Case: Kolhapur Sugar Mills, Limited Vs. S Syed Taki Bilgrami

( 2 ) THE facts necessary for the purpose of this judgment are that theoriginally owned an agricultural estate of 1,135 acres of land on which sugarcane was cultivated by it, but after the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1951, was passed, under the provisions of that Act, a major part of the estate owned by thewas taken over by the Government and handed over to the Maharashtra State Farming Corporation, leaving only 79 acres of agricultural land for theitself, as from 1 August, 1963. In pars 5 of the petition, it is stated that the factory of thehas a crushing capacity of 2,200 tons per day, and that its total sugarcane requirements during the season are about 350,000 tons. It is further stated in the said paragraph that, on the 79 acres of land now left with theonly about 3,000 tons of sugarcane are grown per season which is roughly just one and a half days crushing requirement of the factor of thewith the result that thenow obtains the entire balance of its supply of sugarcane from private agriculturists under certain agreements which it has entered into in that behalf. It is the case of thethat, except for a special arrangement made by it for the yearat the instance of the State Government itself, theis not concerned with the harvesting and transport of sugarcane on and from the fields of private cultivators from whom it obtains the bulk of its sugarcane requirements. Respondent 2 to this petition is a trade union which is a representative union of the employees, inter alia, of thefactory. On 13 August, 1964, respondent 2 union served a notice of change under the provisions of S. 42 (2) of the Bombay Industrial Relations Act, 1946, making a demand that every cartman and harvester in the harvesting and transport of sugarcane in theshould get a daily wage at the rate at which the unskilled employees of theare paid, with effect from the day of the commencement of the seasonand that themight revise the rates of contract for harvesting and transport suitably, if necessary. The dispute that was raised by the said notice of change was taken to conciliation, but the conciliator ultimately issued a failure certificate under S. 73a (iii)of the Bombay Industrial Relations Act, 1946, and a reference was thereafter made by respondent 2 union to the industrial court on 7 February, 1963. The respondent 2 union filed its statement of claim in that reference, and in that statement of claim it was stated that the complete operation of harvesting and transport of sugarcane was organized by theand that theharvesting programme was fixed by the company and the same was not left to the vagaries of those who sold their sugarcane to the company. It was, therefore, submitted that the harvesting and transport workers and whose employed through contractors and whose work was supervised and controlled by the staff of thewere the employees of thewithin the terms of S. 3 (13) of the Bombay Industrial Regulations Act, and thewas, therefore, their employer and was bound to pay to them wages at the rate at which its unskilled employees were being paid. Thefiled a written statement in answer to that statement of claim in which it repudiated the demand made by respondent 2 union and contended that the harvesters and cartmen engaged on the lands of private cultivators ware not the employees of theand that thereference in that behalf was, therefore, not maintainable. In the said reference, which was numbered as reference No. 25 of 1965 in the industrial court, the Maharashtra State Farming Corporation was made a party, admittedly, at the instance of theIt may be mentioned that the maharashtra State Farming Corporation had also a reference of its own then pending in the industrial court, viz. , Reference No. 2 of 1966. These two references, viz, Reference No. 25 of 1963 and Reference No. 2 of 1965, along with two other references, were heard together, and one composite award was made in regard to the said four references as, in the opinion of the president of the industrial Court, who made that award, the facts, the evidence as well as the legal points that arose, and the conditions of service and nature of the work of the employees concerned, were the same in all the references. It may, however, be mentioned that Paras. 2, 3, 5, 10, 11, 12 and 13 of the award relate to the claim made by respondent 2 union against theIn the said award, the industrial court rejected the contention of thethat harvesting and transport workers in respect of the sugarcane obtained by thefrom the lands of private cultivators were not the employees of theand it proceeded to make an award whereby it granted an increase of 50 per cent over the wages which were being earned by each koyta of harvesters, and the rate per mile payable to cartmen was also increased by 50 per cent. Thehas thereafter filed the present petition on 29 November, 1965 for the relief already set out by us above.

