PEPSICO INDIA HOLDING P.LTD. Vs. GROCERY MARKET & SHOPS BOARD & ORS.
MAHARASHTRA MATHADI, HAMAL AND OTHER MANUAL WORKERS (REGULATION OF EMPLOYMENT AND WELFARE) ACT, 1969
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 9999 of 2010, Judgment Date: Feb 12, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9999 OF 2010
PEPSICO INDIA HOLDING P. LTD. …APPELLANT
VERSUS
GROCERY MARKET & SHOPS BOARD
& ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.10000 OF 2010
SUPREME PETRO-CHEM LIMITED …APPELLANT
VERSUS
STATE OF MAHARASHTRA & ORS. …RESPONDENTS
J U D G M E N T
R.F. Nariman, J.
1. These appeals involve an interpretation of the provisions of the
Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of
Employment and Welfare) Act, 1969, (hereinafter referred to as “the 1969
Act”) read with the Grocery Markets or Shops Unprotected Workers
(Regulation of Employment and Welfare) Scheme, 1970 (hereinafter referred
to as “the 1970 Scheme”). The brief facts necessary for a decision in Civil
Appeal No.10000 Of 2010 (Supreme Petro-Chem Limited v. State of Maharashtra
and others) are that under Section 5 of the said 1969 Act, if any question
arises whether any scheme applies to any class of unprotected workers, the
matter shall be referred to the State Government and the decision of the
State Government which shall be taken after consulting the Advisory
Committee constituted under Section 14 shall be final. By an order dated
24.6.2008, the State Government after referring to submissions from the
appellants as well as submissions from the Board, held:-
“4. Govt has analyzed overall situation, documents application of the
organization dated 01.03.2003 and information about the product and its raw
material. Govt has come to the following conclusion:
a. Company is manufacturing Polystyrene.
b. For manufacturing styrene and Polybutadin are used as raw material.
Polybutadin comes in rubber form and it is not natural rubber.
c. Polystyrene is a hard plastic.
d. Polystyrene is not a petrochemical product but a chemical product.
e. Even Polystyrene manufacturing is considered as petrochemical production
it is finally a chemical production only. The material used to manufacture
the product is also chemical.
f. There is no written reference in the Mathadi Act that petrochemical
should be kept out of the act but chemical itself includes everything.
g. Mathadi Act and scheme is for the betterment of workers and purpose of
the scheme is to make applicable to the chemical manufacturing companies.
It is not mentioned in the scheme that petrochemical products should be
excluded and as petrochemical is not mentioned in the scheme so the scheme
is not applicable to the said organization is not acceptable.
5. In the situation Samitte and Govt. has come to the conclusion that
Grocery market and shops unprotected workers (Regulation of Employment and
Welfare) Act 1970 is applicable to Supreme Petrochem Ltd.
6. In the company loading unloading work of chemical product and its raw
material is carried out. And with respect to this Mathadi kind of work is
carried out in the company. As said by the company this work is carried
out by two Cooperative societies. These societies do the work by employing
the workers and get compensation from the company. Company says that these
employees get the facilities like Provident fund and others. But in the
report filed by the mandal on 20.09.2006 this statement has not been
proved. As per the decision given by Hon. High Court in 2006 (3) CLR PG
999, there is no meaning to what company is saying. Instead of that it
proves that in the said company Mathadi kind of work carries out.
8. In this situation Maharashtra Mathadi Hamal and other Manual Workers
(Regulation of Employment and Welfare) Act 1969, Grocery Markets or Shops
Unprotected Workers (Regulation of employment and welfare) Scheme 1970 is
applicable to the said organization. Therefore, application given under
section 5 of Mathadi Act is rejected by the Government.”
2. The said order was challenged before the Bombay High Court by filing
a writ petition. The writ petition was dismissed by the impugned judgment
dated 10.2.2009 after holding:-
“4. It is rather difficult to digest the arguments of the learned counsel.
Basically, what we find is that the petitioners are manufacturing
polysterene and polysterene is a combination of styrene and polybutadin.
Polybutadin comes in rubber form and is not a petrochemical though it is
not a natural rubber. Styrene is one of the by-product of the
petrochemical which is used by the petitioner for manufacturing
polysterene. Therefore, the petitioners are not manufacturing any
petrochemicals, but one of the by-product of the petrochemical is used by
the petitioners to manufacture polysterene and polysterene is hard plastic.
5. All these aspects have been considered by the Government authorities
and thereafter the authorities concluded that the petitioners are not
dealing with petrochemicals as they have submitted. We agree with the
findings of the authority. Assuming for a moment that the petitioners are
dealing in petrochemicals, yet the Act will be applicable to them because
the words used in this application clause referred to above is the product
including the manures and thereby, every type of production has been
covered. What is important to note is that the manures which are like urea
etc. are also derivatives of the petrochemicals and thereby by inclusive
clause the manures which could have been saved probably have been included
there. Therefore, the word “product” has been used by the Legislature in
its wisdom with all its cognate variations and it cannot be interpreted to
have a limited meaning. What we find is that the petrochemical is a part
of the chemical. Chemical is the genesis while petrochemical is species of
the said genesis and thereby if the chemical industry is covered it is
rather difficult to hold that the petrochemical industries are not covered.
6. What is important to be looked into is whether in this industry the
work which the mathadis are carrying out is available or not. If, in that
industry, the work of mathadis is available then only because the industry
is dealing in some different aspect, that work cannot be given to some
other unorganized workers. The basic test, after having ascertained that
the industry is covered by law, is to find out that the work of mathadis is
available and if it is available, the Act and the Scheme will apply to the
industry. It is not disputed that the mathadi work is not available. The
only distinction which was tried to be made out was with regard to
petrochemicals and that, therefore, the Act is not applicable, which
submission we have already rejected for the reasons stated above. We find
that the Government has rightly decided the matter under Section 5 and no
interference is called for at the hands of this court.”
3. Shri J.P. Cama, learned senior advocate appearing on behalf of the
appellants has argued that the 1969 Act only applies to employments that
are specified in the Schedule. Inasmuch as grocery markets or shops are
mentioned in Item 4 of the Schedule, according to learned counsel,
employment in factories which occurs only in Item 5 of the said Schedule
could not possibly be attracted as Item 5 only speaks of establishments
which are not covered by any other entries in the Schedule. Inasmuch as
the 1970 Scheme in the present case is a scheme dealing with employment in
grocery markets or shops, Item 5 of the Schedule is not attracted, and the
1970 Scheme is ultra vires the 1969 Act insofar as it provides for
employment in factories which manufacture chemical products and are covered
by entry 5 of the Schedule to the said 1969 Act. He also referred to
Section 1(4A) of the 1969 Act to state that insofar as employment in
factories in district Raigad are concerned, item 5 in column 4 of the table
appended to Section 1(4A) speaks of “colour chemicals” and “products
including fertilizers”, and not “chemical products”. This being so,
chemical products in any case are outside Section 1(4A), and the 1970
Scheme insofar as it purports to include within it under clause 2(1)(f)
“chemical products”, is therefore ultra vires Section 1(4A). Further,
according to learned counsel, what is allegedly manufactured in the
appellant’s factory are petro chemicals and not chemicals. He has referred
to a number of documents which include various licences and letters from
authorities clearly stating that what is manufactured in the appellant’s
factory are only petro chemicals. For that reason also, petro chemicals
not being chemicals would not be within the coverage of the 1969 Act or the
1970 Scheme. He further argued, referring to Section 4(1)(b) of the 1969
Act that if the 1970 Scheme is to be made applicable to petro chemicals
manufactured in factories, the only method of doing so is if a demand or
request is made by a majority of the employers or workers that the
provisions of the grocery markets or shops scheme should be applied to
another scheduled employment – that is, manufacturing petro chemicals in
factories, and it is only after consultation with the employers and workers
that the State Government may apply the provisions of the 1970 Scheme to
the appellant’s factory manufacturing petro chemicals. This not having
been done, the 1970 Scheme cannot apply to the appellant. Learned counsel
further argued that in point of fact there is no work of transportation
undertaken by the employer from the employer’s factory to the purchaser’s
premises. He argued that the factory was by and large mechanised and that
the petro chemical products manufactured at the factory were picked up by
purchasers by employing contract labour that was arranged by the purchasers
themselves. This being so, the 1969 Act and the 1970 Scheme would have no
application to the appellant’s factory.
