Complaint No.223 of 1994

4th July, 1997

Petitioner Counsel: J.M.BAPHNA with H.K.VAKIL for Complainants i/b. MULLA & MULLA CB & C.
Respondent Counsel: N. MOTGHARE

Cases Cited:
Ptn.No.153/93 dt.9/5/96 [Para 7]
1(1993) CPJ 5 No.7 [Para 7]
III (1995) CPJ 1 [Para 7]

JUDGMENT

JUSTICE A.A.HALBE, PRESIDENT :- At the outset, we are inclined to condone the delay, looking to the important question involved in the matter. The claim is against the Maharashtra Mathadi & Unprotected Labour Board, Nagpur, which is a registered body representing Mathadi workers. The Complainant, The Tata Iron & Steel Co. Ltd. has been manufacturing and selling Iron & Steel products throughout India. Here, we are concerned with this Branch office at Nagpur, which is a sales office and not a manufacturing unit. One rack of 33 wagons containing steel materials was despatched from Tatanagar by the applicant Company on 14-10-91 for the destination at Itwari, Nagpur. The said Wagons were placed at Itwari (South Eastern Railway) on 20-10-91 at 2.40 hours. The Wagons so received at Itwari Rly. Station and goods shed were placed in the siding and in the Yard. The materials in none of the Wagons could be unloaded by the applicant company because of illegal strike by labourers of the Mathadi Board. This strike had commenced by the day on which the wagons were received and the complainant felt that there were no indications of the strike being called off by the labourers. The complainant could not therefore, keep the rack of 33 wagons at that place because that would involve payment of heavy demurrage charges to the Railways and loss of business to the Company. The goods could not be sold and hence the only way left to the company was to despatch those goods to other places. After lot of efforts, the complainant succeeded in getting rebooking from the South Eastern Railway from Itwari, Nagpur to Laxmibai Nagar, Indore. The rack of 32 wagons could be re-booked on 25-10-91. It is contended that because of the illegal strike of the Opposite party workers, the complainant was required to pay the demurrage charges, of Rs.49527/-. It has been stated that because of the rebate given by the Railways, the demurrage scaled down to the tune of Rs.49527/-. However, rebooking involved the payment of freight to the tune of Rs.9,47,384/- for which, Railway booking receipts are on record. The complainant has therefore, claimed an amount of Rs.9,47384/- being re-booking charges and Rs.49,527/- being the demurrage charges, totalling to the tune of Rs.9,96,911/-. The complainant has also claimed interest at the rate of 24% plus cost of Rs.15000/-. It has been stated on behalf of the complainant that Respondent No.3, M/s. J.D.Sharma & Sons are the only handling contractors and in no way responsible for the above loss. No relief is claimed against the Respondent No.3.

2. Respondent No.1 & 2 have filed the written statement wherein it is stated that the Maharashtra Mathadi & Unprotected Labour Board is looking after the welfare of the manual workers, doing the work of loading and un-loading and for that purpose 25% levy is taken from the labourers. The Board is working on no loss-no profit basis and therefore, it can not be said that the Board is connected in any profit making activity. Attention is also drawn to Section 27 of the Maharashtra Mathadi Hamal & Other Manual workers (Regulation of Employment and Welfare Act, 1969). According to which "no suit, prosecution or other legal proceedings shall lie against the State Government or the Board or the Chairman, Secretary, or any member of the Board or Advisory Committee, or any inspector or any officers of the Board for anything which is in good faith done or intended to be done in pursuance of this Act or any scheme or any Rule or order made thereunder". It is therefore, stated that the present claim is not maintainable. It is also contended that the complainant did not approach any officer of the Board and nor engaged the services of the labourers of the Mathadi Board. The complainant never wrote any letter to the Mathadi Board to supply workers and hence the claim is not maintainable.

3. At the outset, we will have to state that the Mathadi workers are the only workers engaged by the Railways for loading and unloading of the goods received in Railway wagons. None else is competent to undertake this work and the workers of the Board are bound to load and unload the goods received in the goods trains and against this, it can not be stated that the Board is answerable for the claim of the workers. The workers are registered with the Board and the Board represents the interest of the workers, and also the obligations cast on the workers. The Opposite party, i.e. Mathadi Board has not been able to point out that any other body can be asked to undertake the work of loading and unloading of the goods. We are of the view that in such a situation, the Board can not escape by saying that the complainant did not approach them. The complainant had no choice but to look to the Board for unloading of the material carried in the rack of 33 wagons.

