Champak Lal H. Thakkar & Ors Vs.
State of Gujarat & ANR [1980] INSC 152 (18 August 1980)
KOSHAL, A.D.
KOSHAL, A.D.
FAZALALI, SYED MURTAZA
CITATION: 1980 AIR 1889 1981 SCR (1) 440 1980
SCC (4) 329
CITATOR INFO :
D 1985 SC1391 (3) E 1989 SC1316 (13)
ACT:
Minimum Wages Act Section 22A read with
Gujarat Minimum Wages Rules 1961 Section 2(e), 2(g) Item 5 of Part-I of
Schedule thereto-"Employment in any oil mill"-Whether vanaspati is
oil.
HEADNOTE:
The appellants were convicted and sentenced
for two offences under Section 22A of the Minimum Wages Act for contravention
of rules 26(1), 26(2), 26(5) and 26B of the Gujarat Minimum Wages Rules, 1961.
The sentence imposed in consequence was a fine of Rs. 50 on each of the
appellants in each case. The trial court as well as the High Court took into
consideration various provisions of the Act and came to the conclusion that the
appellant's mill fell within the ambit of Item 5 of Part-I of Schedule to the
said Act.
Dismissing the appeal by special leave, the
Court ^
HELD: (1) The appellant's Company would be an
oil mill within the meaning of Item 5 of Part-I of the Schedule to the Act.
[448 C] (2) The various provisions of the Minimum Wages Act make it clear:
(i) For an employer to be covered by the Act
three conditions must be fulfilled; [445F] (a) he must be employing one or more
employees in any scheduled employment; [445 G] (b) minimum rates of wages for
such scheduled employment must have been fixed under the Act; and [445 G] (c)
if a committee has been appointed by the Government under Section 5 in respect
of such scheduled employment it must consist of persons representing employers
and employees in the scheduled employment who shall be equal in number. [445 H]
(ii) Employment in an oil mill is a scheduled employment. [446 A] In the
instant case it cannot be said that these conditions are not satisfied. [446 A]
(3) Vanaspati is essentially an oil although it is a different kind of oil
other than that oil (be it rapeseed oil, cotton-seed oil, ground-nut oil, soya-bean
oil or any other oil) which forms its basic ingredient. Oil will remain oil if
it retains its essential properties and merely because it has been subjected to
certain processes would not convert it into a different substance. In other
words, although certain additions have been made to and operations carried out
on oil, it will still be classified as oil unless it’s essential
characteristics have undergone a change so that it would be a misnomer to call
it oil as understood in ordinary parlance. No doubt, the word 'oil' is not
defined in the Act. Taking the dictionary meaning for interpreting the term
'oil mill', in this case it is clear that hydrogenated vegetable oil falls
within the said term.
[446 C-G] 441 The various processes, namely,
neutralization, bleaching, deodorisation, hardening and hydrogenation to which
oil is subjected for being converted into vanaspati leave its basic
characteristics untouched, that is, it remains a cooling medium with vegetable
fat as its main ingredient. Neutralisation, bleaching and deodorisation are
merely refining processes so that the colour, the odour and foreign substances
are removed from it before it is hydrogenated and hardened and even the two
processes last mentioned allow the oil to retain those characteristics.