4. Shri S. Chinchwadkar, learned advocate appearing on behalf of the
respondent-Board has countered each of the arguments of Mr. Cama.
According to Shri Chinchwadkar Entry 5 appearing in the Schedule to the
1969 Act is a residuary entry which takes in all employments not otherwise
covered by any scheme under any of the other items of the Schedule, and as
petro chemicals manufactured in factories were admittedly not covered by
any of the other items, they would fall within the residuary entry.
Further, according to learned counsel, the nomenclature of the scheme is
irrelevant so long as the provisions of the 1970 Scheme actually cover the
appellant’s activities carried out in factories. He further argued
referring to Sections 3 and 4 of the 1969 Act that there can be a composite
scheme in which several scheduled employments or groups of employments can
be bunched together, which has been done in the present case. He also
argued with reference to Section 1(4A) that item 5 in column 4 when it
referred to “products including fertilizers” would include all products
including chemical products, and that therefore the 1970 Scheme is intra
vires the 1969 Act. He also referred to the State Government order, which
was impugned before the High Court and upheld, in order to show that the
State Government had applied its mind under Section 5 of the 1969 Act, and
that such order should not be interfered with in the exercise of judicial
review under Article 226 of the Constitution. He also referred us to the
definition of “establishment” contained in section 2(4) which would mean
“any place or premises including the precincts thereof in which any
scheduled employment is being carried on”. According to him, inasmuch as
lifting of the appellant’s product was being carried on from the precincts
of the factory, the appellant would be covered by the 1969 Act and the 1970
Scheme. He also referred in some detail to Bhuwalka Steel Industries
Limited v. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273 to buttress
his proposition that this Court, following the Full Bench of the Bombay
High Court, has construed the 1969 Act as a welfare legislation, and having
regard to its object has expressly stated that employers should realise
their social obligations qua this segment of workers who are non-protected
workers, as defined by the said Act.
5. We have heard learned counsel for the parties. Before entering into
the merits of the controversy before us, we would like to set out the
relevant provisions of the 1969 Act and the 1970 Scheme made thereunder.
The long title of the 1969 Act is important in that it sets out the object
for which the 1969 Act was enacted, and is as follows:-
“An Act for regulating the employment of unprotected manual workers
employed in certain employments in the State of Maharashtra to make
provision for their adequate supply and proper and full utilization in such
employments, and for matters connected therewith. WHEREAS, it is expedient
to regulate the employment of unprotected manual workers such as, Mathadi,
Hamal etc., engaged in certain employments, to make better provision for
their terms and conditions of employments, to provide for their welfare,
and for health and safety measures where such employments require these
measures; to make provision for ensuring an adequate supply to, and full
and proper utilization of, such workers in such employments to prevent
avoidable unemployment; for these and similar purposes, to provide for the
establishment of Boards in respect of these employments and (where
necessary) in the different areas of the State; and to provide for purpose
connected with the matters aforesaid; It is hereby enacted in the Twentieth
Year of the Republic of India as follows: -
The Sections of the Act relevant for deciding these appeals are set out
hereinbelow and read as follows:
“1. Short title, extent, application and commencement. –
(3) It applies to the employments specified in the Schedule hereto.
(4A) Notwithstanding anything contained in sub-section (4), and in
Government Notification, Industries and Labour Department, No. UMA.
1272/Lab-IV, dated the 28th March 1972, this Act shall be deemed to have
come into force in the areas specified in column 2 of the Table below on
the dates and in respect of the employments specified in columns specified
in columns 3 and 4 against each such areas in the said Table, respectively.
TABLE
|Sl. |Areas |Date |Name of the employment |
|No. |2 |3 |4 |
|1 | | | |
|1 |Thane and |26th day of|Employment in Grocery |
| |Kalyan Talukas |Dec. 1979. |Market or Shops, in |
| |of the Thane | |connection with loading,|
| |District; and | |unloading, stacking, |
| |Panvel Taluka | |carrying, weighing, |
| |of the Kulaba |1st day of |measuring (filling, |
| |(now Raigad) |August |stitching sorting, |
| |District) |1983. |cleaning) or such other |
| | | |work including work |
| |(b) The whole | |preparatory or |
| |of the Thane | |incidental to such |
| |and Raigad | |operations. |
| |Districts | | |
| |excluding the | |(2) Employment in |
| |Thane and | |markets and other |
| |Kalyan Talukas | |establishments, in |
| |of the Thane | |connection with loading,|
| |District and | |unloading, stacking, |
| |Panvel Taluka | |carrying, weighing, |
| |of the Raigad | |measuring (filling, |
| |District. | |stitching, sorting, |
| | | |cleaning) of soda ash, |
| | | |coal-tar, lime, colour |
| | | |chemicals, chemical |
| | | |products including |
| | | |fertilizers, gunny bags,|
| | | |coir ropes, ropes, mats,|
| | | |hessian cloth, hessian |
| | | |yarn, oil cake, husk |
| | | |chuni and chhal or such |
| | | |other work including |
| | | |work preparatory or |
| | | |incidental to such |
| | | |operations. |
| | | |(3) Employment in onion |
| | | |and potato wholesale |
| | | |markets in connection |
| | | |with loading, unloading,|
| | | |stacking carrying, |
| | | |weighing, measuring |
| | | |(filling, stitching, |
| | | |sorting, cleaning) of |
| | | |such other work |
| | | |including work |
| | | |preparatory or |
| | | |incidental to such |
| | | |operations. |
| | | |(4) Employment in |
| | | |factories and mills |
| | | |manufacturing grocery |
| | | |products if such |
| | | |employment is connected |
| | | |with loading, unloading,|
| | | |stacking, carrying, |
| | | |weighing, measuring |
| | | |(filling, stitching, |
| | | |sorting, cleaning) or |
| | | |such other work |
| | | |including work |
| | | |preparatory or |
| | | |incidental to such |
| | | |operations carried on by|
| | | |workers covered by entry|
| | | |5 in the Schedule to |
| | | |this Act. |
| | | |(5) Employment in |
| | | |factories and mills |
| | | |manufacturing colour |
| | | |chemicals, products |
| | | |including fertilizers, |
| | | |if such employment is in|
| | | |connection with loading,|
| | | |unloading, stacking, |
| | | |carrying, weighing, |
| | | |measuring (filling, |
| | | |stitching, sorting, |
| | | |cleaning) or such other |
| | | |work including work |
| | | |preparatory or |
| | | |incidental to such |
| | | |operations carried on by|
| | | |workers covered by entry|
| | | |5 in the Schedule to |
| | | |this Act. |
Definitions.
(3) "employer", in relation to any unprotected workers engaged by or
through contractor, means the principal employer and in relation to any
other unprotected worker, the person who has ultimate control over the
affairs of the establishment, and includes any other person to whom the
affairs of such establishment are entrusted, whether such person is called
an agent, manager or is called by any other name prevailing in the
scheduled employment;
(4) "establishment", means any place or premises, including the precincts
thereof, in which or in any part of which any scheduled employment is being
or is ordinarily carried on;
(7) "principal employer" means an employer who engages unprotected workers
by or through a contractor in any scheduled employment;
(9) "scheduled employment" means any employment specified in the Schedule
hereto or any process or branch of work forming part of such employment;
(10) "scheme" means a scheme made under this Act;
(11) "unprotected worker" means a manual worker who is engaged or to be
engaged in any scheduled employment;
(12) "worker" means a person who is engaged or to be engaged directly or
through any agency, whether for wages or not, to do manual work in any
scheduled employment and, includes any person not employed by any employer
or a contractor, but working with the permission of, or under agreement
with the employer or contractor; but does not include the members of an
employer's family.
3. Schemes for ensuring regular employment of unprotected workers. –
(1) For the purpose of ensuring an adequate supply and full and proper
utilization of unprotected workers in scheduled employments, and generally
for making better provision for the terms and conditions of employment of
such workers the State Government may by means of a scheme provide for the
registration of employers and unprotected workers in any scheduled
employment or employments, and provide for the terms and conditions of work
of registered unprotected workers, and make provision for the general
welfare in such employments.
