w w w . L a w y e r S e r v i c e s . i n



Indian National Shipowners Association v/s National Union of Seafarers of India & Others


Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- NATIONAL UNION CORPN PVT LTD [Strike Off] CIN = U51909WB1940PTC010240

Company & Directors' Information:- INDIAN NATIONAL CORPORATION LIMITED [Dissolved] CIN = U99999MH1942PTC003686

Company & Directors' Information:- INDIAN NATIONAL SHIPOWNERS ASSOCIATION [Active] CIN = U91990MH1979GAP021664

Company & Directors' Information:- NATIONAL UNION LTD [Not available for efiling] CIN = U74999KL1951PLC000818

    WRIT PETITION NO.545 OF 2011

    Decided On, 24 June 2011

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MR. JUSTICE R.Y. GANOO

    For the Petitioner: J.P. Cama, Senior Advocate with M.J. Kalyaniwalla i/b Mulla & Mulla & Craigie Blunt & Caroe, Advocates. For the Respondents: R1, Anil Anturkar with P.N. Salgaonkar & G. Sardesai i/b Salgaonkar & Co., R2, Ms. Jane Cox, R3 & R4, Mrs.Shehnaz V. Bharucha, Advocates.



Judgment Text

ORDER : (A.M. KHANWILKAR, J.)


1. This Writ Petition under Article 226 of the Constitution of India has been filed by the Ship Owners? Association on the apprehension of impending strike/agitation in some form on the ships, ports, offices and residences of petitioner and its member shipping companies, primarily, on account of the show of strength between the rival unions - respondent Nos.1 and 2 on the issue of participating in negotiations with regard to wage agreement. It is stated that the respondent No.1 Union claims to be and has been found to be having the largest number of membership by the Regional Labour Commissioner. For that reason, it was objecting to inclusion of more than three members from the respondent No.2 Union as team of members for negotiations. Whereas, the respondent No.2 Union wanted more than three members of their union to form part of the team for negotiations. According to the petitioners, inspite of best efforts, the petitioners were unable to resolve the deadlock between the stand so taken by respondent No.1 and respondent No.2. On the contrary, the respondent No.1 made it amply clear that petitioners ought not to negotiate with the respondent No.2 union. The respondent No.2 union also informed the petitioners that they should not proceed with the negotiations with respondent No.1 Union by ignoring them in the process. It is the case of the petitioners that both the unions have virtually threatened to go on strike/agitation in some form on the ships, ports, offices and residences of the petitioner and its member shipping companies.


2. In this backdrop, the petitioner sent detail communication to the Secretary, Ministry of Shipping, Government of India, New Delhi dated 2nd February, 2011. In the said communication, the petitioner placed its predicament on record that as per the decision of our High Court dated 4th April, 2006 in Notice of Motion No.1034 of 2006, the petitioners were required to negotiate with respondent No.1 union which has been found to be having a largest number of membership, but as per another order dated 15th February, 2008, passed by this Court in Writ Petition No.2375/2007, both unions were allowed to participate in the negotiations for determining revised emoluments and conditions of service of their members. In this backdrop, the petitioners wrote to the Secretary, Ministry of Shipping in the following words:


?16. However, none of the Unions were willing to provide an assurance not to proceed with industrial action or strike, as had been verbally threatened as well as conveyed by FSUI to INSA in writing. This strike notice coupled with the verbal/oral threat of NUSI will paralyze the shipping industry and may lead to violent clashes amongst union members which will in turn lead to a colossal loss to the shipping industry and the country?s economy in general. This industrial unrest will lead to an industrial dispute due to the spat between rival trade Unions. The seafarers as the employees and ship-owners as the employers are perplexed and disturbed as INSA has tried its level best to bring about and suggest amicable solutions but not succeeded. None of the aforesaid Unions are willing to find an amicable solution to their dispute but forcing INSA to take steps rather than they take steps and sorting out the issue which is clearly due to their internal differences. Also other Unions who are not part of the meetings are pressuring INSA to include them too in Wage Negotiation.


