Cochin Port Trust v All India Port & Dock Workers Federation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** **WA NO. 829 OF 2021** **AGAINST THE ORDER IN WP(C).NO.1020/2021 OF THE HIGH COURT OF KERALA, ERNAKULAM** **APPELLANT/RESPONDENT NO.4:** **COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-682009, REPRESENTED BY ITS CHAIRMAN.** **BY SRI.M.GOPIKRISHNAN NAMBIAR, STANDING COUNSEL, SRI.E.K.NANDAKUMAR, SR. ADVOCATE, ADVOCATES M/S.K.JOHN MATHAI & JOSON MANAVALAN** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 AND 5 AND 6:** - **1 ALL INDIA PORT & DOCK WORKERS FEDERATION, CPSA OFFICE, WILLINGDON ISLAND, KOCHI-682009, REPRESENTED BY ITS PRESIDENT.** - **2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF PORTS, SHIPPING AND WATERWAYS, TRANSPORT BHAWAN, PARLIAMENT STREET, NEW DELHI-110001.** - **3 UNDER SECRETARY, MINISTRY OF PORTS, SHIPPING AND WATERWAYS, TRANSPORT BHAWAN, PARLIAMENT STREET, NEW DELHI-110001.** - **4 INDIAN PORTS ASSOCIATION, 1ST FLOOR, SOUTH TOWER, NBCC PLACE, BISHAM PITAMAH MARG, LODHI ROAD, NEW DELHI-110003, REPRESENTED BY ITS CHAIRMAN.** - **5 REGIONAL LABOUR COMMISSIONER, ERNAKULAM, KENDRIYA SHRAM SADAN, OLIMUGHAL KAKANAD, COCHIN-682030.** - **6 DIRECTOR, DEPARTMENT OF PUBLIC ENTERPRISES, PUBLIC ENTERPRISE BHAWAN, BLOCK NO.14, CGO COMPLEX, LODHI ROAD, NEW DELHI-110003.** - **BY SRI.S.SREEKUMAR, SR.ADVOCATE ALONG WITH M/S.P.MARTIN JOSE, P.PRIJITH, THOMAS P.KURUVILLA** - **SMT.SINDHUMOL.T.P., CGC** **ADVOCATES M/S.R.GITHESH, MANJUNATH MENON, SACHIN JACOB AMBAT & HARIKRISHNAN S.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.09.2021, THE COURT ON THE** **SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS & A.BADHARUDEEN, JJ. ========================================== W.A. No. 829 of 2021 [a _rising out of impugned interim order dated 15.2.2021 in WP(C). No. 1020 of 2021_ ] ========================================== Dated this the 27[th] day of September, 2021 ## J U D G M E N T ## ALEXANDER THOMAS, J. The 1[st] respondent herein has filed the above Writ Petition (Civil) WP(C) No. 1020/2021 with the following prayers and interim relief _[See page 28 of the paper book of this appeal]_ : ## Prayers “ - _i. Call for the records leading to Exhibit P2 and Exhibit P4 and quash the same by a writ of Certiorari or such other writ order or direction._ - _ii. Declare that the Exhibit P1 is applicable only to Executive and Non-unionized supervisors of Central Public Sector Enterprises._ - _iii. Declare that the Exhibit P1 is not applicable to unionized employees of Major Port Trusts._ - _iv. Declare that the Exhibit P1 is not applicable to employees of Major Ports covered by the Major Port Trusts Act, 1963._ - _v. Declare that the Major Ports are not Central Public Sector Enterprises and hence Exhibit P1 has no applicability._ - _vi. Issue such other writ, order or direction as may be necessary in the interest of justice.”_ ## _Interim Relief_ _“For the reasons stated in the writ petition and the affidavit, it is most humbly prayed that this Hon'ble Court may be pleased stay all further proceedings pursuant to Exhibit P1 to the extent the same is made applicable to employees of Major Port Trusts by Exhibit P2 and P4, pending disposal of this Writ Petition.”_ W.A. No. 829 of 2021 **==> picture [19 x 9] intentionally omitted <==** 2. The learned Single Judge, after hearing both sides, has rendered the impugned interim order dated 15.2.2021 in the above WP(C) by noting that the writ petitioner has placed reliance on Exts.P-9 & P-10 interim orders passed by the High Court of Judicature at Bombay and the High Court of Karnataka respectively, relating to Port and Dock Workers, and that this Court has passed Ext.P-7 judgment dated 17.12.2020 taking note of the stand of the Union Government that office memorandum dated 19.11.2020 issued by the Union Government in the Ministry of Public Enterprises [Ext.P-1 in the W.A.] is applicable only in the case of Executives and Non-Unionised Supervisors of Central Public