Appeal No 1044 of 1968
Appeal from the judgment and order dated October 3 1967 of the Gujarat High Court in Special Civil Application No 380 of 1965
section T Desai V B Patel and I N Shroff for the appellant
section S Shukla for respondents Nos 1 to 9
The Judgment of the Court was delivered by Dua J
This appeal has been presented to this Court by the Ahmedabad Manufacturing  Calico Printing Co Ltd pursuant to the certificate granted by the Gujarat High Court under article 187 1331c of the Constitution
The Gujarat High Court had on being approached by the respondents under article 227 of the Constitution quashed and set aside the order of the Industrial Court Gujarat dated February 5 1964 which had affirmed the order of the Second Labour Court Ahmedabad dated August 9 1963 and after setting aside that order had directed the Industrial Court to decide the matter afresh in the light of the observations made by the High Court in the impugned order
The respondents in this Court had applied to the Labour Court under section 79 of the Bombay Industrial Relations Act No XI of 1947 hereinafter called the Act in December 1962 complaining that the appellant company was liable to pay to the respondents applicants before the Labour Court dearness allowance every month according to the Dearness Allowance Award made by the Industrial Court but the same had not been paid for the month of September 1962 which was distributed in October 1962
It was alleged that from October 1962 the Company had been committing breach of the Dearness Allowance Award of the Industrial Court
In that application the present respondents had based their claim on the following averments in para 3  the applicants are being paid Rs 68 as basic pay by the opponent
The maintenance of the garden is the legal responsibility of the opponent and for the health welfare recreation of the employees working in the several departments and for the decency of the adjacent offices the opponents are maintaining it
The applicants are doing the entire work in respect thereof
 In the written statement the appellant company raised several pleas in opposing that application
The pleas which were pressed in the Second Labour Court and in the Industrial Court and which are now strongly pressed before us are contained in paras 3 8 and 10 which so far as relevant may be reproduced 3
That the applicants not being in the employment of the opponent they have no locus standi to make an approach or to file this application
That the opponent is not the employer of the applicants and the applicants are not its employees within the meanings of those words in the Act and as such the application is misconceived and not legally tenable
With respect to the allegations and averments made in paras 1 to 4 of the application it is denied that the applicants are the employees of the opponent within the meaning of that term of the Act as alleged or that 188 they are entitled to the benefits of the dearness allowance as alleged or otherwise
The true fact is that the applicants are not employed in any work which is ordinarily a part of the undertaking and as such they are not the employees within the definition of that word in the Act
The applicants are employed as coolies by a gardening contractor Messrs Dbiraj Painters and they are paid by the said contractor
The said garden lands include a large area of offices of some other concerns a Government Post Office and a Museum which are open to the public some quarters for workers as well as assistants and officers a hospital
It is for the garden of the area which comprises these buildings and the area round caustic plant factory as well as the field in Dani Limda that this agreement was entered into with the contractor for keeping the trees and plants in proper trim
Hence the work which they are performing has been held to be not ordinarily a part of the undertaking and as such the application is wholly misconceived and not legally tenable and is clearly barred by res judicata
 The Second Labour Court dismissed the respondent s appli cations
In that Court s view the real question in issue was whether the appellants did any work which is ordinary part of the undertaking
The plea of res judicata based on the decision of the Labour Appellate Tribunal of India Bombay Appeal No 135 of 1954 reported in was negatived but it was observed that the principle laid down in the earlier case would govern the present case as well
After quoting the following passage from the earlier case Now the Industrial Court was correct in holding that the agreement applied to the area which was outside the factory proper
But to our mind the principle question involved is whether the maintenance of trees and plants can be said to be work which is ordinarily part of the undertaking
In another case this Tribunal had decided that a ration shop was a part of the work which is ordinarily a part of the undertaking but the maintenance of these trees and plants stands on a different footing and can hardly be regarged as part of the work of this particular undertaking which in fact is concerned with the production of cloth
We can see no intrinsic connection between the maintenance of the trees and plants and the work which is ordinary part of the undertaking the Labour Court observed that the applicants  gardeners or malis who are contractor s employees cannot thus invoke the statutory definition of the employer
