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TMI Blog2016 (2) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be said to be perverse. We must not forget that the High Court in dismissing the writ petition was exercising the power of judicial review which would not go to the merits of the controversy before the Government but would only go to perversity -that no reasonable person invested with the same power could possibly arrive at the conclusion arrived at by the Government. This Court, while approving a Full Bench decision of the Bombay High Court, has in the BHUWALKA STEEL INDUS. LTD. AND OTHERS VERSUS BOMBAY IRON STEEL LABOUR BD. ANR. [ 2009 (12) TMI 697 - SUPREME COURT] interpreted the expression unprotected worker occurring in Section 2(11) of the 1969 Act as meaning every manual worker who is engaged or to be engaged in any scheduled employment, irrespective of whether or not he is protected by other labour legislations. The State Government specifically arrived at a finding that Mathadi work was carried out in the company by two cooperative societies who had the work done by employing workers and got compensated by the Appellant company. This being the case, there is no factual foundation for Shri Cama's argument that it is the Appellant's purchasers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: 4. Govt. has analyzed overall situation, documents application of the organization dated 01.03.2003 and information about the product and its raw material. Govt. has come to the following conclusion: a. Company is manufacturing Polystyrene. b. For manufacturing styrene and Polybutadin are used as raw material. Polybutadin comes in rubber form and it is not natural rubber. c. Polystyrene is a hard plastic. d. Polystyrene is not a petrochemical product but a chemical product. e. Even Polystyrene manufacturing is considered as petrochemical production it is finally a chemical production only. The material used to manufacture the product is also chemical. f. There is no written reference in the Mathadi Act that petrochemical should be kept out of the act but chemical itself includes everything. g. Mathadi Act and scheme is for the betterment of workers and purpose of the scheme is to make applicable to the chemical manufacturing companies. It is not mentioned in the scheme that petrochemical products should be excluded and as petrochemical is not mentioned in the scheme so the scheme is not applicable to the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assuming for a moment that the Petitioners are dealing in petrochemicals, yet the Act will be applicable to them because the words used in this application clause referred to above is the product including the manures and thereby, every type of production has been covered. What is important to note is that the manures which are like urea etc. are also derivatives of the petrochemicals and thereby by inclusive clause the manures which could have been saved probably have been included there. Therefore, the word product has been used by the Legislature in its wisdom with all its cognate variations and it cannot be interpreted to have a limited meaning. What we find is that the petrochemical is a part of the chemical. Chemical is the genesis while petrochemical is species of the said genesis and thereby if the chemical industry is covered it is rather difficult to hold that the petrochemical industries are not covered. 6. What is important to be looked into is whether in this industry the work which the mathadis are carrying out is available or not. If, in that industry, the work of mathadis is available then only because the industry is dealing in some different aspect, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not being chemicals would not be within the coverage of the 1969 Act or the 1970 Scheme. He further argued, referring to Section 4(1)(b) of the 1969 Act that if the 1970 Scheme is to be made applicable to petro chemicals manufactured in factories, the only method of doing so is if a demand or request is made by a majority of the employers or workers that the provisions of the grocery markets or shops scheme should be applied to another scheduled employment- that is, manufacturing petro chemicals in factories, and it is only after consultation with the employers and workers that the State Government may apply the provisions of the 1970 Scheme to the Appellant's factory manufacturing petro chemicals. This not having been done, the 1970 Scheme cannot apply to the Appellant. Learned Counsel further argued that in point of fact there is no work of transportation undertaken by the employer from the employer's factory to the purchaser's premises. He argued that the factory was by and large mechanised and that the petro chemical products manufactured at the factory were picked up by purchasers by employing contract labour that was arranged by the purchasers themselves. This be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of workers who are non-protected workers, as defined by the said Act. 5. We have heard learned Counsel for the parties. Before entering into the merits of the controversy before us, we would like to set out the relevant provisions of the 1969 Act and the 1970 Scheme made thereunder. The long title of the 1969 Act is important in that it sets out the object for which the 1969 Act was enacted, and is as follows: An Act for regulating the employment of unprotected manual workers employed in certain employments in the State of Maharashtra to make provision for their adequate supply and proper and full utilization in such employments, and for matters connected therewith. WHEREAS, it is expedient to regulate the employment of unprotected manual workers such as, Mathadi, Hamal etc., engaged in certain employments, to make better provision for their terms and conditions of employments, to provide for their welfare, and for health and safety measures where such employments require these measures; to make provision for ensuring an adequate supply to, and full and proper utilization of, such workers in such employments to prevent avoidable unemployment; for these and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontractor, but working with the permission of, or under agreement with the employer or contractor; but does not include the members of an employer's family. 