17. Therefore, it is prayed that to avoid the strike, agitation, industrial unrest, it is incumbent upon the Central Government to constitute a Tribunal of one or more persons adjudicating the disputes as contemplated u/s.150 of Merchant Shipping Act, 1958 at the earliest and on urgent basis preferably within 72 hours due to the exigencies of the situation and the perceived threat of a strike/obstructions/disruption by which the industrial peace will be affected on the vessels of the INSA members and refer the following issues for adjudication.


a) Determine the representation between the two unions on the Negotiation Committee.


b) Determine the representatives of the Unions for signing the negotiated agreement.


c) If above is not possible, what steps the management should take to negotiate and resolve the industrial disputes with its employees and/or Unions.


d) Whether the NMB constitution ought to be Amended? If so, then what amendments ought to be made in the NMB constitution?


e) Pending the above adjudication, the Central Government be pleased to stay the strike.


18. It is not out of place to mention that if the Central Government delays in constituting a Tribunal and notifying the same in the official gazette and passing relevant injunction orders under Section 151 of the M.S. Act 1958 then there would be nationwide industrial disputes which will cripple the


Shipping Industry and cause great monetary loss to the ship-owners and the National Exchequer.


19. INSA trusts that their prayers may be considered expeditiously on urgent basis and for this act of kindness INSA shall be duty bound forever pray.?


3. Without waiting for the response of the Appropriate Authority, the petitioners rushed to this Court by way of present Writ Petition for declaration that the members of respondents 1 and 2 unions ought not to resort to strike/agitation in any form on the ships, ports, offices and residences of petitioner and its member shipping companies till the respondent No.3 (Union of India) constitutes a Tribunal and award is passed therein. Further declaration has been sought that the conduct of the members of respondent Nos.1 and 2 is opposed to public policy and public duty. Further relief claimed in the Writ Petition is to issue direction to respondent No.3 (Union of India) to forthwith constitute a Tribunal under Section 150 of the Merchant Shipping Act, 1958 and refer the dispute relating to the strike/agitation threatened by respondent Nos.1 and 2 as well as the Charters of Demand submitted by the respondent Nos.1 and 2 dated 19th May, 2010 and 28th April, 2010 respectively for adjudication. Further relief has been claimed against respondent Nos.1 and 2 to cease and desist from instigating and/or continuing with its strike and stoppage of work in connection with the members of petitioner ships in all ports or to cause any damage/destruction/agitation to the members of the petitioner?s ships/vessels, ports, offices all over India, container terminals, warehouses, etc. in any manner whatsoever and also from holding dharnas, staging demonstrations, making threats to the petitioner, members of the petitioner, its officers, employees, servants, agents, etc. within the radius of 500 mtrs. of such ships/vessels, ports, offices and residents all over India, container terminals, warehouses, etc.


4. While this Petition was placed for admission, the respondents raised preliminary objection regarding maintainability of the Petition on the argument that the petitioners were essentially claiming substantive reliefs against private parties i.e. Unions. During the pendency of the Petition, however, the respondent No.3-Union of India vide its communication dated 24th February, 2011 informed the Chief Executive Officer of the petitioners as follows:


?F.No.B-11011/2/2011-MA New Delhi dated the 24th February, 2011


To,


Shri Anil Devli,


Chief Executive Officer


Indian National Shipowners? Association,


22, Maker Tower-F,


2nd Floor, Cuffee Parade,


Mumbai-400 005.


Subject : Request to constitute Tribunal for Adjudication of disputes as


contemplated u/s.150 of the Merchant Shipping Act, 1958 and W.P.No.


258/2011 filed by INSA in the High Court of Judicature at Bombay


against NUSI and others.


