Indian Kanoon - Search engine for Indian Law

The Madras High Court in M/s. K. Abdul Azeez Sahib and Sons, Four Horse Beedi Manufacturers, Vellore--4 and Ors. v. The Union of India (1973) 11 M.L.J. 126 held the definitions of employer and principal employer in Section 2 (g) (a) and 2(m) of the Act to be-valid but held that sections 26 and 27 of the Act are wholly unenforceable against the trade mark holders whether with reference to home workers or with reference to employees working in any industrial premises. The Madras High Court held that since a worker in a beedi industry is not required to work regularly for any prescribed period of hours in a day or even day after day for any date specified period, from the very nature of the case, the provisions in the Maternity Benefit Act, 1961 are unworkable with regard to such home workers, and, therefore, they will have no application to them. The Madras High Court held that section 7(1)(c), 7(2), 26, 27, 31, and 37 (3) in so far as they relate to home workers are ultra vires and illegal and unenforceable against trade mark holders in beedis and contractors in the manufacture of beedis. The Madras High Court held that section 7(1) (c), 7(2), 26 and 27 are ultra vires and illegal and unenforceable against the petitioner who are manufacturers of cigar or cigar rollers. The Bombay High Court in M/s. Chotabhai Purshottam Patel, Beedi Manufacturers of Bhandara & Ors. v. State of Maharashtra by Secretary, Industries and Labour Department, Sachivalaya, Bombay & Ors. (1972) 1 L.L.J., 130 held that the provisions of section 2(g) (a) and 2 (m) of the Act are invalid to be in excess of the requirements of the situation because if the principal employer is fared with the pro- position of bearing all the civil and criminal responsibilities of omission and commission of contractors under him the inevitable result will be that the manufacturer will give up the Gharkata system and may think of some other system less onerous under the Act. The Bombay High Court also said that the words "in relation to other labour" contained in section 2(g) (b) are to be deleted. The Bombay High Court further held that the provisions of sections 26 and 27 of the Act will not apply to home workers at all.

These four decisions were relied on by counsel for the petitioners and the appellants lo show that home workers would not be entitled to leave on the ground that sections 26 and 27 of the Act were unworkable in regard to home workers and constituted unreasonable restrictions. The imposition of liability to afford to home workers benefits like annual leave with wages cannot be said to be unreasonable restriction on the right of the owner to carry on his business. In the Act, the word " employee" includes a home worker. The word "establishment" applies to a private house. The second explanation to section 27 of the Act indicates that a home worker is dealt with by the section. Sections 26 and 27 of the Act are to be read together. In Birdhichand Sharma case (supra) this Court held that if a worker had put in a number of working days he would be entitled to leave. This Court did not go into a question as to what the meaning of the word "day of work"

The Petitioners and the appellants challenged section 37(3) of the Act as unworkable. That sub-section provides that the provisions of the Maternity Benefit Act, 1961 shall apply to every establishment as if such establishment were an establishment to which the said Act had been applied by notification under section 2 (1) of "he said 1961 Act. The proviso to section 37(3) of the Act states that Maternity Benefit Act in its application to a home worker shall apply subject to certain modifications. The Madras High Court upheld the contention and said that since a worker in a beedi industry is not required to work regularly for any prescribed period of hours in a day or even day after day for any specified period, from the very nature of the case, provisions of the said 1961 Act are unworkable with regard to such home workers. It may be stated that the reasonableness of section 37(3) of the Actwas not challenged. An argument which was submitted was that itwas difficult to locate home workers. That argument was not pressed in this Court. The provisions-of the said 1961 Act in sections 4 and 5 thereof deal with prohibition of employment of, or work by, women, prohibited during certain period and right of payment of maternity benefit. Section 4 of the 1961 Act does not present any difficulty because it speaks of prohibition of work by a women in any establishment during six months immediately following the day of her delivery Further, section 4 provides that on a request being made by a pregnant woman she will not be required to do work of an arduous nature or work which involves long hours of standing and that period is one month immediately preceding the period of six weeks before the date of her expected delivery. Section 5(2) of the said 1961 Act provides that no women shall be entitled to maternity benefit unless she has actually worked in any establishment for a period of not less than 160 days, in the twelve months immediately preceding the date of her expected delivery. There is no difficulty with regard to working of these sections in regard to maternity benefits to women employed in an establishment.