Case: Maharashtra Rajya Mathadi Transport And Central Kamgar Union Vs. State Of Maharashtra And Ors

registration as an employer, etc. The necessary particulars are given below1. Name and address of the Establishment and Telephone No2. Whether a firm or a company Name of the proprietor. (1)(2)(1)(2)3. Are you a member of any Association of employer ? If so, state the name of the Association4. Whether your Establishment is registered under the Bombay Shops and Establishments Act, 1948. If so, state Registration No5. The place (s) of work with location in details where the loading, unloading, stacking, carrying, etc., of goods is carried on in connection with trade/business of your Establishment6. Are you employing workers through contractor (s) ? If so, state the name and other details of the contractor (s)7. Are you employing workers through Tolli ? If so, state the name of the Mukadam/s of the Tolli/s, or of all workersDatePlaceSignature of the ApplicantBy order and in the name of theGovernor of MaharashtraN. N. PANDYADesk Officer" 20. If the text of clause 14 and the particulars required to be filled up by the employer in Form A are seen together, they make it abundantly clear that the employer required to be registered under clause 14 with the Board is none other than the employer falling within the definition of employer in Section 2(3) of the Act. When clause 14 states that every employer, including a mukadam, commission agent, clearing agent, purchaser, importer, exporter engaged in selling, purchasing or trading or acting as agent in vegetable market and other establishments in the areas to which the Scheme applies shall get registered with the Board by applying in Form A appended to the Scheme it makes abundantly clear that such employer must have an establishment of his own over the affairs of which he has ultimate control or must have an establishment the affairs of which are entrusted to him. If a person wants to register himself as an employer under that Scheme, he has to show as a condition precedent that he has an establishment the business affairs of which are entrusted to him, becomes obvious for the reason that Item 1 of Form A requires him to give the name and address of the establishment and telephone number and under Item 4 thereof requires him to give the information as to whether the said establishment is registered under the Bombay Shops and Establishments Act, 1948 with registration number. Therefore, if a person wants to register as an employer under clause 14 of the Scheme, the Board cannot register him as such unless he has an establishment on the business of which he has ultimate control or he has an establishment the business affairs of which are entrusted to him for being carried on. When later part of clause 14 states "provided, however, that an employer of any establishment coming into existence after the commencement of this Scheme shall apply for a registration simultaneously on the commencement of his business, " would clearly support the view we have expressed of clause 14 that the person who is required to get himself registered as an employer under clause 14 must, as a condition precedent, have an establishment over the business affairs of which he has ultimate control or must be a person entrusted with carrying on the business affairs of such establishment, i.e., of establishments carrying on business in vegetables, including onions and potatoes21. Thus, if Hundekaris have to get themselves registered as employers under clause 14 there is no room for doubt that they are entitled to be registered as employers thereunder if they own markets or establishments doing the business in vegetables including onions and potatoes having ultimate control over such markets or establishments or are entrusted with the carrying on the affairs of such markets or establishment or are entrusted with the carrying on the affairs of such markets or establishments. However, if Hundekaris do not have vegetable markets or establishments of their own over which they have ultimate control or if carrying on the affairs of vegetable markets or establishments are not entrusted to them, they cannot be registered as employers under clause 14 of the Scheme. The decision of the Government and the view taken by the High Court to the extent it is not in consonance with what we have said as to the right of the Hundekaris to get themselves registered as employers under clause 14 of the Scheme, we have to hold, is manifestly erroneous22. Hence, what emerges from a proper reading and understanding of the definitions in the Act relating to "principal employer", employer, establishment, "scheduled employment", contractor and clause 14 of the Scheme and Form A appended thereto can be summarised thus23. That the Board can register Hundekaris, by whatever name they may be called, under clause 14 of the Scheme as the employers only where it is established that they are the owners of the vegetable markets or establishments where they are carrying on the business either having ultimate control over such establishments or being entrusted with the carrying on the affairs of such markets or establishments and not otherwise. If any of the Hundekaris, by whatever name may be called, are registered as employers under clause 14 of the Scheme not being the owners of the vegetable markets or establishments in the areas concerned having either ultimate control over them or being entrusted with the carrying on the affairs of the same, their registration is liable to be cancelled24. What we have said as regards registration of Hundekaris as employers or cancellation of registration of employers under clause 14 of the Scheme, shall not, however, come in the way of the Board for registering any person who owns a vegetable market or establishment, and has ultimate control over the business of such market or of registering any person who is carrying on the business affairs of such market or establishment being so entrusted as an employer under clause 14 of the Scheme on submission of an application in the form appended to the Scheme