Sector Enterprises and that it has no application insofar as workmen in those enterprises are concerned. Further that, Ext.P-7 judgment of this Court has been followed by other High Courts as in Ext.P-8 interim order rendered by the High Court of Karnataka in the case of Central Public Sector Enterprise (CPSE). Taking note of these aspects, the learned Single Judge has passed the impugned interim order on 15.2.2021 ordering that the operation and W.A. No. 829 of 2021 ..4.. enforcement of the communications at Exts.P-2 & P-4, insofar as it relates to Employees/Pensioners of the Major Port Trusts/Dock Labour Boards/Kamrajar Port Limited, excluding the Executives and Non-Unionised Supervisors of Central Public Sector Enterprises as mentioned therein, and that the amounts already recovered or deducted shall be subject to final outcome of the above Writ Petition, etc. Being aggrieved by the impugned interim order dated 15.2.2021 rendered by the learned Single Judge in the instant WP(C).No. 1020/2021, the 4[th] respondent in the above WP(C) (The Cochin Port Trust) has filed the instant intra-court appeal under Sec.5(i) of the Kerala High Court Act, 1958. 3. Heard Sri.E.K.Nandakumar, learned senior counsel instructed by Sri.M.Gopikrishnan Nambiar, learned Standing Counsel for the Cochin Port Trust, appearing for the appellant in the W.A./R-4 in the WP(C), Sri.S.Sreekumar, learned senior counsel instructed by Sri.Thomas P.Kuruvilla, learned counsel appearing for R-1 in the W.A./writ petitioner, Smt.T.P.Sindhumol, learned Central Government Counsel appearing for respondents W.A. No. 829 of 2021 **==> picture [18 x 9] intentionally omitted <==** 2, 3, 5 & 6. In the nature of the order proposed to be passed in this appeal, notice to R-4 in the W.A. will stand dispensed with. 4. The competent authority of the respondent Union Government in the Ministry of Heavy Industries & Public Enterprises [Department of Public Enterprises (DPE)] has earlier issued Ext.P-1 office memorandum dated 19.11.2020 wherein it has been ordered that in view of the COVID-19 pandemic issues, it has been decided that additional installments of Dearness Allowance (DA) payable to Employees of Central Public Sector Enterprises (CPSEs) drawing pay as per 2017, 2007, 1997, 1992 & 1987 IDA pay revision guidelines, due from 1.10.2020 shall not be paid and that the additional installments of DA due from 1.1.2021 & 1.4.2021 shall also not be paid. But that, DA at current rates (w.e.f. 1.7.2020) will continue to be paid, etc. Further, it has been categorically ordered in para 3 of Ext.P-1 that the said norms and guidelines shall be applicable in the case of Executives and NonUnionised Supervisors of Central Public Sector Enterprises drawing 2017, 2007, 1997, 1992 & 1987 IDA pay scales, etc. W.A. No. 829 of 2021 **==> picture [19 x 9] intentionally omitted <==** 5. Later, the competent authority of the Union Government in the Ministry of Ports, Shipping and Waterways has issued Ext.P-2 letter dated 7.12.2020 addressed to the Chairpersons of All India Major Port Trusts and to the Chairmancum-Managing Director of the Kamarajar Port Limited, and forwarding therewith copy of Ext.P-1 O.M. dated 19.11.2020 issued by the Ministry of Heavy Industries & Public Enterprises regarding freezing of DA to Employees of Central Public Sector Enterprises (CPSEs), etc and ordering therein that since, all the Major Ports draw pay as per the IDA pay revision guidelines, necessary action may be taken immediately in compliance of the above directions of DPE. A comparison of Exts.P-1 & P-2 would make it clear that the specific clarification in para 3 of Ext.P-1 that said guidelines in Ext.P-1 shall be applicable in the case of Executives and NonUnionised Supervisors of Central Public Sector Enterprises, etc have not in any manner substantially tinkered in Ext.P-2. 