1 cri wp 1122 of 2009 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITOIN NO. 1122 OF 2009 M/s. Jetha Drums & Containers Pvt. Ltd. and Ors. ... Petitioners Versus Mr. N.B. Jadhav and another ... Respondents Ms. Vendita Trivedi, Advocate for the petitioners. Mr. M.S. Topkar, Advocate for respondent. Mr. V.B. Kondedeshmukh, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : NOVEMBER 24, 2010 P.C. Admit. Rule made returnable forthwith. 1. This writ petition filed under Article 226 of the Constitution of India challenges the order dated 10th December, 2008 passed by the Industrial Court, Mumbai in Appeal (MHWA) No. 4 of 2008 arising out of the order dated 28th January, 2008 passed by the Xth Labour Court, Mumbai in complaint (MHWA) No. 72 of 2000. 2. Petitioner No. 1 is the company which runs a warehouse at 2 cri wp 1122 of 2009 Jetha compound, Byculla, Mumbai 27 and holds a licence under Bombay Shops and Establishment Act, 1948. In the warehouse, the petitioners store goods/materials of their clients and keep a watch on the goods/materials belonging to their clients round the clock. For the purpose, the petitioners have employed a clerk, a cashier, an accountant, a godown keeper and a watchman. Petitioner No. 1 is neither a goods vehicles transport undertaking nor owns or hires any truck, tempo, lorry or any other public transport vehicle to run the warehouse. According to the petitioners the entire job of loading, unloading, stacking etc. of goods in the warehouse is done by the persons engaged by their clients and the clients alone are liable to pay the legal charges to such persons. 3. It appears that respondent no. 1 who is the Inspector appointed under section 15 of the Maharashtra Mathadi Hamal and other Manual Workers (Regulation of employment and welfare) Act, 1969 (hereinafter referred to as "MHW Act") visited the premises of petitioner no.1 on 24th March, 2000 and prepared his inspection remarks. In the inspection remarks, he named the employees of the petitioners and stated that they were found working in the premises of petitioner no. 1 and were engaged and employed by the 3 cri wp 1122 of 2009 petitioners for the work of loading, unloading, stacking etc. On the basis of that report, show cause notice came to be issued to petitioner no. 1 on 1st April 2000 calling upon it to show cause as to why penal action should not be taken against it for breach of clause 14-A of the Goods Transport Unprotected workers (Regulation of employment and welfare) Scheme, 1971. He thereafter filed a complaint against the petitioners for the offences punishable under Clause 14A of the scheme read with Clause 44 of the Scheme and Section 3(3) of the MHW Act, 1969. By the judgment and order dated 28th January 2008, the Presiding Officer, 10th Labour Court convicted the petitioner for contravention of clause 14A of the scheme punishable under clause 44 thereof and sentenced the petitioner Nos. 2 and 3 to suffer simple imprisonment for one week and to pay fine of Rs.500/- each in default to suffer simple imprisonment for 3 days. 4. Being aggrieved by the above decisio n of the Labour Court, the petitioners preferred appeal to Industrial Court, Mumbai being Appeal (MHWA) No. 4 of 2008. Industrial Court by its order dated 10.12.2008 partly allowed the appeal. It confirmed the decision of the Labour Court of conviction and imposition of fine of Rs. 500/-. It 4 cri wp 1122 of 2009 however, quashed and set aside the order imposing sentence of one week upon the petitioners no. 2 and 3. 5. The challenge of the petitioners to the impugned orders is on three grounds. Firstly that the independent warehouse run by the petitioners being neither a goods transport undertaking nor a warehouse owned and controlled by a goods transport undertaking cannot be treated as an undertaking within the meaning of clause 2(ii) of the Goods transport unprotected workers (Regulation of employment and welfare) Scheme 1971 (the scheme for short). Secondly that the petitioners having never engaged or employed any workmen for loading, unloading, stacking etc. to run their warehouse, either directly or through any contractor and having never engaged or employed any workmen for the said job either for themselves or for their clients cannot be treated as Employer within the meaning of section 2(3) of the MHW Act. Thirdly that the petitioners running an independent warehouse which is neither a goods transport undertaking nor a warehouse of goods transport undertaking, is not liable to get registered under clause 14-A of the Scheme. 6. It will be convenient at this stage to note the three relevant 5 cri wp 1122 of 2009 provisions under the MHW Act and the scheme referred to by the petitioners. The same read as follows : Section 2(3) : "employer", in relation to any unprotected worker engaged by or through contractor, means the principal employer and in relation to any other unprotected worker, the person who has ultimate control over the affairs of the establishment, and includes any other person to whom the affairs of such establishment are entrusted, whether such person is called an agent, manager or is called by any other name prevailing in the scheduled employment;" Clause 2(ii) of the Scheme: "The Scheme shall apply to employment of registered workers by Goods Vehicle Transport Undertaking having their Head Offices, Offices, Delivery Offices, Delivery Godowns, Booking