mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.56 OF 2009 M/s.Simplex Infrastructures Ltd. ..Petitioner Vs. Bombay Iron & Steel Labour Board & Ors....Respondents Mr. R.S. Pai with Ms. Renuka Lele with Dipika Borade i/b.N/s.Haresh Mehta & Co., for the Petitioner. Mrs. Lata Desai i/b. Pallavi Divekar for respondent Nos. 1 and 2. Mr. J.S. Saluja, AGP for respondent Nos. 1 and 2. CORAM : F.I. REBELLO & A.R. JOSHI, JJ. DATED : 8TH JANUARY, 2010 P.C. Rule. Heard forthwith. 2. The petitioners herein on 7th August, 2008 addressed a communication to the respondent No.2. By that communication petitioner contended that the Bombay Iron & Steel Unprotected Workers (Regulation & Welfare Scheme) 1970 would not be applicable to the petitioners as they are not carrying out any activities involving scheduled employment as defined in Section 2(9) of the Maharashtra Mathadi Hamal and Other Manual Worker (Regulation of Employment & Welfare) Act, 1969, hereinafter referred to as the Act. A reminder was thereafter sent on 1st October, 2008. The petitioner received a reply on 10th October, 2008. They were informed that the matter was placed before the Suggestion Committee as per Section 5 of the Act. There was subsequent correspondence which we need not refer to. Reply has been filed on behalf of respondent Nos. 1 and 2. It is pointed out that the petitioners have been engaging registered Mathadi workers from from Toli No.42 to 51 and as of today there is due and payable between the period June, 2008 to January, 2009 a sum of Rs.3,25,669.59 paise. It is further pointed out that Section 5 of the Act is to be invoked only if the question arises whether any scheme applies to any class of unprotected workers and/ or employers or not in case of individual employer. On behalf of the respondent No.4 Union also it is pointed out that the sum as claimed by the Board is due and payable. 3. After hearing the parties, in our opinion can this petition can be disposed of by issuing the following directions:- (i) The petitioners will deposit with the Respondent No.1 the aforesaid sum of Rs.3,25,669.59 paise within four weeks from today in the first instance and if advised will make a representation to the respondent No.1 that the amount as claimed is not due and payable. If such a representation is made the respondent Nos. 1 to dispose of the same according to law at any rate not later than sixteen weeks from the receipt of the application. If the petitioner is still aggrieved by any order passed liberty to them to take such steps in accordance with law if they are entitled to against that order. 4. Section 5 of the Act reads as follows:- “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.” Merely because there is only one employer who disputes that the scheme is not applicable, would not mean that the said employer cannot constitute a class. Section 5 will have to be read in that context. Any other reading would result in holding that though in fact the scheme of the Act may not be applicable to an employer merely because the respondent Nos. 1 and 2 demand any money or contend that the Act is not applicable such employer will have no redressal of their grievance by the adjudicating machinery provided for under the Act itself. Considering the above, in our opinion, as an individual can constitute also a class by itself Section 5 will be applicable. Once Section 5 is applicable respondent No.1 is duty bound to act in terms of Section 5 of the Act. 5. In the light of that the respondent No.1 is directed to refer the disputes raised by the petitioner company to the Government of Maharashtra under Section 5 of the Act and not to proceed against the petitioner in any manner under the provisions of the Act and/or the scheme of 1970 except for the direction given in the earlier part of the order. 6. Rule made absolute in terms of the directions aforesaid. In the circumstances of the case there shall be no order as to costs. . (A.R. JOSHI, J.) (F,I. REBELLO,J.)