1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8768 OF 2007 M/s.Videocon Industries Ltd. ...Petitioner. Vs. The Chairman, The Metal (Excluding Iron and Steel) and Paper Markets and Shops Mathadi Labour Board for Mumbai & Ors. ...Respondents. .... Mr. H.D. Buch with Mr.Kabir Sayyed and Mr. B.S. Nayak i/b. M/s. Ram & Co. for the Petitioner. Mr. S.M. Dharap with Ms.Lata Desai i/b. Ms. Pallavi Divekar for Respondent No.1. Mr. S.M. Chinchawadkar with Mr. Rahul Oak for Respondent Nos.2 and 3. ..... CORAM : DR. D.Y.CHANDRACHUD, J. November 12, 2008. P.C. The Petitioner has a godown at Navi Mumbai where loading, unloading and warai work is carried out. In 1991, the Petitioner came to be registered under the provisions of the Maharashtra Mathadi Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 and the Scheme framed 2 thereunder. The State Government has framed a scheme under Section 4 of the Act called “The Metal (Excluding Iron and Steel) and Paper Markets and Shops (Regulation and Employment and Welfare) Scheme. The Petitioner is a registered employer under Clause 14 of the Scheme. The Petitioner was obliged under the scheme, as a registered employer, to engage only registered workers allotted by the First Respondent Board for the purposes of carrying out work of the nature covered by the Act and the Scheme. Under Clause 31, a registered employer is prohibited from engaging unregistered workers for the purposes of carrying out Mathadi work. 2. The Petitioner was, since the date of its registration, engaging Mathadi workers allotted by the Board; these workers were comprised in Toli No.M/26A. The workers from the aforesaid toli were engaged in carrying out warai work. Warai essentially consists of the unloading of goods from trucks onto the ground. Sometime in the year 2001, a demand was made on behalf of the warai workers that the work of loading and unloading between the vehicles and the godown should also be allotted to them. It is an admitted position that 3 warai work was discontinued by the Petitioner. A notice was issued by the Board for the recovery of wages which were lost to the warai workers as a result and the Collector issued a recovery notice. Thereupon, a Writ Petition was filed before this Court by the Petitioner which came to be disposed of by a Division Bench on 11th November 2003, permitting the Petitioner to move a representation under Section 13 of the Act. The Petition was dismissed on the ground that an alternate remedy was available. The Petitioner moved a representation before the the First Respondent. Evidence was adduced before the Board. The Board passed an order on 7th July 2007 confirming a demand of Rs. 8.80 lakhs towards recovery of wages. The order of the Board is questioned in these proceedings. 3. At the hearing of this petition, an adjournment has been sought on the ground that against the judgment of the Full Bench of this Court in Kay Kay Embroideries Pvt. Ltd. vs. Cloth Markets and Shops Board, 2006 III CLR 981, a Special Leave Petition has been filed before the Supreme Court. It is an admitted position before the Court that the judgment of the Full Bench continues to hold the field 4 and has not been stayed. In these circumstances, there is no valid reason to defer the hearing of the petition. 4. Three submissions have been urged on behalf of the Petitioner. Firstly, it has been submitted that the provisions of Section 13 were not followed by the Board and the determination of the amount due towards the loss of wages has not been made in accordance with the provisions of the Act. Secondly, it has been submitted that the Petitioner engages its own employees for carrying out loading and unloading operations. Thirdly, it has been stated that work has gone down in the godown. 5. While considering the submissions which have been urged on behalf of the Petitioner, it would be necessary to advert to some of the findings that have been arrived at by the Board in the course of the impugned order. The Board furnished an opportunity to the parties to lead evidence. The order takes note of the fact that though nearly ten adjournments were granted, the Petitioner did not choose to cross-examine the Inspector who deposed during the course of the 5 proceedings. But besides this, certain material admissions were elucidated on the record from the witness who deposed on behalf of the Petitioner. Before referring to those admissions, it would be necessary to observe that admittedly the Petitioner, as a registered employer, had engaged Mathadi workers from Toli No.M/26(A) between 1991 until warai work was withdrawn from the toli by the Petitioner in 2001. Balu Pawar, who was a Senior Officer, who deposed on behalf of the Petitioner, stated in his evidence that manual work was available even when the forklift was used. The same position emerged in the evidence of the Forklift Operator Ramchandra Sitappa who deposed on behalf of the Petitioner. The General Manager of the Petitioner also accepted the position that the forklift had been in use since 1994. Hence despite the use of a forklift, work was available and was being given to the registered Mathadi workers. The order