Madras High Court
Hotel Saravana Bhavan vs The Deputy Labour Inspector on 8 September, 2011
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 8-9-2011 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.7838 of 2007 Hotel Saravana Bhavan, rep.by its Partner, R.Saravanan, 230, N.S.K.Salai, Vadapalani, Chennai 600 026. ... Petitioner Vs. The Deputy Labour Inspector, VI Circle, Chennai. ... Respondent This writ petition is filed under Article 226 of the Constitution of India praying this Court to issue a writ of Certiorari calling for the records and quash the proceedings bearing Ref.No.Na.Ka.No.379/2006 dated 1.2.2007 on the file of the respondent, Deputy Labour Inspector, VI Circle, Chennai. For Petitioner : Mr.Ravi M/s.Ravi & Gupta For Respondent : Mr.V.Jayaprakashnarayanan, Additional Government Pleader O R D E R
This writ petition is filed challenging the notice dated 1.2.2007 issued by the Deputy Commissioner of Labour, Circle-VI, Chennai.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner is an Establishment engaged in the business of Hotels and Restaurants. It has several branches within the City of Chennai and in various parts of Tamil Nadu and also in abroad.
(b) The Government of Tamil Nadu enacted Tamil Nadu Catering Establishments Act, 1958 (Act 13 of 1958) to regulate the conditions of service of employees working in catering establishments in the State of Tamil Nadu. Prior to the said enactment, the hotels and restaurants were governed by the provisions of the Tamil Nadu Shops and Establishments Act, 1948. Consequent to the enactment of Tamil Nadu Catering Establishments Act, 1958, the provisions of the Weekly Holidays Act, 1942, the Factories Act, 1948 and the Tamil Nadu Shops and Establishments Act, 1948 were made inapplicable to the catering establishments as the 1958 enactment is a special enactment.
(c) Under Section 3A of the Act, no space or premises on or after the date of expiry of the period specified under Section 4(1) shall be used as catering establishment without a registration certificate and except in accordance with the terms and conditions mentioned therein. 'Employee' is defined under section 2(4) as person wholly or principally employed directly or through any agency either for wages or not in or in connection with the business of any catering establishments, but does not include member of the Employer's family. It also prescribes the daily and weekly hours of work in catering establishments, wages for overtime work, intervals for rest spread over holidays, wages during leave period, etc. Under Section 19 of the Act, an employee if discharged or dismissed or retrenched is entitled to file appeal before the appellate authority as may be prescribed.
(d) Tamil Nadu Catering Establishment Rules, 1959, was also issued which governs the terms and conditions of employment of labourers in the catering establishments. Premises in which the petitioner runs hotels and restaurants are registered under the said Act. Petitioner also maintains statutory records, which are required to be maintained and also submits periodical returns as provided under the Acts and Rules.
(e) To carry on the hotels and restaurant business, petitioner is maintaining 58 vehicles comprising lorries, vans, auto-rickshaws, etc, which are mainly used for transporting raw materials and also food items from one restaurants to another. The Drivers and Cleaners who are engaged in the operation of the vehicles are also covered under the Tamil Nadu Catering Establishments Act, 1958.
(f) On 18.8.2006, the respondent conducted inspection at the Corporate Office at No.228 N.S.K.Salai, Vadapalani, Chennai-26, and sought for the records pertaining to the usage of motor vehicles to examine the applicability of Motor Transport Workers Act, 1961 to the petitioner establishment. According to the petitioner at that time it was informed specifically that the establishment is covered under the Tamil Nadu Catering Establishments Act, 1958 and various types of motor vehicles maintained/used are only incidental to carry on the business of catering and therefore the business cannot be treated as Motor Transport Undertaking to attract the provisions of the Motor Transport Workers Act, 1961.
(g) After inspection, the respondent issued notice on 28.8.2006 calling for details as if the petitioner refused to provide the details during inspection. On 4.9.2006 the petitioner submitted reply stating that it is willing to show the records of all employees including the persons employed for operating and cleaning of the vehicles. Petitioner also furnished details regarding the registration numbers of the vehicle, the list of drivers and cleaners, salaries paid to them along with the said representation.
