Case: Bhikuse Yamasa Kshatriya Private Limited &amp; Another Vs. Union of India &amp; Another

or otherwise is not bound to attend at times fixed by the owner of the factory does not mean that he can never fulfil the conditions relating to attendance for earning leave with wages. If a deemed worker attends the factory for the full duration fixed as factory hours and works for 240 days or more during a calendar year, he would be entitled to the benefits of ss. 79 and 80 of the Act.The observations made in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], that Pandurang was not bound to work for the period of work displayed in the factory and therefore "his days of work for the purpose of s. 79 could not be calculated" is not inconsistent with the view expressed by us. In Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], no Notification under s. 85 was issued by the State Government, and the Court was considering, whether having regard to the conditions governing his attendance, he could be regarded as a worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued and the workers concerned had worked for the full period of work displayed in the factory for more than 240 days in the preceding year, he would still not have been entitled to annual leave with wages. In our judgment the right to leave with wages arises in favour of a worker or deemed worker under s. 79 only if he has worker or deemed worker under s. 79 only if he was worked during the full period of factory employment for the prescribed number of days in the previous year because by the use of the expression days in s. 79, working for the full period of work displayed in the factory under the appropriate section of the Factories Act is contemplated. Work for a period less than the period displayed will not, in computing the number of days, be taken into account as a day within the meaning of s. 79.11. We may also observe that in Bridhichand Sharma v. First Civil Judge, Nagpur [(1961) 3 S.C.R. 161.], this Court in dealing with the question whether rollers in a bidi factory who were obliged to work within the factory hours, but not for the entire period were entitled to the benefit of s. 79, held on a consideration of all the circumstances, that the bidi rollers being employed in the factory were workers within the meaning of s. 2(1) of the Factories Act, and entitled to that benefit. It was also observed that the leave provided under s. 79 arises as a matter of right when the worker has attended for the minimum number of working days and he is entitled to it, and absence of the worker from attendance for a longer period than that provided by s. 79 had no bearing on his right to leave under that section. That was again a case not covered by a Notification under s. 85. On the facts proved the Court held that the workers in the factory were employed and would if they fulfilled the requirements of s. 79 - viz, the total number of days of work - be entitled to the benefit of leave with pay. The attendance to qualify for leave in that case had obviously to be for the appropriate full period fixed by the owner of the factory.As we have already observed the Act primarily applies to workers strictly so called who are employed in any manufacturing process in a factory, but it is open to the State Government by a Notification to apply all or any of the provisions of the Act to any place wherein any manufacturing process is carried on and if such a Notification is issued the place so declared is to be deemed a factory under the Act, the owner to be deemed an occupier and the person working therein a worker notwithstanding the fact that the number of persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with such owner. If by imposing liability to afford to workers strictly so-called under the Act, there is no infringement of the fundamental right of the owner of the factory to carry on his business, a similar obligation in favour of deemed workers, who satisfy the requirements of s. 79, cannot, having regard to the object of the statute, be regarded as infringing that fundamental right. Therefore by imposing liability to afford to "deemed worker" annual leave with wages under s. 79 and s. 80 in the same manner and to the same extent as is afforded to workers strictly so-called under s. 2(1) of the Factories Act, no unreasonable restriction has been imposed upon the occupier or the owner of the factory.12. To conclude : in our judgment s. 85 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on, and which involves the consequence that the place is deemed a factory and the persons working therein are deemed workers is not by itself discriminatory so as to infringe Art. 14 of the Constitution; nor does the provision amount to authorising imposition of unreasonable restriction upon the fundamental right of the owner of the factory to carry on his business. The impugned Notification issued under s. 85(1) is also not open to attack on the ground that the State has issued the Notification by selecting for application of the provisions of the Act, some out of the places in which bidi manufacturing processes are carried on. Nor does the Notification in so far as it seeks to apply the provisions of the Act imposing upon the owner or an occupier of the factory obligation to grant annual leave with wages impose any unreasonable restriction.