189 On appeal by the aggrieved malis the Industrial Court in the course of its judgment observed that there was no dispute that the appellants in that court had been working as gardeners or garden mazdoors and had been employed through a contractor and not directly by the mill
After referring to the decision of this Court in JK Cotton Spg  Wvg
Mills Co Ltd vs Labour Appellate Tribunal of India 1 and to the decision of the Madras High Court in Thyagaraja Chettiar vs Employees State Insurance Corporation   the Industrial Court observed  Shri Jyotikar had urged that the term mill premises  as interpreted by the courts would include even Places around the factory and so the question whether the appellants were working in one compound or the other would not be material
But it is not necessary to consider this contention because looking to the nature of the work done by the appellants and to the fact that they were not directly employed by the employer but through a contractor it has been held that they cannot be covered within the scope of section 313
Shri Jyotikar had also argued that under the Standing Orders the term operative has been defined to include persons employed through contractor but the Standing Orders would apply to a particular person only if he is an employee as defined under the Bombay Industrial Relations Act
The definition under the Standing Orders cannot therefore
be of any help in considering whether a person is covered within the scope of the Bombay Industrial Relations Act or not
Shri Jyotikar had then urged that in view of the fact that matters concerning health safety and welfare of the employees are included in Item 3 of Schedule III maintenance of gardens would be an ordinary part of the work of the undertaking
It is true that maintenance of gardens may be a matter concerning health or welfare of the employees but there is no legal obligation to maintain such gardens
Had any such obligation been created under any provision of law the position might have been as urged by Shri Jyotikar but as the facts stand at present it is not mandatory on a management of a cotton textile undertaking to maintain any garden and hence the work of maintenance of a garden cannot be said to be a work which is a part of the ordinary work of a cotton textile mill
It is clear from the above that the appellants cannot be held to be employees as defined under the Bombay Industrial Relations Act and so the Labour Court was right in dismissing the a plication 1 1964 3 SCk 24
2 1963 II LLJ 207
190 The High Court on being approached by the aggreived malis tinder article 227 of the Constitution went into the matter at considerable length and after copiously quoting from the decision in the case of J K Cotton Spg
 Wvg
Mills case supra the High Court found it difficult to agree with the reasoning of the Industrial Court that the work of maintaining the garden was not a part of the ordinary work of a cotton textile mtill
Earlier in the course of its judgment the High Court after referring to the definitions of the term employee in section 313 and of the word industry in section 319 of the Act had observed  
The definition of the term industry  is thus wide enough to include a workman employed in any calling service employment handicraft or industrial occupation or avocation of employees and it would not be correct to assume that simply because a workman happened to be engaged as a gardener he would not fall within the definition of the term employee  as given in the Bombay Industrial Relations Act
A garden when attached to a mill is an amenity that is provided to the workers employed in the mill and it is not necessary that an amenity should arise from a statutory requirement or obligation and it hardly makes any difference if the garden was provided for voluntarily or under a statutory obligation
The activities in an undertaking suck as a textile mill are not confined purely to factory work of manufacturing textile fabric within the mill premises but various other incidental and connected institutions such as hospital a canteen a playground and a garden might be maintained by the mill to provide amenities to its workers and these activities could be considered as the activities made in relation to and in the usual course of conducting the affairs of the mill
Not merely within the turning of the wheels of the machine which no doubt is directly responsible for the production of the article for which the plant of the particular industry was installed and not merely in utilising the power to move the machine to action the field of activities of the undertaking is restricted and exhausted but there are many more varieties though allied and complementary activities which are being carried on by the management and which help though in an indirect manner in creat ing a healthy atmosphere of well being and cooperation amongst the workers by providing essential facilities such as means for treating of their ailments for general entertainment and care not only of the workers but of the children who are left unattended while their parents are engaged in their work in the factory
While there 191 fore construing the words in the course of  and ordinarily a part of the undertaking  we must give them a meaning which is natural and consistent with the working of a factory as it exists in the present times and while doing so our approach should not be theoretical and academic but pragmatic and practical
