Ahmedabad Mfg. & Calico Ptg. Co.
Ltd. Vs. Ram Tahel Ramnand & Ors  INSC 108 (14 April 1972)
CITATION: 1972 AIR 1598 1973 SCR (1) 185 1972
SCC (1) 898
CITATOR INFO :
F 1973 SC2297 (9) RF 1976 SC1207 (72) RF 1986
Bombay Industrial Relations Act 11 of 1947,
s. 3(13) and (14)Malis employed under a contractor to look after garden
adjacent to a factory whether 'employees' of factoryMaintenance of garden
whether work ordinarily Part of undertaking considerations of social justice,
relevancy ofConistitution of India, Art. 227-Jurisdiction of High Court under
Art. 133(1)(c)-Certificate-High Court must give reason,
The respondents were malis who under a
contractor looked after the maintenance of a garden adjacent to but outside the
Premises of the appellant company which produced textiles. In an application
before the Labour Court the respondents claimed that they were employees of the
company within the meaning of s. 3(13) of the Bombay Industrial Relations Act
11 of 1947 and therefore entitled to dearness allowance. The Labour Court
rejected the claim on the ground that the respondents worked under a
contractor. On appeal the Industrial Court held that the company was under no legal
obligation to maintain the garden and therefore the respondents did not fall
within the definition of employee.
The High Court in a petition under Art. 227
of the Constitution held that statutory obligation was not necessary condition
of an activity being considered a part of the ordinary work of an undertaking
but what had to be seen was whether the activity was reasonably attributable to
the undertaking in its usual and ordinary course in the conduct of the business
or undertaking. Since the appellant company contended before the High Court for
the first time that the garden area in question did not pertain only to the
appellant but to several other employers the High Court remanded the matter to
the Industrial Court for a fresh decision in the light of the observations of
The appellant company in appeal by
certificate contended that the High Court had exceeded its jurisdiction under
227 of the Constitution, that a employed
through an independent contractor could not be an employee and that maintenance
of a garden could not be considered to be work which was ordinarily Li part of
the undertaking within the meaning of s. 3(14) of the Act. The respondents
raised a preliminary objection that the order of the High Court was not a.
'final order' and, therefore, the certificate granted by the High Court under
Art. 133 was incompetent.
HELD : (i) in this case Art. 227 appears to
have been used as a substitute for Art. 226 for quashing the orders of the
subordinate tribunals. If, therefore, while disposing of the petition under
Art. 227 the High Court finally settles some points then to that extent the
impugned order may be considered to, operate as a final order just as an order
under Art. 226 would. [194F] (ii) The mere grant of a certificate would 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 such conditions are satisfied.
[192H] LI208SupCII72 186 Waryam Singh v. Amar Nath,  S.C.R. 566, Tarapur
v. Mls. Y/O Tractors Export,  2 S.C.R.
699, Asbestos Cement Ltd. v. Savarkar, A.I.R. 1971 S.C. 100, Ramesh v. Ganda
Lal, A.I.R. 1966 S.C. 1445 at 1449 and Surinder Nath v. Stiphen (P) Ltd.,
 3 S.C.R. 458, referred to.
(iii) As held by this Court in J.K. Cotton
Spg. and Wvg.
Mills an employee engaged in any work or
operation which is incidentally connected with main industry is a workman if
other requirements of s. 2(s) of the Industrial Disputes Act 14 of 1947, are
satisfied. The bunglows and' gardens on which the malis in that ease worked
were a kind of amenity supplied by the mills to its officers and on this
reasoning the malls were heldp to be engaged in operations incidentally
connected with the main industry carried on by the employer. The High Court
rightly relied on that decision in arriving at its conclusion in the present
case that the workers in order to come within the definition of 'employee' need
not necessarily be directly connected with the manufacture of textile fabrics.
The problem has to be looked at from the considerations of social justice which
has become an integral part of our industrial law. [198F] J. K. Cotton Spg.
& Wvg. Mills Co. Ltd. v. Labour Appellate Tribunal of India,  3
S.C.R. 724, applied.
Thyagaraja Chettiar v. Employees State
Insurance Corporation  It L.L.J. 207; Kesar Lal Narsing Bhai V. Calico
Printing Ltd., 1955 Industrial Court Reporter, 1105, Hakim Singh v. J.C.Mills
Ltd., 1963 M.P.L.J. 714, Messrs Godavari Sugar Mills Ltd. v. D. K. Worlikar.