(h) According to the petitioner, without considering the above particulars, the impugned notice/order was issued holding that the provisions of the Motor Transport Workers Act, 1961 applies to the petitioner and called upon the petitioner to apply for registration under the Motor Transport Workers Act, 1961 within seven days. The said direction to the petitioner establishment to register, is challenged in this writ petition on the ground that the dominant activity of the petitioner establishment is running hotels and engagement of drivers and cleaners are to do incidental duties in connection with the business of catering establishment and the petitioner establishment will not come under the Motor Transport Undertaking.
(i) The Catering Establishment Act, 1958 specifically exclude the applicability of Factories Act and other acts and even if the Motor Transport Workers Act, 1961 was enacted subsequently, the same cannot be made applicable to the petitioner establishment as it is already covered and governed by the special enactment which is a complete code and all the employees are protected already under section 19 of the said Act, which is also more beneficial to Drivers and Cleaners engaged in the establishment.
3. The respondent has filed counter affidavit by contending that the petitioner has not brought out full facts of the purpose for which the Motor Vehicles are used by the petitioner. 58 Vehicles are carrying goods on road for procuring and transporting raw materials such as provisions, fuel, vegetables, water, etc., required for the restaurants, besides transportation of food items from one restaurant to another branch and also for supply of food items to the customers regularly at their homes as per orders. The first part of the usage of the vehicles is covered by the term private carrier and the second part of the transportation to the customers is for commercial purpose, which is not covered under the Tamil Nadu Catering Establishments Act, 1958. The petitioner has employed 120 employees in the vehicles, who are drivers and cleaners, working in their professional capacity and some more persons are appointed to deal with the works connected with maintenance of the vehicles, mechanics and loaders, etc. and their details are not furnished.
4. All workers who are doing works connected with the motor vehicles are governed under the Motor Transport Workers Act, 1961 in terms of section 2(h) of the Act. It is also stated in the counter affidavit that on 18.8.2006 the Deputy Inspector of Labour, Circle-V, Chennai, headed by the Inspector of Labour-II, Chennai, inspected the petitioner's Corporate Office and at that time one Kathiresan, who was the Accounts Manager was present. The said Kathiresan was informed about the purpose of the inspection and respondent started preparing inspection report. The said Kathiresan informed that he cannot furnish the details immediately and he will furnish them later. Again the establishment was inspected on 4.9.2006 and particulars were called for. The said particulars were not furnished in respect of the demand and the management has not co-operated for verifying the records. Hence the impugned notice was issued to register the establishment under the Motor Transport Workers Act, 1961. The catering establishment for which registration certificate is issued cannot stretch to include all other places other than the premises for which the certificate is issued. Workers employed on the vehicles to work in other places will not be covered under the Act.
5. Petitioner has filed a reply affidavit contending that the respondent has no jurisdiction to give direction to register the establishment under the Motor Vehicles Transport Workers Act, 1961 and Rules framed thereunder and disputed the contention raised in the counter affidavit.
6. The learned counsel for the petitioner argued that the Tamil Nadu catering Establishment Act, 1958 and Rules, 1959 framed thereunder alone is applicable to the workers of the petitioner establishment, including the Drivers and Cleaners appointed to look after the Motor Vehicles, which are more beneficial to the said workers and they are being paid more than the minimum wages, free food and accommodation than the one prescribed under the Motor Transport Workers Act, 1961.
7. The learned Additional Government Pleader on the other hand submitted that the petitioner has not co-operated at the time of inspection by showing all the records and details and therefore the respondent has issued the impugned order as the petitioner is owning 58 vehicles and employed more than 120 persons as drivers, cleaners, etc., and it is bound to be registered under Section 3 of the Motor Transport Workers Act, 1961.
8. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Additional Government Pleader for the respondent.
