hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL SIDE WRIT PETITION NO. 771 OF 2009 West Coast Paper Mills Ltd., having their office at Shrinivas House, 3rd Floor, Hajarimal Somani Marg, Fort, Mumbai ... Petitioner Versus 1. State of Maharashtra, through Collector of Mumbai, Mumbai, through Government Pleader, High Court, Bombay. 2. Secretary, The Metal and Paper Markets and Shops, Mathadi Labour Board, Maharashtra Sahakari Grahak Bhavan, Prin. Sheikh Hasan Marg No. 1, Chinchbunder, Mumbai 400 009. 3. Jain Clearing and Warehousing Co. Dadoba Compound, Anjur Phata, Anjur Road, Bhiwandi. 4. The Goods Transport Labour Board, for Grater Bombay, 102/103, Steel Chamber, Devji Ratansingh Marg, Mumbai.400 009. 5. Akhil B haratiya Mathadi Transport and General Kamgar Union, A Trade Unon of empllyees registered under Trade Unions Act, 1926 having office at Shroff Bhavan, 5th Floor, P. D’Mello Road, Carnac Bunder, Mumbai 400 001 ... Respondents Mr. K.P. Anilkumar for Petitioner. Mr. J.S. Saluja, A.G.P. For R. No. 1. Mr. S.M. Chinchwadkar with Mr. Rahul Oak for R. No. 2. Mr. S.K. More for R. No. 3. Mr. M.S. Topkar for R. No. 4. Mr. S.S. Pakale for R. No. 5. CORAM : FERDINO I. REBELLO & J.H. BHATIA, JJ. DATED : JANUARY 12, 2010 ORAL JUDGMENT (Per Ferdino I. Rebello,J.): Rule. By consent heard forthwith. 2. The Petitioners herein are impugning the order dated 16.12.2008 passed by the second Respondent whereby it has been held that the Petitioners are liable to pay the total sum of Rs.6,29,280/- towards wages and levy on account of loss of wages between September, 2005 to October, 2008 to Toli No. P/33. Subsequent to that order, the Tahsildar has issued notice of demand for the same sum. 3. The Petitioners are engaged in manufacture of paper of various types in their factory at Dandeli, Uttar Karnataka which are sold to third parties. The Petitioner had a godown which was a rental premises at Reay Road, Darukhana, Britania Biscuit Company, Mumbai which was used to stock unsold stock and was in operation from the year 2000. According to Petitioners they also used to stock material in the godown at Bhiwandi owned by Respondent No. 3 since about 2002. The loading and unloading at the Reay Road was done by the Petitioners directly and for that purpose it was registered under the Mathadi Act with Respondent No. Mathadi Boards. Toli No. P-33 consisted of four workers had been deputed at the godown of the Petitioners at Reay Road, The Petitioner use to make payment to the second respondent for the services of these workmen and there was no dispute about the payment. As the quantum of work at Reay Road came down, a meeting was held by second Respondent pursuant to the complaint received from the Union. The Petitioner attended the meeting. The Petitioners in December, 2007 handed over the godown to its owners. According to Petitioners, in the meeting it was suggested that the four workmen of Toli No. P/33 should be asked to work at Bhiwandi. According to Petitioner the Bhiwandi Warehouse belongs to Respondent No. 3 and that they were stocking goods in the said Warehouse for a long period of time. The facility was provided by Respondent No. 3 for a certain payment and that the loading and unloading there were done through the 4th Respondent. In the said meeting the representative of the Petitioner was directed by the Board to provide work to the Mathadi workmen at Bhiwandi godown. After exchange of some correspondence and on second respondent providing the names of four Mathadi workers, the Petitioner wrote a letter to the Board dated 10.9.2007 requesting the second respondent to send the aforesaid workers to contact Respondent No. 4. The Mathadi workers had reported at Bhiwandi and met the representative of Respondent No. 4. The 4th Respondent allowed them to work however, they were stopped by the toli workers allotted to the Warehouse. The Petitioners also discontinued the stocking of goods at the Warehouse of Respondent No. 4 and this was already informed to the second respondent by letter dated 8.7.2008. 4. According to Petitioners inspite of all these facts, the second respondents proceeded with the proceedings they had initiated and ultimately directed the Petitioners to pay the sum as set out earlier. It is this order which is the subject matter of the present challenge. 5. Respondent No. 2 has filed an affidavit and have supported the stand of the Petitioners and have justified the demand made. They have also relied on the Minutes of the Meeting. 6. Respondent No. 4 is also represented. Though no affidavit has been filed by them, their learned counsel has pointed out that the Mathadi Workers for the work carried out in the premises of Respondent No. 3 have been supplied by them. The work carried on by Respondent No. 3 is the work which has to be done by the workmen registered with Respondent No. 4. In these circumstances, it is submitted that the Respondent No. 2 could not have directed Mathadi Workers registered with them to work with Respondent No. 3. 