 3 S.C.R. 350, Begibhai M. , Chokshi v. Ahmedabad Manufacturing &
Calico Printing Co. Ltd.,  11 L.L.J. 126, New India Tannis v.
Aurora Singh Moibi, A.I.R. 1947 Cal. 613, S.
M. Ghose v.National Sheet & Metal Works Lid., A.I.R. 1950 Cal. 548 and
Basti Sugar Mills Ltd. v . Ramjagar,  2 S.C.R. 838, referred to.
(iv) The High Court had remanded the case to
the industrial Court because the appellant's contention that the garden
pertained to several ,other offices and buildings in the area and not to the
appellant's factory alone, had not began considered by the industrial Court.
There was no cogent ground why this matter should be decided by this Court and
not by the Industrial Court. The order of the High Court was legally correct
and it was within its authority under Art. 227 to quash the decisions of the
Labour Court and the Industrial Court which were based on misconception of the
legal position. [200A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1044 of 1968.
Appeal from the judgment and order dated
October 3, 1967 of the Gujarat High Court in Special Civil Application No. 380
S. T. Desai, V. B. Patel and I. N. Shroff,
for the appellant.
S. S Shukla, for respondents Nos. 1 to 9.
The Judgment of the Court was delivered by
Dua, J.-This appeal has been presented to this Court by the Ahmedabad
Manufacturing & Calico Printing Co., Ltd., pursuant to the certificate
granted by the Gujarat High Court under Art.
187 133(1)(c) of the Constitution. The
Gujarat High Court had, on being approached by the respondents under Art. 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.
The respondents in this Court had applied to
the Labour Court under s. 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 para 3:
"..the applicants are being paid Rs. 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 be reproduced:
3. That 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
10. 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
the Act as alleged or that 188 they are entitled to the benefits of 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 Dbiraj
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
respondent's applications. In that Court's 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 I.C.R. 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 earlier case "Now the Industrial Court was correct in holding that the
agreement applied to the area which was outside the factory proper. But to our
mind the principle 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 regarged
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 the
undertaking." the Labour Court observed that the "applicants'
gardeners or malis who are contractor's employees cannot thus invoke the
statutory definition of the employer".
189 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.
& Wvg. Mills Co. Ltd., v. Labour Appellate Tribunal of India (1) and to the
decision of the Madras High Court in Thyagaraja Chettiar v. Employees State
Insurance Corporation('-') the, Industrial, Court observed :
"Shri Jyotikar had urged that the term
'mill premises' as interpreted by 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 section 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 definition under the Standing Orders cannot;
be of any help in considering whether a
person is covered within the scope of the Bombay Industrial Relations Act or
not. Shri Jyotikar had then urged that in view of the fact that matters
concerning health, safety and welfare of the employees are included in Item 3
of Schedule III, maintenance of gardens would be an ordinary part of the work
of the undertaking. It is true that maintenance of gardens may be a matter
concerning health or welfare of the employees, but there is no, legal
obligation to maintain such gardens.
Had any such obligation been created under
any provision of law, the position might have been as urged by Shri Jyotikar;
but, as the facts stand at present, it is not mandatory on a management of a
cotton textile undertaking to maintain any garden and hence the work of
maintenance of a garden cannot be said to be a work which is a part of the
ordinary work of a cotton textile mill.
It is clear from the above that the
appellants cannot be held to be employees as, defined under the Bombay
Industrial Relations Act and so the Labour Court was right in dismissing the a
plication." (1)  3 S.Ck.-24. (2)  II L.L.J. 207.
190 The High Court, on being approached by
the aggreived malis tinder Art. 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. & Wvg. Mills case (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
mtill. Earlier in the course of its judgment the High Court, after referring to
the definitions of the term "employee" in s. 3(13) and of the word
"industry" in s. 3(19) of the Act had observed :
". . . The definition of the term
'industry' is thus wide enough to include a workman 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 suck 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 conducting 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
utilising 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 cooperation amongst the workers by providing
essential facilities such as means for treating 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,
there191 fore, construing the words 'in the course of' and 'ordinarily a part
of the undertaking' we must give 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 that " an activity 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 is 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 s.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 assistance and officers of
the hospital. The garden area, according to Mr. Patel who reprented 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 192 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.