offices, booking godowns or schedule hereto in connection with loading of goods into public transport vehicles thereto, provided that these workers have been engaged regularly and not on casual basis and are attached to their respective undertaking individually or under toli system". Clause 14A of the Scheme: "Registration of Employer- Every Commission Agent, Lorry supplier or Management of warehouses and clearing agent engaged in receiving, storing, dispatching or transporting of goods by public vehicle in the areas to which the scheme applies shall get registered with this Board by applying in Form `A' appended to the Scheme, within 15 days from the appointed day provided, however that the Goods Transport Undertaking coming into existence in any area after 6 cri wp 1122 of 2009 the appointed day shall apply for registration simultaneously on the commencement of their business". 7. Ms. Trivedi, the learned counsel for the petitioners vehemently submits that petitioner no.1 is exclusively into the business of warehousing. It has never provided or supplied any persons or labourers to it's clients to carry out the jobs of loading, unloading, stacking etc. These jobs are done by it's clients when they store goods with it. The clients themselves engage persons to carry out the jobs of loading, unloading etc. as per their requirements and pay the wages of such persons. Therefore, according to her, none of the above provisions are applicable to her. Mr. Topkar, the learned counsel for respondent no.1 submits in reply that evidence on record refutes the claim of the petitioners that petitioner no. 1 does not indulge into the activity of loading and unloading at their premises. He points out that the evidence of PW-2, Arun Sawant examined before the trial Court showed that he worked as a labourer at the premises of petitioner no.1. He testified that he along with the other workers, on the date of inspection was doing the work of loading and unloading, stacking etc. and the labour charges of all the labourers were paid by petitioner no.1. In any case, he submits that in view of definition of employer at Section 2(3) of MHW Act, petitioner no. 1, who has ulti mate control over the affairs 7 cri wp 1122 of 2009 of customers at its warehouses would be employer for the purposes of MHW Act. In this connection, Mr. Topkar relies upon a decision of Division Bench of this Court in Maharashtra State Warehousing Corporation vs. Goods Transport Labour Board for Greater Mumbai and others, reported in 2007 (I) C.L.R., page 356. The petitioner before the Division Bench had taken up identical contention to wriggle out of application of MHW Act, as in the present case. It was the case of the petitioner before the Division Bench that it was merely providing space for storage of goods as a warehouse and was not concerned with loading and unloading of goods. According to that petitioner also loading and unloading of the goods was the responsibility of the contractors or custom house agents. The Division Bench was of the opinion that the MHW Act aims at protecting unprotected manual workers who have no job security. It is beneficial piece of legislation. The term `employer’ must, therefore, be given wide interpretation so as to subserve the object of M.H.W. Act. It therefore did not accept the submissions advanced, holding that as per Section 2(3), it is the person who has ultimate control over the affairs of the establishment, who would be the employer for the purposes of MHW Act. Such person would include any other person to whom the affairs of such establishment are entrusted, such person may be called an agent, 8 cri wp 1122 of 2009 manager or by any other name prevailing in the scheduled employment. Since the ultimate control over the warehouse was that of the petitioner, the Division Bench held that, it fitted into the definition of Section 2(B) of MHW Act. 8. The Division Bench further took note of clause 14 and 14(A) of the Scheme, and observed at paragraph 29 as follows : “29. Clause 14 of the said scheme speaks of regulation (sic Registration) of employers. Clause 14-A which we have quoted above is very important. As per this clause even management of warehouses engaged in receiving, storing, despatch or transporting of goods by public vehicles in the areas to which scheme applies have to get themselves registered with the Board by applying in Form-A appended to the said scheme. Clause 14A, therefore, makes the position of the petition vis-a-vis the unprotected manual workers very clear”. In view of the above direct decision of the Division Bench, the contention of the petitioners that petitioner no.1 is not an employer so as to attract the provisions of MHW Act must be rejected. Further , petitioner no. 1 is seen to be covered by Clause 14A of the scheme. 9. As regards the second contention of the petitioners that petitioner no.1 is not covered by the definition of “scheduled employment” under Section 2(9) also I find no substance because the provision refers to 9 cri wp 1122 of 2009 employments in various fields mentioned therein in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including preparatory or incidental to such operations. 10. Thus, there is no merit in the challenge to the concurrently findings of the two courts as regards applicability of the MHW Act and the scheme. Hence, petition is dismissed. ( Smt. R.P. SondurBaldota, J.)