The activities that are usually conducted as a part of an undertaking by which not only workers participate in the actual running of the machinery but also activities which conduce to the smooth working of the plant as a whole must be considered to fall within the ambit of the definition
We are therefore unable to agree with the contention of Mr Patel that the application of the Act must be restricted to only those workers who are directly engaged in the manufacture of textile fabric While commenting on the order of the Industrial Court where it is stated that the maintenance of gardens though a matter concerning health or welfare of the employees was not mandatory on the management of a cotton textile mill undertaking and hence the work of maintenance of a garden could not be said to be part of the ordinary work of such mill the High Court observed that  an activity undertaken as a part of the undertaking and in the course of its conduct may be undertaken voluntarily or as a result of a statutory duty or obligation but what is necessary is that the activity must reasonably be attributable to the undertaking in its usual and ordinary course in the conduct of the business or undertaking and if that be so then such an activity could be considered as the activity of a worker who would fall within the definition of employee within section 313 of the Act
 It was however contended in the High Court on behalf of the present appellant that the garden in which the present respondents had been working as gardeners was not situated within the premises of the mill and that the garden area included office of some other concerns a Government post office and a museum which was open to the public and some quarters for workers as well as assistance and officers of the hospital
The garden area according to Mr Patel who reprented the present appellants in the High Court comprised of the buildings just mentioned and the area round the caustic plant factory as well as the field at Dami Limda in respect of which an agreement had been entered into with the contractor for keeping the trees and plants in proper trim
This contention having not been considered by the 192 Industrial Court the High Court as already observed sent the case back to the Industrial Court for a fresh decision in the light of the observations of the High Court
In this Court Shri Desai on behalf of appellants contended that the High Court while exercising its jurisdiction under article 227 of the Constitution was not powered to reverse the findings of the Industrial Court and the Labour Court because under that Article it could not perform the functions of an appellate or a revisional court
On the merits also he contended that having regard to section 23 of the Act read with the notification dated May 30 1939 the Act only applied to cotton spinning and cotton weaving department mechanics shops dyeing and bleaching and printing departments and offices of the appellant and to no other activities of the appellant company
The counsel further contended that cis
13 and 14e of section 3 of the Act have to be road together and when so read they could not take within their fold a person employed by an independent contractor because such a person could by no means be considered as an employee of the appellant company unless the work done by him can be described as ordinarily part of the textile undertaking
While developing this point the learned counsel said that the word ordinarily occurring in the context work which is ordinarily a part of the undertaking in section 3 14 e conveys the idea that the work should be in the line or in the regular or norm course of the textile undertaking or any part of it
The work it was explained should be such as in the regular or normal course is part and parcel of the textile undertaking and not merely having some sort of incidental connection with the same
The work of gardening added the counsel cannot be considered to have done in execution of any work which is ordinarily part of the textile undertaking
Before considering these points it would not be out of place to mention that in the certificate of fitness granted by the High Court there is no indication about the precise point or points which induced the High Court to certify the case to be fit for appeal under clc of article 1331
This clause though couched in general terms is intended to apply to special cases in which the question raised is of such great public or private importance as deserves appropriately to be authoritatively settled by this Court
This clause of course does not in terms say so but it has always been so construed
The question whether or not to certify a given case to be fit for appeal under this clause is a matter for the judicial discretion of the High Court
The word certify used in this clause suggests that the High Court is expected to apply its mind before certifying the case to be fit for appeal
The mere grant of a certificate would however not preclude this Court from determining whether the conditions pre requisite for the grant are 193 satisfied
It is therefore always desirable and expedient for the High Court to give its reasons for granting the certificate
That would assist this Court better in appreciating if the conditions pre requisite are satisfied