9. The point for consideration in this writ petition is whether the respondent is justified in giving direction to the petitioner to register the establishment under Section 3 of the Motor Transport Workers Act, 1961, in respect of workers engaged as Drivers, Cleaners, Mechanics, Loadmen, etc., in the vehicles owned by the petitioner establishment.
10. The petitioner is an establishment registered under the Tamil Nadu Catering Establishments Act, 1958 (State Act). It is not in dispute that the petitioner, for its business activities owns 58 vehicles of various types and employed more than 120 employees such as Drivers, Cleaners, Technicians, Loadmen, etc., to transport raw materials for preparing food items for sale, apart from transportation of water, fuel, etc., and that the cooked food items are transported to various places. The only contention of the petitioner is that all employees engaged in those vehicles are getting benefits under the Tamil Nadu Catering Establishments Act, 1958 and in fact they are getting more benefits than the benefits provided under the Motor Transport Workers Act, 1961 (Central Act) and the respondent is not justified in giving direction to the petitioner to register the petitioner under Section 3 of the Central Act.
11. For resolving the issue, certain provisions of the Motor Transport Workers Act, 1961 are to be analysed. Section 2(g) of the Motor Transport Workers Act, 1961 defines 'motor transport undertaking' as " "motor transport undertaking" means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward, and includes a private carrier."
Section 2(h) defines 'motor transport worker' as, " "motor transport worker" means a person who is employed in a motor transport undertaking directly or through an agency, whether for wages or not, to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time-keeper, watchman or attendant, but except in section 8 does not include-
(i) any such person who is employed in a factory as defined in the Factories Act, 1948 (63 of 1948);
(ii) any such person to whom the provisions of any law for the time being in force regulating the conditions of service of persons employed in shops or commercial establishments apply."
Section 2(e) defines 'employer' as " "employer" means, in relation to any motor transport undertaking, the person who, or the authority which, has the ultimate control over the affairs of the motor transport undertaking, and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent or by any other name, such other person"
Section 3 deals with 'registration of motor vehicle undertaking' which reads as follows, "3. Registration of motor transport undertaking.- (1) Every employer of a motor transport undertaking to which this Act applies shall have the undertaking registered under this Act.
(2) An application for the registration of a motor transport undertaking shall be made by the employer to the prescribed authority in such form and within such time as may be prescribed.
(3) Where a motor transport undertaking is registered under this Act, there shall be issued to the employer a certificate of registration containing such particulars as may be prescribed."
The Act contemplates certain parameters to be followed by the employer regarding employment and conditions of service of workers including working hours, wages, etc. Section 37 of the Act protects the beneficial conditions of service if otherwise the workers are entitled. Section 37 reads thus, "37. Effect of laws and agreements inconsistent with this Act.(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act :
Provided that where under any such award, agreement, contract or service or otherwise a motor transport worker is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter notwithstanding that he receives benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed as precluding any motor transport worker from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act."
Section 38 empowers the State Government to grant exemption on certain circumstances, which reads as follows, "38. Exemptions.(1) Nothing contained in this Act shall apply to or in relation to any transport vehicle
(i) used for the transport of sick or injured persons;
(ii) used for any purpose connected with the security of India, or the security of a State, or the maintenance of public order.
(2) Without prejudice to the provisions of sub-section (1), the State Government may, by notification in the Official Gazette, direct that subject to such conditions and restrictions, if any, as may be specified in the notification, the provisions of this Act or the rules made thereunder shall not apply to
(i) any motor transport worker who, in the opinion of the State Government holds position of supervision or management in any motor transport undertaking;
(ii) any part-time motor transport worker; and
(iii) any class of employers :
Provided that before issuing any order under this sub-section, the State Government shall send a copy thereof to the Central Government."