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

Explanation:
0[ds]3. Premises in which a manufacturing process is carried on where the number of workers is less than the minimum prescribed do not fall within the definition of factory. Again a person to be a worker must be employed in a manufacturing process or in cleansing machinery used for the process, or in any work incidental to or connected with the manufacturing process. To attract the provisions of the Factories Act which confer certain benefits and privileges upon workers and impose obligations upon owners of factories qua those workers, there must, therefore, be a manufacturing process carried on in any premises, the number of persons working in the manufacturing process or cleansing machinery used for the process or in work incidental to or connected therewith be not less than the number specified in the definition in s. 2(m) and that the persons so working must be employed (under a contract of service) for wages or not and directly or indirectly. A person working in a factory, but not under a contract of service cannot be regarded as a worker within the meaning of that expression in s. 2(1) of the Act.Section 85 of the Factories Act which occurs in Ch.The policy underlying s. 85 authorising the State Government to extend the benefit of the Act is apparent on its face. The section aims at making provision for securing the health and safety of persons engaged in hazardous employments, and for that purpose the Legislature has entrusted to the State Governments, in the case of establishments not falling expressly within the regulatory provisions of the Act, authority to extend those provisions, where the necessity to regulate, having regard to the circumstances, is felt. The power to extend the regulatory provisions of the Act is therefore not intended to confer an arbitrary power to pick and choose between establishments similarly situate : it is granted with a view to secure the protection of persons engaged in industrial occupations in the light of special circumstances of a particular industry, a locality or an establishment, where circumstances justifying the extension of the protection exist. The conditions of small establishments in different parts of the country may and do widely vary. Control in respect of some industries or establishments not governed by the Factories Act may not be necessary, whereas necessity in that behalf may be acutely felt in others. It is to carry out effectively the object underlying the Act that power has been given to the State Government to decide with reference to local conditions whether it is desirable that the provisions of the Act or any of them should be made applicable to any establishment which is not covered by the definition of "factory" or to workers in a factory who are not entitled to the benefits of the Act, because of the definition of "employment.It is true that even if a statute which permits executive action to be taken is not ultra vires, but the executive action taken under the statute in the matter of selection may be ultra vires if it infringes any fundamental right. In the present case, however, the affidavit of Mr. V. N. Pimenta, Under Secretary to Government of Maharashtra in the Industries and, Labour Department, discloses clearly the basis on which the factories mentioned in the Schedule were selected by the Notification under s. 85(1). In paragraph 7 of his affidavit it is stated"On careful consideration of the facts of this (Shankar Balaji Wajes) case the Government of Maharashtra was of the view that for the purpose of protecting the bidi rollers against any arbitrary treatment by the bidi manufacturers, and to maintain the protection given to them under the Factories Act which they had hitherto obtained prior to the decision of this Honble Court in the case of Shankar Balaji Waje a Notification under s. 85 of the Factories Act, 1948 should be issued. Accordingly, the Government of Maharashtra issued the impugned Notification including therein those factories which were on the register of Factories maintained by the Chief Inspector of Factories."He further stated that probably there were other bidi manufacturing establishments to which the provisions of the Factories Act were applicable, but these factories were not within the purview of the impugned Notification because they were not on the register of factories maintained under the Factories Act and on the basis of which the impugned Notification was issued. But such establishments were not included in that register because of the failure of the owners to register them. Mr. Pimenta said that the Government was making enquiries about such other factories and that they would or would not be brought under the purview of the Act, as circumstances demanded, by amendment of the impugned notification under s. 85 of the Factories Act when the enquiries were over. He further stated that the impugned Notification was issued to maintain industrial peace and harmony. There is nothing on the record to discredit these statements. Before the impugned Notification was issued, the Bombay and other High Courts had held that bidi workers who though not servants of the owners of the bidi factories in which they were working, were still employed in a manufacturing process to whom the benefits of the Factories Act were admissible. As a result of the clarification of the legal position by the decision of this Court in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], there was grave unrest among bidi rollers and the State Government felt obliged to intervene for the protection of bidi rollers against deprivation of benefits previously accorded to them for an appreciable length of time, and with that object in view in the first instance applied the provisions of the Factories Act by Notification issued under s. 85(1) to all such establishments as were included in the list maintained by the Chief Inspector of Factories and commenced an enquiry for including others which were not included in that list. In the situation which arose inclusion of bidi manufactories registered as factories with the Chief Inspector of Factories in which bidis were rolled by workers must be deemed to be a rational basis for classification. The fact that to other factories carrying on the same business but not included in the list of the Chief Inspector of Factories, the provisions of the Act were not extended immediately does not expose the Notification to a charge of absence of rational classification. Selective application of a law by an authority such as a State based on an objective test such as entry in the list maintained by the Chief Inspector of Factories in the exercise of statutory authority, would in the light of the emergency, be deemed to be a rational basis for classification. It also appears from the affidavit of Mr. Pimenta that the Government of Maharashtra is holding enquiries about other factories which may properly be, but are not, included, because of absence of adequate information. The exclusion of owners of bidi establishments, not on the list of the Chief Inspector of Factories, is ex facie not due to any differentiation made with "an evil eye or uneven hand" but on account of the felt necessity of a situation which caused great hardship to a large number of workers, and rectification of which in the interest of maintaining industrial peace brooked no delay.It was urged, however, that the application of all the provisions of the Factories Act without considering the appropriateness of extending the individual provisions, infringed Art. 19 of the Constitution. It was submitted that provisions like ss. 79 and 80 which only apply to factories employing persons who work under