4. Making, variation and revocation of scheme. –
(1) The State Government may, after consultation with the Advisory
Committee, by notification in the Official Gazette and subject to the
condition of previous publication, make one or more schemes for any
scheduled employment or group of scheduled employments, in one or more
areas specified in the notification; and in like manner add to, amend, vary
or substitute another scheme for, any scheme made by it:
Provided that, no such notification shall come into force, unless a period
of one month has expired from the date of publication in the Official
Gazette:
Provided further that, the State Government may –
(a) if it considers necessary, or
(b) if a demand or request is made by a majority of the employers or
workers in any other scheduled employment, that the provisions of any
scheme so made for any scheduled employment or any part thereof should be
applied to such other scheduled employment, after consulting the employers
and workers in such scheduled employment by notification in the Official
Gazette, apply the provisions of such scheme or part thereof to such
scheduled employment, with such modifications, if any, as may be specified
in the notification.
(2) The provisions of section 24 of the Bombay General Clauses Act, 1904,
shall apply to the exercise of the power given by sub-section (1) as they
apply to the exercise of a Power given by a Maharashtra Act to make rules
subject to the condition of previous publication.
5. Disputes regarding application of scheme. - If any question arises
whether any scheme applies to any class of unprotected workers or
employers, the matter shall be referred to the State Government and the
decision of the State Government on the question, which shall be taken
after consulting the Advisory Committee constituted under section 14, shall
be final.
SCHEDULE
4. Employment in Grocery Markets or shops, in connection with loading,
unloading, stacking, carrying, weighing, measuring, filing, stitching,
sorting, cleaning or such other work including work preparatory or
incidental to such operations.
5. Employment in markets, and factories and other establishments, in
connection with loading, unloading, stacking, weighing, measuring, filing,
stitching, sorting, cleaning or such other work including work preparatory
or incidental to such operations carried on by workers not covered by any
other entries in this Schedule.
6. The provisions of the 1970 Scheme, insofar as they are relevant for
decision in the present appeals, are set out hereinbelow and read as
follows:
“No. UWA-1469.(GR)_160783/LAB-IV :- In exercise of the powers conferred by
sub-section (1) of section 4 of the Maharashtra Mathadi, Hamal and Other
Manual Workers (Regulation of Employment and Welfare) Act, 1969 (Mah. XXX
of 1969) and of all other powers enabling it in that behalf the Government
of Maharashtra after consultation with the Advisory Committee, hereby makes
the following scheme for employment in grocery markets and shops in
connection with loading, unloading, stacking, carrying, weighing, measuring
or such other work including work preparatory or incidental to such
operations in the areas specified in the Schedule appended to this Scheme,
the same having been previously published as required by sub-section(1) of
the said section 4, namely:-
2. Objects and Application:-
(1) Objects:- The objects of the scheme are to ensure an adequate supply
and full and proper utilization of unprotected workers employed in-
(a) Grocery Markets or Shops in connection with loading, unloading,
stacking, carrying, weighing, measuring [filling, stitching, sorting,
cleaning] or such other work including work preparatory or incidental to
such operations:
(b) Markets and other establishments in connection with loading,
unloading, stacking, carrying, weighing, measuring [filling, stitching,
sorting, cleaning] of soda ash, coaltar, lime, colour chemicals, chemical
products including fertilizers, gunny bags, coir ropes, ropes, mats,
hessian, cloth, hessian yarn, oil, cakes, husk, chuni, chhala, or such
other work including work preparatory or incidental to such operation
carried on by workers not covered by any other entries in the schedule for
efficient performance of work and generally for making better provisions
for the terms and conditions of employment of such workers and make
provision for their general welfare.
(c) onion and potato wholesale markets in connection with loading,
unloading, stacking, carrying, weighing measuring [filling, stitching,
sorting, cleaning], or such other work, including work preparatory or
incidental to such operations.
(d) factories and mills manufacturing grocery products if such employment
is connected with loading, unloading, stacking, carrying, weighing,
measuring, [filling, stitching, sorting, cleaning] or such other work
including work preparatory or Incidental to such operations carried on by
workers covered by entry 5 in the schedule to the Act;
(e) railway yards and goods sheds in connection with loading, unloading,
stacking, carrying, weighing, measuring [filling, stitching, sorting,
cleaning] of grocery articles or such other work preparatory or incidental
to such operations by workers who are not employed by Railway Authorities
and
(f) factories and mills manufacturing colour chemicals, chemicals
products including fertilizers, in connection with the loading, unloading,
stacking, carrying, weighing, measuring [filling, stitching, sorting,
cleaning] or such other work including work preparatory or incidental to
such operation carried on by workers covered by entry 5 in the Schedule to
the said Act;
42. Cost of operating the scheme and provision for amenities and benefits
to registered workers –
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9999 OF 2010
PEPSICO INDIA HOLDING P. LTD. …APPELLANT
VERSUS
GROCERY MARKET & SHOPS BOARD
& ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.10000 OF 2010
SUPREME PETRO-CHEM LIMITED …APPELLANT
VERSUS
STATE OF MAHARASHTRA & ORS. …RESPONDENTS
J U D G M E N T
R.F. Nariman, J.
1. These appeals involve an interpretation of the provisions of the
Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of
Employment and Welfare) Act, 1969, (hereinafter referred to as “the 1969
Act”) read with the Grocery Markets or Shops Unprotected Workers
(Regulation of Employment and Welfare) Scheme, 1970 (hereinafter referred
to as “the 1970 Scheme”). The brief facts necessary for a decision in Civil
Appeal No.10000 Of 2010 (Supreme Petro-Chem Limited v. State of Maharashtra
and others) are that under Section 5 of the said 1969 Act, if any question
arises whether any scheme applies to any class of unprotected workers, the
matter shall be referred to the State Government and the decision of the
State Government which shall be taken after consulting the Advisory
Committee constituted under Section 14 shall be final. By an order dated
24.6.2008, the State Government after referring to submissions from the
appellants as well as submissions from the Board, held:-
“4. Govt has analyzed overall situation, documents application of the
organization dated 01.03.2003 and information about the product and its raw
material. Govt has come to the following conclusion:
a. Company is manufacturing Polystyrene.
b. For manufacturing styrene and Polybutadin are used as raw material.
Polybutadin comes in rubber form and it is not natural rubber.
c. Polystyrene is a hard plastic.
d. Polystyrene is not a petrochemical product but a chemical product.
e. Even Polystyrene manufacturing is considered as petrochemical production
it is finally a chemical production only. The material used to manufacture
the product is also chemical.
f. There is no written reference in the Mathadi Act that petrochemical
should be kept out of the act but chemical itself includes everything.
g. Mathadi Act and scheme is for the betterment of workers and purpose of
the scheme is to make applicable to the chemical manufacturing companies.
It is not mentioned in the scheme that petrochemical products should be
excluded and as petrochemical is not mentioned in the scheme so the scheme
is not applicable to the said organization is not acceptable.
5. In the situation Samitte and Govt. has come to the conclusion that
Grocery market and shops unprotected workers (Regulation of Employment and
Welfare) Act 1970 is applicable to Supreme Petrochem Ltd.
6. In the company loading unloading work of chemical product and its raw
material is carried out. And with respect to this Mathadi kind of work is
carried out in the company. As said by the company this work is carried
out by two Cooperative societies. These societies do the work by employing
the workers and get compensation from the company. Company says that these
employees get the facilities like Provident fund and others. But in the
report filed by the mandal on 20.09.2006 this statement has not been
proved. As per the decision given by Hon. High Court in 2006 (3) CLR PG
999, there is no meaning to what company is saying. Instead of that it
proves that in the said company Mathadi kind of work carries out.
8. In this situation Maharashtra Mathadi Hamal and other Manual Workers
(Regulation of Employment and Welfare) Act 1969, Grocery Markets or Shops
Unprotected Workers (Regulation of employment and welfare) Scheme 1970 is
applicable to the said organization. Therefore, application given under
section 5 of Mathadi Act is rejected by the Government.”
2. The said order was challenged before the Bombay High Court by filing
a writ petition. The writ petition was dismissed by the impugned judgment
dated 10.2.2009 after holding:-
“4. It is rather difficult to digest the arguments of the learned counsel.
Basically, what we find is that the petitioners are manufacturing
polysterene and polysterene is a combination of styrene and polybutadin.
