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TMI Blog1969 (10) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ork. The management paid each of them such extra wages at the respective single rate of wage without . Dearness Allowance. ₹ 576-47 and ₹ 553-88 were said to respondents 2 and 3 respectively. 3. Not being satisfied with the amounts paid to them, respondents 2 and 3 presented before the Labour Court, Bangalore, an application under Section 33-C(2) of the Industrial Disputes Act (herein alter referred to as the I.D. Act). They claimed extra wages at the rate of twice the ordinary rate of wages including Dearness Allowance. Their claim was resisted by the Management. The Labour Court upheld their claim and directed the Management to pay respondents 2 and 3 ₹ 1886-47 and ₹ 1302-88 respectively. Feeling aggrieved by the order of the Labour Court, the Management has presented this petition. 4. At the stage of the hearing of the petition, a memo was filed on behalf of the Management stating that it was willing to pay to respondents 2 and 3 a further sum of ₹ 1550 to be divided amongst them proportionate to their claims and that this sum would be paid without prejudice to the contentions of the Management in this petition. Mr. S. Krishnaiah, learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of a discharged workman. 11. In Manicka Mudaliar v. Labour Court, Madras, Rajamannar, C. J., who spoke for the Bench, said that an application under Section 33-C(2) of the I. D. Act may be made by a person who was a workman during the period in respect of which he was entitled to any benefit. 12. We are in respectful agreement with the view expressed in the above decisions of the Madras High Court. We think the Labour Court was right in following the aforesaid decisions and holding that it was competent for respondents 2 and 3 to make the application under Section 33-C(2) of the I. D. Act even though they had retired from employment of the factory. 13. We shall now deal with the principal ground urged by the management. 14. There is no dispute that the petitioner-Factory comes within the meaning of 'Factory' as defined in Section 2(m) of the Act, Section 59 of the Act provides for payment of extra wages for overtime work at the rate of twice the ordinary rate of wages. This benefit is, however, available only to persons who are workers within the meaning of Section 2(1) of the Act. The term, 'worker' has somewhat a restricted meaning in the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Bench, said at page 50: Whether a particular person is or is not a workman is a question that has to be decided on proof of the nature of the work which he is to perform and that is a question of fact. It is for the Tribunal to come to a conclusion on the evidence whether having regard to the nature of their duties, maistries and kole maistries are workmen as defined in the Act Vide 'In re: Kadar Moideen' AIR1953Mad406 . If the Tribunal decides that maistries and kole maistries are not workmen, then it will not make any award with reference to them. It is not for this court now to decide whether they are workmen or not. That jurisdiction is vested in the Tribunal. See-- 'Rex v. Fulham' (1951) 2 KB 1. On the other hand, Mr. Hulgur contended that the question whether an employee is a worker within the meaning of Section 2(1) of the Act, is a collateral fact upon which the jurisdiction of the Industrial Tribunal (hereinafter referred to as the Tribunal) or the Labour Court, turns, that the Tribunal or the Labour Court cannot conclusively decide such collateral question, and that its decision on that question is amenable to scrutiny by this court in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnected with, the manufacturing process, or the subject of the manufacturing process. Alternatively, Mr. Krishnaiah contended that even if the normal work of a watchman cannot be regarded as incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process, the extra work which respondents 2 and 3 were entrusted when they worked overtime, was of such a character which must be regarded as part of the manufacturing process of incidental to, or connected with it. 26. As to the nature of the normal duties, and functions of respondents 2 and 3, as watchmen, there is no dispute. They had to look after the premises of the Factory and of the properties therein to check at the gate of Factory incoming and outgoing motor lorries and carts, and to search the employees of the Factory at Ingress or egress. 27. Respondents 2 and 3 alleged that during the shifting of the Factory, they were asked to do, in addition to their normal duties and functions, the work of dismantling the machinery, loading the same into lorries and to generally assist in the work of shifting. The Management denied that they (respondents 2 and 3) were asked to do such extra wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left open the question as what the precise meaning of that expression is. 32. Of the several meanings of the word, 'subject', stated in the Shorter Oxford Dictionary, those which are appropriate to the present context, appear to us to be: 'a thing affording matter for action of a specified kind; that which is or may be operated upon mechanically or manually.' Applying these meanings, the expression, 'the subject of the manufacturing process', may be construed, as any article, material, thing or ingredient which is used in the activity of manufacture for deriving the end product of the manufacturing activity. It seems to us, that this expression does not refer to the: finished product or end product of the manufacturing activity but refers to the articles or raw materials to which the manufacturing activity is being applied for deriving such finished product or end product 33. In the present case, the expression. 'the subject of the manufacturing process, does not. In our opinion, refer to soaps which are finished products of the Factory, but to raw materials and other things subjected to the manufacturing activity for obtaining the finished product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There, the nature of the work of Timekeepers was to prepare the pay-sheets of the workshop staff, maintain leave accounts, dispose of settlement cases and maintain records for statistical purposes. Katju, J. held that they were workers for the purpose of the Act The reasoning of His Lordship is that the work of persons who are actually engaged in handling machines cannot be done properly if there is lack of the necessary arrangements and regulation of their duties and that Time-Keepers who keep information regarding the work done by such persons should be regarded as doing work incidental to, or connected with, the manufacturing process. 40. With all respect to His Lordship, we find it difficult to subscribe to the view that mere keeping information regarding work done by persons handling machines, can be regarded as being incidental to, or connected with, the manufacturing process. 41. Mr. Krishnaiah argued that the expression, 'incidental to', or connected with', should be construed very liberally so as to include every activity in a factory which has some nexus, however, remote, with the manufacturing process or the subject of the manufacturing process. But su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remote to regard such work as being incidental to, or connected with, the manufacturing process. Likewise, the relationship between such work and the articles which are the subject of the manufacturing process, is also too remote to regard such work as being incidental to or connected with, the subject of the manufacturing process. 45. In support of its conclusion that respondents 2 and 3 were workers under the Factories Act, the Labour Court, has also relied on the following circumstances: (i) The names of respondents 2 and 3 appeared in the Attendance and Acquittance Registers maintained in the Factory; (ii) Watchmen were also paid by the Management incentive bonus, production bonus which were payable to workers; (iii) The work Service Rules of the Factory governed watchmen also. (iv) Watchmen also worked according to usual shifts hours of the Factory; and (v) In a general shift watchmen assigned for the shift, were given tokens like all other workmen in the general shift. 46. We think none of the above circumstances has any relevance to the nature of the work done by the watchmen. Whether a watchmen comes within the definition of 'worker', must d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question was whether certain persons temporarily employed to repair the compressor of a Rice Mill, which had gone out of order, while the manufacturing process was going on, were workers as defined in Section 2(1) of the Act. It was held that such repair was incidental to, or connected with, the manufacturing process. But that decision is not of any assistance to Mr. Krishnaiah, because repair of machinery cannot be put on the same footing as dismantling of machinery and transporting it during the shifting of a factory. Such dismantling and shifting are unusual activities and cannot be said to be incidental to, or connected with, the manufacturing process, or the subject of manufacturing process in that factory. 52. Mr. Krishnaiah, next relied on Provincial Govt. C. P. Berar v. R. Robinson. There, the facts are these. A new battery of boilers was being erected in the premises of the Jabbalpore Electric Supply Co., Ltd. The work of erection was done by another firm of Engineers, which had employed certain persons. The sole question was whether such persons were workers as defined in Section 2(h) of the Factories Act 1934. The Magistrate had taken the view that as the new boi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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