3. Schemes for ensuring regular employment of unprotected workers.- (1) For the purpose of ensuring an adequate supply and full and proper utilization of unprotected workers in scheduled employments, and generally for making better provision for the terms and conditions of employment of such workers the State Government may by means of a scheme provide for the registration of employers and unprotected workers in any scheduled employment or employments, and provide for the terms and conditions of work of registered unprotected workers, and make provision for the general welfare in such employments. 4. Making, variation and revocation of scheme.- (1) The State Government may, after consultation with the Advisory Committee, by notification in the Official Gazette and subject to the condition of previous publication, make one or more schemes for any scheduled employment or group of scheduled employments, in one or more areas specified in the notification; and in like manner add to, amend, var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 (Mah. XXX of 1969) and of all other powers enabling it in that behalf the Government of Maharashtra after consultation with the Advisory Committee, hereby makes the following scheme for employment in grocery markets and shops in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations in the areas specified in the Schedule appended to this Scheme, the same having been previously published as required by Sub-section (1) of the said Section 4, namely: 2. Objects and Application: (1) Objects: The objects of the scheme are to ensure an adequate supply and full and proper utilization of unprotected workers employed in- (a) Grocery Markets or Shops in connection with loading, unloading, stacking, carrying, weighing, measuring [filling, stitching, sorting, cleaning] or such other work including work preparatory or incidental to such operations: (b) Markets and other establishments in connection with loading, unloading, stacking, carrying, weighing, measuring [filling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten order to the registered employer and in such manner and at such time as the Board may direct. (2) In determining what payments are to be made by the registered employers Under Sub-clause (1) the Board may fix different rate of levy for different categories of work, or registered workers, provided that the levy shall be so fixed that the same rate of levy will apply to all registered employers who are in like circumstances. (3) The Board shall not sanction any levy exceeding fifty percent of the total wage bill without the prior approval of the State Government. (4) A registered employer shall on demand make a payment to the Board by way of deposit or provide such, other security for the due payment of the amount referred to in Sub-clause (1), as the Board may consider necessary. (5) The Secretary shall furnish from time to time, to the Board such statistics and other information as may reasonably be required in connection with the operation and financing of the scheme. (6) If a registered employer fails to make the payment due from him Under Sub-clause (1) within the time specified by the Board the Secretary shall serve a notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies would be within the coverage of the residuary entry i.e. Item 5 of the Schedule to the 1969 Act. This being so, no part of the 1970 Scheme is ultra vires the 1969 Act. 8. The second submission of learned Counsel for the Appellant has also to be rejected for the reason that Clause 2(1) (f) of the 1970 Scheme is intra vires Section 1(4A) table column 4 item 5 of the 1969 Act. It is clear that the expression products including fertilizers is wider than chemical products including fertilizers . The 1969 Act's terminology being wider than the terminology of the impugned 1970 Scheme, obviously the 1970 Scheme when it speaks of chemical products manufactured in factories and covered by entry 5 in the schedule to the 1969 Act would be intra vires the expression products including fertilizers . 9. The further submission of Shri Cama, learned senior counsel, that the Appellant allegedly manufactures petro chemical products and not chemical products has been correctly repelled by the Division Bench of the Bombay High Court by stating that petro chemical products would be a species of the genus chemical products . In fact, the Appellant has admitted that it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di Act and Scheme. Under the circumstances, I am giving my ruling that company's above point is not valid and hence Mathadi Act and Scheme is applicable to the company. 11. From the above, it is clear that the conclusion reached by the Government in its order dated 24.6.2008 that petrochemical products are a species of chemical products and that the Appellant manufactures chemical products, cannot be said to be perverse. We must not forget that the High Court in dismissing the writ petition was exercising the power of judicial review which would not go to the merits of the controversy before the Government but would only go to perversity -that no reasonable person invested with the same power could possibly arrive at the conclusion arrived at by the Government. Even otherwise, we must not forget that we are dealing with a welfare legislation whose primary object is to provide adequate employment for and better terms and conditions for the employment of daily wagers, and to provide for their general welfare, which includes health and the safety measures, and to provide them with various other facilities including provident fund and gratuity. Arguments indulging in unnec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have no material bearing to the case at hand. 14. This Court, while approving a Full Bench decision of the Bombay High Court, has in the Bhuwalka Steel case interpreted the expression unprotected