Polybutadin comes in rubber form and is not a petrochemical though it is
not a natural rubber. Styrene is one of the by-product of the
petrochemical which is used by the petitioner for manufacturing
polysterene. Therefore, the petitioners are not manufacturing any
petrochemicals, but one of the by-product of the petrochemical is used by
the petitioners to manufacture polysterene and polysterene is hard plastic.
5. All these aspects have been considered by the Government authorities
and thereafter the authorities concluded that the petitioners are not
dealing with petrochemicals as they have submitted. We agree with the
findings of the authority. Assuming for a moment that the petitioners are
dealing in petrochemicals, yet the Act will be applicable to them because
the words used in this application clause referred to above is the product
including the manures and thereby, every type of production has been
covered. What is important to note is that the manures which are like urea
etc. are also derivatives of the petrochemicals and thereby by inclusive
clause the manures which could have been saved probably have been included
there. Therefore, the word “product” has been used by the Legislature in
its wisdom with all its cognate variations and it cannot be interpreted to
have a limited meaning. What we find is that the petrochemical is a part
of the chemical. Chemical is the genesis while petrochemical is species of
the said genesis and thereby if the chemical industry is covered it is
rather difficult to hold that the petrochemical industries are not covered.
6. What is important to be looked into is whether in this industry the
work which the mathadis are carrying out is available or not. If, in that
industry, the work of mathadis is available then only because the industry
is dealing in some different aspect, that work cannot be given to some
other unorganized workers. The basic test, after having ascertained that
the industry is covered by law, is to find out that the work of mathadis is
available and if it is available, the Act and the Scheme will apply to the
industry. It is not disputed that the mathadi work is not available. The
only distinction which was tried to be made out was with regard to
petrochemicals and that, therefore, the Act is not applicable, which
submission we have already rejected for the reasons stated above. We find
that the Government has rightly decided the matter under Section 5 and no
interference is called for at the hands of this court.”
3. Shri J.P. Cama, learned senior advocate appearing on behalf of the
appellants has argued that the 1969 Act only applies to employments that
are specified in the Schedule. Inasmuch as grocery markets or shops are
mentioned in Item 4 of the Schedule, according to learned counsel,
employment in factories which occurs only in Item 5 of the said Schedule
could not possibly be attracted as Item 5 only speaks of establishments
which are not covered by any other entries in the Schedule. Inasmuch as
the 1970 Scheme in the present case is a scheme dealing with employment in
grocery markets or shops, Item 5 of the Schedule is not attracted, and the
1970 Scheme is ultra vires the 1969 Act insofar as it provides for
employment in factories which manufacture chemical products and are covered
by entry 5 of the Schedule to the said 1969 Act. He also referred to
Section 1(4A) of the 1969 Act to state that insofar as employment in
factories in district Raigad are concerned, item 5 in column 4 of the table
appended to Section 1(4A) speaks of “colour chemicals” and “products
including fertilizers”, and not “chemical products”. This being so,
chemical products in any case are outside Section 1(4A), and the 1970
Scheme insofar as it purports to include within it under clause 2(1)(f)
“chemical products”, is therefore ultra vires Section 1(4A). Further,
according to learned counsel, what is allegedly manufactured in the
appellant’s factory are petro chemicals and not chemicals. He has referred
to a number of documents which include various licences and letters from
authorities clearly stating that what is manufactured in the appellant’s
factory are only petro chemicals. For that reason also, petro chemicals
not being chemicals would not be within the coverage of the 1969 Act or the
1970 Scheme. He further argued, referring to Section 4(1)(b) of the 1969
Act that if the 1970 Scheme is to be made applicable to petro chemicals
manufactured in factories, the only method of doing so is if a demand or
request is made by a majority of the employers or workers that the
provisions of the grocery markets or shops scheme should be applied to
another scheduled employment – that is, manufacturing petro chemicals in
factories, and it is only after consultation with the employers and workers
that the State Government may apply the provisions of the 1970 Scheme to
the appellant’s factory manufacturing petro chemicals. This not having
been done, the 1970 Scheme cannot apply to the appellant. Learned counsel
further argued that in point of fact there is no work of transportation
undertaken by the employer from the employer’s factory to the purchaser’s
premises. He argued that the factory was by and large mechanised and that
the petro chemical products manufactured at the factory were picked up by
purchasers by employing contract labour that was arranged by the purchasers
themselves. This being so, the 1969 Act and the 1970 Scheme would have no
application to the appellant’s factory.
4. Shri S. Chinchwadkar, learned advocate appearing on behalf of the
respondent-Board has countered each of the arguments of Mr. Cama.
According to Shri Chinchwadkar Entry 5 appearing in the Schedule to the
1969 Act is a residuary entry which takes in all employments not otherwise
covered by any scheme under any of the other items of the Schedule, and as
petro chemicals manufactured in factories were admittedly not covered by
any of the other items, they would fall within the residuary entry.
Further, according to learned counsel, the nomenclature of the scheme is
irrelevant so long as the provisions of the 1970 Scheme actually cover the
appellant’s activities carried out in factories. He further argued
referring to Sections 3 and 4 of the 1969 Act that there can be a composite
scheme in which several scheduled employments or groups of employments can
be bunched together, which has been done in the present case. He also
argued with reference to Section 1(4A) that item 5 in column 4 when it
referred to “products including fertilizers” would include all products
including chemical products, and that therefore the 1970 Scheme is intra
vires the 1969 Act. He also referred to the State Government order, which
was impugned before the High Court and upheld, in order to show that the
State Government had applied its mind under Section 5 of the 1969 Act, and
that such order should not be interfered with in the exercise of judicial
review under Article 226 of the Constitution. He also referred us to the
definition of “establishment” contained in section 2(4) which would mean
“any place or premises including the precincts thereof in which any
scheduled employment is being carried on”. According to him, inasmuch as
lifting of the appellant’s product was being carried on from the precincts
of the factory, the appellant would be covered by the 1969 Act and the 1970
Scheme. He also referred in some detail to Bhuwalka Steel Industries
Limited v. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273 to buttress
his proposition that this Court, following the Full Bench of the Bombay
High Court, has construed the 1969 Act as a welfare legislation, and having
regard to its object has expressly stated that employers should realise
their social obligations qua this segment of workers who are non-protected
workers, as defined by the said Act.
5. We have heard learned counsel for the parties. Before entering into
the merits of the controversy before us, we would like to set out the
relevant provisions of the 1969 Act and the 1970 Scheme made thereunder.
The long title of the 1969 Act is important in that it sets out the object
for which the 1969 Act was enacted, and is as follows:-
“An Act for regulating the employment of unprotected manual workers
employed in certain employments in the State of Maharashtra to make
provision for their adequate supply and proper and full utilization in such
employments, and for matters connected therewith. WHEREAS, it is expedient
to regulate the employment of unprotected manual workers such as, Mathadi,
Hamal etc., engaged in certain employments, to make better provision for
their terms and conditions of employments, to provide for their welfare,
and for health and safety measures where such employments require these
measures; to make provision for ensuring an adequate supply to, and full
and proper utilization of, such workers in such employments to prevent
avoidable unemployment; for these and similar purposes, to provide for the
establishment of Boards in respect of these employments and (where
necessary) in the different areas of the State; and to provide for purpose
connected with the matters aforesaid; It is hereby enacted in the Twentieth
Year of the Republic of India as follows: -
The Sections of the Act relevant for deciding these appeals are set out
hereinbelow and read as follows:
“1. Short title, extent, application and commencement. –
(3) It applies to the employments specified in the Schedule hereto.
(4A) Notwithstanding anything contained in sub-section (4), and in
Government Notification, Industries and Labour Department, No. UMA.
1272/Lab-IV, dated the 28th March 1972, this Act shall be deemed to have
come into force in the areas specified in column 2 of the Table below on
the dates and in respect of the employments specified in columns specified
in columns 3 and 4 against each such areas in the said Table, respectively.