7. The question for our consideration is whether in these circumstances, the demand made by Respondent No. 2 on the Petitioners can be supported in law. The State has enacted the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 (which hereinafter shall be referred as “Mathadi Act”). In terms of the provisions of Mathadi Act, various schemes have been framed including clearing and forwarding unprotected and other Manual Workers (Regulation of Employment and Welfare) Scheme, 1991. The position in law as now settle is wherever unprotected workers are employed and they fall within the jurisdiction of one of the Board in terms of Mathadi Act and the scheme, no employer can independently engage the workmen other than those registered with the concerned board. 8. In the instant case, as Petitioners were running the warehouse at Reay Road and it was being operated by them, they were registered with Respondent No. 2 and were duly paying the dues as per the demand of Respondent No. 2. On account of no work, the premises were surrendered. In so far as Bhiwandi is concerned, they were stocking their goods in the ware house of Respondent No. 3 and paying the amount to Respondent No. 3. The Respondent No. 3 in turn was registered with Respondent No. 4. There is also no doubt that the work in the warehouse of Respondent No. 3 was being carried out by the Workers registered with Respondent No. 4. 9. In these circumstances, a dispute arises as to who between the Respondent No. 2 and 4 has to provide the Mathadi Workers for the work being carried out in the premises of Respondent No. 3. Admittedly as on date, the Petitioners are no longer utilizing the ware house of Respondent No. 3 for the purpose of warehousing their goods. The issue is therefore, limited for the period from closing of the ware house at Reay Road and the period of where Petitioners have discontinued to use the ware house of Respondent No. 3 The Respondent No. 2 has also not deputed any other workers to the premises of Respondent No. 3, who gets the work done by the regular workers of Respondent No. 4. 10. The Mathadi Act in case of dispute as to whether any scheme applies has provided for the situation in Section 5 of the Mathadi Act which reads as under : “5. If any question arises whether any scheme applies to any class of unprotected workers or employers, the matter shall be referred to the State Government and the decision of the State Government on the question, which shall be taken after consulting the Advisory Committee constituted under section 14, shall be final.” It will be clear on the reading of Section 5, that where the question arises as to which scheme applies, the matter shall be referred to the State Government and the decision of the State Government on the question which shall be after consulting the Advisory Committee constituted under Section 4 shall be final. The language used is class of unprotected workers or employers. Would that include a single employer? In our opinion, though the language contemplates a class of workers or employers, the issue for consideration is whether the expression employers in that context will have to be read also as an employer. It can be dispute between an employer and the workers, as long as they represent the class of unprotected workers. In our opinion, considering the nature of the work and the stand of Respondent No. 2 and 4 respectively, the issue does arise as to whether the work carried out at warehouse of Respondent No. 3 should be done by the workers employed with Respondent No. 2 or Respondent No. 4, in other words which scheme will apply. There is also no dispute that Respondent No. 2 had deputed their workers to Respondent No. 3, it was Respondent No. 4 who was supplying Mathadi workers and continues to do so. In the light of that in our opinion, this will be a fit case where the power under Section 5 ought to be exercised as a dispute does arise. 11. In the light of that, the dispute is referred to Respondent No. 1 which after following due procedure will take appropriate decision at any rate not latter than six months from the copy of this order being served on Respondent No. 1 by the Petitioners. 12. The Petitioners in the meantime have deposited the amount claimed pursuant to order dated 24.0.2009. That amount would remain to be deposited in this court. On the first respondent deciding the dispute, if it is held that the work with Respondent No. 3 has to be carried out by the employers registered with Respondent No. 4, then the amount be returned to the Petitioners. If however, it is held that the work has to be carried out by Mathadi workers registered with Respondent No. 2, the money be paid to Respondent No. 2 subject to whatever legal rights the Petitioners may have against the said order, if aggrieved. Rule made absolute in terms of Paras 11 and 12 above. No order as to costs. (J.H. BHATIA,J.) (F.I. REBELLO,J.)