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

2. The factual background in which the said question arises for our consideration is the following : Mathadi workers are the members of thethey are unprotected workers who carry out the manual work in vegetable markets (including onions and potatoes markets) connected with loading, unloading, stacking, carrying, weighing, measuring, filling, stitching, sorting, cleaning of vegetablesa scheduled employment specified under the Act. That onthe Government of Maharashtra made a scheme respecting that scheduled employment, as envisaged by Section 4 of the Act. Clause 14 of that Scheme required every employer to get himself registered with the Board. Hundekaris wanted to get themselves registered as employers with the Board, claiming that the provision in clause 14 entitled them to get registered with the Board. Theof Mathadi workers objected to registration of Hundekaris with the Board as employers on the ground that they were not the employers as envisaged by the Act and hence they were not also employers who were entitled to get registered under clause 14 of the Scheme. Indeed, the Maharashtra Government by its order dateddirected the Board not to register Hundekaris as employers under clause 14 of the Scheme. However, later, the Government of Maharashtra sought to resolve the said dispute between Hundekaris and Mathadi workers under Section 5 of the Act taking note of an observation of the High Court in an order made onin a writ petition filed by Respondent 2. But, the Government being under an obligation to consult the Advisory Committee constituted under the Act in resolving a dispute under Section 5 of the Act, its view in the matter was sought for. The advisory Committee which examined the matter was of the view that Hundekaris were not entitled to get themselves registered with the Board as employers under clause 14 of the Scheme. Yet, the Government took a decision onpurporting to be that reached in consultation with the Advisory Committee and on hearing the parties concerned. The decision so taken onION OF THE GOVERNMENTIn supersession of the Government orders datedand following Section 5 and in consonance with the orders of the High Courts datedthe Government is now giving orders that as per the provisions under Section 2(3) of Mathadi Act, 1969 and Rule 14 of the Scheme framed in 1985 Hundekaris are operating as clearing agents, they are having a right and are empowered to get themselves registered as owners. For this, Hundekaris should apply to the Board in Form A and the Board as per the provisions of the Mathadi Act and the Scheme should take appropriate decision on the rights of HundekarisBy orders and in the name of theAsmarAsstt. Secretary to the Govt."said decision was challenged by the Mathadi workers through their Union, the appellant, by filing Writ Petition No. 510 of 1989 before the Bombay High Court. Since, a Division Bench of the High Court dismissed the writ petition by its judgment datedthe correctness of that judgment is challenged in this appeal, giving rise to the aforesaid question requiring our consideration3. We have heard learned counsel appearing for parties in this appeal

Reasoning:
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