TABLE
|Sl. |Areas |Date |Name of the employment |
|No. |2 |3 |4 |
|1 | | | |
|1 |Thane and |26th day of|Employment in Grocery |
| |Kalyan Talukas |Dec. 1979. |Market or Shops, in |
| |of the Thane | |connection with loading,|
| |District; and | |unloading, stacking, |
| |Panvel Taluka | |carrying, weighing, |
| |of the Kulaba |1st day of |measuring (filling, |
| |(now Raigad) |August |stitching sorting, |
| |District) |1983. |cleaning) or such other |
| | | |work including work |
| |(b) The whole | |preparatory or |
| |of the Thane | |incidental to such |
| |and Raigad | |operations. |
| |Districts | | |
| |excluding the | |(2) Employment in |
| |Thane and | |markets and other |
| |Kalyan Talukas | |establishments, in |
| |of the Thane | |connection with loading,|
| |District and | |unloading, stacking, |
| |Panvel Taluka | |carrying, weighing, |
| |of the Raigad | |measuring (filling, |
| |District. | |stitching, sorting, |
| | | |cleaning) of soda ash, |
| | | |coal-tar, lime, colour |
| | | |chemicals, chemical |
| | | |products including |
| | | |fertilizers, gunny bags,|
| | | |coir ropes, ropes, mats,|
| | | |hessian cloth, hessian |
| | | |yarn, oil cake, husk |
| | | |chuni and chhal or such |
| | | |other work including |
| | | |work preparatory or |
| | | |incidental to such |
| | | |operations. |
| | | |(3) Employment in onion |
| | | |and potato wholesale |
| | | |markets in connection |
| | | |with loading, unloading,|
| | | |stacking carrying, |
| | | |weighing, measuring |
| | | |(filling, stitching, |
| | | |sorting, cleaning) of |
| | | |such other work |
| | | |including work |
| | | |preparatory or |
| | | |incidental to such |
| | | |operations. |
| | | |(4) Employment in |
| | | |factories and mills |
| | | |manufacturing grocery |
| | | |products if such |
| | | |employment is connected |
| | | |with loading, unloading,|
| | | |stacking, carrying, |
| | | |weighing, measuring |
| | | |(filling, stitching, |
| | | |sorting, cleaning) or |
| | | |such other work |
| | | |including work |
| | | |preparatory or |
| | | |incidental to such |
| | | |operations carried on by|
| | | |workers covered by entry|
| | | |5 in the Schedule to |
| | | |this Act. |
| | | |(5) Employment in |
| | | |factories and mills |
| | | |manufacturing colour |
| | | |chemicals, products |
| | | |including fertilizers, |
| | | |if such employment is in|
| | | |connection with loading,|
| | | |unloading, stacking, |
| | | |carrying, weighing, |
| | | |measuring (filling, |
| | | |stitching, sorting, |
| | | |cleaning) or such other |
| | | |work including work |
| | | |preparatory or |
| | | |incidental to such |
| | | |operations carried on by|
| | | |workers covered by entry|
| | | |5 in the Schedule to |
| | | |this Act. |
Definitions.
(3) "employer", in relation to any unprotected workers engaged by or
through contractor, means the principal employer and in relation to any
other unprotected worker, the person who has ultimate control over the
affairs of the establishment, and includes any other person to whom the
affairs of such establishment are entrusted, whether such person is called
an agent, manager or is called by any other name prevailing in the
scheduled employment;
(4) "establishment", means any place or premises, including the precincts
thereof, in which or in any part of which any scheduled employment is being
or is ordinarily carried on;
(7) "principal employer" means an employer who engages unprotected workers
by or through a contractor in any scheduled employment;
(9) "scheduled employment" means any employment specified in the Schedule
hereto or any process or branch of work forming part of such employment;
(10) "scheme" means a scheme made under this Act;
(11) "unprotected worker" means a manual worker who is engaged or to be
engaged in any scheduled employment;
(12) "worker" means a person who is engaged or to be engaged directly or
through any agency, whether for wages or not, to do manual work in any
scheduled employment and, includes any person not employed by any employer
or a contractor, but working with the permission of, or under agreement
with the employer or contractor; but does not include the members of an
employer's family.
3. Schemes for ensuring regular employment of unprotected workers. –
(1) For the purpose of ensuring an adequate supply and full and proper
utilization of unprotected workers in scheduled employments, and generally
for making better provision for the terms and conditions of employment of
such workers the State Government may by means of a scheme provide for the
registration of employers and unprotected workers in any scheduled
employment or employments, and provide for the terms and conditions of work
of registered unprotected workers, and make provision for the general
welfare in such employments.
4. Making, variation and revocation of scheme. –
(1) The State Government may, after consultation with the Advisory
Committee, by notification in the Official Gazette and subject to the
condition of previous publication, make one or more schemes for any
scheduled employment or group of scheduled employments, in one or more
areas specified in the notification; and in like manner add to, amend, vary
or substitute another scheme for, any scheme made by it:
Provided that, no such notification shall come into force, unless a period
of one month has expired from the date of publication in the Official
Gazette:
Provided further that, the State Government may –
(a) if it considers necessary, or
(b) if a demand or request is made by a majority of the employers or
workers in any other scheduled employment, that the provisions of any
scheme so made for any scheduled employment or any part thereof should be
applied to such other scheduled employment, after consulting the employers
and workers in such scheduled employment by notification in the Official
Gazette, apply the provisions of such scheme or part thereof to such
scheduled employment, with such modifications, if any, as may be specified
in the notification.
(2) The provisions of section 24 of the Bombay General Clauses Act, 1904,
shall apply to the exercise of the power given by sub-section (1) as they
apply to the exercise of a Power given by a Maharashtra Act to make rules
subject to the condition of previous publication.
5. Disputes regarding application of scheme. - If any question arises
whether any scheme applies to any class of unprotected workers or
employers, the matter shall be referred to the State Government and the
decision of the State Government on the question, which shall be taken
after consulting the Advisory Committee constituted under section 14, shall
be final.
SCHEDULE
4. Employment in Grocery Markets or shops, in connection with loading,
unloading, stacking, carrying, weighing, measuring, filing, stitching,
sorting, cleaning or such other work including work preparatory or
incidental to such operations.
5. Employment in markets, and factories and other establishments, in
connection with loading, unloading, stacking, weighing, measuring, filing,
stitching, sorting, cleaning or such other work including work preparatory
or incidental to such operations carried on by workers not covered by any
other entries in this Schedule.
6. The provisions of the 1970 Scheme, insofar as they are relevant for
decision in the present appeals, are set out hereinbelow and read as
follows:
“No. UWA-1469.(GR)_160783/LAB-IV :- In exercise of the powers conferred by
sub-section (1) of section 4 of the Maharashtra Mathadi, Hamal and Other
Manual Workers (Regulation of Employment and Welfare) Act, 1969 (Mah. XXX
of 1969) and of all other powers enabling it in that behalf the Government
of Maharashtra after consultation with the Advisory Committee, hereby makes
the following scheme for employment in grocery markets and shops in
connection with loading, unloading, stacking, carrying, weighing, measuring
or such other work including work preparatory or incidental to such
operations in the areas specified in the Schedule appended to this Scheme,
the same having been previously published as required by sub-section(1) of
the said section 4, namely:-
2. Objects and Application:-
(1) Objects:- The objects of the scheme are to ensure an adequate supply
and full and proper utilization of unprotected workers employed in-
(a) Grocery Markets or Shops in connection with loading, unloading,
stacking, carrying, weighing, measuring [filling, stitching, sorting,
cleaning] or such other work including work preparatory or incidental to
such operations:
(b) Markets and other establishments in connection with loading,
unloading, stacking, carrying, weighing, measuring [filling, stitching,
sorting, cleaning] of soda ash, coaltar, lime, colour chemicals, chemical
products including fertilizers, gunny bags, coir ropes, ropes, mats,
hessian, cloth, hessian yarn, oil, cakes, husk, chuni, chhala, or such
other work including work preparatory or incidental to such operation
carried on by workers not covered by any other entries in the schedule for
efficient performance of work and generally for making better provisions
for the terms and conditions of employment of such workers and make
provision for their general welfare.
(c) onion and potato wholesale markets in connection with loading,
unloading, stacking, carrying, weighing measuring [filling, stitching,
sorting, cleaning], or such other work, including work preparatory or
incidental to such operations.