In the application for certificate in the present case a number of grounds were stated for securing it
We are unable to find from the certificate as to which ground was considered by the High Court to be important enough to justify the certificate
Now in this case the respondents in fact questioned before us the competence of the High Court to grant the certificate of fitness but the objection raised by Shri Shukla was based only on the Submission that Art 133 is inapplicable because the impugned order is not a final order We may first deal with this preliminary objection
Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal
The material part of this Article substantially reproduces the provisions of section 107 of the Government of India Act 1915 except that the power of superintendence has been extended by this Article to Tribunals as well
Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction The power under article 227 of the Constitution is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors see Naryan Singh vs A mar Nath 1
At this stage we consider it proper to refer to some of the judicial pronouncements by this Court with regard to the right of appeal under article 133 from interlocutary orders
In Tarapur  Co vs Ms VO Tractors Export2 it was observed that an order of the High Court in appeal which does not dispose of the suit but merely refuses to grant an interim injunction is not a final order within the meaning of article 133 even though as a result thereof the pending suit as framed may become infructuous requiring amendment of the plant
On the other hand an order dismissing a writ petition challenging industrial award which disposes of only one of the items of a charter of demands by the workmen leaving the rest of the items to be adjudicated by a subsequent award was held in Asbestos Cement Ltd vs Savarkar3 to be a final order in a civil proceeding and therefore appealable under article 133
Under article 226 of the Constitution it may in this connection be pointed out the High Court does not bear an appeal or a revision  that court is moved to interfere after 2 1969 2 SCR 699
1  3  194 bringing before itself the record of a case decided by or pending before a court a tribunal or an authority within its jurisdiction
A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order in an original proceeding
An appeal or a revision on the other hand is generally
considered to be a continuation of the original suit or proceeding and in a case where the High Court deals with an appeal or a revision finality for the purpose of article 133 must attach to the whole of the matter so that after the decision of the High Court the matter is not a live one
 see Ramesh vs Ganda Lal1 The impugned order before us was made by the Gujarat High Court on an application under article 227 of the Constitution the prayer in that application being to remove the record of the case of the High Court and after examining the same a to quash the order and judgment of respondent No 2 at Annexure B  and b to direct respondent No 2 to dispose of the appeal of the petitioner according to law Now in some High Courts article 227 is utilised for the purpose of securing relief by way of writs or directions in the nature of writs more accurately contemplated by article 226 of the Constitution  Ramesh vs Ganda Lal1 and in some this Article is invoked for getting orders of tribunals revised just as section 115 CPC is utilised for revision of orders of subordinate courts  Surinder Nath vs Stiphen  2  P Ltd
As such power under article 227 may also be exercised suo motu
In the present case article 227 appears to us to have been used in effect as a substitute for article 226 for seeking a direction in nature of a writ for quashing the orders of the subordinate tribunals
At least it appears that the proceeding before the High Court was so treated by all concerned
We should however not be understood to express our approval of the use of article 227 for seeking relief by way of writs or directions in the nature of writs for which purpose article 226 is expressly and in precise language designed
From that point of view if otherwise the High Court while disposing of a petition under article 227 finally settles some points affecting the rights of the parties then to that extent the impunged order may be considered to operate as a final order just as an order made under article 226 would
As to whether the High Court has jurisdiction to make the impugned order while exercising its power under article 227 will depend on our conclusion when considering the merits of the case
Coming to the merits of the case we should like first to reproduce the notification dated May 30 1939 and the definitions of the word employee and employer so far as relevant for our purpose as contained in the Act
The notification reads  1 ATR at 1449
1  195 BOMBAY CASTEL 30th May 1939 BOMBAY INDUSTRIAL DISPUTES ACT 1939 No 284734 A
In exercise of the powers conferred by sub section 3 of Section 2 of the Bombay Industrial Disputes Act 1938 Bom