12. Section 2(g) is an inclusive definition of motor transport undertaking and its scope is specifically dealt with in the decision reported in (1969) 2 SCC 582 : AIR 1970 SC 1923 (Municipal Council, Raipur v. State of M.P.). In the said case the Municipal Council was proceeding under the penal provisions of the Motor Transport Workers Act, 1961. In paragraphs 6 and 8 the Supreme Court held as follows:
"6. It seems to us that the accused fell within the definition of a private carrier inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property. ........
8. ...... the Act provides for the welfare of motor transport workers and regulates the conditions of their work. Such beneficial acts are not, as a rule, construed strictly. Secondly the words of the definition are plain and not susceptible of any reasonable limitation. It seems to us that by using the word includes the Legislature undoubtedly intended to enlarge the meaning of the expression motor transport undertaking. The words private carrier have been given a specific meaning in the Motor Vehicles Act, 1939, and it is difficult to limit this specific meaning on any reasonable basis. Further, Section 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are not commercial would be included within the expression motor transport undertaking.
13. Application of the interpretation given by the Supreme Court in the above cited decision to the facts of this case leads to an inevitable conclusion that the petitioner establishment is also coming within the definition of 'motor transport undertaking' as it owns 58 vehicles, engaged more than 120 employees such as Drivers, Cleaners, Loadmen, etc., to transport goods as a goods vehicle within the definition of 'transport vehicle' as defined in section 2(47) of the Motor Vehicles Act, 1988. Section 2(47) reads as follows:
" "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle."
The petitioner is using the motor vehicles to carry goods for preparation of food and for sale of the cooked food items regularly for business/commercial purposes. Therefore the transport vehicles are coming within the definition of "goods carriage" as defined in section 2(14) of the Motor Vehicles Act, 1988, which reads as follows:
" "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods"
It is the specific case of the petitioner that the vehicles are constructed or adapted for the use of carriage of goods. Hence it is beyond doubt that the 58 transport vehicles owned by the petitioner are only goods carriers.
14. According to section 37 of the Motor Transport Workers Act, 1961, even if the workers are getting more benefits under the State Act than the benefits assured in the Central Act, still the provisions of the Central Act are applicable in respect of other matters. Section 37 proviso states that it is open to the workers to enter into an agreement with the employer to that effect.
15. The question as to whether the Motor Transport Workers Act, 1961 (Central Act), by implication repeals the Tamil Nadu Catering Establishments Act, 1958 (State Act) or not also will not arise in view of the decision of the Honourable Supreme Court reported in (2003) 12 SCC 274 (Kisorebhai Khamanchand Goyal v. State of Gujarat). In paragraphs 8 to 11 the Supreme Court held thus, "8. The doctrine of implied repeal is based on the theory that the legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine it does no more than give effect to the intention of the legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of construction and comparison of the two statutes. The court leans against implying a repeal, unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together. (See Craies on Statute Law, 7th Edn., p. 366, with reference to Berrey, Re (1935 ALL ER Rep 826.) To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinise the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The areas of operation of the Act and the Establishments Act in question are different with wholly different aims and objects. They operate in their respective fields and there is no impediment to their existence side by side. (See State of M.P. v. Kedia Leather and Liquor Ltd. (2003) 7 SCC 389)
9. It is to be noted that there is no direct conflict between any of the provisions of the two statutes. The determinative test as noted above is whether the enactments are sharply conflicting or are inconsistent and/or repugnant. In the instance case it is not so. The operation of the Act is not restricted in its area of operation by what is provided in the Establishments Act and vice versa. Absence of some provisions in another Act does not amount to conflicting provision or inconsistent provision amounting to repugnancy of such provision.
10. If both Acts are made applicable, it will serve workmen the best as the benefits which are not made available to them in the Central Act i.e. the Act are made available to them in the State Act i.e. the Establishments Act and the benefits which are not made available to them in the State Act are made available in the Central Act. By repeal of one, the benefits under the repealed Act stand withdrawn and such benefits are not provided in the existing Act. The workmen by applying the logic of implied repeal will be deprived of such benefits. Both the Acts are enacted for the benefit and well being of workmen and it would be appalling to comprehend a situation that withdrawal of benefit by enacting a statute was contemplated.