(d) factories and mills manufacturing grocery products if such employment
is connected with loading, unloading, stacking, carrying, weighing,
measuring, [filling, stitching, sorting, cleaning] or such other work
including work preparatory or Incidental to such operations carried on by
workers covered by entry 5 in the schedule to the Act;
(e) railway yards and goods sheds in connection with loading, unloading,
stacking, carrying, weighing, measuring [filling, stitching, sorting,
cleaning] of grocery articles or such other work preparatory or incidental
to such operations by workers who are not employed by Railway Authorities
and
(f) factories and mills manufacturing colour chemicals, chemicals
products including fertilizers, in connection with the loading, unloading,
stacking, carrying, weighing, measuring [filling, stitching, sorting,
cleaning] or such other work including work preparatory or incidental to
such operation carried on by workers covered by entry 5 in the Schedule to
the said Act;
42. Cost of operating the scheme and provision for amenities and benefits
to registered workers –
(1) The cost of operating this scheme and for providing different
benefits, facilities and amenities to registered workers as provided in the
Act and under this scheme shall be defrayed by payments made by the
registered employers to the Board. Every registered employer shall pay to
the Board such amount by way of levy in respect of registered workers
allotted to and engaged by him as the Board may, from time to time specify
by public notice or written order to the registered employer and in such
manner and at such time as the Board may direct.
(2) In determining what payments are to be made by the registered
employers under sub-clause (1) the Board may fix different rate of levy for
different categories of work, or registered workers, provided that the levy
shall be so fixed that the same rate of levy will apply to all registered
employers who are in like circumstances.
(3) The Board shall not sanction any levy exceeding fifty percent of the
total wage bill without the prior approval of the State Government.
(4) A registered employer shall on demand make a payment to the Board by
way of deposit or provide such, other security for the due payment of the
amount referred to in sub-clause (1), as the Board may consider necessary.
(5) The Secretary shall furnish from time to time, to the Board such
statistics and other information as may reasonably be required in
connection with the operation and financing of the scheme.
(6) If a registered employer fails to make the payment due from him under
sub-clause (1) within the time specified by the Board the Secretary shall
serve a notice on the registered employer to the effect that unless he pays
his dues within three days from the date of receipt of the notice, the
supply of registered workers to him shall be suspended. On the expiry of
the notice period the Secretary shall suspend the supply of registered
workers to defaulting registered employer until he pays his dues.
43. Provident Fund and Gratuity:-
The Board shall frame and operate rules providing for contributory
Provident Fund for registered workers. The rules shall provide for the
rate of contribution, the manner and method of payment and such other
matters as may be considered necessary so however that the rate of
contribution is not less than 6 ½ per cent of the wages of a registered
worker and is not more than 8 per cent of such wages.
Provided that pending the framing of the rules it shall be lawful for the
Board to fix the rate of contribution and the manner and method of payment
thereof.
(1a) In framing rules for the contributory Provident Fund the Board shall
take into consideration, the provisions of the Employees’ Provident Funds
Act 1952 as amended from time to time and the schemes made thereunder for
any establishment.
The Board shall frame rules for payment of gratuity to registered workers.
(2a) In framing rules for the payment of gratuity to registered workers,
the Board shall take into consideration the provisions of the Payment of
Gratuity Act, 1972 as amended from time to time.
The rules of the provident fund and Gratuity framed by the Board shall be
subject to the previous approval of the State Government.”
7. The first contention of Shri Cama, that the 1970 Scheme, insofar as
it provides for employment in a factory manufacturing chemical products, is
ultra vires the Schedule to the 1969 Act, has to be rejected. We agree
with learned counsel for the respondent that clause 5 of the Schedule to
the Act is a residuary clause which would rope in employment in factories
in connection with loading, unloading, etc. carried on by workers not
covered by any other entries in the Schedule. Admittedly, manufacture of
petro chemicals in factories is not covered by any other entry including
entry 4 to the Schedule. For this reason, we are of the view that the
provisions of the 1970 Scheme dealing with manufacture of petro chemicals
in factories would be within the coverage of the residuary entry i.e. Item
5 of the Schedule to the 1969 Act. This being so, no part of the 1970
Scheme is ultra vires the 1969 Act.
8. The second submission of learned counsel for the appellant has also
to be rejected for the reason that clause 2(1)(f) of the 1970 Scheme is
intra vires Section 1(4A) table column 4 item 5 of the 1969 Act. It is
clear that the expression “products including fertilizers” is wider than
“chemical products including fertilizers”. The 1969 Act’s terminology being
wider than the terminology of the impugned 1970 Scheme, obviously the 1970
Scheme when it speaks of “chemical products” manufactured in factories and
covered by entry 5 in the schedule to the 1969 Act would be intra vires the
expression “products including fertilizers”.
9. The further submission of Shri Cama, learned senior counsel, that the
appellant allegedly manufactures petro chemical products and not chemical
products has been correctly repelled by the Division Bench of the Bombay
High Court by stating that “petro chemical products” would be a species of
the genus “chemical products”. In fact, the appellant has admitted that it
manufactures polystyrene (granules). Polystyrene in turn has been
described as an inexpensive and hard plastic which is a vinyl polymer. In
the report of the working group on chemicals and petro chemicals in the
11th Five Year Plan from 2007-2008 to 2011-2012 made by the Department of
Chemicals and Petro Chemicals, it is stated:-
“1. Petrochemicals are derived from various chemical compounds, mainly
hydrocarbons. These hydrocarbons are derived from crude oil and natural
gas. Among the various fractions produced by distillation of crude oil,
petroleum gases, naphtha, kerosene and gas oil are the main feedstocks for
the petrochemical industry. Ethane and natural gas liquids obtained from
natural gas are the other important feedstocks used in the petrochemical
industry. Olefins (Ethylene, Propylene & Butadiene) and Aromatics
(Benzene, Toluene & Xylenes) are the major building blocks from which most
petrochemicals are produced.
2. Petrochemical manufacturing involves manufacture of building blocks
by cracking or reforming operation; conversion of building blocks into
intermediates such as fibre intermediates (Acrylonitrile, Caprolactum,
Dimethyl Terephthalate/Purified Terephthalic Acid, Mono Ethylene Glycol);
precursors (Styrene, Ethylene Dichloride, Vinyl Chloride Monomer etc.) and
other chemical intermediates; production of synthetic fibers, plastics,
elastomers, other chemicals and processing of plastics to produce consumer
and industrial products.
10. A perusal of the aforesaid report shows that not only are petro
chemicals derived from various chemical compounds, but also that petro
chemical manufacturing involves among other things the production of
plastics. In fact, in a report made by the Inquiry Officer appointed under
Section 13 of the Act, the authorized officer came to the conclusion:
“Under these circumstances, my opinion is that polystyrene production is
not a petroleum product but it is a chemical or chemical product. For a
moment if it is accepted that company is a petrochemical company and
producing petrochemical, even though petrochemical is also one of the
chemical and therefore no reason is seen for not accepting a chemical
production and Mathadi Act and Scheme are not applicable. After all
petrochemicals are chemicals. It is not mentioned anywhere that
petrochemicals should be omitted while implementing Mathadi Act and Scheme.
Under the circumstances, I am giving my ruling that company’s above point
is not valid and hence Mathadi Act and Scheme is applicable to the
company.”
11. From the above, it is clear that the conclusion reached by the
Government in its order dated 24.6.2008 that petro-chemical products are a
species of chemical products and that the appellant manufactures chemical
products, cannot be said to be perverse. We must not forget that the High
Court in dismissing the writ petition was exercising the power of judicial
review which would not go to the merits of the controversy before the
Government but would only go to perversity –that no reasonable person
invested with the same power could possibly arrive at the conclusion
arrived at by the Government. Even otherwise, we must not forget that we
are dealing with a welfare legislation whose primary object is to provide
adequate employment for and better terms and conditions for the employment
of daily wagers, and to provide for their general welfare, which includes
health and the safety measures, and to provide them with various other
facilities including provident fund and gratuity. Arguments indulging in
unnecessary hairsplitting have therefore necessarily to be dismissed out of
hand.
12. Another submission made by learned senior counsel appearing on behalf
of the appellant is that the 1970 Scheme deals with grocery markets or
shops as its title suggests and cannot therefore include within it’s scope
petro chemicals manufactured in factories without following the drill of
Section 4(1)(b) of the 1969 Act. This argument again has to be rejected for
the reason that both Sections 3 and 4 of the Act refer to a scheme which
provides for registration of unprotected workers “in any scheduled
employment or employments” (as per Section 3(1) of the 1969 Act). Further,
Section 4(1) of the 1969 Act also makes it clear that the State Government
may make one or more Schemes for any scheduled employment or group of
scheduled employments. On a reading of these provisions it becomes clear
that there can be a composite scheme which takes within its ken various
employments which may be contained in more than one entry of the Schedule
to the 1969 Act. This being so, it is clear that merely naming a
particular composite scheme as a grocery market or shop scheme does not
carry the matter further. It is clear that the present scheme specifically
takes within its ken factories manufacturing chemical products covered by
entry 5 in the schedule to the 1969 Act, and would therefore be a scheme
which provides for registration of unprotected workers in different
scheduled employments and/or a group of scheduled employments. This being
the case, it is clear that the attack based on nomenclature of the 1970
Scheme as a grocery market or shops scheme must fail.
