Bombay High Court
Kay Kay Embroideries Pvt. Ltd. ... vs Cloth Market And Shops Board And Ors. on 3 March, 2006
Equivalent citations: 2006(3)BOMCR66, (2006)IIILLJ824BOM
Author: D.Y. Chandrachud
Bench: F.I. Rebello, D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
Page 0842
1. Principally two questions of law have arisen for the determination of this Court in these proceedings:
-(i) Whether the expression "unprotected worker" means (as the Petitioner submits), a worker not protected by labour legislation or whether the expression means a manual worker who is engaged or to be engaged in any scheduled employment as defined in Section 2(11) of the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969; and
-(ii) Whether a Mathadi worker who has been engaged directly by an employer would fall outside the purview of the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969.
Page 0843
2. We shall in the course of the order briefly advert to the relevant provisions of law having a bearing on the subject matter of this case and of the precedents in the field. For the reasons which we would indicate, we are respectfully of the view that the interpretation placed in a judgment of this Court in Century Textiles & Industries Ltd. v. State of Maharashtra 2000 II CLR 279 on the provisions of the Act, is in conflict with the statutory provisions enacted by Parliament and that the correctness of the decision would, therefore, merit a re-examination by a largerBench. II
3. Writ Petition 7671 of 2005 has been argued before the Court as a lead petition and some facts would have to be elucidated in order to appreciate the controversy. The Petitioner has a factory at the MIDC Industrial Area, Mahape, Navi Mumbai, in which, according to the Petitioner, job work of embroidery is carried out on cloth supplied by customers. The Petitioner also has a Unit at Koparkhairane and another Unit at Lower Parel, Mumbai. From the factory of the Petitioner, after the work of embroidery is carried out, each consignment of cloth goes to the mending unit at Koparkhairane where the work is checked for defects and where defects are rectified. About 34 employees are engaged in the factory, who are stated to be direct and regular employees. A Sales Office is at Lower Parel and the Petitioner has another Storing and Mending Unit at 23, Kewal Industrial Estate, Senapati Bapat Marg, Mumbai. An Inspector of the Cloth Market and Shops Board, Mumbai (the First Respondent) visited the Storage-cum-Mending Unit on 28th March 2001 and noted that even though the employer was not registered, he was engaging registered workers of Toli No. 532-B assigned by the Board. On 19th June 2001, the Petitioner got its establishment at 23, Kewal Industrial Estate registered under the Mathadi Act. Thereupon, the First Respondent allotted Toli No. 532-B to the Petitioner. The Third Respondent, which is a Trade Union, made a demand that Mathadi work at the Units at Koparkhairane and Mahape should also be got done from Toli 532-B. On 14th December 2001, a notice was issued by the First Respondent, calling upon the Petitioner to entrust the Mathadi work at the Mahape factory to the workers of Toli 532-B and to start remitting their wages to the First Respondent. The Petitioner registered its Koparkhairane Unit with the First Respondent on 14th September 2002. Toli 532- B was assigned to that Unit. Thereupon, there was a demand from the Union that the Petitioner should engage the workers from Toli 532-B also at its Mahape factory. A notice was issued to the Petitioner on 17th June 2004 to which there was a reply. On 16th May 2005, an Inspector of the First Respondent visited the establishment. On 20th July 2005, an order came to be passed directing the Petitioner to engage Mathadi workers of Toli 532-B for carrying out Mathadi work at the Mahape factory failing which the Board would be constrained to launch a prosecution. Subsequently, on 14th September 2005, the Petitioner was called upon to deposit the wages for the months of June and July 2004. That has led to the institution of proceedings under Article 226 of the Constitution. III
4. On behalf of the Petitioner, it has been submitted that (i) At the Petitioner's factory at Mahape, Mathadi work is being done by direct and regular monthly Page 0844 rated employees engaged by the Petitioner who are in receipt of benefits under Labour Legislation such as the Factories Act, 1948, the Payment of Wages Act, 1936, the Employees' State Insurance Act, 1948, Industrial Disputes Act, 1947 and other cognate legislation; (ii) The Mathadi Act is designed to protect unprotected workers and the Act as well as the Scheme framed thereunder can have no application whatsoever to direct and regular workers who are in receipt of benefits under Labour Legislation; (iii) The Mathadi Act would be applicable only in the event of an employer employing unprotected workers meaning thereby those workers who have no security of employment or employees who are exploited or those who are employed at the whims of the employer; (iv) The relevant scheme that has been framed under the provisions of the Act is applicable to factories manufacturing cloth and inasmuch as the factory of the Petitioner does not manufacture cloth, but carries out embroidery work on cloth supplied by customers, the scheme itself is not applicable. IV
