Bombay High Court
Abdul Sattar Rehmanbhai vs Julekhabi Rahiman Daryawardi (Smt.) ... on 21 November, 1987
Equivalent citations: 1988(2)BOMCR312, (1988)90BOMLR139
JUDGMENT C.S. Dharmadhikari, J.
1. These writ petitions are filed by the Employers challenging the orders passed by the Presiding Officer, II Labour Court, Kolhapur, directing them to pay Rs. 40/- to each of the employees under section 33-C(2) of the Industrial Disputes Act.
2. Initially these matters were placed before the Single Judge of this Court---Daud, J., who by his order dated 17th of September 1986 referred the following question to the Larger Bench :
"Whether employees within the meaning of section 2(f)(i) of the Beedi Act cannot take recourse to the I.D. Act for the resolution of their grievances, not falling within section 39(2) of the Beedi Act ?"
This question is referred to larger bench in view of the decision of Joshi, J., in Special Civil Application No. 882 of 1973. (Ramanbhai Patel (Asali Sampal) v. Judge, Labour Court, Akola & others), decided on 28th July, 1980 wherein a view was taken that an application under section 33-C(2) of the Industrial Disputes Act, 1947, is not maintainable. Daud, J., disagreed with the said view and therefore, matters are now placed before us.
3. Shri Shah, learned Counsel appearing for the petitioners contended before us that under section 39(1) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (hereinafter referred to as the Beedi Act), provisions of the Industrial Disputes Act, 1947 are made applicable to the matters arising in respect of every industrial premises. The expression 'Industrial premises' is defined by section 2(i) of the Beedi Act. The word 'establishment' is also defined by section 2(h) of the Beedi Act. Though the expression 'establishment' has wider meaning, application of the ID Act is restricted to the industrial premises only. Therefore by necessary implication, the I.D. Act, 1947 will not apply to other premises or establishments. In this view of the matter, so far as the home workers are concerned, they are not governed by the provisions of the I.D. Act. Hence the application filed by them under section 33-C(2) of the I.D. Act is not maintainable. In support of this contention he has placed strong reliance upon the decision of Joshi, J., in Ramanbhai Patel's case. We had no advantage of hearing any arguments on behalf of the respondent-employees since they have chosen to remain absent. Shri Patel, learned AGP submitted that the Government is not concerned with the controversy raised, though according to him the view expressed by Joshi, J., requires reconsideration.
4. With the assistance of the learned Counsel appearing for both sides we have gone through the relevant provisions of the Act. From the statement of objects and reasons for enacting the Beedi Act, it is quite clear that the working conditions prevailing in the Beedi and Cigar establishments are unsatisfactory. Though the Factories Act, 1948 applies to such establishments, there has been a tendency on the part of employers to split the concerns into smaller units and thus escape from provisions of the Act. A special feature of the industry is the manufacture of beedis through contractors and by distributing work in private dwelling houses where the workers take the raw materials given by the employers or contractors, Employer-employee relationship not being well defined the application of the Factories Act has met with difficulties. The labour is unorganised and not able to look after its interest. Some State had passed special Acts to regulate the conditions of work of these workers but found themselves unable to enforce the law owing to the fact that the industry is highly mobile and tended to move on to an area where no such restrictive laws prevailed. Therefore, it became necessary to have Central legislation on the subject. The Act provides for the regulation of the contract system of work, licensing of beedi and cigar industrial premises and matters like health, hours of work, spread over, rest periods, overtime, annual leave with pay, distributions of raw materials etc. Therefore, from the statement of objects and reasons, it is quite clear that the Act is a beneficient piece of legislation meant for protecting the unorganised labour in beedi and cigar industry from being exploited by unscrupulous employers. Being a beneficient piece of legislation, it will have to be construed so as to further the object of the legislation conferring the benefits upon these unorganised labourers and not to deny it. It is well settled that where an enactment is made as a beneficient legislation meant for the protection of weaker section, if there is any doubt about the meaning of the some provision, that doubt should be resolved in favour of the persons for whose benefit the Act is passed. By section 2(f) the expression 'employee' has been defined, which means a person employed directly or through any agency, whether for wages or not, in any establishment to do any work skilled, unskilled, manual or clerical etc. It includes, in its import home worker also. By section 2(h) the word, 'establishment' is defined which means any place of premises including the precincts thereof in which or in any part of which any manufacturing process connected with the making of beedi or cigar or both is being, or is ordinarily, carried on and includes a industrial premises. The expression 'industrial premises' is defined to mean any place or premises (not being a private dwelling house), including the precincts thereof , in which or in any part of which any industry or manufacturing process connected with the making of beedi or cigar or both is being, or is ordinarily, carried on with or without the aid of power. The term 'private dwelling house' is also defined in section 2(n) which means a house in which persons engaged in the manufacture of beedi or cigar or both reside. Therefore it is quite clear that the Act applies to the home workers also. It is also clear that the expression 'establishment' has wider import and it includes industrial premises. A private dwelling house which is not covered by definition of industrial premises, is obviously covered by the expression 'establishment'. Sections 3 to 25 of the Beedi Act apply to industrial premises. Sections 26 and 27 will apply to home workers also since the said sections apply to every employee in an establishment. By section 28 the Payment of Wages Act is made applicable to the industrial premises. By section 37 Industrial Employment (Standing Orders) Act and Maternity Benefit Act, are made applicable to the industrial premises where 50 or more persons are employed. By section 38, it is declared that certain provisions of the Factories Act will not apply to the industrial premises. Then comes section 39 which read as under :---
"39. (1) The provisions of the Industrial Disputes Act, 1947 shall apply to matters arising in respect of every industrial premises.
