Case: Bharatiya Kamgar Sena Vs. Otis Elevator Employees Union & Others

S.J. Vazifdar, J.1. The petitioner and the first respondent are registered under the Trade Union Act, 1926. Respondent No.2 is the Otis Elevator Company (India) Limited, Western Region, which is one of the undertakings of M/s. Otis Elevator Company (India) Limited.2. The petitioner has challenged an order of the Industrial Court declaring the first respondent-union as the recognized union under section 11 of the Maharashtra Recognition of Trade Union & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act") in respect of the second respondents undertaking known as M/s. Otis Elevator Company (India) Limited (Western Region).3(A). By an application dated 29th January, 2005, the first respondent sought to be declared as the recognized union under section 11 of the said Act. The application stated as follows.Over 50% of the employees in the said undertaking were members of the first respondent for the whole of the period of six calendar months immediately preceding the month in which the application was made i.e. from July, 2004 to December, 2004. This fulfills the requirement of section 11(1) which entitles a union to apply for being registered as a recognized union of an undertaking only if it has a membership of not less than 30 per cent of the total number of employees employed in the undertaking.The list of 272 employees of the undertaking who were the members of the first respondent was furnished. This fulfills the requirement of section 10 which makes Chapter III applicable to undertakings wherein 50 or more employees are employed at the relevant time.The membership of respondent No.1 is more than the membership of the petitioner entitling respondent No.1 to be preferred for recognition in view of section 12(3).The said undertaking had full and complete control over the said members / employees inasmuch as their activities, work, wages, allowances, bonus, ex-gratia, leave, work norms and all other service conditions were directed and controlled by and from the said undertaking. The recognition was sought only in respect of the said undertaking located at Malad in Mumbai. It is not necessary to refer to the other averments, including regarding the constitution of the first respondent-union as the same were not in dispute.(B). The petitioner filed a written statement / objections to the first respondents application for recognition under the Act. Some of the objections / grounds of opposition, which Mr. Bapat reiterated before us, were as follows.The first respondents application proceeds on the incorrect basis that its members are attached to the said undertaking. Chapter III of the Act, including sections 10, 11 and 12 therein refer to the employees employed or working within the premises of the undertaking of the precincts thereof. The phrases "undertaking wherein fifty or more employees are employed" in section 10(1), "undertaking, employing such number of employees" in the proviso to section 10(1), "employees employed in any undertaking" in sections 10(3) and 11(1) and "employees employed in the undertaking" in section 12(3) contemplate employees actually and physically working within the premises of the undertaking or precincts thereof.There were only 20 employees who actually attended the premises of the said undertaking and worked therein. In other words, there were less than 50 employees working in the undertaking. The others are field workers who are deployed by the company at various sites for the purpose of installation and servicing the elevators, escalators and other equipment supplied by the company to its various clients. The depots are independent and separate establishments. The employees attached to the depots, therefore, cannot be considered while ascertaining whether at least 50 members of the first respondent were attached to the said undertaking. Admittedly, no notification wasissued under section 3(15) of the said Act to declare the said undertaking and the four independent and separate depots as one undertaking.Mr. Bapat submitted that the field workers were not, as a matter of fact, connected to or associated with the undertaking in any manner. Secondly, he submitted that even assuming that the field workers mentioned in the first respondents application were connected to or concerned with the undertaking they cannot be said to be employed in the undertaking as they were not working in the said undertaking to wit they were not physically present and working within the premises of the undertaking.4. The company itself has not challenged the order of the Industrial Court. Nor has it supported the petitioner during the hearing of the petition. Its officers however, had been examined by the first respondent.5. Two questions therefore, arise. The first is whether the field workers are in fact connected or attached to the undertaking. The second is assuming they are, whether they can be said to be employed in the undertaking. The second is a question of law viz. whether field workers fall within the purview of Chapter III of the Act, including sections 10, 11 and 12 thereof i.e. whether they can be said to be employed in the said undertaking.6. It is necessary to first ascertain whether the 272 workers who the first respondent claims to be its members can be said to be connected to, concerned with, or attached to the undertaking as a matter of fact.7. The Industrial Court had, in the earlier round, by an order dated 1st November, 2011, declared the first respondent to be the recognized union under section 11 of the Act. The petitioner had filed Writ Petition No.2331 of 2011, challenging the said order. By an order and judgment dated 18th January,2012, a Division Bench, with the consent of the parties, set aside the order of the Industrial Court and directed the first respondents application to be heard afresh. Pursuant thereto, the application was heard afresh and the Industrial Court passed the impugned order dated 7th June, 2012. In the first round, three issues had been raised. Upon remand, additional issues were raised. The issues are as follows:"1. Does the applicant Union fulfill the conditions of Section 11 and 19 of the MRTU & PULP Act and made out the case for grant of recognition2. Whether the applicant Union has proved the Majority of membership in the Non applicant Company3. What order4. Whether the provisions of Chapter III of the MRTU & PULP Act 1971 apply to the applicant Undertaking during the relevant period for which the recognition is sought5. Whether the members of the applicant union enclosed with the application were employed in or attached to four depots i.e. Colaba, Grant Road, Andheri and Kandivali during the relevant period"Issue Nos.1, 2 and 4 were answered in the affirmative.Issue No.5 was answered in the negative.8. This brings us back to the first question. The finding of the Industrial Court that the field workers were attached to and were under the supervision and control of the Western Region must be sustained. The findings do not warrant any interference. The Industrial Court has answered this issue in the affirmative after considering the evidence and the material on record. We see no reason to take a different view.9. The first respondent claimed that 272 workers of the Western Region Office were its members at the relevant time. A report was also prepared by the Investigating Officer of the Industrial Court. Assuming that the field workers are to be considered, four issues of fact are established viz. (i) There were more than 50 employees employed in the undertaking. (ii) The first respondents membership exceeded 30% of the employees in the undertaking. In fact, it was over 50%. (iii) The first respondents membership is larger than the membership of the petitioners. (iv) The 272 workers listed in the application for recognition were the first respondents members is not disputed. If however, the field workers are not to be considered, the first respondents application would not be maintainable as in view of section 10, Chapter III