XXV of 1938 and in supersession of Government Notification in the Political and Service Department No 284734 2 dated the 14th March 1939 the Government of Bombay is pleased to direct that the provisions of the Act which have been extended to the Province of Bombay under Government Notification in the Political and Services Department No 284734 1 dated the 14th March 1939 shall apply to the cotton Textile Industry as specified below a All concerns using power and employing twenty or more workers which are engaged in cotton spinning b all concerns using power and employing twenty or more workers which are engaged in cotton weaving with or without an admixture of silk rayon artificial silk or one or more of these c all mechanics shops attached to and all dyeing bleaching and printing departments whether situated within or outside the precincts of and forming integral part of the concerns falling under clause a or b
d All the offices whether situated within or outside the precincts of the concerns falling under clause a or b Employee and employer so far as relevant for our purpose ire defined as 3
In this Act unless there is anything repugnant in the subject or context 13 employee  means any person employed to do any skilled or unskilled work for hire or reward in any industry and includes a a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub clause e of clause 14 14 employer  includes e where the owner of any undertaking in the course of or for the purpose of conducting the undertaking 196 contracts with any person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the undertaking the owner of the undertaking Shri Desai on behalf of the appellant submitted that the respondents in this Court who were gardeners employed by a contractor cannot fall within the definition of the word employee as contained in section 14e of the Act
He further contended that the notification issued under the Act extending its applicability to the textile undertaking does not take within its fold the respondents who are not directly connected with any part of the activity with which the appellant textile industry is directly concerned
In support of his contention he relied on some decided cases
The first decision to which our attention was drawn is reported as Kesar Lal Narsing Bhai vs Mls
Calico Printing Ltd1
This is a decision by the Labour Appellate Tribunal of India Bombay and the present appellant was a respondent in that case
There the gardeners who used to work outside the gate of the factory and had been employed through a contractor had applied under section 781  A c of the Act for a declaration from the first Labour Court that the mill s failure to pay wages and Dearness Allowance in accordance with the Standardisation Award amounted to an illegal change
The Labour Court had granted their application but the Industrial Court on appeal had reversed that decision
The employees took the matter on further appeal to the Appellate Tribunal but without success
In that case the employees had wrongly asserted in their applications that they were direct employees of the mills in question and the relief claimed was based on this erroneous assertion
The Standardisation Award by which the company was bound it is pertinent to point out was given only in respect of those persons who had been employed directly for the purpose of looking after the garden of the factory proper
it would thus be obvious that the employees  claim there was liable to fail on the short ground that they were not direct employees as wrongly claimed by them and that the relief under the award was confined to direct employees only
But this apart it is further clear from the decision of the Appellate Tribunal that under the agreement with the contractor there the latter had been employed for the purpose of looking after the garden not within the factory compound proper but beyond it
Indeed the contractor s obligation to look after the garden extended further beyond even that area
It is in this context and background that the Appellate Tribunal observed in the concluding part of its order that statutory definition of an employee in our opinion cannot be invoked by a gardener who has been employed through a contractor for the work as undertaken here emphasis supplied
This decision 1 1955 Industrial Court Reporter 1105
197 therefore does not assist us on the precise question raised
The next decision relied upon by Mr Desai is reported as Hakim Singh vs J C Mills Ltd1
In that case the mills had employed a contractor to supply packing material
The contractor because of the nature of his work was given a room in the mills premises for preparing a particular packing material
An employee of the contractor applied to the Industrial Court for relief under the pro visions of the Act
It was held that he could not be deemed to be an employee of the mills because the work which was carried on by the employer of the petitioner was not a part of the industrial undertaking
While commenting on the scope of section 3 13 a and section 14e of the Act which define the words employee and  employer it was said that for the purpose of these provisions there must be an industrial undertaking owned by somebody  some work which is ordinary part of the undertaking must have been entrusted by the owner to the contractor that contractor must be employed an employee  that employee can then by the combined operation of these provisions insist upon being treated as employee of the owner himself the obvious idea behind this scheme being that the owner of an industrial undertaking should not be allowed to evade responsibilities towards his employees which are imposed by the labour laws by entrusting a part or whole of the undertaking to a contractor
