- (1.) THIS is an application under Article 226 of the Constitution by West Bengal Dock and Port Mazdoor Union and one Bikash hazra, as General Secretary of. the said union. The petitioners challenge the notification dated the 27h January, 1978 constituting the Dock Labour Board. By the said notification, in exercise of the powers conferred under sub-section (3)and (4) of section 5a of the Dock workers (Regulation of Employment)Act, 1948, the Central Government had appointed the members of the Dock labour Board under Section 5a of the said Act. Dock Workers (Regulation of employment) Act, 1948 is an Act to provide for the regulation of the employment of dock workers. Under section 5a the Government is authorised to establish by notification in the Official gazette, a Dock Labour Board for a port or group of ports to be known by such name. The Board shall constitution sub-section (3) of section 5a of the said Act, of a Chairman and such number of members as may be appointed by the Government. The proviso to the said sub-section stipulates that such order shall include an equal number of members representing the Government, the dock workers, and the employers of dock workers, and shipping companies. Section 8 of the said Act empowers making of the Rules. Under the said rule making power, Dock Workers (Regulation of Employment)Rules, 1962, have been framed by. the central Government. Rule 3 of the said rule, which is material, is as follows: "3. Composition of the Board-- (1)Each Board shall consist of not less than 9 members and shall include an equal number of members representing- (i)the Central Government; (ii) the Dock workers; and (iii) the employers of dock workers and shipping companies. (2)The Chairman of the Board shall be nominated by the Central government from among the members representing the Government and there shall be a whole-time deputy Chairman appointed by the Central Government in the ports of Bombay and Calcutta on such terms and conditions as the central Government may determine; provided that in the case of a board established at any other port, the Central Government may appoint either a whole-time or a part-time Deputy Chairman on such terms and conditions as that government may determine. (3) The persons representing respectively the dock workers and the employers shall be appointed after consulting such association of persons as appear to the Central government to be representative of such workers and such employers. (4) No Act or proceeding of the board shall be invalid merely on the ground of the existence of any vacancy in, or defect in the constitution of, the Board. " Rule 4 deals with the term of the office of the members and stipulates that a member other than a member representing the Central Government should hold office for a period of three years from the date of the notification appointing him as a member and shall be eligible for reappointment. Proviso to sub-rule (1) of Rule 4 stipulates that an outgoing member should continue in office until the appointment of his successor was notified in the official gazette. The second proviso further Stipulates that a member appointed to fill a casual vacancy should hold office for the unexpired portion of the earn of the person in whose place he was appointed. Sub-rule (5) deals with the occasion when is member is deemed to have vacated his office.
(2.) ON the 7th April, 1967 the dock labour Board had been constituted on the basis of verified membership of the different workers' unions as on 31st december, 1965. It is the case of the petitioners that the petitioner No. 1 was registered under the Trade Union act on or about the 29th June, 1972. On 9th December, 1975 the Central Government, Ministry of Labour had issued circulars intimating that verification of membership of all the unions as on 31st december 1974 had been taken in hand. it is stated that during 2nd April, 1976 to 2nd May, 1976 the Labour Enforcement Officer attached to Regional labour Commissioner, Calcutta, had visited different places at Calcutta dock area and made enquiries about the membership of the different unions. On or about the 17th May, 1977 the Labour enforcement Officer (Central), calcutta had issued circular notices to different unions operating in Calcutta Dock area intimating that verification of the members of the Union as on 31st May, 1976 would be made. It may be mentioned that verification takes place every two years and on the 19th May, 1977 the Central Government by a letter requested the petitioner No. 1 and also other Unions to send the names of two representatives of the Unions whom the unions would like to be considered to be members of the Dock Labour Beard for the purpose of constitution of the calcutta Dock Labour Board. In view of the contentions urged, in this case it may be relevant to refer to that letter which is as follows: "i am directed to say that it is proposed to reconstitute Calcutta dock Labour Board. For this purpose, it is requested that the names of two representatives of your union whom the union would like to be considered for appointment as members of the Board may be communicated to this Ministry in the order of preference, immediately so as to reach this Ministry by 15. 6. 1977 at the latest. " In reply to the said letter, on 24th may, 1977 the petitioner No. 1 wrote as follows: "we have received your aforesaid letter of the aforesaid date wherein we are directed to send names of the two representatives of our Union to be considered for appointment as the members of the board and in response to which I am directed to place the following names of the representatives of our Union in terms of your aforesaid letter. 1. Sri Bikash Hazra 2. Sri Zafar Imam. "
(3.) BETWEEN 26th September, 1977 and 29th November, 1977 the Regional labour Commissioner, Central Calcutta gave notices of spot verification. But the verification officer, it is alleged, could not come to the spot to make the verification due to disturbances in Calcutta dock area. On the 24th January, 1978 assistant Labour Commissioner (Central), Calcutta issued notices to several unions including the petitioner union intimating that the matter in connection with the current spot verification of the membership would be discussed on or about the 3rd February, 1978 and on the 27th January, 1978 the impugned notification was issued appointing, inter alia, the representatives of five unions as members of the Calcutta Dock Labour board. The nominees of the petitioner no. 1 were not included in the said appointments. The petitioners thereupon moved this application under articles 226 of the Constitution and on or about the 14th February, 1978 obtained the present rule nisi. The notification dated 27th January, 1978 was gazetted on the 3rd March, 1978.;