Sir,


I am directed to refer to representation dated 02.02.2011 addressed to Secretary(S) on the above subject and the Court Case as mentioned above filed by INSA in which Ministry is the third Respondent and to say that after careful consideration of the representation, INSA is advised to abide and honour the judgment of High Court of Judicature, Bombay dated 04.04.2006 in Notice of Motion No.1034 of 2006 in Appeal No.950 of 2005 in W.P. No.1751 of 2000 filed by FSUI against NUSI.


2. This issues with the approval of Hon?ble Minister of Shipping.


Yours faithfully,


Sd/-


(A.R.Sengupta)


Under Secretary to the Govt.of India


Tel.No.23719031?


5. In the light of this communication, the petitioner has amended the Petition seeking further reliefs in terms of prayer clauses (aa) and (ab), thereby praying for striking down the impugned order dated 24th February, 2011 issued by the respondent No.3 and to direct the respondent No.3 to exercise its powers under Section 150 of the Merchant Shipping Act, 1958 and to make an order of reference of industrial dispute arising from the strike notice dated 14th January, 2011 issued by the respondent No.2 and threat to strike notice dated 2nd February, 2011 issued by the respondent No.1.


6. We have reproduced the relevant portion of the communication sent by the petitioners to the Secretary, Ministry of Shipping dated 2nd February, 2011 which ought to be the guiding document to consider the efficacy of the reliefs claimed by the petitioners. Before examining the matter further, we would first deal with the issue of the maintainability of the Petition. Even if we were to agree with the argument of the respondents that considering that the reliefs originally claimed in the Petition were essentially directed against private parties (respondent Nos.1 and 2 unions), having regard to the fact that the Petition now stands amended after receipt of communication from the respondent No.3 (Union of India), and which decision of the respondent No.3 (Union of India) has been challenged by way of further amended reliefs, the objection regarding maintainability of the Petition has become insignificant.


7. Instead of dilating on the said aspect, we would prefer to examine the merits of the grievance of the petitioners. As aforesaid, the petitioners had requested the respondent No.3 to constitute Tribunal for agitating the disputes under Section 150 of the Act on issues referred to in paragraph 17 of its communication. That request has been negated by the respondent No. 3 vide communication dated 24th February, 2011, primarily with reference to the decision of this Court dated 4th April, 2006, wherein, it is held that the petitioners herein must negotiate with the respondent No.1 Union which has been found to be having largest number of membership. That view taken by the respondent No.3, in our opinion, is unexceptionable, more particularly, in the context of the specific request made by the petitioners in its communication dated 2nd February, 2011 to refer issue to determine the representation between the two unions on the Negotiation Committee or to determine the representatives of the Unions for signing the negotiated agreement. The third issue in the said communication is essentially advise sought from respondent No.3 as to what steps the petitioner should take to negotiate and resolve the industrial disputes with its employees and/or Unions, if the two issues could not be answered. Insofar as the fourth proposed issue for adjudicated by the Tribunal formulated by the petitioner, is again seeking advise whether the NMB constitution ought to be amended, and if so, the nature of amendment. The fifth issue in paragraph 7 is in fact, requesting the Central Government to stay the strike pending the adjudication of the four issued by the Tribunal.


8. Suffice it to observe that the respondent No.3 rightly responded to the said request of the petitioner by inviting attention of the petitioner to the decision of this Court dated 4th April, 2006 in Notice of Motion No.1034 of 2006 in Appeal No.950 of 2005 in Writ Petition No.1751 of 2000 which was binding on the parties to the said proceedings until it was to be reversed. Our attention has been invited to the fact that the appeal in which the said decision came to be passed on 4th April, 2006 by this Court was itself eventually withdrawn by the respondent No.2. The order passed in Appeal No.950/2000 dated 25th July, 2007 reads thus:


?P.C. :


The learned Counsel appearing for the Appellant states that as a result of developments taking place during the pendency of the Appeal, the Appellant-Union is no more representative union and therefore without pre-judice to the rights of the Appellant to challenge the order in relation to recognition, the Appellant seeks leave of the court to withdraw the Appeal. Appeal is permitted to be withdrawn. No order as to costs.?