contracts of service with the owner would be wholly inapplicable to persons who work under contracts not of service with the owner of the factory and who are under no obligation to attend the factory for any fixed duration during working hours or for any fixed number of days during the year, and providing benefits for such persons by extending those provisions amounts to imposing unreasonable restrictions upon the right of the owner of the factory. Section 79(1) provides for grant of annual leave with wages for the number of days calculated at certain rates to every worker who has worked for a period of 240 days or more in a factory during a calendar year. Section 80 is consequential upon s. 79 : it provides that a worker shall be paid for the leave allowed to him at the rate equal to the daily average wage of his total full time earnings for the days on which he worked during the month immediately preceding his leave exclusive of any over-time and bonus but inclusive of dearness allowance and cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles. Section 79 clearly applies to workers who work for the full period of employment during factory hours and for the prescribed number of days and it may appear at first sight somewhat inappropriate that the benefit of annual leave with wages should be extended by Notification under s. 85(1) to persons who do not work for the hours fixed for the establishment. But it is in our judgment clear that s. 79 if it is made applicable by notification under s. 85 would apply to those workers only who work in the factory for the full period prescribed under ss. 61, 71 and 66(1) of the Factories Act by the employer for not less than the number of qualifying days. A "deemed worker" who is paid only for work done by him and who is under no obligation to attend at any fixed time may be entitled to benefit of annual leave with wages only if he fulfils the working conditions applicable to workers as defined in s. 2(1) of the Act. The privilege of working for a period less than the period prescribed for regular workers in a factory will not, if he works for less than the prescribed hours, come to the aid of a deemed worker so as to enable him to claim the benefits of s. 79; but that privilege will not deprive him, if he fulfils the conditions relating to the duration of work, of the benefit of s. 79. The fact that a deemed worker in a factory, to which s. 79 is extended by a Notification, by virtue of his contract or otherwise is not bound to attend at times fixed by the owner of the factory does not mean that he can never fulfil the conditions relating to attendance for earning leave with wages. If a deemed worker attends the factory for the full duration fixed as factory hours and works for 240 days or more during a calendar year, he would be entitled to the benefits of ss. 79 and 80 of the Act.The observations made in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], that Pandurang was not bound to work for the period of work displayed in the factory and therefore "his days of work for the purpose of s. 79 could not be calculated" is not inconsistent with the view expressed by us. In Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], no Notification under s. 85 was issued by the State Government, and the Court was considering, whether having regard to the conditions governing his attendance, he could be regarded as a worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued and the workers concerned had worked for the full period of work displayed in the factory for more than 240 days in the preceding year, he would still not have been entitled to annual leave with wages. In our judgment the right to leave with wages arises in favour of a worker or deemed worker under s. 79 only if he has worker or deemed worker under s. 79 only if he was worked during the full period of factory employment for the prescribed number of days in the previous year because by the use of the expression days in s. 79, working for the full period of work displayed in the factory under the appropriate section of the Factories Act is contemplated. Work for a period less than the period displayed will not, in computing the number of days, be taken into account as a day within the meaning of s. 79.11. We may also observe that in Bridhichand Sharma v. First Civil Judge, Nagpur [(1961) 3 S.C.R. 161.], this Court in dealing with the question whether rollers in a bidi factory who were obliged to work within the factory hours, but not for the entire period were entitled to the benefit of s. 79, held on a consideration of all the circumstances, that the bidi rollers being employed in the factory were workers within the meaning of s. 2(1) of the Factories Act, and entitled to that benefit. It was also observed that the leave provided under s. 79 arises as a matter of right when the worker has attended for the minimum number of working days and he is entitled to it, and absence of the worker from attendance for a longer period than that provided by s. 79 had no bearing on his right to leave under that section. That was again a case not covered by a Notification under s. 85. On the facts proved the Court held that the workers in the factory were employed and would if they fulfilled the requirements of s. 79 - viz, the total number of days of work - be entitled to the benefit of leave with pay. The attendance to qualify for leave in that case had obviously to be for the appropriate full period fixed by the owner of the factory.As we have already observed the Act primarily applies to workers strictly so called who are employed in any manufacturing process in a factory, but it is open to the State Government by a Notification to apply all or any of the provisions of the Act to any place wherein any manufacturing process is carried on and if such a Notification is issued the place so declared is to be deemed a factory under the Act, the owner to be deemed an occupier and the person working therein a worker notwithstanding the fact that the number of persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with such owner. If by imposing liability to afford to workers strictly so-called under the Act, there is no infringement of the fundamental right of the owner of the factory to carry on his business, a similar obligation in favour of deemed workers, who satisfy the requirements of s. 79, cannot, having regard to the object of the statute, be regarded as infringing that fundamental right. Therefore by imposing liability to afford to "deemed worker" annual leave with wages under s. 79 and s. 80 in the same manner and to the same extent as is afforded to workers strictly so-called under s. 2(1) of the Factories Act, no unreasonable restriction has been imposed upon the occupier or the owner of the factory.12. To conclude : in our judgment s. 85 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on, and which involves the consequence that the place is deemed a factory and the persons working therein are deemed workers is not by itself discriminatory so as to infringe Art. 14 of the Constitution; nor does the provision amount to authorising imposition of unreasonable restriction upon the fundamental right of the owner of the factory to carry on his business. The impugned Notification issued under s. 85(1) is also not open to attack on the ground that the State has issued the Notification by selecting for application of the provisions of the Act, some out of the places in which bidi manufacturing processes are carried on. Nor does the Notification in so far as it seeks to apply the provisions of the Act imposing upon the owner or an occupier of the factory obligation to grant annual leave with wages impose any unreasonable restriction.