TMI Blog1972 (4) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had applied to the Labour Court under Section 79 of the Bombay Industrial Relations Act, No. XI of 1947 (hereinafter called the Act) in December, 1962 complaining that the appellant company was liable to pay to the respondents (applicants before the Labour Court) dearness allowance every month according to the Dearness Allowance Award made by the Industrial Court but the same had not been paid for the month of September, 1962 which was distributed in October, 1962. It was alleged that from October, 1962 the Company had been committing breach of the Dearness Allowance Award of the Industrial Court. In that application the present respondents had based their claim on the following averments in para 3 : ...the applicants are being paid ₹ 68/- as basic pay by the opponent. The maintenance of the garden is the legal responsibility of the opponent and for the health, welfare, recreation of the employees working in the several departments and for the decency of the adjacent offices the opponents are maintaining it. The applicants are doing the entire work in respect thereof. 3. In the written statement the appellant company raised several pleas in opposing that applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing passage from the earlier case Now the Industrial Court was correct in holding that the agreement applied to the area which was outside the factory proper. But to our mind the principle question involved is whether the maintenance of trees and plants can be said to be work which is ordinarily part of the undertaking. In another case, this Tribunal had decided that a ration shop was a part! of the work which is ordinarily a part of the, undertaking, but the maintenance of these trees and plants stands on a different footing and can hardly be regarded as part of the work of this particular undertaking which in fact is concerned with the production of cloth. We can see no intrinsic connection between the maintenance of the trees and plants and the work which is ordinary part of the undertaking. the Labour Court observed that the applicants'- gardeners or malis who are contractor's employees cannot thus invoke the statutory definition of the employer . 5. On appeal by the aggrieved malis the Industrial Court in the course of its judgment observed that there was no dispute that the appellants in that court had been working as gardeners or garden mazdoors and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being approached by the aggrieved malis under Article 227 of the Constitution, went into the matter at considerable length and after copiously quoting from the decision in the case of J. K. Cotton Spg. Wvg. Mills case (supra) the High Court found it difficult to agree with the reasoning of the Industrial Court that the work of maintaining the garden was not a part of the ordinary work of a cotton textile mill. Earlier in the course of its judgment the High Court, after referring to the definitions of the term employee in Section 3(13) and of the word industry in Section 3(19) of the Act had observed : ...The definition of the term 'industry' is thus wide enough to include a workman employed in any calling, service, employment, handicraft, or industrial occupation or avocation of employees and it would not be correct to assume that simply because a workman happened to be engaged as a gardener, he would not fall within the definition of the term 'employee' as given in the Bombay Industrial Relations Act. A garden when attached to a mill is an amenity that is provided to the workers employed in the mill and it is not necessary that an amenity should arise fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s though a matter concerning health or welfare of the employees was not mandatory on the management of a cotton textile mill undertaking and hence the work of maintenance of a garden could not be said to be part of the ordinary work of such mill, the High Court observed that an activity undertaken as a part of the undertaking and in the course of its conduct may be undertaken voluntarily or as a result of a statutory duty or obligation but what is necessary is that the activity must reasonably be attributable to the undertaking in its usual and ordinary course in the conduct of the business or undertaking, and if that be so then such an activity could be considered as the activity of a worker who would fall within the definition of employee within Section 3(13) of the Act. 7. It was, however, contended in the High Court on behalf of the present appellant that the garden in which the present respondents had been working as gardeners was not situated within the premises of the mill and that the garden area included office of some other concerns, a Government post office and a museum which was open to the public and, some quarters for workers as well as assistance and officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to mention that in the certificate of fitness granted by the High Court there is no indication about the precise point or points which induced the High Court to certify the case to be fit for appeal under clause (c) of Article 133(1). This clause though couched in general terms is intended to apply to special cases in which the question raised is of such great public or private importance as deserves appropriately to be authoritatively settled by this Court. This clause of course does not in terms say so but it has always been so construed. The question whether or not to certify a given case to be fit for appeal under this clause is a matter for the judicial discretion of the High Court. The word certify used in this clause suggests that the High Court is expected to apply its mind before certifying the case to be fit for appeal. The mere grant of a certificate would, however, not preclude this Court from determining whether the conditions pre-requisite for the grant are satisfied. It is, therefore, always desirable and expedient for the High Court to give its reasons for granting the certificate. That - would assist this Court better in appreciating if the conditions pre-requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, appealable under Article 133. Under Article 226 of the Constitution it may in this connection be pointed out the High Court does not hear an appeal or a revision : that court is moved to interfere after bringing before itself the record of a case decided by or pending before a court, a tribunal or an authority, within its jurisdiction. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding. An appeal or a revision on the other hand is generally considered to be a continuation of the original suit or proceeding and in a case, where the High Court deals with an appeal or a revision, finality for the purpose of Article 133 must attach to the whole of the matter so that after the decision of the High Court the matter is not a live one. (see Ramesh v. Ganda Lal [1966]3SCR198 ) 12. The impugned order before MS was made by the Gujarat High Court on an application under Article 227 of the Constitution, the prayer in that application being, to remove the record of the case of the High Court and after examining the same (a) to quash the order and judgment of respondent No. 2 at Annexure &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification in the Political and Services Department No. 2847/34-1, dated the 14th March, 1939, shall apply to the cotton Textile Industry as specified below :-- (a) All concerns using power and employing twenty or more workers which are engaged in cotton spinning; (b) all concerns using power and employing twenty or more workers which are engaged in cotton weaving with or without an admixture of silk, rayon, artificial silk or one or more of these; (c) all mechanics shops attached to and (all dyeing bleaching and printing departments, whether situated within or outside the precincts of and forming integral part of) the concerns falling under clause (a) or (b). (d) All the offices, whether situated within or outside the precincts of the concerns falling under clause (a) or (b). 15. Employee and employer so far as relevant for our purpose are defined as : 3. In this Act unless there is anything repugnant in the subject or context-- (13) 'employee' means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes-- (a) a person employed by a contractor to do any work for him in the execution of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and that the relief under the award was confined to direct employees only. But this apart, it is further clear from the decision of the Appellate Tribunal that under the agreement with the contractor there the latter had been employed for the purpose of looking after the garden not within the factory compound proper but beyond it. Indeed, the contractor's obligation to look after the garden extended further beyond even that area. It is in this context and background that the Appellate Tribunal observed in the concluding part of its order that statutory definition of an employee in our opinion cannot be invoked by a gardener who has been employed through a contractor for the work as undertaken here. (emphasis supplied). This decision, therefore, does not assist us on the precise question raised. The next decision relied upon by Mr. Desai is reported as Hakim Singh v. j. C. Mills Ltd. 19631 M.P.L.J. 714. In that case the mills had employed a contractor to supply packing material. The contractor because of the nature of his work was given a room in the mills premises for preparing a particular packing material. An employee of the contractor applied to the Industrial Court for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, therefore, the appellant cannot appropriately ask this Court to determine these questions which are awaiting decision by the Industrial Court, also relied on Basti Sugar Mills Ltd. v. Ramjagar (1963)IILLJ447SC and on J. K. Cotton .Spg. and Wvg. Mills (supra). In the former case the respondents there employed by a contractor to remove press and from the sugar factory were held to be workmen employed by the factory because removing press mud was considered ordinarily to be a part of the sugar industry. The latter case is an authority for the proposition that an employee engaged in any work or operation which is incidentally connected with the main industry is a workman if other requirements of Section 2(s) of the Industrial Disputes Act, 14 of 1947 are satisfied and that the malis in that case were workers within the meaning of Section 2 of U.P. Industrial Disputes Act, 28 of 1947. The bungalows and gardens on which the malis in that case worked were a kind of amenity supplied by the mills to its officers and on this reasoning the malis were held to be engaged in operations incidentally connected with the main industry carried on by the employer. It was by relying on the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in proper trim. It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court, looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the, employer but through a contractor, they could not be covered within the scope of Section 3(13) of the Bombay Industrial Relations Act. Since this contention has not been considered by the Industrial Court, we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent No. 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised. Subject to this, the order of the Second Labour Court Ahmedabad dated 9th August, 1963 passed in Application No. 2005 of 1962 and the order of the Industrial Court, Ahmedabad dated 5th February, 1964 passed in Appeal (I.C) No. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above 18. There is no coge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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