passed by the First Respondent relies on the evidence of the Mukadam of Toli No.M/26(A) and of the Board's Inspector to the effect that the Mathadi workers comprised in the aforesaid toli were doing warai work from the date of the registration of the Petitioner. The warai workers raised a demand for being 6 allotted loading and unloading work in addition to the existing work, claiming that it was also of the nature comprehended by the Act and the Scheme. The Petitioner thereupon discontinued the allotment of the warai work to the toli. As a matter of fact, prior to the discontinuation of the work, work was being allotted to the Mathadi workers even when forklift operations were carried out. 6. The Board in its affidavit in reply has stated before the Court that the Petitioner, as a manufacturer of electronic goods, maintains various godowns in the Mumbai, Thane and Raigad Districts for the storage of goods. The Petitioner came to be registered with the First Respondent on 31st December 1991 and was allotted Toli No.M/26(A) for carrying out warai operations from the godown at Pawna Village, Navi Mumbai. In 2000, it was found that the Petitioner was awarding other Mathadi operations such as loading and unloading work to unregistered workers in violation of the scheme framed by the State Government under the Act. The workers of Toli No.M/26(A) made a demand for the allotment of loading and unloading work. The matter was being jointly discussed with the 7 Board when the Petitioner suddenly stopped awarding warai work to Toli No.M/26(A) from 2001. As a result, the toli has been rendered without any work whatsoever. The Board has pointed out in its reply that the forklift cannot be used inside the trucks while warai operations are essentially carried out on board. The Board has pointed out that it has from time to time called upon the Petitioner to restore warai work. Upon the failure of the Petitioner, the Board initiated an enquiry under Section 13 for the determination of lost wages and levy. Initially by an order dated 13th December 2002, an amount of Rs. 8.80 lakhs was determined as being due and payable for the period between January 2001 and October 2002. This order was challenged in the earlier Writ Petition. During the pendency of the petition, the Petitioner was permitted to deposit an amount of Rs. 8.80 lakhs of which an amount of Rs. 6.69 lakhs was deposited. In pursuance of the final order passed by the Division Bench, the Petitioner was granted liberty to file a fresh representation under Section 13. The impugned order dated 7th July 2007 came to be passed determining the amount due at Rs. 8.80 lakhs. The Board has submitted that the Petitioner is duty bound to allot warai work to 8 Toli No.M/26(A) which has discontinued in violation of the Act and the Scheme. The Petitioner has been found to be engaging unregistered workers to carry out Mathadi operations. 7. There is no merit in the submission that has been urged on behalf of the Petitioner that the Board has not followed the provisions of Section 13 of the Act while making its determination of the amount due and payable. During the course of the hearing upon a perusal of the grounds of challenge contained in the Writ Petition it has emerged that there is no challenge to the actual quantification or to the quantum of the determination made by the Board. The ground that has been urged in the petition is that the Petitioner has permanent employees to carry out work at the Godown and that the workers are using forklift for loading and unloading operations. Once the Act and the statutory scheme which has been framed thereunder hold the field, the Petitioner is duty bound to engage and employ workers allotted by the Board for carrying out work of the nature covered by the Act and the Scheme. The Petitioner is under a statutory obligation to refrain from engaging unregistered workers by virtue of 9 the provisions of clause 31 of the Scheme. This position is explained and reaffirmed in the judgment of the Full Bench in Kay Kay Embroideries. In so far as the issue of the forklift is concerned, a finding of fact is recorded by the Board to the effect that forklifts were in operation right from 1994 despite which the Petitioner continued to engage Toli No.M/26(A) allotted by the Board. This position continued right upto 2001 when the allotment of warai work to the toli came to be discontinued as a reprisal for the demand made by the Mathadi workers for the allotment of loading and unloading operations. The Board has computed the amount due and payable on the basis of the average of the wages which the workers received during the period when they were engaged. Neither in the petition, nor during the course of the hearing was any effort made to demonstrate before the Court that the actual computation was erroneous or that the amount of wages was of some other dimension other than what has been quantified by the Board. 8. There is, therefore, no merit in the challenge made in the petition. The petition is devoid of substance and will have to be 10 dismissed. The Petition shall accordingly stand dismissed. There shall be no order as to costs. .......