would not be applicable as there were less than 50 employees employed in the undertaking. Admittedly without the field workers, there were less than 50 employees employed in the undertaking. The question is whether the field workers were under the supervision and control of the Western Region Office and can therefore be said to be connected to the said undertaking.10. The recognition was sought in respect of the Western Region office and the field workers related thereto. The Industrial Court found that the supervision and control of the first respondents members, including the field workers was with the said undertaking. The main activities of the company involve the construction, supply, erection and maintenance of lifts and elevators in various parts of India. The nature of these activities are such that they are carried out at different locations depending on where the equipment is to be installed, maintained or repaired. As we mentioned earlier, the recognition has been granted only in respect of the field workers in Mumbai city. Even in Mumbai, the activities are at different locations and sites depending on where the lifts and elevators are to be supplied, erected, repaired or maintained.11. Considering the nature of the activities, especially of the field workers, it is obvious that they do not attend the Western Region office daily. The nature of their work requires their presence at the relevant site where the companys activities are actually being carried out. They are spread over the city at the various sites. It has come on record that the company also has four depots located at Colaba, Breach Candy, Andheri and Kandivali. They are looked after by Assistant Managers. About 5 to 6 persons worked under each of these Managers who are posted at particular depots. The field workers reported to these persons and also collected material from them as well as from the other stores. The workers are also controlled by the Model Standing Orders as well as the Industrial Employment Of Standing Orders Act. The Model Standing Orders are applicable to establishments where 50 or more workers are working. The Industrial Court, therefore, justifiably considered this to be a factor in favour of the first respondents contention that the said undertaking had 50 or more workers. This was, however, not the only basis on which the Industrial Court came to the conclusion that the said undertaking had 50 or more workers. The conclusion was also arrived at for various other reasons which are as follows.12. The evidence of the witnesses, including the companys officers, establish certain crucial factors which establish that the field workers concerned were supervised, controlled by and were otherwise attached to the undertaking. The said field workers were appointed by the Western Region Office. Their pay slips were issued from the Western Region Office. Disciplinary action was also taken against these workers by the Western Region Office. The Western Region Office was responsible for preparing the details relating to the salaries of the said field workers. Instructions for the change in location of the field workers were given by the Western Region Office. Thus, the Western Region Office looked after, controlled and directed the appointment, transfers, payment of wages, disciplinary action and the leave record in respect of these field workers.The depots were not separate undertakings. As the sites were at various locations at a considerable distance from each other and from the Western Region Office, it is understandable that the workers assembled at the depots and collected the material from the depots and other stores. It is also understandable in these circumstances that they did not report to the Western Region Office daily. In these circumstances, it would make no difference even if the wages were handed over to them at convenient locations other than at the Western Region Office itself.13. The cross-examination of one of the petitioners witnesses is important and instructive. The petitioners witness admitted in cross-examination that the petitioner-union used to correspond with the company at the Western Region Office. He further admitted that all the activities of the company were carried out at the Western Region Office. Even the charter of demands and grievances of the employees were addressed to and dealt with at the Western Region Office. The petitioner-union itself signed agreements at the address of the Western Region Office. He also admitted that the computation of wages, deduction from the salary and the maintenance of records with regard to the salary was maintained at the Western Region Office. Leave applications of the employees used to be sent to the Western Region Office. The leave records were maintained at the Western Region Office. He further admitted that disciplinary action was taken at and controlled from the Western Region Office. Show cause notices were issued from there. Letters of promotions and transfers were also issued from the Western Region Office. The time ticket record used to be maintained at the Western Region Office. It is on the basis thereof that the salary used to be computed.14. Mr. Bapat submitted that a large part of the impugned order is nothing, but a reproduction of the earlier order which had been set aside by the Division Bench with a direction to pass a fresh order. He submitted that the impugned order was passed without adverting to the relevant evidence. He, therefore, submitted that we ought to set aside the order and remand the matter once again to the Industrial Court. Even assuming that the submission is well founded, we see no purpose in remanding the matter. It has already been remanded once. Remanding it again would cause unnecessary inconvenience and expense to both the parties. We, therefore, allowed Mr. Bapat to address us on the facts as well.15. The Industrial Court was therefore, justified in concluding that the said field workers were under the supervision and control of the Western Region Office. The Industrial Court cannot be faulted for having rejected the petitioners contention that these workers were not attached to the depots as contended by the petitioner. We are, therefore, entirely in agreement with the Industrial Court that the said field workers were attached to, controlled and supervised entirely by the Western Region Office i.e. the undertaking in respect whereof the recognition has been granted to the first respondent.16. This brings us to the next question viz. whether field workers can be said to be employed in the said undertaking.17. The relevant provisions of the MRTU & PULP Act are as under:"Section 3 - DefinitionsIn this Act, unless the context requires otherwise,-(1) "Bombay Act" means the Bombay Industrial Relations Act, 1946, (Bom XI of 1947);(2) "Central Act" means the Industrial Disputes Act, 1947, ( XIV of 1947);(3) "concern" means any premises including the precincts thereof where any industry to which the Central Act applies is carried on ;... ... ...(5) "employee" in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of section 3 of the Bombay Act; andin any other case, means a workman as defined in clause(s) of section 2 of the Central Act1[and a sales promotion employee as defined in clause (d) of section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976];(6) "employer" in relation to an industry to which the Bombay Act applies, means an employer as defined in clause (14) of section 3 of the Bombay Act; and in any other case, means an employer as defined in clause (g) of section 2 of the Central Act;... ... ... ...(11) "member" means a person who is an ordinary member of a union, and has paid a subscription to the union of not less than 50 paise per calendar month :Provided that, no person shall at any time be deemed to be a member, if his subscription is in arrears for a period of more than three calendar months during the period of six months immediately preceding such time, and the expression "membership" shall be construed, accordingly.