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. Form the above, it follows, that where a Hundekari has an establishment over which he has ultimate control or has an establishment the affairs of which are entrusted to him and he engages mathadi workers either on hire or otherwise for carrying on the work of such establishment, such Hundekari could be regarded as an employed within the meaning of Section 2(3) of the Act, as is held by the High Court. On the other hand, a Hundekari, who does not engage the mathadi workers for the work of an establishment not belonging to him or on the affairs of which he has no ultimate control or the affairs of which are not entrusted to him, cannot be regarded as an employer with the meaning of Section 2(3) of the Act. The decision taken by the Government and the view taken by the High Court that even Hundekaris who have neither control over the establishment nor are entrusted with the affairs of the establishment are, employers within the meaning of Section 2(3) of the Act, is manifestlyIf the text of clause 14 and the particulars required to be filled up by the employer in Form A are seen together, they make it abundantly clear that the employer required to be registered under clause 14 with the Board is none other than the employer falling within the definition of employer in Section 2(3) of the Act. When clause 14 states that every employer, including a mukadam, commission agent, clearing agent, purchaser, importer, exporter engaged in selling, purchasing or trading or acting as agent in vegetable market and other establishments in the areas to which the Scheme applies shall get registered with the Board by applying in Form A appended to the Scheme it makes abundantly clear that such employer must have an establishment of his own over the affairs of which he has ultimate control or must have an establishment the affairs of which are entrusted to him. If a person wants to register himself as an employer under that Scheme, he has to show as a condition precedent that he has an establishment the business affairs of which are entrusted to him, becomes obvious for the reason that Item 1 of Form A requires him to give the name and address of the establishment and telephone number and under Item 4 thereof requires him to give the information as to whether the said establishment is registered under the Bombay Shops and Establishments Act, 1948 with registration number. Therefore, if a person wants to register as an employer under clause 14 of the Scheme, the Board cannot register him as such unless he has an establishment on the business of which he has ultimate control or he has an establishment the business affairs of which are entrusted to him for being carried on. When later part of clause 14 states "provided, however, that an employer of any establishment coming into existence after the commencement of this Scheme shall apply for a registration simultaneously on the commencement of his business, " would clearly support the view we have expressed of clause 14 that the person who is required to get himself registered as an employer under clause 14 must, as a condition precedent, have an establishment over the business affairs of which he has ultimate control or must be a person entrusted with carrying on the business affairs of such establishment, i.e., of establishments carrying on business in vegetables, including onions and potatoes21. Thus, if Hundekaris have to get themselves registered as employers under clause 14 there is no room for doubt that they are entitled to be registered as employers thereunder if they own markets or establishments doing the business in vegetables including onions and potatoes having ultimate control over such markets or establishments or are entrusted with the carrying on the affairs of such markets or establishment or are entrusted with the carrying on the affairs of such markets or establishments. However, if Hundekaris do not have vegetable markets or establishments of their own over which they have ultimate control or if carrying on the affairs of vegetable markets or establishments are not entrusted to them, they cannot be registered as employers under clause 14 of the Scheme. The decision of the Government and the view taken by the High Court to the extent it is not in consonance with what we have said as to the right of the Hundekaris to get themselves registered as employers under clause 14 of the Scheme, we have to hold, is manifestly erroneous22. Hence, what emerges from a proper reading and understanding of the definitions in the Act relating to "principal employer", employer, establishment, "scheduled employment", contractor and clause 14 of the Scheme and Form A appended thereto can be summarised thus23. That the Board can register Hundekaris, by whatever name they may be called, under clause 14 of the Scheme as the employers only where it is established that they are the owners of the vegetable markets or establishments where they are carrying on the business either having ultimate control over such establishments or being entrusted with the carrying on the affairs of such markets or establishments and not otherwise. If any of the Hundekaris, by whatever name may be called, are registered as employers under clause 14 of the Scheme not being the owners of the vegetable markets or establishments in the areas concerned having either ultimate control over them or being entrusted with the carrying on the affairs of the same, their registration is liable to be cancelled24. What we have said as regards registration of Hundekaris as employers or cancellation of registration of employers under clause 14 of the Scheme, shall not, however, come in the way of the Board for registering any person who owns a vegetable market or establishment, and has ultimate control over the business of such market or of registering any person who is carrying on the business affairs of such market or establishment being so entrusted as an employer under clause 14 of the Scheme on submission of an application in the form appended to the Scheme