Indian Kanoon - Search engine for Indian Law

9. We have heard the learned Counsel appearing for the petitioners, different Boards constituted for the different scheduled employments, the learned Counsel appearing for the State Government as also the learned Counsel appearing for the trade-union of Mathadi workers.

10. On behalf of the petitioners, it is submitted that the term unprotected workers is defined by Section 2(11) of the Act. The term "Scheduled employment" is defined by Section 2(9) of the Act. It is submitted that if the plain and literal meaning is given to these two definitions, it would mean that manual workers engaged in the Scheduled Employment would fall in one class, namely "unprotected workers". According to the petitioners, such an interpretation would lead to patent absurdity, anomaly, inconvenience, injustice and hardship. It is submitted that no manual workers can be engaged directly/indirectly in a scheduled employment. As manual workers working in a scheduled employment would be unprotected workmen, manual worker engaged directly in a "Scheduled employment" will be rendered "illegally employed". The services of existing manual workers engaged directly in a scheduled employment will have to be terminated and their posts permanently abolished and be engaged through the Board as unprotected workers. Employment of every manual worker in the scheduled employment would be regulated totally by the Board. "Scheduled Employment" would encompass all conceivable employments within its fold. The Board would become the sole monopoly "contractor" in respect of every manual worker in all "Scheduled Employments". It is submitted that this would result in implied repeal of Central Act which occupies the field and which covers regular, direct and indirect workers as a class. It would lead to repugnancy or inconsistency and pose irreconcilable hardship in the implementation and compliance of other Labour Laws and Labour Welfare Legislation which otherwise apply of its own force to regular, direct and indirect manual workers working and all employments including the scheduled employment under the Mathadi Act. It would adversely change the existing status of regular, direct and indirect manual workers as a class. It would result in injustice to the direct or indirect employees of the employer in the scheduled employment who are enjoying protection and benefits under the aforesaid laws made by the Parliament. It would also result in absurd illegal position i.e. all direct employees of the employer in the scheduled employment doing manual work would cease to be workmen of the said employer and would require to be registered with the Board. It is submitted that in these circumstances, therefore, the Court should apply the Rules of Construction for the purpose of gathering true and correct meaning of the definition of the term "unprotected workers" found in the Act. It is submitted that before the Act was enacted, the Parliament had enacted the Industrial Employment (Standing Orders) Act, 1946. The Industrial Disputes Act, 1947. The Factories Act, 1948. The Employees State Insurance Act, 1948. The Minimum Wages Act, 1948, Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The Maharashtra Factories Rules, 1963, Payment of Bonus Act, 1965.

15. On the other hand, on behalf of the Board it is contended that the petitioners are not right in contending that the Full Bench has to consider only whether casually engaged workmen are covered by the definition of the term "unprotected worker". It is submitted that reading of the referring judgment makes it clear that the question that the Full Bench has to consider is whether direct and/or regularly employed manual workers engaged in scheduled employment are covered under the Act and the scheme framed thereunder. It is submitted that the definition of the term "unprotected worker" in Section 2(11) and the definition of the term "worker" appearing in Section 2(12) of the Act have to be read together. It is submitted that the provisions of Section 2(12) are clarificatory in nature. It is submitted that the definition of the term "worker" is given to indicate the employers under the Act by or through whom such manual workers are engaged in scheduled employment. The said Act and the Scheme framed thereunder, requires registration not only for unprotected workers, but also the employers who engage the unprotected workers. It is submitted that by reading the provisions of Section 2(11) and Section 2(12) of the Act together it is clear that only casually engaged workers do not come within the purview of the Act. It is submitted that there is no ambiguity whatsoever either in the definition of term "unprotected worker" or the term "worker" and both are to be given their natural meaning keeping in mind the object to be achieved for which the Act has been enacted. They refer to Sub-section (1) of Section 3 of the Act and submit that Sub-section (1) of Section 3 presupposes that prior to the passing of the said Act there is no adequate supply and full and proper utilization of the unprotected workers in the scheduled employment and there were no better terms and conditions of service for such unprotected worker and in order to protect them, the Legislature has passed the said Act. It is submitted that the object of the Act clearly states that the Act is for regulating the employment of unprotected manual workers employed in certain employment and to make the provisions for adequate supply and full and proper utilization in such employment and for matters connected therewith. It is submitted that various provisions of the said Act read with various provisions in the Scheme framed thereunder, clearly manifest the intention of the legislature that a machinery in the form of a Board has to be constituted to monitor and/or administer the entire scheme for unprotected worker and to achieve the objects to regulate their employment, better provision for their terms and conditions of employment, to provide for their welfare and for health and safety measures, including providing for Provident Fund, Gratuity, etc. It is submitted that the history shows that the unprotected workers were exploited for generations together in the employments (which are now scheduled) and therefore the State Government had to step in to suppress the mischief played by the employer and advance the remedy. It is further submitted by the respondents that the arguments on behalf of the employer that the direct and regular employees may get better benefits and as such they are not coverable under the Mathadi Act, has no substance because the provisions of Section 21 of the Mathadi Act. The learned Counsel further submits that from the above, it is clear that the State Government was very much aware that as on the date of passing of the said Act, there are unprotected workers enjoying better benefits than the one that may be available under the said Act and the Scheme framed thereunder and therefore those better benefits have been fully protected under Section 21. The employer's arguments that regular manual workers directly employed by the employers are enjoying better benefits, are not covered by the Mathadi Act, has no substance because there is no such provision in the said Act or Scheme framed thereunder which states that such workers who are enjoying better benefits are to be excluded from the said Act. Section 22 of the Mathadi Act provides for exemption by the Government if the employers can establish that they have directly employed regular employees who are enjoying better benefits than the benefits provided under the said Mathadi Act. The provisions of the said section defeats the arguments of the employers that their direct and regular manual workers are not covered under the said Act. The legislators knowing fully well that there may be employers who may directly engage regular manual workers in scheduled employment and they may also enjoy better benefits and therefore they are allowed to manage such workers themselves and need not be under the control of or monitored by the Board and therefore the provision for exemption is incorporated in the Act. It is further submitted that if the employers are allowed to employ/engage employees directly without there being any control/monitor by the Board, the history of exploitation of the said workers will be repeated. It is submitted that where a meaning of expression in a statute is plain and clear and unambiguous, the external aids cannot be resorted to interpret the said statute. Reliance in support of this submission is placed on the judgment of the supreme Court in the case of Bhaiji v. Sub-Divisional Officer, Thandla and ors . It is submitted that apart from the judgment of the Division Bench in Century Textile Mills, which did interpret the meaning of the expression "unprotected worker", in neither of the two judgments of Mr. Justice Rege or the judgment of the Division Bench in the case of Lallubhai the meaning to be attached to the term "unprotected worker" was in issue. Therefore, none of these judgments actually interpreted the expression "unprotected worker" in the Mathadi Act. These judgments made passing observations in the context of recording of the history of the Act or in the context of the facts of the case. The learned Counsel appearing for the Board have also taken us through the provisions of various schemes framed under the Act.