6. Later, the competent authority of the Union Government in the Ministry of Ports, Shipping and Waterways has W.A. No. 829 of 2021 ..7.. issued Ext.P-4 letter dated 7.1.2021 in which _inter alia_ it has also been ordered therein that the said guidelines in Ext.P-4 will be applicable in the case of all Employees/Pensioners of the Major Port Trusts/Dock Labour Boards/Kamrajar Port Limited, etc. In other words, the specific provision in para 3 of Ext.P-1 issued by the Ministry of Heavy Industries & Public Enterprises that the guidelines at Ext.P-1 shall be applicable only in the case of Executives and Non-Unionised Supervisors of Central Public Sector Enterprises, and that the same will not apply to unionised workers or unionised supervisors etc has been given a go by to the extent of holding that inasmuch as, it is ordered in Ext.P-4 that the guidelines in Ext.P-4 will be applicable in the case of all Employees/Pensioners of the Major Port Trusts/Dock Labour Boards/Kamrajar Port Limited, etc. 7. On the next day of issuance of Ext.P-4 dated 7.1.2021, the competent authority of the Union Government in the Ministry of Heavy Industries & Public Enterprises, has issued Ext.P-5 Office Memorandum dated 8.1.2021 specifically ordering and W.A. No. 829 of 2021 ..8.. reiterating therein that Ext.P-1 O.M. dated 19.11.2020 will be applicable only in respect of Executives and Non-Unionised Supervisors of Central Public Sector Enterprises, and that other employees including workmen of CPSEs are not covered by Ext.P-1 norms. In other words, by Ext.P-5 O.M. dated 8.1.2021 the competent authority of the Union Government in the Ministry of Heavy Industries & Public Enterprises has made it clear that the restrictions in Ext.P-1 will apply only in the case of Executives and Non-Unionised Supervisors of Central Public Sector Enterprises and will not apply in the case of other employees including workmen of CPSEs. 8. The issue regarding the applicability of Exts.P-1 & P-4 herein in the case of a CPSE, viz FACT, has been subject matter of consideration of Ext.P-7 judgment rendered by this Court on 17.12.2020 in WP(C).Nos. 26423 & 27918 of 2020. This Court, after considering various aspects of the matter, has clearly noted the submissions made on behalf of the learned Assistant Solicitor General of India, appearing on behalf of the competent authority of W.A. No. 829 of 2021 ..9.. the Union Government in the Ministry of Heavy Industries & Public Enterprises, that Ext.P-2 therein _(Ext.P-1 herein dated 19.11.2020)_ has application only in the case of Executives and NonUnionised Supervisors of Central Public Sector Enterprises, and the same has no application as far as workmen in those enterprises are concerned. Accordingly, this Court has rendered Ext.P-7 judgment in WP(C).Nos.26423 & 27918 of 2020 on 17.12.2020 ordering that the operation of Ext.P-1 circular in WP(C).No.26423/2020 issued by R-3 General Manager therein _[Ext.P-2 issued by R-4 in WP(C).No.27918/2020]_ will be confined to Executives and Non-Unionised Supervisors of Central Public Sector Enterprises and it is declared accordingly, and that Ext.P-1 circular therein dated 25.11.2020, to the extent it is made applicable to persons other than Executives and Non-Unionised Supervisors of Central Public Sector Enterprises, will stand set aside, resulting consequential monetary benefits to other category of employees including workers, etc. Ext.P-7 judgment has been rendered by this Court in the case of CPSEs mentioned therein. W.A. No. 829 of 2021 ..10.. Later, the High Court of Karnataka has rendered Ext.P-8 interim order dated 22.12.2020 in WP(C).No.15361/2020 in the case of employees of Bharat Electronics Limited which is a CPSE under the Ministry of Heavy Industries & Public Enterprises, by placing reliance on Ext.P-7 judgment rendered by this Court. 