4. We find that the further facts are practically not disputed. It is not in dispute that the strike was illegal and had started from 20-10-91 and lasted till 26-10-91. The rack was received on 20-10-91 and that there was no chance of unloading of the material from these wagons. There is a clear evidence in that behalf, we find that letter is written by the President of the Board to Mukadam on 26-10-91 and in that letter, it has been stated that the Mathadi workers were suspended because of the illegal strike. There is a reference to the unloading of the goods of the complainant's company on 26-10-93. There is a letter of Dy. Commissioner of Labour and President of the Board. The wagon numbers are also indicated in that letter. Now with these documents on record, it cannot be said that Opposite parties No.1 & 2 were not noticed about the unloading of material in 33 wagons. We also do not find that except the opposite parties there was other agency to undertake the work of unloading. The monopoly of the Opposite parties in the matter of unloading at Railway Siding can not be doubted. We do not find fault with the Railways in this matter. It has not been brought on record that later on by Court judgment this strike was declared legal.

5. The Railways have claimed the demurrage charges of Rs.49,527/- by the letter dated 11-12-91. It will also be seen that the Railway has permitted the complainant to remove goods to Indore and this letter is dated 25-10-91. 33 wagons were ordered to be booked but it seems that 32 could be booked. One wagon had fallen sick and could not be removed.

6. We have 32 Railway receipts which are the bills of the freight at Rs.9,47,384/- This is the claim, which the complainant company has laid against the Mathadi Board.

7. It was a matter of legal controversy as to whether the trade unions or other registered labour bodies can claim exemption on the ground of strike under Section 18 of Trade Unions Act, 1926 when the interest of the consumer was involved. The National Commission was seized of this question in Original Petition No.153/93, Common cause Vs. Union of India decided on 9-5-96, the National Commission held that when strikes are launched by the Trade Unions, the interest of the consumers must be kept in mind both by the Management and the labourer. The case was in respect of the strike launched by the Indian Flight Engineers Association for Indian Airlines. The National Commission found that Section 18 of the Trade Unions Act, 1926 can not be putforth by way of defence by the Opposite party looking to the ratio laid down in the case of N.K.Modi Vs. Fair Air Engineers Pvt. ltd. by the National Commission reported in 1(1993) CPJ 5 No.7) Foras are not Civil Courts. Hence the bar is not available against the above Act. It is also observed that claims barred against the Trade Union under Section 18 do not cover claims arising out of deficiency in service to the consumers. Relying on the case of Indian Medical Association Vs. V.P.Santha reported in III(1995) CPJ 1 decided by the Supreme Court, the National Commission has observed that the ratio in the said case conclusively lay down that persons employed on salary in an organisation which is rendering Service for consideration are equally amenable to the provisions of Consumer Protection Act alongwith the Management even though there may not be any privity of contract as between the persons hiring the service and the concerned employees. The following observations in our view appear to be extremely relevant.

"In above, we also think it necessary to administer a strong word of caution that in case of similar instances on disruption of services by illegal strikes or agitations come to the notice of the Commission in future, on the part of the employees in an organisation rendering service to the public for consideration or any association or any union of employees, we will be dealing with the matter in a very strict manner and we will have no hesitation to award proper compensation to the consumers, who are thereby affected and aggrieved".

8. Here the illegality of the strike is not in doubt. The Company had to spend for rebooking and also pay demurrage. The above amounts which are required to be paid by the Company are solely on account of the strike of the Mathadi workers, the Company could not keep silent and allow the demurrage to rise from day to day and further suffer loss of business, on account of its inability to sell the articles. We feel that this is a claim which should be allowed.

9. Now regarding interest, we feel that the claim of interest of 24% is on higher side. We would award the interest at the rate of 15% . We find that Mathadi workers were at fault but interest at 24% is on a higher side looking to the composition of the Mathadi Board.

We round up the claim to Rs.9,96,000/- and give 8 weeks to the Opposite party No.1 & 2 to pay the same within 8 weeks.

O R D E R

The Opposite party No.1 & 2 shall pay Rs.9,96,000/- within 8 weeks failing which the said amount shall carry 15% interest till payment. The Opposite party No.1 & 2 shall pay cost of Rs.5000/- to the complainant. The claim against Opposite party No.3 not pressed, hence dismissed.

hence dismissed.