(13) "recognised union" means a union which has been issued a certificate of recognition under Chapter III;(15) "undertaking" for the purposes of Chapter III, means any concern in industry to be one undertaking for the purpose of that Chapter :Provided that, the State Government may notify a group of concerns owned by the same employer in any industry to be one undertaking for the purpose of that Chapter;(17) "union" means a trade union of employees, which is registered under the Trade Unions Act, 1926;Section 10 - Application of Chapter III(1) Subject to the provisions of sub-sections (2) and (3), the provisions of this Chapter shall apply to every undertaking, wherein fifty or more employees are employed, or were employed on any day of the preceding twelve months:Provided that, the State Government may, after giving not less than sixty days notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Chapter to any undertaking, employing such number of employees less than fifty as may be specified in the notification.(2) The provisions of this Chapter shall not apply to undertakings in industries to which the provisions of the Bombay Act for the time being apply.(3) If the number of employees employed in any undertaking to which the provisions of this Chapter apply at any time falls below fifty continuously for a period of one year, those provisions shall cease to apply to such undertaking.Section 11 - Application for recognition of union(1) Any union (hereinafter referred to as the "applicant-union") which has for the whole of the period of six calendar months immediately preceding the calendar month in which it so applies under this section a membership of not less than thirty per cent of the total number of employees employed in any undertaking may apply in the prescribed form to the Industrial Court for being registered as a recognised union for such undertaking.(2) Every such application shall be disposed of by the Industrial Court as far as possible within three months from the date of receipt of the application, where a group of concerns in any industry which is notified to be one undertaking for which recognition is applied for is situated in the same local area; and in any other case, within four months.Section 12 - Recognition of Union(1) On receipt of an application from a union for recognition under section 11 and on payment of the prescribed fees, not exceeding rupees five the Industrial Court shall, if it finds the application on a preliminary scrutiny to be in order, cause notice to be displayed on the notice board of the undertaking, declaring its intention to consider the said application on the date specified in the notice, and calling upon the other union or unions, having membership of employees in that undertaking and the employers and employees affected by the proposal to show cause, within a prescribed time, as to why recognition should not be granted to the applicant union.(2) If, after considering the objections, if any, that may be received under sub-section (1) from any other union (hereinafter referred to as "other union") or employers or employees, if any, and if after holding such enquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the conditions requisite for registration specified in section 11 are satisfied, and the applicant-union also complies with the conditions specified in section 19 of this Act the Industrial Court shall, subject to the provisions of this section, grant recognition to the applicant-union under this Act, and issue a certificate of such recognition in such form as may be prescribed.(3) If the Industrial Court comes to the conclusion, that any of the other unions has the largest membership of employees employed in the undertaking, and the said other union has notified to the Industrial Court its claim to be registered as a recognised union for such undertaking, and if it satisfies the conditions requisite for recognition specified in section 11, and also complies with the conditions specified in section 19 of this Act, the Industrial Court shall, subject to the provisions of this section, grant such recognition to the other union, and issue a certificate of such recognition in such form as may be prescribed.(4) There shall not, at any time, be more than one recognized union in respect of the same undertaking.(5) The Industrial Court shall not recognise any union, if it is satisfied that the application for its recognition is not made bona fide in the interest of the employees, but is made in the interest of the employer, to the prejudice of the interest of the employees.(6) The Industrial Court shall not recognise any union, if, at any time, within six months immediately preceding the date of the application for recognition, the union has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under this Act."18. Regulation 85 of The Industrial Court Regulations, 1975, reads as under:"85. The employer whose employees union has applied for recognition shall display on the notice board at a conspicuous place on the premises of the undertaking all notices in the proceedings together with the copies of the application, as may be directed by the Court. A notice thus displayed on the notice board of the undertaking shall be deemed to have been served on all employees employed in the undertaking. Display of every such notice shall be supported by employers affidavit to be filed in Court within three days from the date of display."19. Section 10(4) of the Act contemplates only one union as the sole bargaining agent in a given undertaking. As we mentioned earlier, the first respondent fulfilled all the requirements necessary to be recognized provided that the field workers can be said to be employed in the said undertaking.Mr. Bapat submitted that for the relevant provisions to apply, it is also necessary that the employees concerned must be physically present and working in the premises or precincts of the undertaking.The physical presence of such employees in the premises or the precincts thereof is necessary for it to be said that they were employed in the undertaking.20. We are unable to agree with Mr. Bapats contention that field workers cannot be said to be employed in the undertaking or in the precincts thereof. As the short title itself suggests, the Act is, interalia, for the recognition of trade unions. The preamble opens by saying that it is an Act to provide for recognition of trade unions. It also states the purpose for which the recognition is granted to the trade union. It is to facilitate collective bargaining for certain undertakings, to state their rights and obligations, to confer certain powers on unrecognized unions, to define and provide for the prevention of certain unfair labour practices, to prohibit and declare certain rights and lockouts as illegal strikes and lockouts and to constitute courts for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair practices and to provide for matters connected therewith. It is necessary to emphasize the fact that the main purpose of the Act is the recognition of Trade Unions and to regulate the rights and obligations of a recognized union and its members.21. As rightly submitted by Mr. Singhvi, the learned counsel appearing on behalf of the respondent No.1, the Act does not in so many words exclude from its ambit, employees such as field workers who are not present and do not work physically in the premises of the undertaking concerned or within the precincts thereof. Mr. Bapat has not invited our attention to any such provision either. He, however, submits that this is the effect of the words "employees employed in any undertaking". There is no reason why the legislature would have intended excluding from the ambit of the MRTU & PULP Act, field workers. There is no reason why field workers would be excluded from the benefit of the Act. Section 3(5) of the MRTU & PULP Act, which defines the term "employee" does not exclude from its purview, field workers. The plain language does not exclude them. There is nothing in the section that persuades us to take the view that field workers