9. Subsequently, the High Court of Judicature at Bombay and the High Court of Karnataka has rendered Ext.P-9 interim order & Ext.P-10 interim order in the cases filed by Transport & Dock Workers Union and New Mangalore Port Staff Association respectively. In Ext.P-9 order, the High Court of Judicature at Bombay has noted that by Ext.P-7 judgment, this Court has already made it clear that O.M. dated 19.11.2020 (Ext.P-1 herein) is applicable only in the case of Executives and Non-Unionised Supervisors of Central Public Sector Enterprises and is not applicable insofar as the workmen of those enterprises and consequently ordered that there will be an ad-interim order of stay of the operation and execution of the impugned proceedings therein, etc. Ext.P-10 is an interim order passed by the High Court W.A. No. 829 of 2021 **==> picture [22 x 7] intentionally omitted <==** of Karnataka in the case filed by New Mangalore Port Staff Association, in which the New Mangalore Port Trust & the Ministry of Ports, Shipping and Waterways are main respondents therein. The learned Single Judge, after noting the impact of Ext.P-7 judgment rendered in the case of a CPSE as well as Exts.P-9 & P-10 interim orders passed by the High Court of Judicature at Bombay and the High Court of Karnataka in the case of Transport & Dock Workers Union and New Mangalore Port Staff Association, has granted the impugned interim order as above. 10. We had earlier requested the learned Central Government Counsel to get specific instructions from the competent authority of the Union Government in the Ministry of Ports, Shipping and Waterways, in this matter on 5.8.2021. Therein, we have noted that the Union Government, _prima facie_ appears to be taking two different stands inasmuch as, in Exts.P-1 & P-5, competent authority of the Union Government in the Ministry of Heavy Industries & Public Enterprises, has made it clear that the restrictions regarding grant of D.A. etc shall be W.A. No. 829 of 2021 **==> picture [24 x 7] intentionally omitted <==** applicable only in the case of Executives and Non-Unionised Supervisors of Central Public Sector Enterprises, whereas as per Exts.P-2 & P-4, competent authority of the Union Government in the Ministry of Ports, Shipping and Waterways would stipulate, and that too while adopting Ext.P-1 that the restrictions at Ext.P-1 would apply to all categories of employees including unionised workmen, etc. Hence, we wanted to know the specific stand of the Union Government in the Ministry of Ports, Shipping and Waterways, as to their stand as made out in Exts.P-2 & P-4 in comparison with the stand taken by the Ministry of Heavy Industries & Public Enterprises, as made out in Exts.P-1 & P-5. 11. The learned Central Government Counsel, on instruction has submitted that Exts.P-1 & P-5 would apply to CPSEs in the Ministry of Heavy Industries & Public Enterprises, whereas, Exts.P-2 & P-4 would apply in the case of employees of Ports coming under the Ministry of Ports, Shipping and Waterways, and that it has been made clear by Ext.P-4 issued by the Ministry of Ports, Shipping and Waterways that the restrictions W.A. No. 829 of 2021 **==> picture [24 x 9] intentionally omitted <==** in question would apply in the case of all Employees/Pensioners of the Major Port Trusts/Dock Labour Boards/Kamrajar Port Limited, etc. 12. Sri.E.K.Nandakumar, learned senior counsel instructed by Sri.M.Gopikrishnan Nambiar, learned Standing Counsel for the Cochin Port Trust appearing for the appellants would contend that there is no discrimination in taking divergent stand as far as different departments are concerned. That, Exts.P-1 & P-5 are issued by the Ministry of Heavy Industries & Public Enterprises whereas, Exts.P-2 & P-4 have been issued by the Ministry of Ports, Shipping and Waterways and that the same is applicable in the case of all Employees/Pensioners of the Major Port Trusts/Dock Labour Boards/Kamrajar Port Limited, etc. 13. Whereas, Sri.S.Sreekumar, learned senior counsel instructed by Sri.Thomas P.Kuruvilla, learned counsel appearing for R-1 in the W.A./writ petitioner would strongly contend that there is no rationale for the new restriction imposed by the Ministry of Ports, Shipping and Waterways in Ext.P-4 dated W.A. No. 829 of 2021 **==> picture [24 x 