Even ghee, for that matter, is nothing but a
form of oil although it is obtained from animal fat, being a derivative from
milk. Whether it liquefies in summer and solidifies in winter, nonetheless,
ghee remains an oil and it makes no difference that it is called ghee in
ordinary parlance. The word ii merely a different name for an oil which is not
derived from vegetables. From that point of view the term 'vegetable ghee' is a
contradiction in terms, ghee being essentially an animal fat. The reason why it
has come to be called vegetable ghee is that in its finished form it resembles
ghee in appearance and by viscosity and is also considered a more respectable
form of cooking medium when so called, thus catering to the psychological
satisfaction of the consumer. Thus vanaspati must be regarded as an oil for the
purpose of Item S in Part-I of the Schedule to the Act in spite of the
processes to which the oil forming its base has been subjected in order to
convert it into the finished product. [446H, 447A-D; F] Further, in the instant
case: (1) there is a clear finding of fact which is no longer open to
challenge, that the company sells oil as such and also oil cakes which brings
the Company within the meaning of an oil mill (2) the Company being an oil mill
and oil Mills having been represented on the Committee formed by the Government
and opportunity having been afforded to the appellants by that committee to
represent their case. Sections 5 and 9 of the Act are not applicable, and (3)
the three categories, namely, skilled, semi-skilled and unskilled employees
exhaust the types of workers which would be employed in any undertaking
(barring of course specialists and technical experts who admittedly do not fall
within the category of employees embraced by the Act) and minimum wages were
fixed for all those three categories. The appellants' contention therefore,
that for any of the provisions of the Act were contravened is thus not tenable.
[447 G-H, 448 D, E-F]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 606 and 607 of 1979.
From the Judgment and order dated 19-1- 1979
of the Gujarat High Court in Criminal Revision Nos. 485-486/77.
V. B. Patel and S. C. Patel for the
Appellant. G. J. L. Nain, Girish Chander and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J.-By this judgment we shall dispose of Criminal . Appeals Nos. 606 and
607 of 1979 both of which are directed against a judgment of a Division Bench
of the High Court of Gujarat dated the 19th January 1979 upholding the
conviction recorded against and 442 the sentences imposed upon the three
appellants under section 22A of the Minimum Wages Act (hereinafter called the
Act) in each of two cases by a Judicial Magistrate at Morvi.
2. Some of the facts leading to the
prosecution of the appellants are not in dispute and may be shortly stated.
Appellant No. 3 is the Morvi Vegetable
Products Ltd., a limited company carrying on the business of manufacture and
sale of vegetable oil and vanaspati in Morvi. Appellant No. 1 is the Managing
Director and appellant No. 2 the Secretary of appellant No. 3 which is
hereinafter referred to as the company.
On May 2, 1973 Kumari J. G. Mukhi, who is a
Government Labour officer-cum-Minimum Wages Inspector, visited the Company's
establishment and found that the following documents which, according to her,
the Company was bound to maintain in compliance with the provisions of section
18 of the Act read with the relevant rules of the Gujarat Minimum Wages Rules,
1961, had not been maintained by it.
(a) Muster Roll in Form V as contemplated by
rule 26(5).
(b) Wage Register in Form IV-A as required by
rule 26(]).
(c) Attendance cards in form V-D as provided
by rule 26(B).
(d) Wage slip in form IV-B prescribed by rule
26(2).
In consequence, two complaints were filed
against the appellants by N. H. Dave, Labour officer-cum-Minimum Wages
Inspector. Rajkot in the court of the trial Magistrate, each praying that the
appellants be convicted and sentenced for an offence under section 22A of the
Act. One of the complaints was in respect of the contravention of rules 26(1)
and 26(S) while the other embraced that of rules 26(2) and 26-B. They were
registered as Criminal Cases Nos. 674 and 675 of 1973 respectively.
3. At the trial the appellants pleaded not
guilty.
Their defence consisted mainly of the
following pleas:
(a) Different types of industries are covered
by the Act but the Company does not run any such industry and is, therefore.
not liable for any contravention of the Act or the rules framed thereunder.
According to the prosecution the factory run by the Company is an oil mill, an
industry which is certainly covered by the Act.
However, the Company is running a mill which
manufactures vanaspati and vanaspati is not an oil but is vegetable ghee. Oil
extraction is no doubt 443 a major operation carried on by the Company but that
operation is merely incidental to the preparation of vanaspati. No separate
licence for the oil expelling machinery used by the Company has been obtained
from the State Government nor has sales-tax been paid on the oil extractor by
the Company. Vanaspati is manufactured by subjecting oil to the processes of
neutralization, bleaching, deodorisation, hardening, hydrogenation, etc. and is
a product quite different from oil.