(2) Notwithstanding anything contained in sub-section (1), a dispute between an employer and employee relating to---
a) the issue by the employer of raw materials to the employees.
b) the rejection by the employer of beedi or cigar or both made by an employee.
c) the payment of wages for the beedi or cigar or both rejected by the employer, shall be settled by such authority and in such summary manner as the State Government may by rule specify in this behalf.
3) Any person aggrieved by a settlement made by the authority specified under sub-section (2) may refer an appeal to such authority and within such time as the State Government may, by notification in the Official Gazette, specify in this behalf;
4) The decision of the authority specified under sub-section (3) shall be final."
Section 40 deals with the effect of laws and agreements which are inconsistent with the Beedi Act.
5. It is contended by Shri Shah, which contention found favour with Joshi, J., in Ramanbhai Patel's case that since by section 39(1) the I.D. Act is made applicable only to the industrial premises, other establishments covered by this Beedi Act, including private dwelling houses, are by necessary implication, excluded from the said application. Hence the provisions of the I.D. Act will not apply to the private dwelling houses or other establishments which are not industrial premises. It is not possible for us to accept this contention. The I.D. Act was enacted for making provisions for investigation and settlement of industrial disputes and certain other purpose. The words and expression used in the Industrial Disputes Act are also defined by the said enactment. Section 2(s) defines the word 'workman' . If the said definition is read in its context, it appears to be by now well settled that it will take in its import even a 'home workers'. It is not necessary to deal with this aspect of the matter in any further details in view of the latest decision of the Supreme Court in M/s. P.M. Patel & Sons and ors. v. Union of India & ors., . After making a detailed reference to earlier decisions in the field, ultimately the Supreme Court held that the Employee's Provident Funds and Miscellaneous Provisions Act, 1952, applies even to home workers. This is what the Supreme Court as held in para 10 of the said judgment :
"In the context of the conditions and the circumstances set out earlier in which the home workers of a single manufacturer go about their work, including the receiving of raw material, rolling the beedis at home and delivering them to the manufacturer subject to the right of rejection there is sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. It must be remembered that the work of rolling beedis is not of a sophisticated nature, requiring control and supervision at the time when the work is done. It is simple operation which as practice has shown, has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old, men and women, with equal facility and it does not require a high order of skill. In the circumstances., the right of rejection can constitute in itself an effective degree of supervision and control. We may point out that there is evidence to show that the rejection takes place in the presence of the home worker. That factor, however, plays a merely supportive role in determining the existence of the relationship of master and servant. The petitioners point out that there is no element of personal service in beedi rolling and that it is open to home worker to get the work done by one of the other member of his family at home. The element of personal service, it seems to us, is of little significance when the test of control and supervision lies in the right of rejection."
The law laid down by the Supreme Court in .C. Dewan Mohideen Sahib and Sons v. Industrial Tribunal, Madras, is not only approved but re-iterated in this decision. Thus it is by now well settled that home worker is a workman within the meaning of section 2(s) of the I.D. Act.
6. Beedi Act deals with certain matters and is not wholly exhaustive or rights or the terms and conditions of services of the employees. In the cases before us claim made before the Labour Court was for payment of laid off compensation. Employees were entitled to claim laid off compensation under section 25-C of the I.D. Act. A right to claim laid off compensation is created by the said section. There is nothing in the Beedi Act which provides for a forum or remedy for recovery of this compensation. Therefore, if the contention of Shri Shah is accepted it will only mean that though the home workers have a right to claim laid off compensation in view of the provisions of section 39(1) of Beedi Act, they have no forum or remedy for reddress or recovery of the same. This means, that though a right exists, there is no remedy for its enforcement. In our view putting up such a construction upon the provisions of the Beedi Act, will frust rate the very intention of the legislation and its objects. Only because the provisions of I.D. Act are made applicable to the matters arising in respect of every industrial premises, by implication it cannot be inferred that the application of the I.D. Act to other establishments is excluded. We do not find any warrant for such an Interpretation. Such an exclusion by implication, cannot be easily inferred. Absence of any remedy under the Beedi Act, for enforcement of such rights is indicative that the jurisdiction under the Beedi Act, for enforcement of such rights is indicative that the jurisdiction under section 33-C of I.D. Act is not excluded. Contrary construction would lead to vacuum. It cannot be held that by one hand Legislature conferred rights upon the home workers and by other hand it has taken away the said rights. Therefore, it is not possible for us to agree with the view taken by Joshi, J., in Ramanbahi Patel's case.
In the result, therefore, we do not find any substance in these writ petitions. Hence rule discharged with no orders as to costs in both the matters.