TMI Blog1963 (2) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not bound to attend for any fixed period ; a roller may come to and leave the establishment according as is convenient to him, and he is paid for the bidis turned out by him according to a fixed tariff. It appears that this is the accepted modus of work in bidi establishments in the Maharashtra region. These establishments were, it was held by the Bombay High Court, 'factories' and the rollers work- ing therein were workers' within the meaning of the Factories Act 63 of 1948 : The State v. Alisaheb Kashim Tamboli (T.L.R. 1955 Bom. 624). In that case the High Court held that the expression employed' in s. 2 (1) of the Factories Act, 1948 does not necessarily involve the relationship of master and servant, and therefore owners of bidi establishments had to conform to the requirements of the Factories Act and to afford to the workers the benefits provided under that Act, even though the workers did not maintain uniform hours of attendance, and were paid only for bidis turned out by them. But this Court in Shankar Balaji Waje v. The State of Maharashtra ([1962] Supp. 1 S.C.R. 249.) -- (Subba Rao, J. dissenting)- held in dealing with the case of workers in an est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. There are also many other bidi making establishments which are not so borne on the register of the Chief Inspector. There was grave unrest among the bidi rollers resulting from the denial of benefits previously enjoyed by them. With a view to protect the bidi rollers against exploitation by the owners of bidi making establishments and against deprivation of the benefits enjoyed by them, the Government of Maharashtra issued the following Notification in exercise of the powers vested under s. 85 of the Factories Act ; - In exercise of the powers conferred by section 85 of the Factories Act, 1948 (LXIII of 1948), the Government of Maharashtra hereby declares that all the provisions of the said Act shall apply to the places specified in column 2 of the Schedule appended hereto wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on the establishments specified against them in column 3 of the said Schedule notwithstanding that the persons working therein are not employed by the owner of such places but are working with the permission of or under agreement with such owner : Provided that the manufacturing process is not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leges upon workers and impose obligations upon owners of factories qua those workers, there must, therefore, be a manufacturing process carried on in any premises, the number of persons working in the manufacturing process or cleansing machinery used for the process or in work incidental to or connected therewith be not less than the number specified in the definition in s. 2 (in) and that the persons so working must be employed (under a contract of service for wages or not and directly or indirectly. A person working in a factory, but not under a contract of service cannot be regarded as a worker within the meaning of that expression in s. 2 (1) of the Act. Section 85 of the Factories Act which occurs in Ch. IX provides : (i) The State Government may, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on, notwithstanding that- (i) the number of persons employed therein is less than ten, if working with the aid of power and less than twenty if working without the aid of power, or (ii)the persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed by Act 11 of 1891 which in turn was followed by Act 12 of 191 1. Diverse amendments were made to that Act from time to time. In 1929 a Royal Commission of Labour in India was appointed to make a detailed investigation into labour problems. The Commission investigated the conditions in various industries including the bidi-making industry and submitted its report in June 1931 containing diverse recommendations for amendment of the Indian Factories Act, 1911. The Commission stressed the need for exercise of power to extend the provisions of the Act to industries not covered by the definition of the term 'factory', and considered the bidi-making industry in that context inparticular. In describing the conditions prevailing in bidi manufactories, the Commission observed : Every type of building is used, bat small workshops preponderate and it is here that the graver problems mainly arise. Many of these places are small airless boxes, often without any windows, where the workers are crowded so thickly on the ground that there is barely room to squeeze between them. Others are dark semi-basements with damp mud floors unsuitable for manufacturing processes, particularly i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igarette industry, and observed that the picture drawn by the Royal Commission on the working conditions in the bidi industry remained largely true. They observed: The prominent features of the bidi and cigar industries are long hours and insanitary con- ditions of work and employment of child labour. Women are also employed in large numbers in this industry. x x x x x x x x x The bidi and cigar labour., however, satisfies many of the criteria of sweated labour, such as sub-contract system, long hours, insanitary working conditions, home work (in bidis), employment of women and children, irregularity of employment, low wages, and lack of bargaining power. Dealing especially with the conditions prevailing in the Province of Bombay they observed 'In Bombay these workshops are situated immediately behind panshops. x x x x The conditions of these workshops, so far as sanitation, light and ventilation are concerned., beggar description. They are dark, dingy places with very few, if any, windows and the approaches are very insanitary. Workers are huddled together, men, women and in some cases children, and there is hardly any space to move. One can see bags of to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 35. Patna 877.). The Factories Act, as the preamble recites is an Act to consolidate and amend the law regulating labour in factories. The Act is enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards. For that purpose it seeks to impose upon the owners or the occupiers certain obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conducive to their health and safety. The Act requires that the workers should work in healthy and sanitary conditions and for that purpose it provides that precautions should be taken for the safety of workers and prevention of accidents. Incidental provisions are made for securing information necessary to ensure that the objects are carried out and the State Governments are empowered to appoint Inspectors, to call for reports and to inspect the prescribed registers with a view to maintain effective supervision. The duty of the employer is to secure the health and safety of workers and extends to providing adequate plant., machinery and appliances, supervision over workers, healthy and safe premises, proper system of working and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess is carried on requiring even small establishments to comply with the elaborate