9. Suffice it to observe that considering the dictum in order dated 4th April, 2006, which binds the parties, especially after the withdrawal of the appeal filed by the respondent No.2 upon admitting the position that it was no more representative union, the response given by the respondent No.3 in its communication dated 24th February, 2011 was inevitable.


10. In any case, even if we were to consider the further amended relief claimed by the petitioners for setting aside the impugned order dated 24th February, 2011 and to direct the respondent No.3 to make an order of reference, that could be considered only in the context of the request made in the communication dated 2nd February, 2011. The petitioners, however, in prayer clause (ab) have asked for relief in the context of strike notice dated 14th January, 2011, in relation to which, no specific issue for adjudication was formulated in the communication sent to the respondent No.3. With regard to the issues for adjudication formulated in paragraph 17 of the communication dated 2nd February, 2011, we find force in the submission of the Counsel for respondent No.1 that none of these issues would be covered within the meaning of Section 150 of the Act. Notably, sub-section (9) of Section 150 of the Act opens with the words ?nothing contained in the Industrial Disputes Act, 1947 shall apply to any dispute referred to in Section 150?. Sub-section (1) of Section 150 refers to disputes between seamen or any class of seamen or of any union of seamen and the owners of ships in which such seamen are employed or are likely to be employed and exits or is apprehended. It further provides that such dispute must relate to any matter connected with or incidental to the employment of the seamen. In the first place, the five issues formulated in paragraph 17 of communication dated 2nd February, 2011 are not covered within the sweep of Section 150 as it cannot be said to be dispute between union of seamen and the owners of the ships relating to any matter connected with or incidental to the employment of the seamen. Counsel for the petitioner, however, vehemently argued that the expression `employment? will have to be interpreted liberally to include even determination of representations between two unions of the Negotiation Committee and to determine the representatives of the unions for signing the negotiating agreement. It is not possible to countenance this submission. Answering these issues will be nothing short of resolving the dispute between the two rival unions interse and not adjudication of dispute between the union of seamen and the owners of the ships in relation to any matter connected with or incidental to the employment of the seamen as such. Even on this count, the petitioners cannot succeed in challenging the impugned order dated 24th February, 2011 being violative of Articles 14 and 19 of the Constitution of India.


11. Counsel for the petitioners as well as respondent No.2 was at pains to rely on the decision of this Court in Writ Petition No.2375 of 2007 dated 15th February, 2008 whereunder both the unions, i.e. respondent Nos.1 and 2, were allowed to participate in the negotiations for revision of emoluments and conditions of service. We are not impressed by this argument. Inasmuch as the plain reading of the said order makes it more than clear that it was passed on the basis of mutual arrangement agreed upon between the parties which was not to be treated as precedent for the future. The said order reads thus:


?P.C.:


Rule. Heard forthwith. Though a settlement had been arrived at there was a dispute as to the signatories to the settlement. The parties, however, at the intervention of the Court, have agreed to abide by the terms and to accept the present settlements which both the contesting Unions, who are parties here had agreed to in negotiations with the petitioner, considering the present situation in the industry and with the rider that this arrangement will not act as a precedent for the future.


Considering the agreement between the parties we do not propose to consider the reliefs as prayed.


The approach of all parties to arrive at a settlement with the larger objective of maintaining industrial peace in the industry is commendable.


2. The petitioners have tendered in Court two sets of agreed written down terms containing conditions of service and emoluments of Indian Seafarers in the category of Ratings and Petty Officers serving on foreign going, home trade and off-shore Articles of Agreement. The two sets of agreed written down terms are marked as Exhibit "A" and Exhibit "B" and form part of this order.