5. While considering these submissions, it would be necessary to note that the Mathadi Act is an Act "for regulating the employment of unprotected manual workers employed in certain employments in the State of Maharashtra and to make provision for their adequate supply and proper and full utilisation in such employments, and for matters connected therewith". The expression "unprotected worker" is defined in Section 2(11) thus:
(11) unprotected worker" means a manual worker who is engaged or to be engaged in any scheduled employment." The expression "worker" is defined in clause (12) of Section 2 as follows:
(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". Section 3(1) of the Act empowers the State Government to frame a scheme for the purpose of ensuring an adequate supply and full and proper utilization of unprotected workers in scheduled employments, and generally for making better provisions for the terms and conditions of employment of such workers. The scheme inter alia may provide for the registration of employers and of unprotected workers in any scheduled employment and provide for the terms and conditions of work of registered unprotected workers. The scheme can also make provision for protecting the general welfare of such workers in these employments.
The expression "scheduled employment", it may be noted, means any employment specified in the Schedule to the Act or any process or branch of work forming part of such employment (Section 2(9)). Sub-section (2) of Section 3 elaborates various aspects that can be provided for by the scheme. Among them, a scheme can provide for (i) Its application to classes of registered unprotected workers and employers; (ii) Regulating the recruitment and entry into the scheme of unprotected workers and for Page 0845 regulating the employment of registered unprotected workers; (iii) The time and manner of remitting wages for work which is done; (iv) Providing the minimum wages even when full work may not be available; (v) Prohibiting or restricting the employment of unprotected workers to whom the scheme does not apply; (vi) The health and safety of such workers; and (vii) The constitution of any fund or funds including provident fund for the benefit of such workers. Entry 2 of the Schedule provides thus:
2. Employment in Cloth and Cotton 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.
Entry 5 of the Schedule is as follows :
5. Employment in markets, and factories and other establishments, 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 not covered by any other entries in this Schedule." Section 21 of the Act provides that nothing in the Act shall affect any rights or privileges, which any registered unprotected worker employed in any scheduled employment is entitled to, on the date on which the Act comes into force, under any other law, contract, custom or usage applicable to such workers, if such rights or privileges are more favourable to him than those to which he would be entitled under the Act and the scheme. Under Section 22, the State Government may exempt from the operation of the Act or the Scheme all or any class or classes of unprotected workers employed in any scheduled employment, or in any establishment, or part of any establishment of any scheduled employment, if in the opinion of the Government all such unprotected workers or such class or classes of workers, are in the enjoyment of benefits which are on the whole not less favourable to such unprotected workers than the benefits provided by the Act or the scheme.
6. In exercise of powers conferred by Section 3 of the Act, several schemes have been framed by the State Government and among them is the Cloth Markets or Shops Unprotected Workers (Regulation of Employment and Welfare) Scheme 1971. The application of the Scheme is provided for in clause 2(2) thus:
(2) Application:- This Scheme shall apply, in Greater Bombay, Thane District and Raigad District to
(a) registered workers employed in Cloth Markets or shops in connection with loading, unloading, stacking, carrying, weighing, measuring, filling, stitching, sorting, cleaning incidental to such operations, and
-(b) registered workers employed in Markets and Factories and other establishments in connection with loading, unloading, stacking, carrying, weighing or measuring, filling, stitching, sorting, cleaning of -
-(i) cloth of all kinds including cotton, woollen, silk (whether partially or wholly, of artificial, synthetic, or man-made fibres) cloth and hosiery, and articles made out of them, or Page 0846
-(ii) yarn of all kinds including cotton, woollen, silk (whether of artificial, man-made or synthetic fibres) yarn, or such other work including work preparatory or incidental to such operations carried on by the workers referred to in entry 5 in the Schedule to the Act.