are impliedly excluded therefrom.22. The provisions of Chapter III, including sections 10 to 12 thereof must be seen in the light of the fact that the term "employee" includes field workers. If the legislature intended excluding field workers from the ambit of Chapter III, it would have expressly provided for the same especially in view of the fact that the definition of employee in section 3(5) does not exclude them.23. As also rightly submitted by Mr. Singhvi, the preposition "in" is elastic and can mean both inside a place or in regard thereto or with respect thereto. Considering the provisions of the Act and the Legislative intent behind it, we are of the view that the preposition "in" in section 11 and in particular in the words "employees employed in any undertaking" refers to employees actually physically present and working in the premises of the undertaking as well as employees working outside the premises but whose work relates to, is connected with and is in relation to the work of the undertaking and such employees are connected to the undertaking. Considering the purpose of the Act which is, inter-alia, to provide for the recognition of a trade union for facilitating collective bargaining for certain undertakings and to regulate the rights and obligations of the unions, the members of the union and the employer, the broader view proposed by Mr. Singhvi commends itself to us. The Act is a welfare legislation. The purpose of the Act would be better served by including, rather than excluding, the employees from the purview thereof.The advantages of including them are obvious. The provisions of the Act have not been challenged. The legislature obviously thought it in the interest of the employers and the employees to have only one recognized union for the purpose of the Act. If we were to accept Mr. Bapats submission, the purpose of the legislation would be defeated. It would lead to several unions operating in respect of the same undertaking. Mr. Bapat has not indicated any advantage with the existence of several unions. We see no advantage in excluding from the purview of the Act, field workers. No reason has been indicated by Mr. Bapat. He merely stated that the Act does not include within its ambit, such employees. There is no reason then why field workers ought to be denied the benefit of the Act. There is no reason why they ought to be denied benefits as members of the recognized union, including their ability for collective bargaining. Indeed their bargaining power would be enhanced if they were part of the recognized union. It is reasonable to presume that the recognized union would be in a better position while bargaining on behalf of the employees. This is for the obvious reason that under section 12(3), it is the union with the largest number of members that is entitled to recognition provided it fulfills all the other requirements of the Act.24. Section 3(15), which defines the term "undertaking", really provides that any concern in industry shall be one undertaking for the purpose of Chapter III and entitles the Government to notify a group of concerns owned by the same employer in any industry to be one undertaking for the purpose of that chapter. We do not see how section 3(15) even impliedly excludes field workers from the ambit of Chapter III.25. Mr. Bapats interpretation of the provisions of the Act, if accepted, would cause difficulties and uncertainties in determining the employees who could be said to be employed or working in the undertaking. There are some employees, such as field workers, who would seldom have to visit the premises of the undertaking itself. There are some employees who would have to visit the undertaking more often, but not at all times. They may not even have to visit the undertaking for a substantial part of their working hours and days. For instance, drivers and attendants of buses meant to transport the employees from the undertaking to their respective destinations outside the premises would spend a part of the day outside the premises and a part of the day within the premises. Similarly, drivers of cars of the employees of the undertaking would also spend varying amounts of time within the premises and outside the premises. Sales executives would also spend a part of their working hours within the premises and a part outside the premises. The number of hours spent by such employees within the premises would also vary. The amount of time spent in the premises would vary on account of innumerable factors. All these employees may well travel even outside the city regularly. Where does one draw the line The Act does not provide any guidelines to determine the same. The legislature, as we noted earlier, was obviously of the view that it is desirable to facilitate and encourage not merely the formation of unions, but the recognition of only one union in respect of an undertaking. The validity of this view is not under challenge. That being so, the interpretation of Mr. Bapat would run contrary to the purpose of the legislation.26. Mr. Singhvis reliance upon the judgment of the Supreme Court in J.K. Cotton Spinning & Weaving Mills Co. v. Labour Appellate Tribunal of India & Ors. AIR 1964 SC 787 = 1963 II LLJ, 436, is well founded. One of the contentions raised on behalf of the appellant was that malis / gardeners are not workmen within the meaning of section 2 of the Uttar Pradesh Industrial Disputes Act, 1947. Section 2 of this Act provided that the expression "workmen" therein shall have the meaning assigned to it in section 2 of the Industrial Disputes Act, 1947, which defines a workman. Section 2(s) of the Industrial Disputes Act, provides :""workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied; and so, the question is whether the ten malis whose claims have given rise to the present reference can be said to be a workman under S. 2(s)."The malis had been appointed for the maintenance of gardens attached to the bungalows of some of the officers of the mills, including a residential building allotted to the Governing Director of the mills which were situated within the compound of the mills. Some of the malis also worked in gardens attached to the residential building of the Director in charge of the mills. These gardens were not attached to the mills as such. These gardens were outside the compound of the factory but within the colony of the mills where the gardens were situated. It was found that the mills were in all respects controlled by the appellant. The control was evidenced by the fact that their names were on the register maintained by the appellant, their attendance was noted by the appellant, they are appointed by the appellant, their work was supervised and controlled by the appellant and they were liable to be dismissed by the appellant. The officers who were allotted the premises had no control over the malis and could not exercise any jurisdiction over them. In this respect, the facts of the case are similar to the facts of the case before us.It was contended that these workers could not be said to be "employed in any industry". The first basis in support of this contention related to the nature of the work. It was contended that the industry of the appellant was spinning and weaving operations and malis had nothing to do with the same. The contention was rejected.We are not, however, concerned with the same. The second basis for this contention was that as the malis worked in the gardens outside the factory premises, they could not be said to be employed in any industry. Rejecting the contention, the Supreme Court held as under:"11. ... ... ... ... Mr. Pathak was unable to resist the extension of the definition to such cases; but, nevertheless, he attempted to argue that though sweepers who sweep the premises of the factory may be called workmen, sweepers who sweep the area around the factory may not be included under S.2(s). Sweeping the area outside the factory, it is argued, may be incidentally connected with the main industry, but the incidental connexion is indirect and remote, and so, this class of employees must be excluded from the definition.We are not prepared to accept this argument. In our opinion, an employee who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be a workman provided the other requirements of S.2(s) are satisfied.12. In this connection, it is hardly necessary to emphasise that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitute the industry as a whole. Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry. Reverting to the illustration of the buses owned by the factory for the purposes of transporting its workmen if the bus drivers can legitimately be held to assist an operation incidental to the main work of the industry, we do not see why a Mali should not claim that he is also engaged in an operation which is incidental to the main industry.13. While we are dealing with this point it is necessary to bear in mind that the bungalows are owned by the appellant and they are allotted to the officers as required by the terms and conditions of the officers employment. Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take care of the gardens attached to them. If the terms and conditions of service require that the officers should be given bungalows, it is difficult to see why in the case of Malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellants property, it should be said that the work done by them has no relation with the industry carried on by the appellant. The employment is by the appellant, the conditions of service are determined by the appellant, the payment is substantially made by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the Standing Orders prescribed in that behalf, and the work assigned to the Malis is the work of looking after the properties which have been allotted to the officers of the appellant. Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer. It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and farfetched. We are not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect or far-fetched. That is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act.14. Before we part with this point, we would like to add that industrial adjudication appears consistently to have taken the view that Malis looking after the gardens attached to the bungalows occupied by officers of any industrial concern are workmen under S. 2(s). Our attention has been drawn to two decisions of the Labour Appellate Tribunal dealing with this question. In Bhikari, Kanpur v. Cooper Allen and Company, Kanpur 1952 Lab AC 298, the Labour Appellate Tribunal while dealing with the case of Bhikari who was engaged as a gardener and was on the pay-roll of the company, observed that the tribunal failed to see why he is not to be regarded as a workman within the meaning of S. 2(s) of the Industrial Disputes Act which definition has been adopted by the Uttar Pradesh Industrial Disputes Act under which the case was started. The same view was taken by the Labour Appellate Tribunal in the case of Upper India Chini Mills Mazdoor Union v. Upper India Sugar Mills , 1953 Lab AC 870. Dealing with the case of Rati Ram who was engaged as a Mali, the Tribunal rejected the employers contention that the said Mali was a domestic servant and observed that merely because the Company chooses to put Rati Ram on the work of a gardener with the Managing Director which the Company is admittedly required to provide for and pay for, it does not follow that Rati Ram became a domestic servant. It is remarkable that both these decisions which are directly in point, were under S. 2 of the Act with which we are concerned. In dealing with industrial dispute we are reluctant to interfere with the well established and consistent course of decisions pronounced by the Labour Appellate Court unless, of course, it is shown that the said decisions are plainly erroneous."Although the judgment is under the Industrial Disputes Act, 1947, the observations certainly support Mr. Singhvis submissions.27. Mr. Bapat, on the other hand, relied upon the judgment of the Supreme Court in State of Uttar Pradesh v. M.P. Singh, AIR 1960, S.C., 569. The question that fell for consideration in that case was whether field workers employed by a sugar factory to guide, supervise and control the grant of supply of sugarcane for use in the factory of the employees of commercial establishment within the meaning of the United Provinces Shops and Establishments Act, 1947. The Act regulated the conditions of employment in shops and commercial establishments, including regulating the hours of employment. It also provided for holidays and leave, including casual leave and sick leave.Section 27 penalized contraventions of the Act and the Rules made thereunder. The Laxmi Devi Sugar Mills Limited owned a factory for manufacturing sugar. The respondents were officers of the company. The Deputy Chief Inspector of Shops & Commercial Establishments, Uttar Pradesh, filed complaints against them charging them with contraventions of the provisions of the Act. The respondents contended that the Act did not apply to the field workers as they were workers within the meaning of the Factories Act. By the definition of a commercial establishment in section 2(3) of the said Act, the clerical and other establishments of a factory to whom the provisions of the Factories Act do not apply are included in the connotation of that expression. The question, therefore, was whether the field workers fell within the definition of "worker" in the Factories Act, 1948. The Supreme Court held that they did not and that, therefore, the provisions of the UP Shops and Establishments Act applied to them as well. The Supreme Court held:"5. The Factories Act, 1948, defines a worker by S. 2(1) as meaning:"a person employed, directly or through any agency, whether for wages or not, in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process".and a factory is defined by S.2(m) as meaning any premises including the precincts thereof wherein a specified number of workers on any day of the preceding twelve months is employed. By the combined operation of these definitions, persons employed in any manufacturing process or any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process are deemed to be workers in a factory. By the use in S. 2(1) of the Factories Act of the expression employed in any other kind of work incidental to or connected with the subject of manufacturing process, not only workers directly connected in the manufacturing process, but those who are connected with the subject of manufacturing process in a factory are included. It is unnecessary for the purpose of this case to decide the precise meaning of the expression subject of the manufacturing process in S. 2 cl.(1), because the diverse provisions of the Factories Act are intended to benefit only workers employed in a factory, i.e., in the precincts or premises of a factory. It is difficult to hold that the field workers who are employed in guiding, supervising and controlling the growth and supply of sugarcane to be used in the factory are employed either in the precincts of the factory r in the premises of the factory; and if these workers are not employed in a factory, the provisions of the Factories Act, 1948, do not apply to them and they evidently fall within the definition of Commercial Establishment.6. The High Court was of the view that the Supervisors and Kamdars connected with the subject of manufacturing process, namely sugarcane, were workers within the meaning of the Factories Act and accordingly they were excluded from the definition of Commercial Establishment under the Act. However, even if the Supervisors and Kamdars were employed "in any other kind of work connected with the subject of manufacturing process" unless they were employed in the factory, the provisions of the Factories Act do not apply to them, there is no dispute that they are employees of a Commercial Establishment within the meaning of the Act."Mr. Bapat fairly conceded that the judgment does not cover the case before us. He, however, submitted that