worker occurring in Section 2(11) of the 1969 Act as meaning every manual worker who is engaged or to be engaged in any scheduled employment, irrespective of whether or not he is protected by other labour legislations. This Court referred to the Objects and Reasons for the 1969 Act in the following terms: The Statement of Objects and Reasons mentions that report was made by the Committee to the Government on 17.11.1967. In that report, it was mentioned that the persons engaged in vocations like mathadi, hamals, casual workers employed in docks, lokhandi jatha workers, salt pan workers and other manual workers mostly work outside fixed premises in the open and are mostly engaged on piece-rate system in a number of cases. They are not employed directly, but are either engaged through Mukadum or Toliwalas or gangs as and when there is work and they also work for different employers on one and the same day. The volume of work is not always constant. In view of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was with this idea that the Board was created Under Section 6 of the Mathadi Act. Deep thoughts have gone into, creating the framework of the Boards, of the schemes etc. With these lofty ideas that the Act was brought into existence. In these days when Noble Laureate Professor Mohd. Yunus of Bangladesh is advocating the theory of social business as against the business to earn maximum profits, it would be better if the employers could realize their social obligations, more particularly, to the have-nots of the society, the workers who are all contemplated to be the inflicted workers in the Act. (at Para 83) 16. Taking a cue from the Objects and Reasons for this piece of social legislation and from the well known doctrine of construing such legislation in an expansive manner to further the object of welfare Legislation of the kind mentioned hereinabove, and not to stultify such object, we hold that the Bombay High Court cannot be faulted in its reasoning. It must also not be forgotten that the object of the 1970 Scheme is not only to provide work to both employer and employee but also to provide amenities and benefits to registered workers. These amenities and benefits are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier sent Truckers along with persons who were from the Societies for loading. 19. Similarly in the writ petition filed before the High Court, the Appellant company's own pleading in paragraph 8 is that the Appellant registered itself with the Respondent No. 2 Board under pressure of the Board believing that the Act and the scheme were applicable. It was granted registration No. 4516. Further, in proceedings under the Act against the company it admitted that it pleaded guilty for not having registered itself. This being the state of facts before us, we cannot characterize the State Government's finding in its order dated 24.6.2008 as even incorrect, let alone perverse. As pointed out above, in paragraph 6 of its order, the State Government specifically arrived at a finding that Mathadi work was carried out in the company by two cooperative societies who had the work done by employing workers and got compensated by the Appellant company. This being the case, there is no factual foundation for Shri Cama's argument that it is the Appellant's purchasers and not the Appellant company itself that is the principal employer under the Act. 20. One other co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... water and drinks of various kinds such as Pepsi, Mirinda and Seven-up. (b) In the said products the Company uses as raw material such as Sugar, Caustic Soda, Carbonic Acid; Ascorbic Acid; Coffin, Sequesters Agents, Buffering; Carmel Water, Emulsifying and Stabilizing. (c) Drink is one of the substances of food products; (d) Drink is a grocery product; (e) The raw material from which they are produced are also primarily consumable food products. (f) The raw material required for the manufacture of the product as also the product manufactured are both consumable food products (liquid and solid). (g) Mathadi Act and the Scheme framed thereunder being beneficent and benevolent welfare Schemes and the object is to make the same applicable to the companies manufacturing grocery market products as provided in the Grocery Markets Shops Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1970. 6. In the above circumstances, the State has come to the finding that the Scheme of the Grocery Bazar and Shops Workers Board is applicable to the Company. 7. The company is engaged in products of drinks and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. Shri Giri, in addition to the submissions raised by Shri Cama, on his special facts submitted that it was fallacious to take into account raw materials that ultimately went into the manufacturing of the finished products and to state that the said raw materials being groceries would therefore make the final product also a grocery . He further argued that the expression grocery would only comprise articles which are required as daily necessities such as oil, grain, etc. in households, and this not being the case, soft drinks manufactured and bottled water would be outside the expression grocery . He also argued that when the Act was extended to the Appellant company's factory, in the year 1983, whatever may be the position today, the position in 1983 was clear and obviously the items manufactured by the Appellant company would not have fallen within the expression grocery as understood in 1983. 25. Learned Counsel appearing on behalf of the Board has repelled all these arguments stating that the expression grocery was wide enough to include all items of food and drink which would necessarily take in the Appellant company's products. He reiterated h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. We cannot, therefore, agree with the learned Judges of the High Court that the maxim contemporanea expositio could be invoked in construing the word telegraph line in the Act. (at 156, 157) 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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