-(c) the registered employers engaging such workers." By a notification dated 14th October 1992 of the State Government, the application of the scheme was extended to articles made out of cloth and employment in markets and factories and other establishments in connection with loading, unloading, stacking, carrying, weighing, measuring, filling, stitching, sorting, cleaning of cloth of all kinds including cotton, woollen and silk cloth and hosiery and other articles made out of them or such other work including work preparatory or incidental to such operations.
7. The Statement of Objects and Reasons underlying the enactment of the Legislation would shed a considerable degree of light upon the reasons for the enactment. Hence, it would be material to extract therefrom:
It had been represented to Government that persons engaged in occupations like Mathadis, hamals, fishermen, salt pan workers, casual labour, particularly employed in docks, khoka workers and lokhandi jatha workers and those engaged in similar manual work elsewhere, are not receiving adequate protection and benefits within the ambit of the existing labour legislation. With a view to studying the conditions of work of the persons engaged in these occupations, the Government appointed a Committee on 15th July 1965, consisting of representatives of employers and employees under the Chairmanship of Shri Shivajirao Patil, then M. L. C. to examine whether relief could be given to these workers within the ambit of the existing labour legislation and make recommendations as to how such relief could be given.
After making exhaustive enquiries and considering the views expressed by the representatives of the employers and employees before it, the Committee submitted its report to Government on 17th November 1967. The Committee has in the main observed that the persons engaged in avocations like mathadis, 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 Mukadams 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 came 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. The Committee, therefore, after bearing in mind the recommendations of the Mathadi Labour Inquiry Committee and Lokhandi Jatha Inquiry Page 0847 Committee, recommended that the working and employment conditions of such unprotected worker should be regulated by a special enactment and entrusted to one or more Boards.
The report of the Committee was published by Government for general information and suggestions, if any, from interested persons were invited with regard to the recommendations made by the Committee. Thereafter, Government held a 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 has decided to bring this 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 these measures, to make provision for ensuring an adequate supply to and full and proper utilisation 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.
8. The provisions of the Act and of certain Schemes framed thereunder came to be challenged before this Court in C. Jairam Pvt. Ltd. v. The State of Maharashtra Misc. Petition 150 of 1973. By a judgment and order dated 19th April 1974, Mr.Justice D.M. Rege upheld the constitutional validity of the Act and the Scheme that was in question before the Court, namely, the Cotton Merchants Scheme of 1972. Subsequently, on 24th April 1974, Rege, J. upheld the constitutional validity of the Act and of the Khokha and Timber Unprotected Workers Scheme 1973 in S.B. More v. State of Maharashtra Misc. Petition 414 of 1973. The question of validity was also the subject matter of determination in a judgment of a Division Bench of this Court dated 16th January 1980 (Lallubhai Kevaldas v. The State of Maharashtra Writ Petition 119 of 1979).
9. The two judgments of the Learned Single Judge and the judgment of the Division Bench are essentially decisions which consider challenges to the constitutional validity of the Act and of the Schemes that were framed thereunder which were questioned. Therefore, when we consider these judgments and extracts therefrom which were relied upon by Counsel for the parties before us, it would be necessary to emphasise this context in which the judgments were delivered. Neither before the Learned Single Judge, nor before the Division Bench did the point which is raised before us arise for consideration.
10. In the course of the first judgment dated 19th April 1974, Mr.Justice Rege inter alia dealt with the challenge on the ground of a violation of Articles 14 and 19(1)(g) of the Constitution and repelled the challenge that the benefits which were sought to be granted by the Act and by the Scheme could have been secured by amending industrial legislation such as the Industrial Disputes Act, 1947, the Payment of Wages Act, 1936, the Employees' State Insurance Act, 1948 and the Employees' Provident Funds and Miscellaneous Page 0848 Provisions Act, 1952 which already held the field. The Learned Single Judge held as follows :
The object of the present legislation, as it is apparent from its preamble, unlike the several aforesaid Acts, pointed out by the learned Counsel for the Petitioners, is not only to secure benefits as regards the terms and conditions of service of the unprotected workers or to provide them with the benefits of provident fund, leave with wages, gratuity, pension, etc. Its further object is also to provide for their welfare, for health and safety measures, to make provision for health and safety measures, to make provision for ensuring an adequate supply to, and full and proper utilisation of such workers in such employments to prevent avoidable unemployment and to provide for purposes connected with the aforesaid matters. The various other Acts mentioned by the learned Counsel for the Petitioners apply only to particular types of employees or workers covered thereunder and cater only to the particular benefits. In the sphere of their objects also they are very narrow and cannot be even compared with the wide object or purpose of the impugned legislation. Under the circumstances, merely because some of the benefits proposed to be conferred on the unprotected workers under the impugned legislation could have been conferred upon them by amending the existing legislation by making it applicable to them, would not render the said special legislation for unprotected workers thereunder invalid as contended by the learned Counsel for the petitioners.