In this Court Shri Desai on behalf of
appellants contended that the High Court, while exercising its jurisdiction
under Art. 227 of the Constitution, was not =powered to reverse the findings of
the Industrial Court and the Labour Court because under that Article it could
not perform the functions of an appellate or a revisional court. On the merits
also he contended that having regard to S. 2(3) of the Act read with the
notification dated May 30, 1939, the Act only applied to cotton spinning and
cotton weaving department, mechanics shops, dyeing and bleaching and printing
departments and offices of the appellant, and to no other activities of the
appellant company. The counsel further contended that cis. (13) and 14(e) of s.
3 of the Act have to be road together and when so read they could not take
within their fold a person employed by an independent contractor because such a
person could by no means be considered as an employee of the appellant company
unless the work done by him can be described as "ordinarily part of the
textile undertaking". While developing this point the learned counsel said
that the word "ordinarily" occurring in the context "work which
is ordinarily a part of the undertaking" in s. 3 (14) (e) conveys the idea
that the work should be in the line or in the regular or norm* course of the
textile undertaking or any part of it. The work 'it was explained, should be
such as, in the regular or normal course, is part and parcel of the textile
undertaking and not merely having some sort of incidental connection with the
same. The work of gardening, added the counsel, cannot be considered to have
done in "execution" of any "work" which is
"ordinarily" part of the textile undertaking.
Before considering these points it would not
be out of place to mention that in the certificate of fitness granted by the
High Court there is no indication about the precise point or points which
induced the High Court to certify the case to be fit for appeal under cl.(c) of
Art. 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 pre-requisite for the grant are
193 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.
Now, 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 Art 133 is inapplicable because the impugned order is not a
final order, We may first deal with this preliminary objection.
Article 227 of the Constitution no doubt does
not confer on the High Court power similar to that of an ordinary court of
appeal. The material part of this Article substantially reproduces the
provisions of s. 107 of the Government of India Act, 1915 except that the power
of superintendence has been extended by this Article to Tribunals as well.
Section 107 according to preponderance of judicial opinion clothed the High Courtís
with a power of judicial superintendence apart from and independently of the
provisions of the other laws conferring on them revisional jurisdiction The
power under Art. 227 of the Constitution is intended to be used sparingly and
only in appropriate cases, for the purpose of keeping the subordinate courts
and tribunals within the bounds of their authority and, not for correcting mere
errors: see Naryan Singh v. A mar Nath (1). At this stage we consider it proper
to refer to some of the judicial pronouncements by this Court with regard to
the right of appeal under Art. 133 from interlocutary orders. In Tarapur &
Co. v. M/s. V/O Tractors Export(2) it was observed that an order of the High
Court in appeal which does not dispose of the suit but merely refuses to grant
an interim injunction is not a final order within the meaning of Art.
133 even though as a result thereof the
pending suit as framed may become infructuous requiring amendment of the plant.
On the other hand, an order dismissing a writ petition challenging industrial
award which disposes of only one of the items of a charter of demands by the
workmen, leaving the rest of the items to be adjudicated by a subsequent award
was held in Asbestos Cement Ltd. v. Savarkar(3) to be a final order in a civil
proceeding and, therefore, appealable under Art. 133. Under Art. 226 of the
Constitution it may in this connection be pointed out the High Court does not
bear an appeal or a revision : that court is moved to interfere after (2)
 2 S.C.R. 699.
(1)  S.C.R. 565.
(3) A.I.R. 1971 S.C. 100.