13. We also agree with learned counsel for the respondent that Section
2(4) of the 1969 Act, which defines “establishment”, would not only include
any place or premises in which manufacture of petro chemicals is being
carried on, but would also include the precincts thereof, which would
include transportation made beyond the factory gate but within the
precincts of the factory. This being the case, it is common ground that
workers are necessary and are being used by the appellant to load the
appellant’s products on to the vehicles provided by the appellant’s
purchasers. This being the case, any argument that the factories’
manufacturing activities are mechanized and that there is no need for
manual labour would have no material bearing to the case at hand.
14. This Court, while approving a Full Bench decision of the Bombay High
Court, has in the Bhuwalka Steel case interpreted the expression
“unprotected worker” occurring in Section 2(11) of the 1969 Act as meaning
every manual worker who is engaged or to be engaged in any scheduled
employment, irrespective of whether or not he is protected by other labour
legislations. This Court referred to the Objects and Reasons for the 1969
Act in the following terms:
“The Statement of Objects and Reasons mentions that report was made by the
Committee to the Government on 17.11.1967. In that report, it was mentioned
that the persons engaged in vocations like mathadi, hamals, casual workers
employed in docks, lokhandi jatha workers, salt pan workers and other
manual workers mostly work outside fixed premises in the open and are
mostly engaged on piece-rate system in a number of cases. They are not
employed directly, but are either engaged through Mukadum or Toliwalas or
gangs as and when there is work and they also work for different employers
on one and the same day. The volume of work is not always constant. In view
of the peculiar nature of work, its variety, the precarious means of
employment and the system of payment and the particular vulnerability to
exploitation of this class of labour, the Committee had come to the
conclusion that the application of the various labour laws to such workers
was impracticable and regulation of their working and other conditions by
introducing amendments to the existing labour laws was not possible.
Therefore, the Committee recommended that the working and the employment
conditions of such unprotected workers should be regulated by a special
enactment.
The Statement of Objects and Reasons further mentions that after
holding series of meetings with the representatives of the interests
affected by the proposed legislation and after considering all these
suggestions and examining the recommendations of the Committee, Government
had decided to bring the Bill which seeks to regulate the employment of
mathadis, hamals and other manual workers employed in certain employments,
to make better provision for their terms and conditions of employment, to
provide for their welfare, for health and safety measures, where such
employments require those measures, to make provision for ensuring an
adequate supply to, and full and proper utilization of such workers in such
employments, to prevent avoidable unemployment and for such purposes to
provide for the establishment of Boards in respect of these employments and
(where necessary) in the different areas of the State and to provide for
purposes connected with the matters aforesaid. (emphasis supplied)” (at
Paras 9 and 10)
15. After construing Section 2(11) of the 1969 Act to cover all
“unprotected workers”, i.e. all manual labour engaged in any scheduled
employment irrespective of protection under other Labour Legislation, this
Court went on to hold:-
“Before parting with the judgment, we must refer to the fact that this
legislation, which came way back in 1969, has in its view, those poor
workmen, who were neither organized to be in a position to bargain with the
employers nor did they have the compelling bargaining power. They were
mostly dependent upon the Toliwalas and the Mukadams. They were not certain
that they would get the work everyday. They were also not certain that they
would work only for one employer in a day. Everyday was a challenge to
these poor workmen. It was with this idea that the Board was created under
Section 6 of the Mathadi Act. Deep thoughts have gone into, creating the
framework of the Boards, of the schemes etc. With these lofty ideas that
the Act was brought into existence. In these days when Noble Laureate
Professor Mohd. Yunus of Bangladesh is advocating the theory of social
business as against the business to earn maximum profits, it would be
better if the employers could realize their social obligations, more
particularly, to the have-nots of the society, the workers who are all
contemplated to be the inflicted workers in the Act.” (at Para 83)
16. Taking a cue from the Objects and Reasons for this piece of social
legislation and from the well known doctrine of construing such legislation
in an expansive manner to further the object of welfare Legislation of the
kind mentioned hereinabove, and not to stultify such object, we hold that
the Bombay High Court cannot be faulted in its reasoning. It must also not
be forgotten that the object of the 1970 Scheme is not only to provide work
to both employer and employee but also to provide amenities and benefits to
registered workers. These amenities and benefits are to be provided by the
Board to employees by charging the employer with a levy which cannot exceed
50% of the total wage bill of the employer without the prior approval of
the State Government. We are told that in the present case the levy amount
is 41%, which is utilized not only to look after the health of the workers,
but also to give them terminal benefits such as provident fund and gratuity
provided for by clause 43 of the 1970 Scheme.
17. It was further submitted by Shri Cama that on a conjoint reading of
the definitions of “employer”, “principal employer” and “worker” contained
in Sections 2(3), (7), (12), as the two societies are contractors employing
contract labour for and on behalf of the appellant company’s purchasers,
the appellant company cannot be said to be the “principal employer” who is
liable to be registered under the 1969 Act. We are afraid that this
contention does not lie in the mouth of the appellant company. By an
application made for registration under the 1969 Act dated 11.10.1996, in
column No.7 which reads as follows:-
“7. Are you employing workers through contractors? If so, state the name
of the contractors”
the Company has specifically mentioned two cooperative societies and one
other contractor thereby admitting that it actually employed about 30
workers itself through contractors.
18. By a letter dated 1.3.2003, i.e. almost 7 years after the appellant
company had been registered as an employer under the 1969 Act, the
appellant company applied to remove its name from the register contained in
the 1969 Act. This was followed up by a representation dated 10.5.2004 in
which the appellant company stated:-
“The company, although did not engage any mathadi workmen, in view of the
prosecution, registered itself on 11/10/1996, and was issued Registration
No.4516. After registration, the Company with a view to close the matter
pleaded guilty in the proceedings filed by the Board before the Labour
Court. The Company submits that no Toli was allotted to it in spite of
being registered till 21/3/2001, as the Board was well aware that the
Company itself did not engage any persons for loading trucks and that the
truckers/customers engaged persons from the Societies for loading work.
The Company conducted and continued its business as usual and sold its
products on ex-work basis whereby the customer as earlier sent Truckers
along with persons who were from the Societies for loading.”
19. Similarly in the writ petition filed before the High Court, the
appellant company’s own pleading in paragraph 8 is that the appellant
registered itself with the respondent No.2 Board under pressure of the
Board believing that the Act and the scheme were applicable. It was
granted registration No.4516. Further, in proceedings under the Act
against the company it admitted that it pleaded guilty for not having
registered itself. This being the state of facts before us, we cannot
characterize the State Government’s finding in its order dated 24.6.2008 as
even incorrect, let alone perverse. As pointed out above, in paragraph 6
of its order, the State Government specifically arrived at a finding that
Mathadi work was carried out in the company by two cooperative societies
who had the work done by employing workers and got compensated by the
appellant company. This being the case, there is no factual foundation for
Shri Cama’s argument that it is the appellant’s purchasers and not the
appellant company itself that is the principal employer under the Act.
20. One other contention of Shri Cama needs to be noticed. Shri Cama
argued before us that the 1969 Act being inconsistent with the Contract
Labour (Regulation and Abolition) Act, 1970 would be repugnant to the said
Act and therefore invalid under Article 254 of the Constitution. He
candidly admitted that no such ground had been raised or argued before the
High Court, but asked that the Supreme Court allow him to raise this plea
as it is a pure question of law. We are afraid that this is not possible
for the reason that even if Shri Cama were to be correct in his submission
that the Central Parliamentary Act of 1970 would impliedly repeal the 1969
State Act, yet Section 30(1) of the said Act provides that despite the
provisions of the 1970 Act being allegedly inconsistent with the 1969 State
Act, yet if contract labour employed in an establishment are entitled to
benefits which are more favourable to them than those to which they would
be entitled under the 1970 Act, the contract labour shall continue to be
entitled to more favourable benefits, notwithstanding that they also
receive benefits in respect of other matters under the Central
Parliamentary Act. This being the case, it was incumbent upon the writ
petitioner not only to take up the plea of repugnancy and implied repeal
but also to state as a fact that what the workmen would be entitled to
under the 1969 State Act would not be as beneficial as what they would be
entitled to under the 1970 Central enactment. This would then give the
respondent Board, in turn, an opportunity of either admitting or denying
this factual averment. There being no pleading to this effect in the writ
petition before the High Court, it is clear that it is not possible for us
to accede to Shri Cama’s request to go into the argument on repugnancy and
implied repeal.
