Case: Ahmedabad Mfg. &amp; Calico Ptg. Co. Ltd Vs. Ram Tahel Ramnand &amp; Ors

1. This appeal has been presented to this Court by the Ahmedabad Manufacturing and Calico Printing Company, Ltd., pursuant to the certificate granted by the Gujarat High Court under Article 133 (1) (c) of the Constitution. The Gujarat High Court had, on being approached by the respondents under Article 227 of the Constitution, quashed and set aside the order of the Industrial Court. Gujarat dated February 5, 1964 which had affirmed the order of the Second Labour Court, Ahmedabad dated August 9, 1963, and after setting aside that order had directed the Industrial Court to decide the matter afresh in the light of the observations made by the High Court in the impugned order.2. The respondents in this Court has applied to the Labour Court under Section 79 of the Bombay, Industrial Relations Act, No. XI of 1947 (hereinafter called the Act) in December, 1962 complaining that the appellant company was liable to pay to the respondents (applicants before the Labour Court) dearness allowance every month according to the Dearness Allowance Award made by the Industrial Court but the same had not been paid for the month of September 1962 which was distributed in October, 1962. It was alleged that from October, 1962 the company had been committing breach of the Dearness Allowance Award of the Industrial Court. In that application the present respondents had based their claim on the following averments in Paraapplicants are being paid Rupees 68/- as basic pay by the opponent. The maintenance of the garden is the legal responsibility of the opponent and for the health, welfare, recreation of the employees working in the several departments and for the decency of the adjacent offices the opponents are maintaining it. The applicants are doing the entire work in respect thereof.In the written statement the appellant company raised several pleas in opposing that application. The pleas which were pressed in the Second Labour Court and in the Industrial Court and which are now strongly pressed before us are contained in Paras 3, 8 and 10 which so far as relevant may beThat the applicants not being in the employment of the opponent they have no locus standi to make an approach or to file this application.8. That the opponent is not the employer of the applicants and the applicants are not its employees within the meanings of those words in the Act and as such the application is misconceived and not legally tenable.With respect to the allegations and averments made in Paras 1 to 4 of the application it is denied that the applicants are the employees of the opponent within the meaning of that term of (in?) the Act as alleged or that they are entitled to the benefits or the dearness allowance as alleged or otherwise. The true fact is that the applicants are not employed in any work which is ordinarily a part of the undertaking and as such they are not the employees within the definition of that word in the Act. The applicants are employed as coolies by a gardening contractor Messrs Dhiraj Painters and they are paid by the said contractor. The said garden lands include a large area of offices of some other concerns, a Government Post Office and a Museum which are open to the public, some quarters for workers as well as assistants and officers, a hospital. It is for the garden of the area which comprises these buildings and the area round caustic plant factory as well as the field in Dani Limda that this agreement was entered into with the contractor for keeping the trees and plants in proper trim. Hence the work which they are performing has been held to be not ordinarily a part of the undertaking and as such the application is wholly misconceived and not legally tenable and is clearly barred by res judicata.The Second Labour Court dismissed the respondents applications. In that Courts view the real question in issue was whether the appellants did any work which is ordinary part of the undertaking. The plea of res judicata based on the decision of the Labour Appellate Tribunal of India, Bombay (Appeal No. 135 of 1954 reported in 1955 ICR 1105) was negatived but it was observed that the principle laid down in the earlier case would govern the present case as well. After quoting the following passage from the earlierthe Industrial Court was correct in holding that the agreement applied to the area which was outside the factory proper. But to our mind the principal question involved is whether the maintenance of trees and plants can be said to be work which is ordinarily part of the undertaking. In another case, this Tribunal had decided that a ration shop was a part of the work which is ordinarily a part of the undertaking, but the maintenance of these trees and plants stands on a different footing and can hardly be regarded as part of the work of this particular undertaking which in fact is concerned with the production of cloth. We can see no intrinsic connection between the maintenance of the trees and plants and the work which is ordinary part of theLabour Court observed that the "applicants gardeners or mails who are contractors employees cannot thus invoke the statutory definition of the employer".On appeal by the aggrieved malis the Industrial Court in the course of its judgment observed that there was no dispute that the appellants in that Court had been working as gardeners or garden mazdoors and had been employed through a contractor and not directly by the mill. After referring to the decision of this Court in J. K. Cotton Spg. And Wvg. Mills Co. Ltd. v. Labour Appellate Tribunal of India (1964) 3 SCR 724   = (AIR 1964 SC 737  ) and to the decision of the Madras High Court in Thyagaraja Chettiar v. Employees State Insurance Corporation, (1963) 2 Lab LJ 207 = (AIR 1963 Mad 361  ) the Industrial Court observedJyotikar had urged that the term mill premises as interpreted the Courts would include even places around the factory and so the question whether the