194 bringing before itself the, record of a
case decided by or pending before a court, a tribunal or an authority, within
its jurisdiction. A decision in the exercise of this extraordinary jurisdiction
which finally disposes of the proceedings is a final order, in an original
proceeding. An appeal or a revision on the other hand is generally.
considered to be a continuation of the
original suit or proceeding and in a case, where the High Court deals with an
appeal or a revision, finality for the purpose of Art. 133 must attach to the
whole of the matter so that after the decision of the High Court the matter is
not a live one., (see Ramesh v. Ganda Lal(1) The impugned order before us was
made by the Gujarat High Court on an application under Art. 227 of the
Constitution, the prayer in that application being, to remove the record of the
case of the High Court "and after examining the same" (a) to quash
the order and judgment of respondent no. 2 at Annexure 'B' and (b), to direct
respondent no. 2 to dispose of the appeal of the petitioner according to
law." Now, in some, High Courts Art. 227 is utilised for the purpose of
securing relief by way of writs or directions in the nature of writs more
accurately contemplated by Art. 226 of the Constitution : (Ramesh v. Ganda
Lal(1) and in some this Article is invoked for getting orders of tribunals
revised just as s. 115, C.P.C. is utilised for revision of orders of
subordinate courts : (Surinder Nath v. Stiphen ( 2 ) (P) Ltd. As such power
under Art. 227 may also be exercised suo motu. In the present case Art. 227
appears to us to have been used in effect as a substitute for Art. 226 for
seeking a direction in nature of a writ for quashing the orders of the
subordinate tribunals. At least it appears that the proceeding before the High
Court was so treated by all concerned. We should, however, not be understood to
express our approval of the use of Art. 227 for seeking relief by way of writs
or directions in the nature of writs for which purpose Art. 226 is expressly
and in precise language designed. From that point of view if otherwise the High
Court, while disposing of a petition under Art. 227, finally settles some
points affecting the rights of the parties then to that extent the impunged
order may be considered to operate as a final order just as an order made under
226 would. As to whether the High Court has
jurisdiction to make the impugned order while exercising its power under Art.
227 will depend on our conclusion when considering the merits of the case.
Coming to the merits of the case we should
like first to reproduce the notification dated May 30, 1939 and the definitions
of the word "employee" and "employer" so far as relevant
for our purpose as contained in the Act. The notification reads :
(1) A.T.R. 1966 S.C. 1445 at 1449.
(1)  3 S.C. R. 458.
195 "BOMBAY CASTEL, 30th May, 1939
BOMBAY INDUSTRIAL DISPUTES ACT, 1939
No. 2847/34-A.-In exercise of the powers
conferred by subsection (3) of Section 2 of the Bombay Industrial Disputes Act,
1938 (Bom. XXV of 1938), and in supersession of Government Notification in the
Political and Service Department No. 2847/34-2 dated the 14th March, 1939, the
Government of Bombay is pleased to direct that the provisions of the Act which
have been extended to the Province of Bombay under Government Notification in
the Political and Services Department No. 2847/34-1, dated the 14th March,
1939, shall apply to the cotton Textile Industry as specified below:-(a) All
concerns using power and employing twenty or more workers which are engaged in
(b) all concerns using power and employing
twenty or more workers which are engaged in cotton weaving with or without an
admixture of silk, rayon, artificial silk or one or more of these;
(c) all mechanics shops attached to and (all
dyeing bleaching and printing departments, whether situated within or outside
the precincts, of and forming integral part of) the concerns falling under
clause (a) or (b).
(d) All the offices, whether situated within
or outside the precincts of the concerns falling under clause (a) or (b)."
"Employee" and "employer" so far as relevant for our
purpose ire defined as "3. In this Act unless there is anything repugnant
in the subject or context(13) 'employee' means any person employed to do any
skilled or unskilled work for hire or reward in any industry, and includes(a) a
person employed by a contractor to do any work for him in the execution of a
contract with an employer within the meaning of sub-clause (e) of clause (14);
(14) 'employer' includes(e) where the owner of
any undertaking in the course of or for the purpose of conducting the
undertaking 196 contracts with any person for the execution by or under the
contractor of the whole or any part of any work which is ordinarily part of the
undertaking, the owner of the undertaking." Shri Desai on behalf of the
appellant submitted that the respondents in this Court who were gardeners
employed by a contractor cannot fall within the definition of the word employee
as contained in s. 14(e) of the Act. He further contended that the notification
issued under the Act extending its applicability to the textile undertaking
does not take within its fold the respondents who are not directly connected
with any part of the activity with which the appellant textile industry is directly
concerned. In support of his contention he relied on some decided cases.
The first decision to which our attention was
drawn is reported as Kesar Lal Narsing Bhai v. Mls. Calico Printing Ltd.(1).
