COCHIN STEAMER AGENTS ASSOCIATION Vs. REGIONAL DIRECTOR
HIGH COURT OF KERALA
COCHIN STEAMER AGENTS ASSOCIATION
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(1.) DOES the appellant-Association of Steamer Agents come within the purview of the Employees' State Insurance Act, 1948? This is the short question in this appeal under section 82 of the Act, which has been referred to the Full Bench. First, the facts.
(2.) THE appellant is a registered Association consisting of steamer Agents functioning in the Cochin Port. THE appellant-Association has 57 steamer Agents as members on its roll. THE ships/steamers which visit the cochin port require services of Steamer Watchmen to do "watch and ward duty". Earlier the services of Steamer Watchmen were made available to the ships/steamers by "watchmen Contractors". In the year 1981, the labour union raised a dispute regarding the service conditions of the Steamer watchmen who were employed through the contractors. A conciliation meeting was convened by the Assistant Labour Commissioner (Central), Ernakulam. Representatives of the Indian Chamber of Commerce, Cochin and the Cochin chamber of Commerce and Industries, Cochin were also invited to participate in the conciliation talks. A Memorandum of Settlement was signed on 19. 5. 1981 between the watchmen contractors and the labour unions under section 12 (3) of the Industrial Disputes Act 1947. A copy of the memorandum of settlement has been placed on record as Ext. P2.
By Memorandum of Settlement, a seven member committee consisting of representatives of Watchmen Contractors and labour unions was formed 'for the purpose of constituting a common pool of Watchmen so as to ensure equitable distribution of work" to the Steamer Watchmen working in the Cochin Port. Further, a Scheme viz. , "cochin Steamer Watchmen employment Regulation Scheme, 1983" (for short, the scheme) was drawn up "for rotational booking of steamer Watchmen through a system of pooling". The Scheme was approved in the talks held on 18. 3. 1983. A copy of the memorandum of settlement incorporating the terms of the Scheme has been produced by the appellant as Ext. P3. Thereafter on 9. 11. 1983 the administration of the Scheme was entrusted to a governing body consisting of 4 representatives from the labour unions and two representatives each from the Cochin Chamber of commerce and Industry and the Indian Chamber of Commerce, Cochin. An administrative agency was also appointed for the management of the day-to-day affairs of the scheme.
It appears that the Governing Body and the administrative Agency were in control of the situation and the Steamer Watchmen and their contractors were also satisfied with the pooling system envisaged under the Scheme.
(3.) HOWEVER on 16. 7. 1991 the appellant was served with ext. P10 notice dated 16. 7. 1991 issued by the Employees' State Insurance corporation (for short, the Corporation) informing the appellant that its activities would come within the purview of the Act. The appellant was therefore directed to take immediate steps for registration of the employees working in the establishment. The appellant approached the Employees' Insurance court contending, inter alia, that it was not an establishment liable to be covered under the Act, and that the Steamer Watchmen engaged by the ships/steamers were not its employees.
The Corporation contended before the Employees' insurance Court that the Steamer Agents Association (appellant) was the principal employer of the "cochin Steamer Watchmen". However, it was admitted that the Scheme (Ext. P3 was introduced by virtue of a conciliation settlement entered into between the employers and labour unions. It was also conceded that the Scheme was being administered by an administrative agency appointed by the Governing body. The Corporation mainly relied on a communication dated 22. 10. 1990 which was stated to have been addressed by the appellant Association to the representatives of the labour unions and the governing Body stating that "by convention and practice, the president of cochin Steamer Agents Association was elected as the Chairman of the Governing body of the Scheme. " It was therefore urged by the Corporation that the "watchmen employed through the Cochin Steamer Watchmen Scheme are working in the ships in the wharf and steamer. They are supervised by the administrative agency appointed by the Governing body of the Scheme".;
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