Adverting to the malpractices in the context with which the legislation was enacted, the Learned Single Judge held thus :
As the history of the legislation which I have referred to above would show, in several employments various mal practices were indulged in by the employers and the Muccadams of the Tolis in respect of the terms and conditions of work of the unprotected workers. It was also found that the said workers were not getting the benefit of provident fund, gratuity, leave, etc. which the industrial workers were getting. In order therefore, to give protection to the said workers from mal-practices indulged against them and to secure for them the said benefits, the said legislation which is a piece of social legislation came to be enacted.
In the second judgment dated 24th April 1974, Mr.Justice Rege once again repelled the submission of a violation of Article 14, which submission was founded on the protection that was already available under other industrial legislation, with the following observations:
Merely because to those workers the Bombay Shops and Establishments Act, 1923, the Payment of Wages Act, 1936, the Workmen's Compensation Act, 1923, The Minimum Wages Act, 1948, the Payment of Bonus Act, 1965, the Payment of Gratuity Act, 1972, and the Employees' Provident Funds and Family Pension Act, 1952, are made applicable that by itself, would not afford to them complete protection in respect of things not covered by these special legislations, as it envisaged by the Act and the Scheme. Moreover, the Act and the scheme themselves protect any higher benefits received by such workers under any other legislation and the Scheme on that ground therefore, cannot be declared to be ultra vires the Act.
Page 0849 The Division Bench in its judgment dated 16th January 1980 agreed with the view of Rege, J. in the earlier two decisions and observed thus:
The obligation of the employers and employees to get compulsorily registered is merely a part of the mechanism aimed at ensuring effective enforcement of the Act. It is obvious that the main object of the act is to ensure some element of security to the casually employed workman and ensuring certain employment benefits to them which are available to the other monthly paid or other regular workers governed by the provisions of the Industrial Disputes Act, Minimum Wages Act and other enactments. That is why the workers governed by this Act are described as " unprotected manual workers.
11. On behalf of the Petitioner reliance has been placed on a subsequent decision of a Division Bench of this Court in Century Textiles & Industries Ltd. v. State of Maharashtra 2000 II CLR 279. The question as regards the applicability of the Act was agitated before the Division Bench and in para 26 of the judgment the Division Bench noted, as an admitted position, that the workers sought to be covered by the Respondents were working through contractors in the factory of the Petitioners. The contention of the Petitioners was that the workers had all the protection available under the Industrial Disputes Act, 1947 and that the workers would, therefore, not be covered by the Mathadi Act and the Scheme. While noting that the contention of the Petitioners had not been adequately denied in the reply, the Division Bench then held thus in para 31 of its judgment:
The entire Act, therefore, is not only designed to take care of unprotected workers but also throughout referred to workers as unprotected, for which, there is a definition clause 2(11). It merely indicates that unprotected workers are manual workers who are engaged or to be engaged in any Scheduled Employment.
The Division Bench held that the Act would stand attracted only to casually engaged workmen and that the workmen engaged by the employer therein were, therefore, not entitled to the benefit of the Act and the Scheme:
We also agree with the view that it is only the casually engaged workmen who would come within the purview of the Act. The material produced on record clearly shows that they are protected workmen more particularly with reference to the said Agreement under S. 2(p) of the Industrial Disputes Act, 1947.
-41. In the result, we hold that the Act does not apply to the Petitioners on both counts viz., territorial aspect as also non-covering of protected workmen.