3. The petitioners members shall within one week from the date hereof make payment in accordance with the above written down terms to all the above categories of employees.


4. Respondent Nos. 4 and 5 representing FSUI and NUSI hereby undertake on behalf of themselves and their respective members that their members shall accept the above revised emoluments and conditions of service in full and final settlement of all their claims upto the date hereof and further that neither their members nor they themselves shall raise any claim or demand involving any financial or any other demand or implications having a financial bearing for the period ending 31st March, 2010.


5. The Court would like to place on record its appreciation of the efforts taken by all the Counsel representing parties as also the maturity shown by the management and office bearers of the Unions in arriving at the above settlement. ? (emphasis supplied)


12. Suffice it to observe that the fact that respondent No.2 was also party to the agreement reached on earlier occasion does not in any manner, militate against the direction contained in order dated 4th April, 2006 passed in Notice of Motion No.1034 of 2006 that the petitioners were required to negotiate with respondent No.1 union which has been found to be having largest number of membership. The impugned order passed by the respondent No.3 dated 24th February, 2011 merely restates the position contained in the said order.


13. Counsel for the respondent No.2 was at pains to persuade us to take the view that the observation in the order dated 4th April 2006 in Notice of Motion No.1034 of 2006 was in the context of membership of the respondent No.1 union at Mumbai and not for whole of India. This argument of the respondent No.2 cannot be countenanced, having withdrawn the appeal preferred by respondent No.2 union being Appeal No. 90 of 2000 vide order dated 25th July, 2007 and more so, having admitted that it was no more representative union. This argument of respondent No.2, in any case, cannot be taken forward in the present Petition. If the respondent No.2 has any grievance relating to the present strength of membership of the respondent No.1 within Mumbai or for that matter in India, is free to agitate that matter before the appropriate forum. Thus, neither at the instance of petitioner, nor the respondent No.2, that issue can be examined in the present Petition.


14. That takes us to the other relief claimed by the petitioner for declaration against respondent Nos.1 and 2 Union and for issuing direction as referred to in prayer clause (e). It is stated in the Petition that any hasty step taken by the two unions may have far reaching cascad

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ing effect not only on the owners of the ships but the entire shipping industry and eventually on the economy of the Country. For that reason, the respondent Nos.1 and 2 and its members have public duty not to act in the manner threatened in the two communications received from the respondent Nos.1 and 2 dated 2nd February, 2011 and 14th January, 2011 respectively. In the context of this relief, we may place on record that the argument to press this relief was made by the Counsel for the petitioner only at the end of the rejoinder, when the Court was about to close the case as arguments were concluded. The Counsel for the petitioner asserted that he did not raise that point in his opening argument, as the Court called upon the other side to respond to his arguments relating to principal relief of setting-aside the impugned order dated 24th February, 2011 and to direct the respondent No.3 to make order of reference. We corrected the Advocate for the petitioners by pointing out that his assertion is incorrect, as neither he was asked to sit down by the Court nor the Court called upon the other side to respond while he was already on his legs. 15. Be that as it may, the communication sent by the respondent No.1 dated 2nd February, 2011 is not a communication giving notice of strike. Indeed, the letter sent by respondent No.2 dated 14th January, 2011 does indicate that 14th February, 2011 will be observed as a token protest day by striking work by all the members. However, that date has elapsed long back. Whereas, during the pendency of this Petition, assurance was given by respondent No.2 through Counsel that it will not resort to any strike so as to paralyse the work of the petitioner during the pendency of this petition. It is not the case of the petitioner that the respondent No.1 and 2 are likely to resort to strike/agitation without following procedure established by law. Suffice it to observe that the said relief as prayed, does not arise for consideration in this Petition. We will leave all questions relating to the said relief claimed against respondent Nos.1 and 2 open to be agitated by the petitioner before the appropriate forum as and when occasion arise. 16. For the aforesaid reasons, this Petition is disposed of with the above observations.
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