9] intentionally omitted <==** 7.1.2021. That, a reading of Ext.P-2 dated 7.12.2020 issued by the Ministry of Ports, Shipping and Waterways would make it clear that the said Ministry has only adopted the provisions contained in Ext.P-1 and therefore, a combined reading of Exts.P-1 & P-2 would make it clear that even in the case of Ministry of Ports, Shipping and Waterways, the restrictions adopted from Ext.P-1 will be applicable only in the case of Executives and Non-Unionised Supervisors of Central Public Sector Enterprises, and not in the case of workmen, more particularly unionised workmen, etc. That, it is only later, by Ext.P-4 that the Ministry of Ports, Shipping and Waterways has introduced a new restriction that the same would also apply in the case of all Employees/Pensioners of the Major Port Trusts/Dock Labour Boards/Kamrajar Port Limited, etc. That, on the next day itself (8.1.2021) the competent authority of the Union Government in the Ministry of Heavy Industries & Public Enterprises has again reiterated that Ext.P-1 restrictions will not apply in the case of other employees, including workmen of PSEs, etc. Hence, it is argued strongly by Sri.S.Sreekumar, learned senior W.A. No. 829 of 2021 **==> picture [24 x 9] intentionally omitted <==** counsel instructed by Sri.Thomas P.Kuruvilla, learned counsel appearing for R-1 in the W.A./writ petitioner that the Ports and Docks workers are exposed to hostile discrimination on account of the new stand of the Ministry of Heavy Industries & Public Enterprises at Ext.P-4, and that the unionised workmen of the Ports and Docks are entitled for more protection compared to the workmen of CPSEs or at any rate, both should be treated at par, and that therefore the writ petitioner has made out a strong case of hostile discrimination in view of the issuance of the restrictions at Ext.P-4 dated 7.1.2021. 14. After hearing both sides we are of the view that the learned Single Judge has considered the matter only at the interlocutory stage and it is taking into account the abovesaid aspects mentioned herein above that the learned Single Judge has rendered the impugned interim order in this case. Moreover, it appears that by Exts.P-9 & P-10, in similar cases, the High Court of Judicature at Bombay and the High Court of Karnataka has given interim orders in the case of Ports and Docks workers, and after W.A. No. 829 of 2021 ..16.. taking due note of Ext.P-7 judgment rendered by this Court in the case of CPSEs, etc. Hence, at this interlocutory stage, we are not in a position to hold that the view taken by the learned Single Judge in rendering the impugned interim order in this case is, in any manner, gravely perverse, unreasonable or illegal. The learned Single Judge, after taking due note of the strong _prima facie_ case made out by the writ petitioner as well as the balance of convenience, has rendered the impugned interim order. 15. We are not in a position to interfere with the said interim order rendered by the learned Single Judge in this WP(C). However, the learned Single Judge is requested to ensure the early consideration and final disposal of the main matter in present WP(C) No. 1020/2021 without much delay, preferably within two months. The respondents in the WP(C) may immediately file their counter affidavits if any, within two weeks, and the writ petitioner may file reply thereto within 10 days thereafter. 16. Since, the Single Bench dealing with Admission and Petition matters may not get sufficient time for final disposal of the W.A. No. 829 of 2021 **==> picture [23 x 9] intentionally omitted <==** matter, the Registry will ensure that the above Writ Petition is posted before a Single Bench dealing mainly with Hearing matters, so that all reasonable endeavours could be taken to ensure the final disposal of this WP(C) within abovesaid time limit. With these observations and directions, the above Writ Appeal will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE Sd/- A.BADHARUDEEN, JUDGE MMG