Bombay High Court
Petroleum Employees Union & Others vs Bharat Petroleum Corporation Ltd. & ... on 18 February, 1999
Equivalent citations: 1999(4)BOMCR267, (1999)IILLJ389BOM, 1999(2)MHLJ926
ORDER N.J. Pandya, J.
1. The union is agitating the point as to the number of working hours in connection with 65 workers who are working as "Retail Outlet Technicians". Originally their nomenclature were Retail Outlet Fitters. The total strength referred to above as 65 may be little less or more. In order to understand the controversy between the parties, the peculiar nature of their working is required to be noted here. They are employees of the respondent No. 1 company in its Marketing Division. Respondent No. 1 company is dealing with petroleum products and is also a successor of erstwhile Burmah Shell, a foreign company. It has inherited along with the assets of the said company, certain work force which also includes the Retail Outlet Fitters as originally employed by the said foreign company.
2. The work of these workmen, hereinafter referred to as ROT is to attend to the need of the retail outlet dealers known as petrol pumps. The petrol pumps are having underground tanks from which the petroleum products are pumped out with the aid of pumping machine which has a built in device of measuring the quantity being dispensed through it as also indicating the total price of the sale. It may or may not have provision for showing and calculating the total price of the sale transaction but it does have metering device to indicate the quantity that is sold.
3. However, in order to see that this pumping devices work properly, the aforesaid ROT have to attend to pumps situated in their allotted territories. For this purpose, system worked out is that one of the pumps in their area will act as a hub or a reporting station where the ROT will go to find out as to which of the pumps have developed problem necessitating his visit. Apart from this, he has to visit all the pumps at regular intervals just to check that they are working properly and if need be to service them. These pumps may require repair which this ROT have to carry out.
4. The ROT are thus the employees of the respondent-company working in their Marketing Division attending to the retail outlets i.e. petrol pumps to see that the pumping device installed at each of the station are working properly and accurately.
5. There are different categories of retail outlets. One category is of those pumps which are wholly owned by the respondent No. 1 company i.e. they owned the land, the installation and infrastructure being given under an agreement to third party for running the same.
6. Second category is of the installation which are party owned by the company and the third category is of those pumps which are wholly owned by private individuals who are under a contract with the respondent No. 1 company for sale of its products.
7. ROT have to attend to all these installations that are falling in their area of working. The demand of the workmen is that like any other workers they should also have a fixed hours of working. They have quantified it as eight hours a day. For this purpose, they are relying on the provisions of the Factories Act. The reason for them to so rely is a notification that has been issued by the State Government in its Official Gazette. Its xerox copy is at Exh. D. page 44. The respondent No. 1 company is also issuing necessary circulars to see that its retail outlet dealers are made aware of this notification. The circular issued by respondent No. 1 company is Exh. E page 45. It is, therefore, an admitted position that the retail outlet where the product of the company is being given to the public at large has become factory as per the said state notification. This is an agreed position. It is also an agreed position under the provisions of Factories Act that there has to be a fixed working hours which usually has eight hours and that is what the workmen are demanding as stated above.
8. The contention of the company is that the workmen are all employed in the marketing division of the company. There is no question of they being treated as factory workers. The provisions of the Factories Act would not apply to them. The answer on behalf of the workmen by way of the petition is that they are very much a factory workers as they are working in the retail outlets which are the factory.
9. It is an admitted position that but for their working into the retail outlets in the manner stated above, they have nothing to do with the factory as such. The submission made on behalf of the petitioner therefore goes to the point that their working place will determine whether they are factory workers or not.
10. The Factories Act is no doubt a beneficial piece of legislature meant essentially for the safety and well being of the workers in general as also obligation being cast on the factory owners to take care of the interest of the public at large so far as safety standards are concerned. It has therefore made provisions for the purpose of achieving all or any objection keeping in mind the welfare of the workmen employed by the factory as also the member of the public.
11. The provisions of having eight hours a day and a weekly off is just one of the elements of the aforesaid exercise of looking after the welfare of the workmen.