requirements of the Factories Act may impose great administrative strain upon governmental machinery, and involve hardship ordinarily not commensurate with the benefit secured thereby. But the Legislature with a view to prevent circumvention of the provisions of the Factories Act, and to secure to the persons working in establishments where manufacturing process is carried on, adequate safeguards where necessity is felt has authorised the State Government by Notification to declare any place which does not fall within the definition of. factory to be a factory and to make all or any of the provisions of the Act applicable thereto. Similarly the Act is primarily intended to govern relations of persons standing as master and servant in connection with manufacturing processes in factories, and liberty of contract otherwise was not sought to be affected by the principal provisions of the Act. But here again the Legislature has authorised the State Government to issue Notifications applying the provisions of the Act even to those establishments in which persons are working with the permission or under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act to those industries or localities in which by reason of causes such as unorganized labour or absence of machinery for regulation of wages, the wages paid to workers were, in the light of the general level of wages, and subsistence level, inadequate. x x x x x x x It is to carry out effectively the purpose of this enactment that power has been given to the appropriate Government to decide with reference to local conditions, whether it is desirable that minimum wages should be fixed in regard to any scheduled trade or industry, in any locality, and if it is deemed expedient to do so, the rates at which the wages should be fixed in respect of that industry in the locality. By entrusting authority to the appropriate Government to determine the minimum wages for any industry in any locality or generally, the Legislature has not divested itself of its authority, nor has it conferred uncontrolled power upon the State Government. x x x x x x x x x x x Selective application of a law according to the exigencies'. where it is sanctioned, ordinarily results in permissible classification. Article 14 forbids class legislation but not reasonable classification for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder s. 85 of the Factories' Act, 1948 should be issued. Accordingly, the Government of Maharashtra issued the impugned Notification including therein those factories which were on the register of Factories main- tained by the Chief Inspector of Factories. He further stated that probably there were other bidi manufacturing establishments to which the provisions of the Factories Act were applicable, but these factories were not within the purview of the impugned Notification because they were not on the register of factories maintained under the Factories Act and on the basis of which the impugned Noti- fication was issued. But such establishments were not included in that register because of the failure of the owners to register them. Mr. Pimenta said that the Government was making enquiries about such other factories and that they would or would not be brought under the purview of the Act, as circumstances demanded, by amendment of the impugned notification under s. 85 of the Factories Act when the enquiries were over. He further stated that the impugned Notification was issued to maintain industrial peace and harmony. There is nothing on the record to discredit these stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, that the application of all the provisions of the Factories Act without considering the appropriateness of extending the individual provisions, infringed Art. 19 of the Constitution. It was submitted that provisions like ss. 79 and 80 which only apply to factories employing per-sons who work under contracts of service with the owner would be wholly inapplicable to persons who work under contracts not of service with the owner of the factory and who are under no obligation to attend the factory for any fixed duration during working hours or for any fixed number of days during the year, and providing benefits for such persons by extending those provisions amounts to imposing unreasonable restrictions upon the right of the owner of the factory. Section 79 (1) provides for grant of annual leave with wages for the number of days calculated at certain rates to every worker who has worked for a period of 240 days or more in a factory during a calendar year. Section 80 is consequential upon s. 79 : it provides that a worker shall -be paid for the leave allowed to him at the rate equal to the daily average wage of his total full time earnings for the days on which lie worked during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification under s. 85 was issued by the State Government, and the Court was considering, whether having regard to the conditions governing his attendance, he could be regarded as a worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued and the workers concerned had worked for the full period of work displayed in the factory for more than 240 days in the preceding year, he would still not have been entitled to annual leave with wages. In our judgment the right to leave with wages arises in favour of a worker or deemed worker under s. 79 only if he has worked during the full period of factory employment for the prescribed number of days in the previous year because by the use of the expression 'days' in s. 79, working for the full period of work displayed in the factory under the appropriate section of the Factories Act is contemplated. Work for a period less than the period displayed will not, in computing the number of days, be taken into account as a day within the meaning of s. 679. We may also observe that in Bridhichand Sharma v. First, Civil Judge, Nagpur ([1961] 3 S.C.R. 161.), this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Factories Act, no unreasonable restriction has been imposed upon the occupier or the owner of the factory. To conclude: in our judgment s. 85 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on, and which involves the consequence that the place is deemed a factory and the persons working therein are deemed workers is not by itself discriminatory so as to infringe Art. 14 of the Constitution; nor does the provision amount to authorising imposition of unreasonable restriction upon the fundamental right of the owner of the factory to carry on his business. The impugned Notification issued under s. 85(1) is also not open to attack on the ground that the State has issued the Notification by selecting for application of the provisions of the Act, some out of the places in which bidi manufacturing processes are carried on. Nor does the Notification in so far as it seeks to apply the provisions of the Act imposing upon the owner or an occupier of the factory obligation to grant annual leave with wages impose any unreasonable restriction, On that view the petition must f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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