the observations therein would apply with equal force to the provisions of the MRTU & PULP Act.The definition of a worker in the Factories Act, 1948, is different from the definition of an employee which falls for consideration before us. Section 2(l) of the Factories Act defines the nature of work and section 2(m) defines a factory. The Supreme Court expressly held that it is "the combined operation of these definitions" that must be considered. It is upon a combined operation of these definitions that the Supreme Court came to the conclusion that the provisions of the Factories Act are intended to benefit only workers employed in a factory i.e. on the precincts or premises of a factory. It is also not possible to apply the definition under the Factories Act to the MRTU & PULP Act for, as noted by the Supreme Court itself, the diverse provisions of the Factories Act are intended only to benefit workers employed in the factory i.e. precincts or premises of a factory.The provisions of the MRTU & PULP Act, however, do not indicate that they apply only to persons working inside or within the undertaking. The definition of undertaking in section 3(15) of the MRTU & PULP Act is entirely different from the definition of a factory in section 2(m) of the Factories Act.28. Mr. Bapat then contended that section 12 and regulation 85 establish that field workers cannot be said to be employed in any undertaking. Section 12 provides that a notice of an application from a union for recognition under section 11 is to be displayed on the notice board of the undertaking. The employees concerned are also entitled to show cause as to why the recognition should not be granted to the applicant-union. Regulation 85 also requires the employer whose employee-union has applied for recognition to display on the notice board at a conspicuous place of the premises of the undertaking, such an notice. He submitted that it would be impossible for the field workers to see the notice if they do not attend the premises of the undertaking itself. This he submitted supports his contention.29. Firstly, it is not necessary that a field worker would not ever attend the undertaking. Secondly, it is always possible for a field worker to come to know of the same through others. Thirdly, in any event, this would at the highest be a situation which is for the legislature to take care of. The provisions do not militate against our interpretation of the provisions of the Act.30. The Western Region office dealt with the entire Western region, which included the whole of Maharashtra and parts of Gujarat and Madhya Pradesh. There was no separate office for the Mumbai region. However, an overwhelming majority workers are at sites in Mumbai. The impugned order grants recognition only in respect of the field workers in Mumbai city. The first respondent has not challenged this part of the order.31. Mr. Bapat however, submitted that the first respondent made the application for recognition in respect of the entire Western Region Office. The Western Region Office comprises of employees, not merely in Maharashtra, but in parts of Gujarat and Madhya Pradesh as well. The Industrial Court has granted recognition only insofar as it concerns the employees in the city of Mumbai. According to him, the application having been for the entire undertaking, it was not open to the Industrial Court to sanction only a part thereof.32. The first respondent-union has not challenged this restriction. Mr. Bapat, in fact, rightly agreed that if it is held that field workers are covered by the provisions of Chapter III, then even field workers connected to the said undertaking, though deployed in other States, ought also to be considered, as the recognition is qua the undertaking.The error if any in the order then prejudices not the petitioner, but the first respondent. In any event, an overwhelming majority of the first respondents members are from Mumbai itself. The first respondent cannot then be prejudiced further.33. The inclusion of the sales promotion employees in the definition of employee in section 3(5) is of no assistance to the petitioner. Nor is the use of the term "means" in section 3(5) of any assistance to the petitioner. Section 5(e) provides that employee means an employee as also defined in section 3(13) of the Bombay Industrial Relations Act and section 2(s) of the Industrial Disputes Act. The Act does not contain any bar against field workers being members of a union which is entitled to seek recognition under section 11. Section 2(s) of the Industrial Disputes Act, we have already seen, includes employees working outside the premises.34. In that view of the matter, field workers ought not to be excluded from the ambit of Chapter III of the Act.

Decision:
0[ds]The finding of the Industrial Court that the field workers were attached to and were under the supervision and control of the Western Region must be sustained. The findings do not warrant any interference. The Industrial Court has answered this issue in the affirmative after considering the evidence and the material on record. We see no reason to take a different view.9. The first respondent claimed that 272 workers of the Western Region Office were its members at the relevant time. A report was also prepared by the Investigating Officer of the Industrial Court. Assuming that the field workers are to be considered, four issues of fact are established viz. (i) There were more than 50 employees employed in the undertaking. (ii) The first respondents membership exceeded 30% of the employees in the undertaking. In fact, it was over 50%. (iii) The first respondents membership is larger than the membership of the petitioners. (iv) The 272 workers listed in the application for recognition were the first respondents members is not disputed. If however, the field workers are not to be considered, the first respondents application would not be maintainable as in view of section 10, Chapter III would not be applicable as there were less than 50 employees employed in the undertaking. Admittedly without the field workers, there were less than 50 employees employed in the undertaking.Considering the nature of the activities, especially of the field workers, it is obvious that they do not attend the Western Region office daily. The nature of their work requires their presence at the relevant site where the companys activities are actually being carried out. They are spread over the city at the various sites. It has come on record that the company also has four depots located at Colaba, Breach Candy, Andheri and Kandivali. They are looked after by Assistant Managers. About 5 to 6 persons worked under each of these Managers who are posted at particular depots. The field workers reported to these persons and also collected material from them as well as from the other stores. The workers are also controlled by the Model Standing Orders as well as the Industrial Employment Of Standing Orders Act. The Model Standing Orders are applicable to establishments where 50 or more workers are working. The Industrial Court, therefore, justifiably considered this to be a factor in favour of the first respondents contention that the said undertaking had 50 or more workers. This was, however, not the only basis on which the Industrial Court came to the conclusion that the said undertaking had 50 or more workers. The conclusion was also arrived at for various other reasons which are as follows.12. The evidence of the witnesses, including the companys officers, establish certain crucial factors which establish that the field workers concerned were supervised, controlled by and were otherwise attached to the undertaking. The said field workers were appointed by the Western Region Office. Their pay slips were issued from the Western Region Office. Disciplinary action was also taken against these workers by the Western Region Office. The Western Region Office was responsible for preparing the details relating to the salaries of the said field workers. Instructions for the change in location of