Reasoning:
( 13 ) HAVING analysed the three questions that arise for our determination, we will proceed to consider each one of them in the order mentioned above. As far as the first question mentioned by us in the preceding paragraph is concerned, it was sought to be contended by Sri narayanaswami that the connexion which is required for the purpose of Clause (ii) of the said notification dated 4 October, 1952 must be a physical connection with theny, or, in other words, that there should be some physical contiguity or proximity with theny. Sri Narayanaswami further argued that, in order to constitute such connection, the operations in question must be carried on, on premises owned by theand, in fact that was the entire backbone of the argument which Sri Narayanaswami has submitted before us in this case. We have no hesitation in rejecting both these contentions of Sri Narayanaswami as neither physical connection nor unity of ownership is what is required by the said notification dated 4 October, 1952, by which alone, in the ultimate analysis, this question must be decided. In our opinion, what is the nature of the connexion that is required by Clause (ii) of the said notification must depend on a construction of the plain language of the notification itself. It is in the light of its language that we must proceed to consider with what are the agricultural or industrial operations which are mentioned in Clause (ii) of the said notification, required to be connected. In our opinion, the answer to that question, which appears from the very language of the said clause, is, that the connexion that should be established must be with the manufacture of sugar and itswhich is what is referred to as "the said manufacture" in that clause. Obtaining raw materials is a vital and essential part of the business aspect of any industry, and, in the present case, it is obvious that unless thecould obtain sugarcane it could not crush it or manufacture sugar therefrom. It may be mentioned that difficulties have arisen in procuring sugarcane as a result of the bringing into force of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as well as by the emergence of thesector in the industry. Thehas, therefore, in order to ensure the regular supply of sugarcane to keep its mills going, entered into certain arrangements with private cultivators, the sugarcane grown on its own land of only 79 acres being barely sufficient to constitute one and a half days crushing requirements of its own mills. Copy translations of those agreements have been annexed to the affidavit of Bhalchandra Mahadev Hajarnis is dated 19 January, 1966 filed on behalf of thein the proceedings in the reference before the industrial court. It is pertinent to note that the form which the arrangements effected in that behalf by thetook was that in the first instance, it entered into aarrangement for seven years which was to be carried out by means of annual agreements to be executed each year, stating therein the area of cane cultivation on the lands, the date when the plantation was done, the quantum of cane planted and other details in regard to that particular year. Thealso entered into direct agreements with contractors for the harvesting and transport of sugarcane byfrom the lands of private cultivators to its own mills. Aof such an agreement is annexed to the said affidavit of Hajarnis and marked ex. I. In the view which we take of the matter, it is unnecessary for us to refer to the various clauses or provisions of the said agreements in detail, but suffice it to say that the procedure which thefollowed by means of those agreements for the purpose of procuring sugarcane from the lands of private cultivators shows that there was a nexus or connection between the harvesting and transport of sugarcane from the lands of those private cultivators and the manufacture of sugar and its by products by theReference may also be made in this connection to the statements contained in Paras. 7, 8, 9, and 10 of the affidavit of Shivappa Pirappa Chougula dated 23 November, 1965 filed on behalf of respondent 2 union in the course of the proceedings in the industrial court. In Para. 7 of the said affidavit, it has been stated that the contractor has to complete the work of harvesting and transport of cane according to the instructions issued by the cane development department of thethrough its harvesting mukadam, and this statement contained in Para. 7 of the affidavit of Chougula has been admitted in Para. 9 of the affidavit of Bhalchandra Mahadev hajarnis filed in reply to the same in those very proceedings, to which affidavit we have already had occasion to refer earlier in this judgment. In Paras. 8, 9 and 10 of the affidavit of the said chougula, it has further been stated that the complete operation of harvesting and transport of sugarcane is organized by theas also the allocation of vehicles for that purpose. It is further stated that the allocation of harvesting teams in the respective fields is decided by thethat the operation of harvesting is supervised by the harvesting mukadam of thewho have to ensure that the cane is properly dressed before loading,and that thesuperstructure of the supervisory staff which controls the complete operation of harvesting and transport is that of theitself, the contractors only serving the purpose of agencies to collect workers for the work of harvesting and transport, which it would be difficult for the company to get done departmentally. These statements are also not denied in the affidavit filed by Hajarnis in reply to the same, and, in fact, it is expressly admitted as true, in Para. 11 of the affidavit of the said Hajarnis, that the companys supervisory staff supervises the work of harvesting and carting of sugarcane so as to see that the work in the season may not be upset and the continuity of the supply of sugarcane maintained for the smooth working of the factory for all 24 hours. In this connexion Sri Kulkarni has relied upon a decision of a Special Bench of this Court in the case of Koynabai v. Bombay municipal Corporation [40 B. L. R. 12] but we do not think it is necessary to refer to that decision which is of no assistance for the purpose of deciding the question which we are now considering.