The actual decision of this case is on different facts and is clearly not of much help though the observations regarding the purpose of the provisions of the definitions admit of no controversy
Reliance was further placed by Shri Desai on the decision of this Court in Messrs Godavari Sugar Mills Ltd vs D K Worlikar2 where a notification applicable to the manufacture of sugar and its by products was held not to cover the head office of the sugar mills at Bombay and the employees engaged there when the head office was Separated from the factories by hundreds of miles
The notification was held not to cover sugar industry as such Shri Desai also sought support from Begibhai M Chokshi vs Ahmedabad Manufacturing  Calico Printing Co Ltd 3  a decision of the Industrial Court Bombay which dealt with running of a retail shop New India Tannis vs Aurora Singh Moibi  4  a case of doing repairs to the machinery of the factory and from section M Ghose vs National Street  Metal Works Ltd5 a case of an employee of a contractor engaged to paint the premises
Both the Calcutta
decisions are under the Workmen s Compensation Act
1 1963 MPLJ714
2  3 4 AIR 1947 Cal
5 At
R 198 The respondents  learned counsel apart from urging that the High Court has sent the case back for deciding the nature of work done by the malis in this case and that there are tie appellant cannot appropriately ask this Court to determine these questions which are awaiting decision by the Industrial Court also relied on Basti Sugar Mills Ltd vs Ramjagar1 and on J K Colton Spg  W vs Mills supra
In the former case the respondents there employed by a contractor to remove press and from the sugar factory were held to be workmen employed by the factory because removing press
mud was considered ordinarily to be a part of the sugar industry
The latter case is an authority for the proposition that an employee engaged in any work or operation which is incidentally connected with the main industry is a workman if other requirements of section 2s of the Industrial Disputes Act 14 of 1947 are satisfied and that the malis in that case were workers within the meaning of section 2 of UP Industrial Disputes Act 28 of 1947
The bungalows and gardens on which the malis in that case worked were a kind of amenity supplied by the mills to its officers and on this reasoning the malis were held to be engaged in operations incidentally connectd with the main industry carried on by the employer
It was by relying on the ratio of this decision that the High Court in the present case came to the conclusion that the workers in order to come within the definition of employee need not necessarily be directly connected with the manufacture of textile fabrics
This decision
is binding on us and indeed Shri Desai also fairly accepted its ratio
He only contended that the malis employed by a contractor unless directly connected with the textile operations cannot get the benefit of this decision
In our view on the conclusions of the High Court which have not been shown to be erroneous justifying interference it is not possible to reverse its decision on the basis of the abstract submission advanced by Shri Desai
As observed in J K Cotton Spg  Wvg
Mills case supra the problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law
This concept of social justice has a comprehensive sweep and it is neither pedantic nor one sided but is founded on socioeconomic equality
It demands a realistic and pragmatic approach for resolving the controversy between capital and labour by weighing it on an even scale with the consciousness that industrial operations in modem times have become complex and complicated and for the efficient and successful functioning of an industry various amenities for those working in it are deemed as essential for a peaceful and healthy atmosphere
The High Court has left open for the decision by the Industrial Court the question as to the nature of the work done by the 1 19642 SCR 838
199 respondents for determining whether or not in view of the fact that they are employed through a contractor and not directly their case falls within section 313
This is what the High Court has said It was urged by Mr Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns a Government Post Office and Museum which were open to public and some quarters for workers as well as assistants and officers of a hospital
It was also urged by Mr Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim
It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor they could not be covered within the scope of section 3 13 of the Bombay Industrial Relations Act
Since this contention has not been considered by the Industrial Court we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent No 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised
Subject to this the order of the Second Labour Court Ahmedabad dated 9th August 1963 passed in Application No 2005 of 1962 and the order of the Industrial Court Ahmedabad dated 5th February 1964 passed in Appeal IC No 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above 200 There is no cogent ground why this matter should be decided by this Court and not by the Industrial Court in the normal course as directed by the High Court In our opinion the order of the High Court is legally correct and is also eminently
just and fair
We are unable therefore to