the field workers were given by the Western Region Office. Thus, the Western Region Office looked after, controlled and directed the appointment, transfers, payment of wages, disciplinary action and the leave record in respect of these field workers.The depots were not separate undertakings. As the sites were at various locations at a considerable distance from each other and from the Western Region Office, it is understandable that the workers assembled at the depots and collected the material from the depots and other stores. It is also understandable in these circumstances that they did not report to the Western Region Office daily. In these circumstances, it would make no difference even if the wages were handed over to them at convenient locations other than at the Western Region Office itself.13. Theof one of the petitioners witnesses is important and instructive. The petitioners witness admitted inion used to correspond with the company at the Western Region Office. He further admitted that all the activities of the company were carried out at the Western Region Office. Even the charter of demands and grievances of the employees were addressed to and dealt with at the Western Region Office. Theitself signed agreements at the address of the Western Region Office. He also admitted that the computation of wages, deduction from the salary and the maintenance of records with regard to the salary was maintained at the Western Region Office. Leave applications of the employees used to be sent to the Western Region Office. The leave records were maintained at the Western Region Office. He further admitted that disciplinary action was taken at and controlled from the Western Region Office. Show cause notices were issued from there. Letters of promotions and transfers were also issued from the Western Region Office. The time ticket record used to be maintained at the Western Region Office. It is on the basis thereof that the salary used to be computed.Mr. Bapat submitted that a large part of the impugned order is nothing, but a reproduction of the earlier order which had been set aside by the Division Bench with a direction to pass a fresh order. He submitted that the impugned order was passed without adverting to the relevant evidence. He, therefore, submitted that we ought to set aside the order and remand the matter once again to the Industrial Court.Even assuming that the submission is well founded, we see no purpose in remanding the matter. It has already been remanded once. Remanding it again would cause unnecessary inconvenience and expense to both the parties. We, therefore, allowed Mr. Bapat to address us on the facts as well.15. The Industrial Court was therefore, justified in concluding that the said field workers were under the supervision and control of the Western Region Office. The Industrial Court cannot be faulted for having rejected the petitioners contention that these workers were not attached to the depots as contended by the petitioner. We are, therefore, entirely in agreement with the Industrial Court that the said field workers were attached to, controlled and supervised entirely by the Western Region Office i.e. the undertaking in respect whereof the recognition has been granted to the first respondent.We are unable to agree with Mr. Bapats contention that field workers cannot be said to be employed in the undertaking or in the precincts thereof. As the short title itself suggests, the Act is, interalia, for the recognition of trade unions. The preamble opens by saying that it is an Act to provide for recognition of trade unions. It also states the purpose for which the recognition is granted to the trade union. It is to facilitate collective bargaining for certain undertakings, to state their rights and obligations, to confer certain powers on unrecognized unions, to define and provide for the prevention of certain unfair labour practices, to prohibit and declare certain rights and lockouts as illegal strikes and lockouts and to constitute courts for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair practices and to provide for matters connected therewith. It is necessary to emphasize the fact that the main purpose of the Act is the recognition of Trade Unions and to regulate the rights and obligations of a recognized union and its members.As rightly submitted by Mr. Singhvi, the learned counsel appearing on behalf of the respondent No.1, the Act does not in so many words exclude from its ambit, employees such as field workers who are not present and do not work physically in the premises of the undertaking concerned or within the precincts thereof. Mr. Bapat has not invited our attention to any such provision either. He, however, submits that this is the effect of the words "employees employed in any undertaking". There is no reason why the legislature would have intended excluding from the ambit of the MRTUPULP Act, field workers. There is no reason why field workers would be excluded from the benefit of the Act. Section 3(5) of the MRTUPULP Act, which defines the term "employee" does not exclude from its purview, field workers. The plain language does not exclude them. There is nothing in the section that persuades us to take the view that field workers are impliedly excluded therefrom.As also rightly submitted by Mr. Singhvi, the preposition "in" is elastic and can mean both inside a place or in regard thereto or with respect thereto. Considering the provisions of the Act and the Legislative intent behind it, we are of the view that the preposition "in" in section 11 and in particular in the words "employees employed in any undertaking" refers to employees actually physically present and working in the premises of the undertaking as well as employees working outside the premises but whose work relates to, is connected with and is in relation to the work of the undertaking and such employees are connected to the undertaking. Considering the purpose of the Act which is,to provide for the recognition of a trade union for facilitating collective bargaining for certain undertakings and to regulate the rights and obligations of the unions, the members of the union and the employer, the broader view proposed by Mr. Singhvi commends itself to us. The Act is a welfare legislation. The purpose of the Act would be better served by including, rather than excluding, the employees from the purview thereof.The advantages of including them are obvious. The provisions of the Act have not been challenged. The legislature obviously thought it in the interest of the employers and the employees to have only one recognized union for the purpose of the Act. If we were to accept Mr. Bapats submission, the purpose of the legislation would be defeated. It would lead to several unions operating in respect of the same undertaking. Mr. Bapat has not indicated any advantage with the existence of several unions. We see no advantage in excluding from the purview of the Act, field workers. No reason has been indicated by Mr. Bapat. He merely stated that the Act does not include within its ambit, such employees. There is no reason then why field workers ought to be denied the benefit of the Act. There is no reason why they ought to be denied benefits as members of the recognized union, including their ability for collective bargaining. Indeed their bargaining power would be enhanced if they were part of the recognized union. It is reasonable to presume that the recognized union would be in a better position while bargaining on behalf of the employees. This is for the obvious reason that under section 12(3), it is the union with the largest number of members that is entitled to recognition provided it fulfills all the other requirements of the Act.24. Section 3(15), which defines the term "undertaking", really provides that any concern in industry shall be one undertaking for the purpose of Chapter III and entitles the Government to notify a group of concerns owned by the same employer in any industry to be one undertaking for the purpose of that chapter. We do