appellants were working in one compound or the other would not be material. But it is not necessary to consider this contention because looking to the nature of the work done by the appellants and to the fact that they were not directly employed by the employer but through a contractor, it has been held that they cannot be covered within the scope of Sec. 3 (13). Shri Jyotikar had also argued that under the Standing Orders, the term operative has been defined to include persons employed through contractor; but the Standing Orders would apply to a particular person only if he is an employee as defined under the Bombay Industrial Relations Act.The High Court, on being approached by the aggrieved malis under Article 227 of the Constitution, went into the matter at considerable length and after copiously quoting from the decision in the case of J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724   = (AIR 1964 SC 737  ) (supra) the High Court found it difficult to agree with the reasoning of the Industrial Court that the work of maintaining the garden was not a part of the ordinary work of a cotton textile mill. Earlier in the course of its judgment the High Court, after referring to the definitions of the term "employee" in Section 3 (13) and of the word "industry" in Section 3 (19) of the Act had observeddefinition of the term industry is thus wide enough to include a workmen employed in any calling, service, employment, handicraft, or industrial occupation or avocation of employees and it would not be correct to assume that simply because a workman happened to be engaged as a gardener, he would not fall within the definition of the term employee as given in the Bombay Industrial Relations Act. A garden when attached to a mill is an amenity that is provided to the workers employed in the mill and it is not necessary that an amenity should arise from a statutory requirement or obligation and it hardly makes any difference if the garden was provided for voluntarily or under a statutory obligation. The activities in an undertaking such as a textile mill are not confined purely to factory work of manufacturing textile fabric within the mill premises, but various other incidental and connected institutions such as hospital, a canteen, a playground and a garden might be maintained by the mill to provide amenities to its workers and these activities could be considered as the activities made in relation to and in the usual course of conduction the affairs of the mill. Not merely within the turning of the wheels of the machine which, no doubt, is directly responsible for the production of the article for which the plant of the particular industry was installed and not merely in utilizing the power to move the machine to action, the field of activities of the undertaking is restricted and exhausted, but there are many more varieties though allied and complementary activities which are being carried on by the management and which help, though in an indirect manner, in creating a healthy atmosphere of well being and co-operation amongst the workers by providing essential facilities such as means for treatment of their ailments, for general entertainment and care not only of the workers but of the children who are left unattended while their parents are engaged in their work in the factory. While, therefore construing the words "in the course of and ordinarily a part of the undertaking we must given them a meaning which is natural and consistent with the working of a factory as it exists in the present times and while doing so, our approach should not be theoretical and academic but pragmatic and practical. The activities that are usually conducted as a part of an undertaking by which not only workers participate in the actual running of the machinery but also activities which conduce to the smooth working of the plant as a whole must be considered to fall within the ambit of the definition. We are, therefore, unable to agree with the contention of Mr. Patel that the application of the Act must be restricted to only those workers who are directly engaged in the manufacture of textile fabric.While commenting on the order of the Industrial Court where it is stated that the maintenance of gardens though a matter concerning health or welfare of the employees was not mandatory on the management of a cotton textile mill undertaking and hence the work of maintenance of a garden could not be said to be part of the ordinary work of such mill, the High Court observed thatactivity undertaken as a part of the undertaking and in the course of its conduct may be undertaken voluntarily or as a result of a statutory duty or obligation but what is necessary it that the activity must reasonably be attributable to the undertaking in its usual and ordinary course in the conduct of the business or undertaking and if that be so then such an activity could be considered as the activity of a worker who would fall within the definition of employee within Section 3 (13) of the Act.It was, however, contended in the High Court on behalf of the present appellant that the garden in which the present respondents had been working as gardeners was not situated within the premises of the mill and that the garden area included office of some other concerns, a Government post office and a museum which was open to the public and, some quarters for workers as well as assistants and officers of the hospital. The garden area, according to Mr. Patel who represented the present appellants in the High Court, comprised of the buildings just mentioned and the area round the caustic plant factory as well as the field at Dami Limda in respect of which an agreement had been entered into with the contractor for keeping the trees and plants in proper trim. This contention having not been considered by the Industrial Court the High Court, as already observed, sent the case back to the Industrial Court for a fresh decision in the light of the observations of the High Court.