(b) The Company does not carry on the
business of sale of the oil manufactured by it except as an operation
incidental to the manufacture of vanaspati, e.g., when there is a breakdown of
the machinery used for converting oil into vanaspati or when oil become surplus
on account of a shift in the Government policy in regard to the percentage of
oil to be , consumed by the Company.
In spite of the sale of oil, therefore, the
Company remains a vanaspati manufacturer and cannot be considered to be running
an oil mill.
(c) Under section 5 of the Act committees
were appointed by the Government from time to time to hold inquiries and advise
it in respect of fixation or revision of minimum rates of wages for employees
in various industries. No representative of the vanaspati industry was taken on
any of these committees nor was any questionnaire issued to any of the
manufacturers of vanaspati, with the result that the Company was not bound by
the recommendations of those committees or decisions taken in pursuance thereof
by the Government.
(d) In respect of oil mills rates of minimum
wages were fixed under the Act by the Government for three types of employees,
namely, skilled, semi- skilled and unskilled. Apart from these a vanaspati
manufacturer has to arrange for the services of other types of employees which
shows that a vanaspati manufacturing mill is different from an oil mill.
4. After the trial the learned Magistrate
repelled all the pleas taken up by the appellants in his judgment dated October
13, 1975. His findings were as follows:
(i) The Company no doubt manufactured oil
from oil seeds and subjected the same to further processes in order to produce
. vanaspati. However, the Company was selling not only the vanaspati
manufactured by it but also oil and refined oil as such in addition to oil
cakes and de-oiled cakes, which was being done not merely in exigencies pleaded
by the Company but in the regular course of business.
444 (ii) One of the committees appointed by
the Government under section S of the Act had issued a questionnaire to the
Company itself before making recommendations regarding fixation and revision of
minimum wages for various kinds of employees working in an oil mill and it was
not, therefore, open to the Company to contend that no opportunity was given to
it to be heard in relation to such fixation and revision.
(iii) The Company was an oil mill within the
meaning of that expression as used in item S of Part I of the Schedule to the
Act and the Act, therefore, is applicable to it.
It was in these premises that the learned
Magistrate convicted the three appellants, in both the cases tried by him, of
an offence under section 22-A of the Act. The sentence imposed in consequence
was a fine of Rs. 50 on each of the appellants in each case.
5. The appellants filed before the Sessions
Court two applications for revision of the order of the learned Magistrate, one
pertaining to each case. Those applications where transferred by the High Court
to Its own file for reasons which are not relevant for the purpose of these
appeals. The pleas raised before the learned Magistrate were reiterated on
behalf of the appellants at the argument stage in the High Court but were again
repelled with the result that both the applications were dismissed by the
impugned judgment. The High Court took into consideration various provisions of
the Act and came to the conclusion that the same would apply to the Company
only if it could be held to be running an oil mill and thus falling within the
ambit of item S aforesaid. In holding that the factory run by the Company was
such a mill the High Court made the following points:
(a) Vanaspati is nothing but hydrogenated
vegetable oil and, therefore, only vegetable oil which has been subjected to
certain processes. It remains an oil in, spite of those processes and is not
essentially different therefrom.
(b) The finding arrived at by the learned
Magistrate that oil', refined oil, oil cakes and de-oiled cakes were being sold
by the Company not merely as an operation incidental to the business of
manufacturing vanaspati but in the regular course of business is a finding of
fact and cannot be called in question. in revision. Part of the mill is,
therefore, in any case, an oil mill.
(c) The Company was issued a questionnaire in
its capacity as an oil mill by the committee appointed by the Government.
445 It cannot, therefore, urge that it had no
opportunity to pre- A sent its case before the committee which made
recommendations in regard to fixation and revision of minimum wages.