12. Counsel appearing on behalf of the Respondent-Board has urged, and we find with a considerable degree of justification, that the judgment of the Division Bench in Century Textiles adopts a meaning that can be attributed in common parlance to the expression " unprotected worker" ignoring the plain meaning of the expression as defined in Section 2(11) of the Act. The expression "worker" as we have noted, is defined in Section 2(12). The first part of Section 2(12) defines the expression "worker" to mean a certain specific class of persons set out therein while the latter part uses an inclusive definition. It is Page 0850 a well settled principle of statutory interpretation that when the legislature uses the 'means and includes' formula, the intention of the legislature is to provide an exhaustive definition. Moreover, in such a case, the inclusive part of the definition brings within the fold of the expression objects or activities which would ordinarily not fall within the purview of the definition. 'Worker' is defined in clause (12) of Section 2 to include a person who is engaged or to be engaged directly or through an agency to do manual work in a scheduled employment. By the inclusive part, the definition includes a person who is not employed by any employer or a contractor, but who works with the permission or under agreement with the employer or contractor. Section 2(11) provides a statutory definition of the expression "unprotected worker". The expression "unprotected worker" is defined to mean a manual worker who is engaged or to be engaged in any scheduled employment. Once the Act defines the expression "unprotected worker", the definition in the Act provides a statutory dictionary which the Court is under the bounden duty to apply in construing the provisions of the Act. It is not open to the Court to adopt a meaning of the expression "unprotected worker" at variance with what has been legislated by the competent legislature. A manual worker who is engaged or is to be engaged in any scheduled employment is, therefore, by deeming fiction treated as an unprotected worker for the purposes of the Act. The Court must, in such a case, not allow its mind to boggle but give full meaning and effect to the definition contained in the Act. If the legislature intended that the benefit of the Act should not be available to workers who are otherwise governed by some other industrial legislation, it was open to the legislature to legislate accordingly. On the contrary, no such exception is carved out by sub-section (11) of Section 2. The judgment of the Division Bench in Century Textiles adverts to the definition in Section 2(11) in para 31 of the judgment. The Court observed that the definition merely indicates that unprotected workers are manual workers who are engaged or to be engaged in any scheduled employment. In our respectful view, the judgment of the Division Bench in Century Textiles does not give effect to the plain meaning of the language used by the legislature in Section 2(11) and requires reconsideration. The Notes on Clauses appended to the Bill states that 'unprotected workers' has been defined to mean a manual worker who but for the provisions of the Act is not adequately protected by legislation for the welfare and benefit of labour in force in the State. Notes on Clauses do not override an express statutory provision. The State Legislature, it may be noted, has not left the employer, or for that matter the workmen, without a remedy and Section 22 contemplates that an exemption may be granted to all or any class or classes of unprotected workers employed in a scheduled employment if in the opinion of the State Government all such unprotected workers or such class or classes of workers are in the enjoyment of benefits which are on the whole not less favourable to such unprotected workers than the benefits provided by the Act or the scheme. An exemption can, therefore, be still sought on the grounds which are enunciated in Section 22.
13. Counsel appearing on behalf of the Petitioners submitted that Entry 5 of the Schedule to the Act which deals with employment in markets, factories and other establishments in connection with the activities spelt out therein, cannot be pressed in aid in the case of those articles which are specifically Page 0851 mentioned in the schedule. We do not find any merit in that submission. Item 5 partakes of a general and residuary nature and brings within its fold employment in markets, factories and other establishments where work of the nature stipulated therein is being carried out.
14. For all these reasons, we are of the view that the judgment of the Division Bench in Century Textiles would warrant reconsideration and we would, therefore, frame the following question of law which would merit a decision by a larger Bench: "In view of the statutory definition of the expression "unprotected worker" in Section 2(11) of the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969, is the interpretation placed by the Division Bench in Century Textiles & Industries Ltd. v. State of Maharashtra 2000 II CLR 279 on the aforesaid expression that it is only casually engaged workers who come within the purview of the Act, correct and proper?
15. We accordingly direct the registry to place the papers before the Hon'ble the Chief Justice, in order to enable the Learned Chief Justice, if he so considers it appropriate and proper, to place the matter before a larger Bench.