11. On a careful scrutiny of the provisions contained in both the above Acts, we find that the Act makes some specific provisions on certain aspects and areas of relationship between the workers and management. It is not only silent but also does not advert to or deal with several other vital and crucial aspects of such relationship as are dealt with by the Establishments Act. The responsibilities and obligations of the management under both the Acts cannot be avoided altogether and it is only where on any particular aspect or stipulation, the prescription is found to overlap to that extent and in respect of any such matter alone the Act, pertaining to motor transport workers will apply to the exclusion of a contra-stipulation in the Establishments Act and consequently, the Establishments Act as a whole cannot be held to have been abrogated by the Act. In substance, if at all, it can only at best be claimed that the operation of the law as contained in the Establishments Act would stand curtailed, if on any particular aspect there is a contra-stipulation or provision in the Act in respect of a motor transport worker, and not otherwise. This would be the proper, reasonable and inevitable consequence of a harmonious construction of the provisions of the two welfare legislations, so that the best of the both would be available to the worker concerned. ........."
(Emphasis Supplied) Thus, both the State Act as well as Central Act can operate in their respective fields and there is no impediment to their existence side by side.
16. The Motor Transport Workers Act, 1961 was held applicable even to the transport workers employed in the Government Transport Service Department as per the judgment of the Supreme Court reported in (2002) 10 SCC 291 (Government Transport Service v. S.L.Mishra & Others), wherein in para 2 it is held thus, "2. The Government set up a separate department known as Government Transport Service which had to maintain vehicles and provide transport with the help of its staff. The material placed before the High Court in the shape of the government resolutions, department circulars, the affidavits filed thereto indicated that the vehicles of the Government Transport Service are given out against payment, that regular bills are raised in respect of charges which are even described as hire charges. In certain cases when such vehicles are given for the use of VVIPs, VIPs and State guests such charges are paid by the department concerned of the State Government. In other cases where charges are not borne by the State Government the charges are paid by the person using the vehicle. In these circumstances there cannot be any doubt that the Department of GTS is an undertaking engaged in carrying passengers, as defined in Section 2(g) of the Motor Transport Workers Act and is covered by sub-section (4) of Section 1. ......"
17. The Motor Transport Workers Act, 1961 contemplates different conditions of service favourable to motor transport workers, particularly with regard to the hours of work, daily intervals for rest, spread over works, split duty, notice of hours of work, weekly rest, compensatory day of rest, etc., which are specifically stated in sections 14 to 20. There is vast difference between the working hours, rest, etc., when compared to the Tamil Nadu Catering Establishments Act, 1958. The Supreme Court in the decision reported in AIR 2010 SC 1116 : (2010) 3 SCC 192 (Harjinder Singh v. Punjab State Warehousing Corporation) has given categorical guidance to the High Courts as to how the labour welfare legislation has to be interpreted in favour of the workers. In paragraph 17 (in AIR) the Supreme Court held as follows, "17. ............ while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. ........."
18. On the basis of the above findings, the petitioner is definitely coming under the definition of Motor Transport Undertaking as it owns 58 goods carriers used for its business/commercial purposes and more than 120 workers are engaged in those vehicles, who are to be treated as transport workers, and hence the petitioner is bound to register itself under Section 3 of the Motor Transport Workers Act, 1961, as directed by the respondent. The workers are entitled to get service conditions and other benefits, which are more favourable as per the above Act, though the workers are getting other benefits under the Tamil Nadu Catering Establishments Act, 1958 as on today.
19. This Court ordered interim stay of the impugned order when the writ petition was admitted and the same is in force as on date. Hence the petitioner is granted four weeks time to register itself as directed in the impugned order/notice, from the date of the receipt of copy of this order.
The writ petition is dismissed with the above direction. No costs. Connected miscellaneous petition is also dismissed.
vr To The Deputy Labour Inspector, VI Circle, Chennai