Reasoning:
10. Before considering these points it would not be out of place to mention that in the certificate of fitness granted by the High Court is not indication about the precise point or points which induced the High Court to certify the case to be fit for appeal under Clause (c) of Article 133 (1) . This clause though couched in general terms is intended to apply to special cases in which the question raised is of such great public or private importance as deserves appropriately to be authoritatively settled by this Court. This clause of course does not in terms say so but it has always been so construed. The question whether or not to certify a given case to be fit for appeal under this clause is a matter for the judicial discretion of the High Court. The word "certify" used in this clause suggests that the High Court is expected to apply its mind before certifying the case to be fit for appeal. The mere grant of a certificate would, however, not preclude this Court from determining whether the conditions prerequisite for the grant are satisfied. It is, therefore, always desirable and expedient for the High Court to give its reasons for granting the certificate. That would assist this Court better in appreciating if the conditions pre-requisite are satisfied. In the application for certificate in the present case a number of grounds were stated for securing it. We are unable to find from the certificate as to which ground was considered by the High Court to be important enough to justify the certificate.11. Not, in this case the respondents in fact questioned before us the competence of the High Court to grant the certificate of fitness but the objection raised by Shri Shukla was based only on the submission that Article 133 is inapplicable because the impugned order is not a final order. We may first deal with this preliminarydecision, therefore, does not assist us on the precise question raised. The next decision relied upon by Mr. Desai, is reported as Hakim Singh v. J. C. Mills Ltd. 1963 MPLJ 714. In that case the mills had employed a contractor to supply packing material. The contractor because of the nature of his work was given a room in the mills premises for preparing a particular packing material. An employee of the contractor applied to the Industrial Court for relief under the provisions of the Act. It was held that he could not be deemed to be an employee of the mills because the work which was carried on by the employer of the petitioner was not a part of the industrial undertaking. While commenting on the scope of S. 3 (13) (a) and S. 3 (14) (e) of the act which define the words "employee" and "employer", it was said that for the purpose of these provisions, there must be an industrial undertaking owned by somebody: some work, which is ordinary part of the undertaking must have been entrusted by the owner to the contractor: that contractor must be employing an employee: that employee can then by the combined operation of these provisions insist upon being treated as employee of the owner himself, the obvious idea behind this scheme being that the owner of an industrial undertaking should not be allowed to evade responsibilities towards his employees which are imposed by the labour laws, by entrusting a part or whole of the undertaking to a contractor. The actual decision of this case is on different facts and is clearly not of much help though the observations regarding the purpose of the provisions of the definitions admit of no controversy. Reliance was further placed by Shri Desai on the decision of this Court in M/s. Godavari Sugar Mills Ltd. v. D. K. Worlikar, (1960) 3 SCR 305   = (AIR 1960 SC 842  ) where a notification applicable to the manufacture of sugar and its by-products was held not to cover the head-office of the sugar mills at Bombay and the employees engaged there, when the head-office was separated from the factories by hundreds of miles. The notification was held not to cover sugar industry as such. Shri Desai also sought support from Devijibhai M. Chokshi v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. 1958-2 Lab LJ 126 (a decision of the Industrial Court, Bombay) which dealt with running of a retail shop; New India Tannis v. Aurora Singh Mojbi AIR 1957 Cal. 613   a case of doing repairs to the machinery of the factory and from S. M. Ghose v. National Sheet and Metal Works Ltd. AIR 1950 Cal. 548  , a case of an employee of a contractor engaged to paint the premises. Both the Calcutta decisions are under the Workmens Compensation Act.In our view on the conclusions of the High Court which have not been shown to be erroneous justifying interference it is not possible to reverse its decision on the basis of the abstract submission advanced by Shri Desai. As observed in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724   = (AIR 1964 SC 737  ) (supra), the problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law. This concept of social justice has a comprehensive sweep and it is neither pedantic nor one-sided but is founded on socio-economic equality. It demands a realistic and pragmatic approach for resolving the controversy between capital and labour by weighing it on an even scale with the consciousness that industrial operations in modern times have become complex and complicated and for the efficient and successful functioning of an industry various amenities for those working in it are deemed as essential for a peaceful and healthy atmosphere. The High Court has left open for the decision by the Industrial Court the question as to the nature of the work done by the respondents for determining whether or not, in view of the fact that they are employed through a contractor and not directly, their case falls within S. 3 (13). This is what the High Court has saidwas urged by Mr. Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns, a Government Post Office and Museum which were open to public and some quarters for workers as well as assistants and officers of a hospital. It was also urged by Mr. Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim. It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court, looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor, they could not be covered within the scope of Section 3 (13) of the Bombay Industrial Relations Act. Since this contention has not been considered by the Industrial Court, we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent no. 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised.Subject to this, the order of the Second Labour Court Ahmedabad dated 9th August, 1963 passed in Application No. 2005 of 1962 and the order of the Industrial Court, Ahmedabad dated 5th February, 1964 passed in Appeal (I.C.) no. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above.There is no cogent ground why this matter should be decided by this Court and not by the Industrial Court in the normal course as directed by the High Court. In our opinion the order of the High Court is legally correct and is also eminently just and fair. We are unable, therefore, to agree with Mr. Desai that this order requires any interference. The principle followed by the High Court is the one which was laid down by this Court in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724   = (AIR 964 SC 737) (supra). The decisions of the Labour Court and the Industrial Court were based on misconception of the legal position and the High Court was within its authority to interfere under Art. 227 of the Constitution to quash them.