This is a decision by the Labour Appellate Tribunal of India, Bombay and the
present appellant was a respondent in that case. There, the gardeners who used
to work outside the gate of the factory and had been employed through a
contractor had applied under s. 78(1 ) (A) (c) of the Act for a declaration
from the first Labour Court that the mill's failure to pay wages and Dearness
Allowance in -accordance with the Standardisation Award amounted to an illegal
change. The Labour Court had granted their application but the Industrial Court
on appeal had reversed that decision. The employees took the matter on further
appeal to the Appellate Tribunal but without success. In that case the
employees had wrongly asserted in their applications that they were direct
employees of the mills in question and the relief claimed was based on this
erroneous assertion. The Standardisation Award by which the company was bound,
it is pertinent to point out, was given only in respect of those persons who
had been employed directly for the purpose of looking after the garden of, the
factory proper. it would thus be obvious that the employees' claim there was
liable to fail on the short ground that they were not direct employees as
wrongly claimed by them and that the relief under the award was confined to
direct employees only. But this apart, it is further clear from the decision of
the Appellate Tribunal that under the agreement with the contractor there the
latter had been employed for the purpose of looking after the garden not within
the factory compound proper but beyond it. Indeed, the contractor's obligation
to look after the garden extended further beyond even that area. It is in this
context and background that the Appellate Tribunal observed in the concluding
part of its order that "statutory definition of an employee in our opinion
cannot be invoked by a gardener who has been employed through a contractor for
the work as undertaken here." (emphasis supplied). This decision, (1) 1955
Industrial Court Reporter 1105.
197 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.(1). 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. 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 employed 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 Messrs Godavari Sugar Mills Ltd. v. D. K. Worlikar(2) 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 Begibhai M. Chokshi v. Ahmedabad
Manufacturing & Calico Printing Co. Ltd. (3 ) (a decision of the Industrial
Court, Bombay) which dealt with running of a retail shop; New India Tannis v.
Aurora Singh Moibi ( 4 ) a case of doing repairs to the machinery of the
factory and from S. M. Ghose v. National Street & Metal Works Ltd.(5) a
case of an employee of a contractor engaged to paint the premises. Both the
Calcutta. decisions are under the Workmen's Compensation Act.
(1)  M.P.L.J.714. (2)  3 S.C.R.
350. (3) (1958) 11 L.L.J. 126(4) A.I.R. 1947 Cal. 613.
(5) A.t.R. 1950 Cal. 548198 The respondents'
learned counsel, apart from urging that the High Court has sent the case back
for deciding the nature of work done by the malis in this case and that, there
are, tie appellant cannot appropriately ask this Court to determine these
questions which are awaiting decision by the Industrial Court, also relied on
Basti Sugar Mills Ltd. v.
Ramjagar(1) and on J. K. Colton Spg. & W.
v. Mills (supra).
In the former case the respondents there
employed by a contractor to remove press and from the sugar factory were held
to be workmen employed by the factory because removing press. mud was
considered ordinarily to be a part of the sugar industry. The latter case is an
authority for the proposition that an employee engaged in any work or operation
which is incidentally connected with the main industry is a workman if other
requirements of s. 2(s) of the Industrial Disputes Act, 14 of 1947 ,are
satisfied and that the malis in that case were workers within the meaning of s.
2 of U.P. Industrial Disputes Act, 28 of 1947. The bungalows and gardens on
which the malis in that case worked were a kind of amenity supplied by the
mills to its officers and on this, reasoning the malis were held to be engaged
in operations incidentally connectd with the main industry carried on by the
employer. It was by relying on the ratio of this decision that the High Court
in the present case came to the conclusion that the workers in order to come
within the definition of "employee" need not necessarily be directly
connected with the manufacture of textile fabrics.
This decision. is binding on us and indeed
Shri Desai also fairly accepted its ratio. He only contended that the malis
employed by a contractor unless, directly connected with the textile operations
cannot get the benefit of this decision.
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. & Wvg. Mills case
(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
socioeconomic 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 modem 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 (1) 2 S.C.R. 838.
199 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
said "It was 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 200
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 intereference. The principle followed by the High Court is the one which
was laid down by this Court in J. K. Cotton Spg. & Wvg. Mills case (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.
The appeal accordingly fails and is dismissed
G.C. Appeal dismissed.