6. A survey of the various relevant
provisions of the Act may be useful at this stage. Section 2 contains
definitions. Clause (e) of that section defines an 'employer' as a person who
employs one or more employees in any scheduled employment in respect of which
minimum rates of wages have been fixed under the Act. According to clause (g)
of the same section a 'scheduled employment' means any employment specified in
the Schedule to the Act or any process or branch of work forming part of such
employment.
The Schedule is in two parts. Part I
enumerates various employment. Item S of that part reads:
"Employment in any oil mill"
Section 5 lays down procedure for the fixation and revision of mini mum rates
of wages in respect of any scheduled employment by the Government which is
authorised to appoint as many committees or subcommittee as it considers
necessary to hold inquiries and advise it in respect of such fixation or
revision. Section 9 deals with the com position of the aforesaid committees and
reads thus:
"Each of the committees, sub-committees
and the Advisory Board shall consist of persons to be nominated by the
appropriate Government representing employers and employees in the scheduled
employments, who shall be equal in number, and independent persons not
exceeding one-third of its total number of members: one of such independent
persons shall be appointed the - chairman by the appropriate Government."
7. The following corollaries are immediately
deducible from the provisions of the Act above noted:
(i) For an employer to be covered by the Act
the following conditions must be fulfilled:
(a) he must be employing one or more
employees in any scheduled employment;
(b) minimum rates of wages for such scheduled
employment must have been fixed under the Act, and (c) if a committee has been
appointed by the Government under section S in respect of such scheduled
employment it must consist of persons representing employers and employees in
the scheduled, employment who shall be equal in number.
446 (ii) Employment in an oil mill is a
scheduled employment.
8. It is not disputed that the company is not
covered by any of the items enumerated in Part I of the Schedule to the Act.
except item S. The most important point to be determined in the case. therefore.
is whether employment in a vanaspati manufacturing concern would fall within
the ambit of item S of part I of the Schedule to the Act. i.e., whether it is
an employment in an oil mill or not. The only argument advanced on behalf of
the appellants in this connection is, as it was before the two courts below,
that vanaspati is a form of ghee which is not an oil; and this contention we
find to be without force. Vanaspati, in our opinion, is essentially an oil
although it is a different kind of oil than that oil (be it rapeseed oil,
cotton-seed oil, ground-nut oil, soya-bean oil or any other oil) which forms
its basic ingredient. Oil will remain oil if it retains its essential
properties and merely because it has been subjected to certain processes would
not convert it into a different substance. In other words, although certain
additions have been made to and operations carried out on oil, it will still be
classified as oil unless it., essential characteristics have undergone a change
so that it would be a misnomer to call it oil as understood in ordinary
parlance. The word 'oil' i.: not defined in the Act and therefore. its
dictionary meaning may well be pressed into service for interpreting the term
'oil mill'. According to Webster's Third New International Dictionary (1966
edition) the word 'oil' has different connotations in different situations but
in the context of item . 5 aforesaid the meaning to be given to it would be:
"any of various substances that
typically are unctuous viscous combustible liquids or solids easily liquefiable
on warming and are not miscible with water but are soluble in ether, naphtha,
and often alcohol and other organic solvents, that leave a greasy not
necessarily permanent stain (as on paper or cloth), that may be of animal,
vegetable, mineral, or synthetic origin, and that are used according to their
types chiefly as lubricants, fuels and illuminates as food.
in soap and candles, and in perfumes and
flavouring materials".
All the ingredients of this meaning are fully
satisfied in the case of hydrogenated vegetable oil. We may specially point out
that even solids easily liquefiable on warming fall within the meaning given by
Webster. Now the various processes, namely, neutralization, bleaching,
deodorisation, hardening and hydrogenation to which oil is subjected for being
converted into vanaspati leave its basic characteristics untouched, i.e, it
remains a cooking medium with vegetable fat as its main ingredient.
Neutralisation, bleaching and deodorisation 447 are merely refining processes
so that the colour, the odour and foreign A substances are removed from it
before it is hydrogenated and hardened and even the two processes last
mentioned allow the oil to retain whose characteristics.