12. The workmen i.e. ROT are not confined to one station only. Necessarily they have to go from one place to other. Their working in a given retail outlet could never be for a fixed period as it would necessarily depend on the type of work which the R.O.T. has to do in connection with that particular pump. A mere servicing or checking a calibration may not take much time but if the installation is to be serviced or repaired it would definitely take more time. He will be moving from one installation to other. This he is doing as part of his duty being employed by the respondent-company to render technical assistance for the maintenance of the aforesaid installation for efficient functioning of the same as also to ensure that proper quantity of the petroleum product is being sold to the purchaser. For this purpose accuracy of the pump device is crucial.
13. If the argument is to be accepted that eight hours working per day is to be fixed because of the Factories Act and its applicability it would necessarily mean that only that provision of the Factories Act would apply and rest of it will not be applicable to the workmen by the very nature of the duty.
14. They are not employed by the factory owners. The installations are owned by respondent No. 1 company so far as first category is concerned. Because of the agreement it is the occupier of the installation , who for the purpose of this controversy, would become the factory owner.
15. The leave salary and all other benefits of service including that of promotion, if any, will not be the concern of the factory owner at all. Under the contract he has an arrangement with respondent No. 1 company that he will continue to get the assistance of Retail Outlet Technicians for the maintenance of pump devices and to meet with these obligations, the ROT are employed by the respondent No. 1 company.
16. Viewed in this background, in my opinion there could not be any question of Factories Act being made applicable to the limited extent of fixing the working hours only.
17. Though in the trial Court below an effort was made to make out a case that the workmen are occupying a peculiar position and looking to their nature of work and duty it is not possible to fix certain number of hours during which alone they can be expected to work and not beyond that. This position is given up here because the company does have with it a segment amongst the R.O.T. who have fixed working hours, These workmen the one that were employed by the erstwhile foreign company and because of the arrangement with the said company, the respondent No. 1 is bound to honour their contract of service and continue them to give benefits amongst other benefits of fixed working hours. It was very fairly conceded by the Counsel for the respondent-company that it cannot be the case of respondent No. 1 as to it being impossible to fix the hours of work.
18. An attempt was also made to make out the case that because of the peculiar nature of the work and more particularly the travelling that is necessarily involved in discharge of the duty of the ROT, they are granted certain special benefits. However, this is totally peripheral and of no consequence. If they are the factory workers or if they are to get benefit of fixed number of hours of work they are to get it as a matter of right. This is exactly what is demanded by the workmen.
19. Admittedly, there are several long term settlement between the parties. So far as the ROT are concerned, admittedly in 1982 settlement reference was made by way of demand to fix the working hours but it was given up in the course of bargain and was retained only in respect of the employees of the erstwhile foreign company. In the subsequent settlement of 1986, 1991 and 1995, these demands were never raised. Based on this it is submitted on behalf of the company that the workmen themselves through their union while entering into long term settlement had in the year 1982 raised the demand but had given up. Thereafter on three subsequent occasions the demand itself was never made. This is in fitness according to the company as also it accords well with the company's policy in relation to the ROT. This is referred to because it has been urged before the Court below as also in the course of hearing of this petition. However, on behalf of the petitioner it was categorically stated by the learned Counsel that they are raising their claim under the provisions of Factories Act and if they are to get, it is to happen only under the said Act only.
20. No doubt during the time that the ROT are attending to their work in a petrol pump or in the installation of a retail outlet they are working in the factory. However by that alone they cannot become factory workers. They continue to be the workers employed by respondent No. 1. There is no question of their allegiance or service, standing transferred to the installation occupier for the limited period of ROT working hours. By very nature there would be number of days were there may be very less work and correspondingly there would be days where there would be very heavy load. This would eventually average into a reasonable working hours according to the respondent No. 1 company.
21. Now I turn to the various decisions cited at the bar. On behalf of the petitioner with reference to earlier settlements, Supreme Court decision in Delhi Cloth Mills matter was cited. There the question was whether settlement arrived at during conciliation proceedings would be binding or legal. Rule 58(4) of the Industrial Disputes (Central) Rule was found to be coming in the way. However, this is not the position in the instant case.