( 14 ) SRI Kulkarni has made it quite clear that it is unnecessary for him to rely on the last part of that clause which is comprised in the words "or with the growing of sugarcane on the said farms," and we must therefore not take into account that part of Clause (ii) which we have indicated with the letter (d ). Of the possible permutations and combinations that could arise on a analysis of the said clause, we are therefore, left only with two, namely, that the manufacture of sugar and its by products includes all agricultural operations connected with that manufacture, and also includes all industrial operations connected with that manufacture. As a matter of construction, there can be no doubt that the words "on the said farms" which occur at the end of clause (ii) cannot govern either of those operations. So construed, the manufacture of sugar and its by products, which would include them even if those would so include them even if those operations are carried out on lands of others and not on the lands of the manufacturer himself, and that is quite clear from the fact that the notification has been expressly drafted in that manner. As a matter of construction of the plain language of the said notification, we, therefore, hold that harvesting and carting operations carried on for the purpose of procuring sugarcane for themills were "connected with" the manufacture of sugar and its by products therein, and the more fact that they were not carried out on theown lands makes no difference in the matter. (16 ) IT may be mentioned that the word "industry" has been defined in S. 3 (19) of the Act as already stated earlier in this judgment. The expression "the above industry" in the note to the notification dated 4 October, 1952 must, by reference to the context, include the relevant portions of Clause (ii) of that notification to which we have already referred, namely, "all agricultural operations connected with the manufacture of sugar and its by products, and all industrial operations connected with the manufacture of sugar and its by products. Sri Kulkarni sought to rely on both parts of the concluding portion of the said note. He contended that the case of the contractor and his teams of workers was covered not only by the words "engaged in that industry," but also by the words "engaged by an employer engaged in that industry," in so far as thehad sought to enter into direct agreements with the contractors and their teams of workers, aof one of which is to be found annexed as annexure I to the affidavit of the said Hajarnis already referred to earlier. These two parts of the concluding portion of the said note are, however, expressed in the alternative, and, in the view that we take of the matter, namely, that the case of the contractors and their teams of workers falls within the first alternative regarding persons who are engaged in the industry, it is not necessary for us to consider the second alternative. The second alternative would involve consideration of the question as to whether the contracts in the form of annexure I to the affidavit of Hajarnis, which were entered into by thewith the contractors and their teams of workers, were direct contracts as between principal and principal, as Sri Kulkarni has contended, or whether theentered into those contracts merely for the purpose of assisting the cultivators in carrying out their obligations to supply sugarcane as Sri Narayanaswami has contended, and were merely acting as the agents of the cultivators themselves. Turning to the first alternative in the concluding portion of the note, it is significant that the antithesis is between the words "engaged in" without anything more to qualify those words, and the words "engaged by an employer engaged in that industry. " In our opinion, this antithesis shows that the words "engaged in" that industry should be construed to apply, no matter by whom the employee has been engaged. In that view of the matter, the contractors and teams of workers would be a "part of the industry" within the note to the notification, dated 4 October, 1952, and we hold accordingly. Sri Kulkarni has, in support of the contentions of respondent 2 union on this point, cited the decisions in the cases of K. Ramaswami Mudaliar v. Poongavanam [1953I L. L. J. 735 at 737] and Associated Cement Companies, Ltd. v. Their workmen [1960I L. L. J. 1 at 11], but we think it unnecessary to deal with those authorities because they refer to different statutes. We are concerned in the present case with the interpretation of the notification dated 4 October, 1952 which creates, what may be called, a statutory nexus, making the operations in question part of the industry with which we are concerned in the present case. Moreover, as Sri Kulkarni has rightly contended, in Para. 11 of the affidavit of the said Hajarnis filed on behalf of theitself, it has been stated in unambiguous terms that the harvesting and carting of sugarcane from the lands of private cultivators for the purpose of ensuring continuity of the supply of sugarcane to the mills of the"is very essential" during the crushing season for the purpose of the smooth working of the said mills for all 24 hours. This would also show that those operations are part, and indeed a very essential part, of the undertaking of theWe, therefore, hold that the harvesting and transport operations carried on for the purpose of procuring sugarcane from the lands of private cultivators are part of the undertaking of thewithin the terms of S. 3 (14) (e) of the Bombay Industrial relations Act, 1946.