Even ghee, for that matter, is nothing but a
form of oil although it is obtained from animal fat, being a derivative from
milk. It may be of use to mention that in Persian language ghee is known as
'raughan zard', i.e., yellow oil, and it does not need an expert to point out that
the viscosity of ghee depends upon the weather because with the rising
temperature during summer months it turns into liquid while the cold of
December and January solidifies, it.
Nonetheless it remains an oil and it makes no
difference that it is called ghee in ordinary parlance. The word is merely a
different name for an oil which is not derived from vegetables. From that point
of view the term 'vegetable ghee' is a contradiction in terms, ghee being
essentially an animal fat. The reason why i has come to be called vegetable
ghee appears to be that in its finished form it resembles ghee in appearance
and viscosity and is also considered a more respectable form of cooking medium
when so called, thus catering to the psychological satisfaction of the consumer.
We pointedly asked learned counsel for the
appellants if he could indicate any difference between vegetable oil and
vanaspati which would essentially distinguish the former from the latter,
either in physical or chemical properties or in food value. No such difference
was indicated and all that he said was that vanaspati would normally be
available in solid state and had the appearance of ghee rather than that of any
oil. This, in our view, is a superficial difference which does not at all go to
the root of the matter. Accordingly we hold that vanaspati must be regarded as
an oil for the purpose of the aforesaid item 5 in spite of all the processes to
which the oil forming its base has been subjected in order to convert it into
the finished product.
9. Although the finding just above arrived at
obviates the necessity of our determining the question whether the Company
would be an oil mill even if vanaspati were not considered to be an oil, we
have every reason to answer that question in the affirmative in view of the
finding arrived at by the learned Magistrate that the Company sells oil in its
unhydrogenated form not only when the exigencies pointed out by it arise but
also otherwise and in the regular course of business. That finding being a
finding of fact is no longer open to challenge; and that being so, the
operation of sale of oil as such would make the Company an oil mill even if the
bulk of the oil produced by it is converted into vanaspati and sold in that
form The reason is obvious. It is not the case of the Company that the
proportion 448 Of sales of oil to those of vanaspati is so low that the former
should be ignored. In this situation a sizeable part of the activities of the
Company must be field to be connected with running an oil mill and the Company,
therefore would be liable to be classified as such to that extent even though
it also carries on business other than that of selling oil.
10. The grouse of the Company that the
provisions of sections 5 and 9 have not been complied with has for its basis
the assumption that it is not an oil mill an assumption which must be held to
be ill-founded in view of the foregoing discussion and the classification of
the company with reference to item S in Part I of the Schedule to the Act. It
is not disputed that if the Company is to be regarded as an oil mill, sections
S and 9 do not come to its rescue because representatives of oil mills did man
the committee appointed by the Government for fixing the minimum rates of wages
in respect of employment in an oil mill and that the Company itself (as well as
other oil mills) was invited through a questionnaire to submit their views and
thus were given the opportunity to be heard in relation to the fixation of such
wages.
11. The only other contention raised on
behalf of the appellants was that while the relevant notification issued by the
Government has fixed rates of wages in respect of skilled, semi-skilled and
unskilled employees working in oil mills, the Company employs other types of
workers in connection with the process of hydrogenation of vegetable oil and
that such workers do not form the subject-matter of the committee's
deliberations or the Government's attention.
This contention is also without substance. We
asked the learned counsel for the appellants to point out which of the
employees of the Company fell outside the three categories just above specified
and he was unable to name any.
(obviously the said three categories exhaust
the types of workers which would be employed in any undertaking, barring of
course specialists and technical experts who admittedly do not fall within the
category of employees embraced by the Act.
12. It is not disputed that if the Company is
an oil mill it is guilty of all the contraventions of which it has been convicted.
Nor has any argument been advanced to the effect that the sentences awarded are
excessive. In he result, therefore, both the appeals fail and are dismissed
S.R.
Appeals dismissed.
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