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1969 DIGILAW 57 (PAT)

MOTIPUR SUGAR FACTORY (PVT. ) LTD. v. RIKHDEO PD.

1969-03-21

K.B.N.SINGH, N.L.UNTWALIA

body1969
JUDGMENT : The Motipur Sugar Factory (Private) Limited, the sole petitioner in this application, has obtained, a rule against the respondent, out of whom respondent no. 1, Shri Rikhdeo Prasad, is the only person who is contesting this case, and hereinafter will be refereed to as "the respondent" to show cause why an appropriate writ be not issued to call up and quash the ORDER :dated the 10th December, 1968, passed by the Presiding Officer of the Labour Court, North Bihar, Muzaffarpur, in Case No. 16 of 1968 instituted under Section 26 (2) of the Bihar Shops and Establishments Act (Bihar Act VIII of 1954), hereinafter referred to as "the Act." 2. The petitioner's case is that it owns and runs the Motipur Sugar Factory, an industry for the manufacture and production of sugar, and is registered as a factory under the Factories Act. The respondent was working as a Cane Accountant from 1.11.1960. At a domestic enquiry, held under the certified standing ORDER :s of the petitioner company, he was found guilty of various charges levelled against him and, consequently, he was dismissed as intimated to him in a letter dated 19.7.1968. The respondent filed a complaint under Section 26 (2) of the Act on 12.8.1918 before the Labour Court, Muzffarpur. By two applications the petitioner raised certain preliminary objections to the maintainability of the complaint case filed by the respondent. The main objections were (1) that the Act does not apply to the local area of the Motipur Sugar Factory, and (2) that the respondent was a worker within the meaning of Section 2 (1) of the Factories Act, 1948, and be was not an employee within the meaning of Section 2 (4) of the Act. Hence he had no right to make a complaint under Section 26 (2) of the Act. Both these objections have been overruled by the Labour Court. The petitioner, therefore, has come up to this Court for the quashing of the ORDER :and for restraining the Labour Court horn proceeding with the case instituted by the respondent. 3. Learned Advocate General appearing in support or the rule did not press the first point of objection which has been decided against the petitioner. In other words, he did not advance any argument to say that the Act does not apply to the local area of Motipur Sugar Factory. 3. Learned Advocate General appearing in support or the rule did not press the first point of objection which has been decided against the petitioner. In other words, he did not advance any argument to say that the Act does not apply to the local area of Motipur Sugar Factory. He, however, urged the second point very strenuously and submitted that by an obviously erroneous interpretation of the definition of "employee" as given in Section 2 (4) of the Act, the labour court has held that the Act will apply to the case of the respondent, irrespective of the fact whether he was or was not a worker within the meaning of the Factories Act. Mr. Ranen Roy who appeared for the respondent to oppose the rule, combated this position. 4. From the history of the labour legislation in India, it is well known that many Acts have been passed for protection of the workers in an industry, to wit, the Industrial Disputes Act, 1947, and the Payment of Wages Act, 1936. The definition of the term "industry" in the Industrial Disputes Act, 1947 [Vide Sect ion 2 (j)] is " 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or a vocation of workmen". In the Payment of Wages Act, 1936, the definition of the term "Factory'" with slight variation as given in Clause (m) of Section 2 of the Factories Act, has been incorporated in Clause (ib) of Section 2, in which section, under Clause (ii) "industrial establishment" has also been defined. In the Payment of Wages Act, 1936, the definition of the term "Factory'" with slight variation as given in Clause (m) of Section 2 of the Factories Act, has been incorporated in Clause (ib) of Section 2, in which section, under Clause (ii) "industrial establishment" has also been defined. The relevant provision of the Act, as it stood prior to the amendment brought about by Bihar Act 12 of 1961, in relation to a factory, was found in Section 4 (1) which said: "The provisions of this Act shall not apply to any precincts or premises of a mine as defined in Clause (j) of Section 2 of the Mines Act, 1952, or to any premises which is a factory within the meaning of Clause (m) of Section 2 of the Factories Act, 1948." The then definition of the term "employee" given in Section 2 (4) was: " 'employee' means a person employed for hire, wages, reward or commission in, and in connection with, any establishment and includes an apprentice." The definition of the term "establishment" is the same as it was before Section 2 (6) of the Act says: "establishment" means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and includes- (i) administrative or clerical services appertaining to such establishment; (ii) a shop, restaurant, residential hotel, eating house, theatre or any other place of public amusement or entertainment; and (iii) such other establishment as the State, Government may, by notification, declare to be an establishment to which the Act applies." 