( 17 ) IN order to constitute thean employer within the terms of the definition in S. 3 (14) (e) of the Bombay Industrial Relations Act, 1946, it is, however, further necessary to show that the contractors were engaged by thefor work which was "ordinarily" part of the undertaking, the term "undertaking" meaning the petitioner concern. In this connection it is pertinent to note that the said definition does not use the expression "ordinary part of the undertaking," but uses the expression "ordinarily part of the undertaking. " this in our opinion, makes a difference as far as the intendment of that definition is concerned. A deference to the Oxford English Dictionary shows that one of the primary meanings of the word "ordinarily" is, "according to settled method; as a matter of regular practice or occurrence. " The practice or the method or the system followed by thein so far as the work of harvesting and carting sugarcane from the fields of private cultivators is concerned, therefore, becomes material for the purpose of deciding the point which we are not considering. Sri narayanaswami draw our attention to a decision of a Full Bench of our High Court in the case of bai Kokllabai v. Keshavlal Mangaldas and Co. [43 B. L. R. 985 at 990], but the facts of that case were so clear that we do not think it necessary to discuss what is laid down in that case. Suffice it to say that Sir John Beaumont in his judgment (at p. 990) stated that the question which arose before him under S. 12 (1) of the Workmens Compensation Act, 1923, was a pure question of fact, and he proceeded to decide the same on the basis of the business of the particular principal in that case, as he has stated in clear terms in his judgment. The real question which we must, therefore, consider is what has been the practice followed by thein the matter of harvesting and carting of sugarcane from the fields of private cultivators. Reference may be made in this connection to the statements contained in Para. 5 of the petition itself which make it clear that, at any rate, ever since the surplus lands of thewere taken away under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, thehad to procure its requirements of sugarcane, for keeping its mills going from private cultivators. What is more important, however, is the admission that appears in the affidavit of the said Hajarnis which was filed in the reference in the industrial court on behalf of thein Para. 5 of which there is a categorical statement that the procedure adopted by the company in procuring its sugarcane supply from cultivators has been the same "from the very beginning. " It is also an admitted position that theerm contracts for periods of seven years for that purpose. These admitted facts leave no room for doubt whatsoever that the work in question was work which was ordinarily part of the undertaking of theand we hold accordingly. In view of these conclusions at which we have arrived, the questions which were formulated by Sri narayanaswami in the form of propositions (1), (2) and (3) stated at the beginning of this judgment must all be decided against theand it must be held that the contractors and their teams of workers, who were engaged in the harvesting and transport of sugarcane to the mills of thefrom the lands of private cultivators, were employees of theany was their employer, and that those operations are included within the industry of manufacture of sugar and its by products, by virtue of the notification dated 4 October, 1952. In that view of the matter, the further contention of Sri Narayanaswami that the Bombay Industrial Relations Act had no application to the matterand that theindustrial court had no jurisdiction to deal with the reference before it, must also standNarayanaswami has made it clear in the course of his arguments before us that his contention with regard to the same is that wages are being paid to harvesters and cartmen by theat a composite rate per metric tonne for harvesting and carting as stated in annexure F to the petition and, though that point does not appear clearly in Para. 12 (g) or any other part of the petition, it has been the contention of Sri narayanaswami before us that the industrial court should not have proceeded to split the fixing of wages as between harvesting and carting operations. Sri Narayanaswami has also contended that the industrial court fell into a further error in thereafter proceeding to apply the koyta system to harvesting operations. The argument of Sri Narayanaswami on this point was that, in doing so, the industrial court has deviated from the demands of respondent 2 union, in so far as the statement of claim filed before it only sought to demand daily wage at the rate payable to unskilled employees of thewhereas the award proceeded to fix the daily wage for harvesters engaged in the operations in question according to the koyta system which, thehas contended, was never followed by it. A koyta consists of a team of one man and two women assisting him. It is, no doubt, true that the president of the industrial court has, in Para. 12 of his award, proceeded to fix the wages for harvesters engaged in operations on the lands of private cultivators from whom theobtained its supply of sugarcane according to the koyta system. It has not been disputed by Sri Kulkarni on behalf of respondent 2 union that that system is not the system followed by thebut what Sri Kulkarni has argued is that that is a mere matter of, what may be called, description or local terminology, and that it makes no difference whatsoever to the substance of the matter. It is common ground that the wage board has fixed a minimum wage of rs. 114 per month for unskilled workers, as stated in the award itself. The president of the industrial court has given a 50 per cent rise in the wages earned by a koyta "whetherd. " There is no material whatsoever placed before us on behalf of theto show that, in fixing wages on that basis separately for harvesters and for cartmen instead of fixing a composite wage for them as in annexure F to the petition, and then proceeding to fix wages for harvesters according to the koyta system, any prejudice has been caused to the