21. This appeal is, accordingly, dismissed.
Civil Appeal No.9999 of 2010
22. In this appeal, the fact situation is that the appellant company is
manufacturing soft drinks being aerated water and bottled water. A State
Government order dated 18.8.2008 made under Section 5 of the Act rendered
the following finding:-
“5. The Government has perused all the case papers and considered the
above circumstances. After examining all the aspects of the case the
Government has arrived at the following findings:-
(a) The company products drinking water and drinks of various kinds such
as Pepsi, Mirinda and Seven-up.
(b) In the said products the Company uses as raw material such as Sugar,
Caustic Soda, Carbonic Acid; Ascorbic Acid; Coffin, Sequesters Agents,
Buffering; Carmel Water, Emulsifying and Stabilizing.
(c) “Drink” is one of the substances of food products;
(d) “Drink” is a grocery product;
(e) The raw material from which they are produced are also primarily
consumable food products.
(f) The raw material required for the manufacture of the product as also
the product manufactured are both consumable food products (liquid and
solid).
(g) Mathadi Act and the Scheme famed thereunder being beneficent and
benevolent welfare Schemes and the object is to make the same applicable to
the companies manufacturing grocery market products as provided in the
Grocery Markets & Shops Unprotected Workers (Regulation of Employment and
Welfare) Scheme, 1970.
6. In the above circumstances, the State has come to the finding that
the Scheme of the Grocery Bazar and Shops Workers Board is applicable to
the Company.
7. The company is engaged in products of drinks and drinking water and
consequently in carrying on works in the nature of Mathadi such also
loading, unloading, stacking, carrying setting up of raw material. The
said works was carried out by 49 workers of contractor M/s M.M. Patil under
the supervision the Grocery Board Supervisor. The said workers, excepting
their wages, were deprived of P.F. contribution, paid holidays, house rent,
workmen’s compensation, bonus and other medical benefits. In these
circumstances, the provisions of the Maharashtra Mathadi, Hamal and other
Manual Workers (Regulation of Employment and Welfare) Act, 1969 and the
Grocery Markets or Shops Unprotected Workers (Regulation of Employment and
Welfare) Scheme, 1970 are applicable to your establishment. Therefore, the
application made by you to the Government under the provisions of section 5
of the Mathadi Act is rejected.”
23. A writ petition filed against the said order before the Bombay High
Court failed. The High Court dismissed the petition as follows:-
“The second submission is that the petitioners are manufacturing Soft
Drinks like Pepsi, Mirinda, Seven-up etc. and it is not a grocery items.
It is not disputed before this court that in the manufacturing process of
these soft drinks, the petitioners are using sugar, carbonic acid, ascorbic
acid, coffin, sequestrates agents. The petitioners are using caustic soda
for cleaning bottles. But we find that these soft drinks are provided to
refresh persons and to provide energy to them when they are exhausted. The
items, like sugar or carbonic hydride provide energy. It is also not
disputed that all these items used in the manufacturing process are the
grocery items and accordingly the State Government has also made
observations that these are the grocery items. Apart from that the Oxford
Dictionary has given the meaning of “grocery”. According to said
dictionary “Grocery” means items of food in a grocery shop or a super-
market. Now-a-days, all the Soft Drinks are available in the grocery shops
and the super-markets. They are the items of food and, therefore, they are
all grocery items. Apart from this, it is not disputed by the learned
counsel that in all the manufacturing process, loading and unloading
activities are carried out, which are the activities of the Mathadi
Kamgara. We do not find any substance in the contentions raised. The writ
petition is rejected.”
24. Shri Giri, in addition to the submissions raised by Shri Cama, on his
special facts submitted that it was fallacious to take into account raw
materials that ultimately went into the manufacturing of the finished
products and to state that the said raw materials being groceries would
therefore make the final product also a “grocery”. He further argued that
the expression “grocery” would only comprise articles which are required as
daily necessities such as oil, grain, etc. in households, and this not
being the case, soft drinks manufactured and bottled water would be outside
the expression “grocery”. He also argued that when the Act was extended to
the appellant company’s factory, in the year 1983, whatever may be the
position today, the position in 1983 was clear and obviously the items
manufactured by the appellant company would not have fallen within the
expression “grocery” as understood in 1983.
25. Learned counsel appearing on behalf of the Board has repelled all
these arguments stating that the expression “grocery” was wide enough to
include all items of food and drink which would necessarily take in the
appellant company’s products. He reiterated his argument on construing a
beneficial enactment such as the 1969 Act to achieve the object set out and
that assuming that the term “grocery” has a narrower meaning, obviously the
broader meaning should be taken into account. Further, he also stated that
whatever the position was in 1983, at the stage of the show cause notice in
2005 and by the date of the State Government order in 2008 both soft
drinks manufactured as well as bottled water manufactured by the appellant
company were certainly household items among the middle class and rich
sections of society.
26. The definition of “grocery” contained in the Oxford Advanced
Learner’s Dictionary of Current English, 9th Edition, is as follows:-
“grocery – (grocery store) a shop/store that sells food and other things
used in the home. In American English ‘grocery store’ is often used to
mean supermarket. 2. Groceries – food and other goods sold by a grocer or
at a supermarket.”
We also find a useful definition contained in Collins English Dictionary,
Third Edition –
“groceries – merchandise, esp. Foodstuffs, sold by a grocer”.
27. That the expression “grocery” in 2005, when the Act was sought to be
applied to the appellant company, would include soft drinks manufactured by
the appellant company and bottled water as daily household goods among the
middle class and rich sections of society, was not seriously contested by
Shri Giri. The argument that we should find the meaning of the expression
“grocery” on the date on which the Act was extended to the area in which
the appellant company’s factory was situate is fallacious in law. This
Court in The Senior Electric Inspector and others v. Laxmi Narayan Chopra
and others, 1962 (3) S.C.R. 146, when confronted with a similar argument to
that made by Shri Giri, repelled the said argument in the following terms:
“The legal position may be summarized thus: The maxim contemporanea
expositio as laid down by Coke was applied to construing ancient statutes
but not to interpreting Acts which are comparatively modern. There is a
good reason for this change in the mode of interpretation. The fundamental
rule of construction is the same whether the Court is asked to construe a
provision of an ancient statute or that of a modern one, namely, what is
the expressed intention of the Legislature. It is perhaps difficult to
attribute to a legislative body functioning in a static society that its
intention was couched in terms of considerable breadth so as to take within
its sweep the future developments comprehended by the phraseology used. It
is more reasonable to confine its intention only to the circumstances
obtaining at the time the law was made. But in a modern progressive
society it would be unreasonable to confine the intention of a Legislature
to the meaning attributable to the word used at the time the law was made,
for a modern Legislature making laws to govern a society which is fast
moving must be presumed to be aware of an enlarged meaning the same concept
might attract with the march of time and with the revolutionary changes
brought about in social, economic, political and scientific and other
fields of human activity. Indeed, unless a contrary intention appears, an
interpretation should be given to the words used to take in new facts and
situations, if the words are capable of comprehending them. We cannot,
therefore, agree with the learned Judges of the High Court that the maxim
contemporanea expositio could be invoked in construing the word “telegraph
line” in the Act.” (at 156, 157)
28. We thus find that the High Court was absolutely correct in not
interfering with the State Government order dated 18.8.2008 and in
dismissing the writ petition filed by the appellant company. For the same
reasons given in Civil Appeal No.10000 of 2010, we therefore reject this
appeal as well. The appeal is, accordingly, dismissed, with no order as to
costs.
…..........................J.
(Kurian Joseph)
…..........................J.
(R.F. Nariman)
New Delhi;
February 12, 2016.