charge of the cargo.

18. In the counter affidavit of the first respondent it is stated as follows :

As regards the averments mentioned in paragraph 13 of the affidavit, I submit that the work carried on by the Dock Labour and Port Labour are entirely different from those carried by the petitioner. The definition of appropriate Government under Section 2(1) of the Employees' State Insurance Act means 'establishment' under the control of the Central Government or a railway administration or a major port or a mine or oilfild and in all other cases, the State Government. The workers of a major port come within the definition of this section. Therefore, in respect of the Port Labour and Dock Labour, the appropriate Government is the Central Government. However, in respect of the employees under the petitioner's establishment, the State Government is the appropriate Government, and therefore, the notification issued by the Government of Tamil Nadu is applicable to the establishment of the petitioner and all contentions to the contrary may be rejected.

I do not find any distinction between the petitioner's workers and the Port Labour and Dock Labour workers. Hence the appropriate Government is the Central Government. During the argument it was mentioned that with effect from April 12, 1988, the petitioners/workers have been taken over by the Dock workers. The demand notice issued to the petitioner cannot be sustained, because the appropriate Government will be the Central Government as per Section 1(5). Therefore, they are now outside the jurisdiction of the respondents. This factor also adds to the conclusion that the petitioner/workers cannot be differentiated from the other category of workers in the harbour.

19. For the foregoing reasons, I am of the opinion that a writ of mandamus to forbear from extending the provisions of the Employees' State Insurance Act, 1948 to the establishment of the petitioner has to be issued. The writ petition is allowed. However, there will be no order as to costs.