5. The term "Factory" under Section 2 (m) of the Factories Act "means any premises including the precincts thereof- (i) Whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process in being carried on with the aid of power or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on." The definition of the term "worker" under Clause (1) of Section 2 of the Factories Act is as follows: "worker" means a person employed directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with the manufacturing process, or the subject of the manufacturing process." Reading the provisions of Section 4 (1) of the Act, as it stood prior to the amendment, with the definition of the word "Factory" given under Section 2 (m) of the Factories Act, it would be noticed that the Act did not apply to the premises of a factory, which include the precincts thereof also, irrespective of the question as to whether a person working within the premises or the precincts of the factory was a worker within the meaning of Clause (1) of Section 2 of the Factories Act or he was not so. Hardship was felt for the persons who were not workers within the meaning of Section 2 (1) of the Factories Act, but were working within the premises or the precincts of the Factory. To remove that hardship, it appears to me that by Bihar Act 12 of 1961, a limited exclusion was provided for in relation to the factory. The general exclusion mentioned in Section 4 (1) of the Act was deleted and the word "employee" was amended, which amended definition reads as follows: "employee" means a person wholly or partially employed for hire, wages, including salary, reward, or commission in, and in connection with, any establishment and includes 'apprentice' but does not include a member of the employer's family. It also includes persons employed in a factory who are not workers within the meaning of the Factories Act, 1948 (LXIII of 1948) and who are not working in managerial capacity, and for the purposes of any proceeding under this Act, include an employee who has been dismissed, discharged or retrenched for any reason whatsoever." 6. In my opinion, the learned Presiding Officer of the Labour Court has wrongly accepted the argument which was put forward on behalf of the respondent before him, as was put forward before us, that the word "also" in the second sentence of the aforesaid definition of "employee" indicates that persons employed in a Factory are also included in this definition, although they are not workers within the meaning of the Factories Act, suggesting thereby that workers within the meaning of the Factories Act are undoubtedly included in the general definition of the word "employee" given in the first sentence of the definition. In my opinion, this is an erroneous interpretation of Section 2(4) of the Act. If a worker, as defined in Section 2 (1) of the Factories Act, is included in the first part of the definition, on a parity of reasoning, a person employed in a Factory who is not a worker within the meaning of the Factories Act, will be included with greater certainty. The word "also" had to be used in the second sentence because in the very first sentence of the definition the word "includes" has been used with reference to "apprentice". The second inclusive clause, therefore, in my opinion, only includes persons employed in a factory but who are not workers within the meaning of the Factories Act and who are not working in managerial capacity. Workers within the meaning of the Factories Act, and even those who are not workers, but are working in managerial capacity in a factory, as a matter of construction of the second sentence of the definition, it has got to be held, are excluded from the definition of the word "employee", as the inclusive clause includes persons employed in a factory who are not those two types of persons. It is well known that under the Industrial Disputes Act, persons working in managerial capacity do not get the protection of that Act. It is well known that under the Industrial Disputes Act, persons working in managerial capacity do not get the protection of that Act. It is for that reason that these two types of persons have been excluded and it is not that, as was argued by Mr. Ranen Roy for the respondent, that they are undoubtedly included in the main part of the definition of the "employee" and only the persons who are not workers under the Factories Act and who are not working in managerial capacity, are not included and had to be included by the inclusive clause in my opinion, it is just the other way. 7. On a comparison of the word "establishment", as given in Section 2 (6) of the Act, and the word "industry", as defined in Section 2 (j) of the Industrial Disputes Act, I am inclined to think that although industry may mean any business or trade and, therefore, may be an establishment which carries on any business or trade, the factory engaged in a manufacturing process, as defined in Clause (m) of Section 2 read with Clause (k) of the Factories Act, cannot possibly mean an establishment which carries on any business, trade or profession within the meaning of Section 2(6) of the Act. It ought to be made clear here that an workers in the factory are not factory workers as held in several decisions and an parts of the establishment of the factory are not factory within the meaning of Section 2 (m) of the Factories Act. As I have said above, the exclusion of the premises of the factory in general term in Section 4 (1) of the Act, as it stood before the amendment of 1961, was wide enough to take within its sweep an kinds of establishment of the factory and all kinds of workers engaged therein. Quite a large number of persons, therefore, were left without protection, either of the Factories Act or of other Industrial Legislation and as such the Bihar Legislation seems to have been introduced to give protection to such persons by amending Section 4 (1) and by inc1uding such persons in the definition of the word "employee" in Section 2(4) of the Act. Even assuming that the interpretation which I have given to the definition of the term "establishment" in Section 2 (6) of the Act is not quite correct, it is manifest that if workers in the factory and that part of the establishment of the factory which is engaged in a manufacturing process is not excluded from the operation of the Act, difficult and anomalous result would follow under Chapter VI of the Factories Act, which applies to the factory workers only, and not to the non-workers of the Factory. Working hours of adults have been regulated. Night shifts have been provided in Section 57 of the Factories Act, while under Section 7 of the Act, no establishment, and if it includes a factory and factory workers, shall on any day be opened earlier than 7 a.m. and closed later than 9 p.m. There are many other provisions to be found in Chapter VI of the Factories Act, all of which are not pari materia with those in the Act and some are pari materia also. As for example, Section 59 of the Factories Act provides that the rate of payment of overtime work will be twice the ordinary rate of wages of the factory workers. The same provision is to be found in Section 21 of the Act. I am unable to reconcile myself to the view that for a factory worker this sort of provision had to be made in the Factories Act as also in the Act; rather I am inclined to think that the rate of payment of overtime work for a factory worker is to be found in Section 59 of the Factories Act, and although the provision is identical, but for a non-factory worker, it is to be found in Section 21 of the Act. A factory worker can apply for payment of his wages under Section 15 of the Payment of Wages Act, 1936. A non factory worker can do so under Section 28 of the Act. A dismissed factory worker can get his relief of reinstatement or the like under the Industrial Disputes Act, although the procedure there is quite different from the one provided in Section 26 of the Act. But that does not mean that a factory worker can go under Section 26 of the Act to get his relief on reinstatement or compensation for an allegedly wrongful dismissal. 8. Mr. But that does not mean that a factory worker can go under Section 26 of the Act to get his relief on reinstatement or compensation for an allegedly wrongful dismissal. 8. Mr. Ranen Roy drew our attention to the Schedule appended to the Act under Section 4 (2), the effect of which is that the provisions of the Act mentioned in the third column of the schedule do not apply to the establishment, employees and other persons referred to in the corresponding entry in the second column. In this connection he drew our attention to serial no. 17 of the Schedule to show that all provisions of the Act except Sections 6 and 26 and Chapters VI and VII do not apply to establishments of the factories engaged in manufacture of iron and steel. The petitioner company did not get any such exemption. I do not think that the respondent's case could be advanced any further with reference to the Schedule aforesaid. The effect of the exclusion and serial no. 17 of the Schedule specially is that establishments of the factories, which factories are engaged in manufacture of iron and steel, are not to be governed by provisions of the Act except those mentioned in the third column, namely, Sections 6 and 26 and Chapters VI and VII, even though the establishment of such factory may not be factory within the meaning of Section 2(m) of the Factories Act and are establishment within the meaning of Section 2(6) of the Act. It is for that type of the exclusion that provision has been made in Section 4(2) and the Schedule of the Act. I am unable to accept the contention put forward on behalf of the respondent that without such an exclusion the Act would apply to a factory, a factory worker and those who are working in managerial capacity in the factory. 9. For the reasons stated above I hold that the view of law expressed by the learned Presiding Officer of the Labour Court is erroneous. Yet the petitioner cannot be granted the whole of the relief which it wants as the court below has not recorded a finding in regard to the respondent as to whether he was or was not a worker within the meaning of the Factories Act. The case, therefore, has got to go back to that court. Yet the petitioner cannot be granted the whole of the relief which it wants as the court below has not recorded a finding in regard to the respondent as to whether he was or was not a worker within the meaning of the Factories Act. The case, therefore, has got to go back to that court. On the facts and in the circumstances of this case, I do not think that a further piecemeal trial should be ORDER :ed for decision of that question only, rather the whole case should now be decided, including the question as to whether Sri Rikhdeo Prasad was a worker or not a worker within the meaning of the Factories Act. 10. In the result, I allow the application to the extent indicated above, and in exercise of the authority of this Court under Article 227 of the Constitution, set aside the ORDER :dated the 10th December, 1968, of the Labour Court, North Bihar, Muzaffarpur, passed in Case No. 16 of 1968, remand the case back to it, direct it to decide all the questions involved in that case, either on merit or in relation to the question as to whether the respondent was or was not a worker within the meaning of the Factories Act. I will make no ORDER :as to costs. K.B.N. SINGH, J. I agree. Application allowed in part, Case remanded.