agree with Mr Desai that this order requires any intereference
The principle followed by the High Court is the one which was laid down by this Court in J K Cotton Spg  Wvg
Mills case supra
The decisions of the Labour Court and the Industrial Court were based on misconception of the legal position and the High Court was within its authority to interfere under article 227 of the Constitution to quash them
The appeal accordingly fails and is dismissed with costs
GC Appeal dismissed


Summary:
The respondents were malis who under a contractor looked after the maintenance of a garden adjacent to but outside the Premises of the appellant company which produced textiles
In an application before the Labour Court the respondents claimed that they were employees of the company within the meaning of section 313 of the Bombay Industrial Relations Act 11 of 1947 and therefore entitled to dearness allowance
The Labour Court rejected the claim on the ground that the respondents worked under a contractor
On appeal the Industrial Court held that the company was under no legal obligation to maintain the garden and therefore the respondents did not fall within the definition of employee
The High Court in a petition under article 227 of the Constitution held that statutory obligation was not necessary condition of an activity being considercd a part of the ordinary work of an undertaking but what had to be seen was whether the activity was reasonably attributable to the undertaking in its usual and ordinary course in the conduct of the business or undertaking
Since the appellant company contended before the High Court for the first time that the garden area in question did not pertain only to the appellant but to several other employers the High Court remanded the matter to the Industrial Court for a fresh decision in the light of the observations of High Court
The appellant company in appeal by certificate contended that the High Court had exceeded its jurisdiction under article 227 of the Constitution that a employed through an independent contractor could not be an employee and that maintenance of a garden could not be considered to be work which was ordinarily Li part of the undertaking within the meaning of section 314 of the Act
The respondents raised a preliminary objection that the order of the High Court was not a final order  and therefore the certificate granted by the High Court under article 133 was incompetent
HELD  i in this case article 227 appears to have been used as a substitute for article 226 for quashing the orders of the subordinate tribunals
If therefore while disposing of the petition under article 227 theHigh Court finally settles some points then to that extent the impugned order may be considered to operate as a final order just as an order under article 226 would
194F ii The mere grant of a certificate would not preclude this Court from determining whether the conditions pre requisite for the grant are satisfied
it is therefore always desirable and expedient for the High Court to give its reasons for granting the certificate
That would assist this Court better in appreciating if such conditions are satisfied
192H LI208SupCII72 186 Waryam Singh vs Amar Nath  Tarapur  Co vs Mls
YO Tractors Export 1969 2 SCR 699 Asbestos Cement Ltd vs Savarkar   Ramesh vs Ganda Lal  at 1449 and Surinder Nath vs Stiphen P Ltd   referred to
iii As held by this Court in JK Cotton Spg
and Wvg
Mills an employee engaged in any work or operation which is incidentally connected with main industry is a workman if other requirements of section 2s of the Industrial Disputes Act 14 of 1947 are satisfied
The bunglows and  gardens on which the malis in that ease worked were a kind of amenity supplied by the mills to its officers and on this reasoning the malls were heldp to be engaged in operations incidentally connected with the main industry carried on by the employer
The High Court rightly relied on that decision in arriving at its conclusion in the present case that the workers in order to come within the definition of employee  need not necessarily be directly connected with the manufacture of textile fabrics
The problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law
198F J K Cotton Spg
 Wvg
Mills Co Ltd vs Labour Appellate Tribunal of India   applied
Thyagaraja Chettiar vs Employees State Insurance Corporation 1963 It LLJ 207 Kesar Lal Narsing Bhai V Calico Printing Ltd 1955 Industrial Court Reporter 1105 Hakim Singh vs JCMills Ltd  Messrs Godavari Sugar Mills Ltd vs D K Worlikar
  Begibhai M  Chokshi vs Ahmedabad Manufacturing  Calico Printing Co Ltd  New India Tannis vs Aurora Singh Moibi AIR 1947 Cal 613 section M Ghose vs National Sheet  Metal Works Lid
 AIR 1950 Cal
548 and Basti Sugar Mills Ltd v 
Ramjagar   referred to
iv The High Court had remanded the case to the industrial Court because the appellant s contention that the garden pertained to several other offices and buildings in the area and not to the appellant s factory alone had not began considered by the industrial Court
There was no cogent ground why this matter should be decided by this Court and not by the Industrial Court
The order of the High Court was legally correct and it was within its authority under article 227 to quash the decisions of the Labour Court and the Industrial Court which were based on misconception of the legal position
200A