Chairman Cum Managing Director, Ennore Port Trust (Presently Known As Kamarajar Port Limited) vs V. Manoharan and Ors.

HELD: 1.1 Having regard to the nature of the controversy raised by the writ petitioners (respondents herein) and relief sought in the writ petitions and keeping in view the clauses of the MOU, especially Clause 31, which provides for referring the case to the Arbitral Tribunal in the event of any dispute arising between the parties in relation to MOU, the writ petition filed by the respondents herein under Article 226 of the Constitution should not have been entertained for being tried on merits by the Single Judge and instead the parties should have been left to take recourse to the remedy provided in Clause 31 for referring the case to Arbitral Tribunal for its decision in accordance with law. [Para 22][652-D-F]

1.2 A question whether a particular person is in the employment of any establishment and whether he is entitled to claim regularization of his services in such establishment (as in this case Port Trust) and, if so, from which date is essentially a question of fact. If such question is disputed by the establishment, then it is required to be decided by a fact-finding body on the basis of evidence adduced by such person unless the parties do not dispute the facts. If one person is able to prove his case of regularization qua establishment from a particular date that does not necessarily mean that other person’s case is also automatically proved alike other person. In other words, every person has to prove his case qua establishment independently by adducing evidence. It is only then such person is entitled to claim such relief. [Paras 23-26][652-F-H; 653-A]

1.3 Several questions arise in the case at hand and need to be answered before considering grant of appropriate relief, if any. These questions when seen in the background facts of the case are inter-linked with each other and relate to the main activity which was being carried in the Chennai Port Trust and now shifted to Ennore Port Trust largely. The disputes now being raised again relate to the employment and regularization of the class IV employees in the set up of Chennai Port Trust. [Para 27][653-BC]

1.4 The following questions do arise in this case. First, whether the writ petitioners (respondents herein) were/are in employment of Chennai Port Trust or in the employment of any contractor and, if so, its basis. Second, whether there ever existed any relationship of employee and employer between them and Chennai Port Trust or between them and any contractor and, if so, its basis. Third, whether the writ petitioners were/are members of the Association and, if yes, then its effect and if not, then its effect. Fourth, assuming that the writ petitioners are not held to be the members of the Association as they claimed in the writ petition, whether they (90 in number) are still entitled to claim any relief and, if so, against which Port Trust and of which nature. Fifth, assuming that the writ petitioners are held members of the Association or say eligible members by virtue of their qualifications prescribed in the MOU, whether they are entitled to claim any relief against any Port Trust and, if so, of which nature. Sixth, if the writ petitioners (whether all or some) are able to prove that they are/were in the employment of Chennai Port Trust and that relationship of employee and employer between them does exist notwithstanding execution of MOU, then whether such persons are entitled to claim regularization in the service of Port Trust and, if so, since when and with what benefits or their cases are still governed by MOU as its members and lastly, what eventual reliefs, if any, can be granted to the writ petitioners. [Paras 28-33][653-D-H; 654-A-B]

1.5 The aforesaid questions could not be decided in the writ petition but could be adjudicated more effectively by a factfinding body empowered to record evidence. Since in this case parties have agreed to refer the matter to the Arbitral Tribunal in the event of any dispute arising between them, it would be in the interest of justice that the parties are relegated to take recourse to the arbitration proceeding remedy for adjudicating the disputes. To decide the questions arising in the case at hand, recourse to MOU for the purpose of referring the case to arbitration can be taken. Even otherwise, the disputes raised herein are not the disputes, which are capable of being tried effectively in writ jurisdiction and indeed are capable of being tried only by a Tribunal. [Paras 34-36][654-B-D]

1.6 The writ petitioners and the Port Trusts are granted liberty to approach the Court for appointment of Arbitral Tribunal in terms of Clause 31 of MOU for deciding the questions framed by this Court. Parties are also at liberty to appoint the Arbitral Tribunal with mutual consent, if they so wish, without taking recourse to appointment of Arbitral Tribunal through Court. The Arbitral Tribunal once appointed will embark upon the reference on the questions framed by this Court and would be free to frame any more questions after consultation of the parties/stakeholders, if such questions also arise and need to be decided to give quietus to the long pending disputes. [Paras 39-41][654-G-H; 655-A]