22. 1994(1) C.L.R. 137 in the case of Hindustan Machine Tools Ltd., Ajmer v. Labour Court & another, of Jaipur Bench of Rajasthan High Court was cited, where it was stated that employer cannot be permitted to contract out of the provisions of the Factories Act. In view of the discussions made above, obviously the decision has no bearing on the case.
23. With regard to manufacturing process as defined under section 2(k) of the Factories Act, the learned Single Judge of this Court had given a decision in Gateway Auto Services, Bombay v. Regional Director, Employee's State Insurance Corporation, Bombay, reported in 1980(II) L.L.N. 481. As the retail outlets have been accepted to be factory by both the sides, this decision need not be considered further. Same is the position with regard to Punjab & Haryana High Court reported in 1988(II) L.L.N. 417 in the case of Employees State Insurance Corporation v. Bhag Singh.
24. Lastly Supreme Court decision reported in 1962(1) L.L.J. 257 in the case of Workmen of British Overseas Airways Corporation, New Delhi v. British Overseas Airways Corporation, New Delhi. It is a case where grant of over time wages in respect of work done over and above 48 hours in a week was being considered and on enquiry was found reasonable and justified. Perhaps this decision has been cited keeping in mind the main demand of fixing total working hours in a week to be 48 hours. Strictly speaking therefore the decision has no direct bearing.
25. As indicated so far, petition is based on the provisions of the Factories Act as they apply to retail outlets.
26. On behalf of the respondent-company in the case of J.K. Industries Ltd. and others v. Chief Inspector of Factories and Boilers and others was cited in order to point out implication of the application of the Factories Act. As already mentioned earlier, the Factories Act contained several provisions both for the safety and welfare of workers employed in the factory. After the amendment of section 2(n) of the Factories Act, the concept of occupier is also changed. While upholding the validity of the said amendment, it was pointed out that strict liability is sought to be imposed on the occupier as understood under the amended provisions.
27. Another decision of Supreme Court reported in 1958(II) L.L.J. page 252 in the case of Chintaman Rao and another v. State of Madhya Pradesh was cited where the concept of employment under Factories Act was considered. There were three ingredients (i) employer, (ii) employee and (iii) the contract of employment.
28. The aforesaid decision per se would appear to be having little bearing on the matter on hand. However, by considering the implication of the submission of the petitioner if one looks at the position that would arise, it would indeed be anomalous. Except for the working hours, no other provisions of the Factories Act would be made applicable to the R.O.T. as per their own case. Who could be responsible for the breach of the Factories Act is also not clear because R.O.T. would be moving from one pump to other i.e. to say from one factory to other. As per the above two judgments, all the three ingredients will be missing in the case of R.O.T. when it is considered in the light of the retail outlets being a factory.
29. Keeping this concept in mind, in the case of Shankar Balaji Waje v. The State of Maharashtra, is a decision where Bidi rollers were free to attend and leave factory at any time and were paid on the basis of piece work, were not held to be factory workers. In the instant R.O.T. case, as and when time permits they have to attend to a given call of a given retail outlet. They are paid by the respondent company and not by the factory i.e. the retail outlets. Obviously, therefore as per this decision the petitioner cannot get the benefit of Factories Act as claimed. Herbertsons v. Workmen of Herbertsons Ltd., A.I.R. 1977 S.C. 322 and New Standard Engineering Co. Ltd. v. N.L. Abhyankar, , relied on by the company are on the point of settlement by direct negotiation. If they are found to be just and fair, of course they are binding on the workers. This is in the background of the aforesaid long term settlement. This would be one more reason to hold against the petitioner. However, the petition is being dealt with on the basis of the provisions of the Factories Act as requested by the petitioner and accordingly it is dealt with.
30. In this background, if because of the said provisions of the Factories Act pertaining to the fixed working hours, alone is to be made applicable to the petitioners members who are working as ROT, in my opinion, the petition would fail. The petition is therefore rejected. Rule discharged.
31. Petition dismissed.