not see how section 3(15) even impliedly excludes field workers from the ambit of Chapter III.25. Mr. Bapats interpretation of the provisions of the Act, if accepted, would cause difficulties and uncertainties in determining the employees who could be said to be employed or working in the undertaking. There are some employees, such as field workers, who would seldom have to visit the premises of the undertaking itself. There are some employees who would have to visit the undertaking more often, but not at all times. They may not even have to visit the undertaking for a substantial part of their working hours and days. For instance, drivers and attendants of buses meant to transport the employees from the undertaking to their respective destinations outside the premises would spend a part of the day outside the premises and a part of the day within the premises. Similarly, drivers of cars of the employees of the undertaking would also spend varying amounts of time within the premises and outside the premises. Sales executives would also spend a part of their working hours within the premises and a part outside the premises. The number of hours spent by such employees within the premises would also vary. The amount of time spent in the premises would vary on account of innumerable factors. All these employees may well travel even outside the city regularly. Where does one draw the line  The Act does not provide any guidelines to determine the same. The legislature, as we noted earlier, was obviously of the view that it is desirable to facilitate and encourage not merely the formation of unions, but the recognition of only one union in respect of an undertaking. The validity of this view is not under challenge. That being so, the interpretation of Mr. Bapat would run contrary to the purpose of the legislation.Mr. Singhvis reliance upon the judgment of the Supreme Court in J.K. Cotton SpinningWeaving Mills Co. v. Labour Appellate Tribunal of IndiaOrs. AIR 1964 SC 787   = 1963 II LLJ, 436, is well founded.While we are dealing with this point it is necessary to bear in mind that the bungalows are owned by the appellant and they are allotted to the officers as required by the terms and conditions of the officers employment. Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take care of the gardens attached to them. If the terms and conditions of service require that the officers should be given bungalows, it is difficult to see why in the case of Malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellants property, it should be said that the work done by them has no relation with the industry carried on by the appellant. The employment is by the appellant, the conditions of service are determined by the appellant, the payment is substantially made by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the Standing Orders prescribed in that behalf, and the work assigned to the Malis is the work of looking after the properties which have been allotted to the officers of the appellant. Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer. It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and farfetched. We are not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect orThat is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act.Bapat fairly conceded that the judgment does not cover the case before us. He, however, submitted that the observations therein would apply with equal force to the provisions of the MRTUPULP Act.The definition of a worker in the Factories Act, 1948, is different from the definition of an employee which falls for consideration before us. Section 2(l) of the Factories Act defines the nature of work and section 2(m) defines a factory. The Supreme Court expressly held that it is "the combined operation of these definitions" that must be considered. It is upon a combined operation of these definitions that the Supreme Court came to the conclusion that the provisions of the Factories Act are intended to benefit only workers employed in a factory i.e. on the precincts or premises of a factory. It is also not possible to apply the definition under the Factories Act to the MRTUPULP Act for, as noted by the Supreme Court itself, the diverse provisions of the Factories Act are intended only to benefit workers employed in the factory i.e. precincts or premises of a factory.The provisions of the MRTUPULP Act, however, do not indicate that they apply only to persons working inside or within the undertaking. The definition of undertaking in section 3(15) of the MRTUPULP Act is entirely different from the definition of a factory in section 2(m) of the Factories Act.28. Mr. Bapat then contended that section 12 and regulation 85 establish that field workers cannot be said to be employed in any undertaking. Section 12 provides that a notice of an application from a union for recognition under section 11 is to be displayed on the notice board of the undertaking. The employees concerned are also entitled to show cause as to why the recognition should not be granted to theRegulation 85 also requires the employer whosehas applied for recognition to display on the notice board at a conspicuous place of the premises of the undertaking, such an notice. He submitted that it would be impossible for the field workers to see the notice if they do not attend the premises of the undertaking itself. This he submitted supports his contention.29. Firstly, it is not necessary that a field worker would not ever attend the undertaking. Secondly, it is always possible for a field worker to come to know of the same through others. Thirdly, in any event, this would at the highest be a situation which is for the legislature to take care of. The provisions do not militate against our interpretation of the provisions of the Act.30. The Western Region office dealt with the entire Western region, which included the whole of Maharashtra and parts of Gujarat and Madhya Pradesh. There was no separate office for the Mumbai region. However, an overwhelming majority workers are at sites in Mumbai. The impugned order grants recognition only in respect of the field workers in Mumbai city. The first respondent has not challenged this part of the order.31. Mr. Bapat however, submitted that the first respondent made the application for recognition in respect of the entire Western Region Office. The Western Region Office comprises of employees, not merely in Maharashtra, but in parts of Gujarat and Madhya Pradesh as well. The Industrial Court has granted recognition only insofar as it concerns the employees in the city of Mumbai. According to him, the application having been for the entire undertaking, it was not open to the Industrial Court to sanction only a part thereof.32. The firsthas not challenged this restriction. Mr. Bapat, in fact, rightly agreed that if it is held that field workers are covered by the provisions of Chapter III, then even field workers connected to the said undertaking, though deployed in other States, ought also to be considered, as the recognition is qua the undertaking.The error if any in the order then prejudices not the petitioner, but the first respondent. In any event, an overwhelming majority of the first respondents members are from Mumbai itself. The first respondent cannot then be prejudiced further.33. The inclusion of the sales promotion employees in the definition of employee in section 3(5) is of no assistance to the petitioner. Nor is the use of the term "means" in section 3(5) of any assistance to the petitioner. Section 5(e) provides that employee means an employee as also defined in section 3(13) of the Bombay Industrial Relations Act and section 2(s) of the Industrial Disputes Act. The Act does not contain any bar against field workers being members of a union which is entitled to seek recognition under section 11. Section 2(s) of the Industrial Disputes Act, we have already seen, includes employees working outside the premises.34. In that view of the matter, field workers ought not to be excluded from the ambit of Chapter III of the Act.