16. We have also heard the Trade-Union of Mathadi workers through their counsel, the trade-union supports the submissions made on behalf of the Board.

17. Now from the rival submissions it is clear that first we have to decide what is the scope of the reference. According to the petitioners the scope of the reference is to find out whether the Division Bench in the judgment in the case of Century Textile Industries was at all right in holding that the term unprotected worker used in the Act was limited only to casually engaged manual worker. Perusal of the question that has been framed and referred by the Division Bench however shows that this Bench has to express its opinion on the question as to whether the Division Bench in its judgment in the case of Century Textile Industries was right in saying that the expression unprotected workers found in Section 2(11) of the Act covers only casually engaged workers. Now, to answer this reference this Bench will have to construe the provisions of Section 2(11) to find out as to who is covered by the expression unprotected workers as defined in Section 2(11) of the Act. According to the petitioners, Mr. Justice Rege in his two judgments has held that workers who were protected by other labour legislations were not covered by the expression unprotected workers defined by Section 2(11) of the Act. According to the petitioners, the same finding was recorded also by the Division Bench in Lallubhai case. Therefore, first reference has to be made to the judgment of Mr. Justice Rege dated 19th April, 1974 in Misc. Petition No. 150 of 1973. Perusal of that judgment shows that the Petition which was decided by that judgment was filed by employers who were covered by the Cotton Merchant Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1972. In that petition what was challenged was the constitutional validity of some of the provisions of the Act and the Cotton Market Scheme. The first challenge raised was that the establishments of the petitioners in those cases were not covered by the Cotton Market Scheme. It was further contended on behalf of the petitioners in those cases that apart from the clerical staff, supervisory staff, Chowkidars, drivers and cleaners, they engaged about 175 workers who are given protection of the Employees' State Insurance Scheme, bonus, leave with pay, festival holidays and other benefits. Apart from the said workers, the petitioners in those cases also engaged Toliwalas, v.'ho do the job of loading and unloading and stacking the various types of wastes. It was contended that there was no privity of contract with Toliwalas. According to the petitioners, therefore, the scheme was not applicable to them. The petitioners also challenged the constitutional validity of some of the provisions of the Act and the scheme " being violative of Articles 14, 19(i)(f) and (g) and 31 of the Constitution of India. The learned single Judge Mr. Justice Rege rejected the contention that the petitioners were not covered by the Cotton Market Scheme. Mr. Justice Rege held that the Act and scheme put certain restrictions on the rights of the petitioners, but those restrictions were reasonable. Mr. Justice Rege in his judgment has observed thus : ' Essentially, the said impugned Act is a social labour legislation relating to a large class of manual workers viz. Mathadi, Hamal etc. called unprotected workers employed under individual employers with varying terms and conditions, in shops and markets dealing with several commodities. Admittedly, they are not covered under any of the existing labour legislations dealing with the rights of the workers and their terms and conditions of service.

35. We find much to commend this interpretation of Clause 3 of the Schedule. Clause 3 cannot be interpreted in a manner which renders it nugatory. The intention is clearly to give protection to manual workers who are not covered by any Scheme framed under the Dock Workers Act of 1948. Clause 3 also clearly indicates the intention of the legislators not to have any conflict between the Mathadi Act and Dock Workers Act of 1948. Therefore, as soon as the provisions of any Scheme under the Dock Workers Act, 1948 become applicable to a dock worker, such a dock worker will not be covered by the Mathadi Act. The two Acts, therefore, which are both welfare legislation, should be construed harmoniously to further the object for which both have been enacted. Read in this light, the Mathadi Act can cover those workers employed in the docks in connection with loading, unloading etc. so long as such workers are not covered by any of the Scheme framed under the Dock Workers Act of 1948.