Summary
The labour employed in the manufacture of beedis consists of different categories. At the factory, which constitutes the formal establishment, there are administrative and clerical staff, accountants, packers, checkers and bhattimen. The work of rolling the beedis itself is done by one or the other of different categories of workers. The first category is where the work may be entrusted by the manufacturers directly to workers who prepare the beedis at home after obtaining a supply of the raw material consisting of tobacco, beedi leaves and thread from the manufacturers. The second category consists of workers employed by the manufacturers through contractors and the manufacturers pass on the raw material to such workers for rolling the beedis in their dwelling houses and then supplying beedis. There is thus a direct relationship between the manufacturers and workers. The third category of home workers are those to whom the work is entrusted by independent contractors who treat the workers as their own employees and get the work done by them either at their own premises or in the dwelling homes of the workers in order to fulfil and complete contracts entered into with the manufacturers for the supply of the finished product from the raw material supplied by the manufacturers to the contractors.
The home workers attend the factories within specified hours everyday ant collect the raw material for taking to their homes for rolling beedis. In the case of home workers who hold a direct relationship with the manufacturers, the rolled beedis are brought by the home workers to the factory and the beedis which H 56conform to the standards envisaged by the manufacturers are accepted while those which do not are rejected. The staff at the factory maintains registers in which regular entries are made of the raw material supplied to home workers, and of the rolled beedis which are delivered by them at the factory. The payment of wages to such home workers may be mate directly or distributed through the contractors engaged by the manufacturers. In the case of contracts between the manufacturers ant independent contractors, the manufactured product is collected by the contractors from their home workers ant delivered to the manufacturer. The manufacturer is concerned only with the payment under the contract to the contractors, and the payment of wages to the home workers is a matter between the contractors ant the home workers.The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 provides for the institution of provident Funds for employees in factories ant other establishments. Originally, it did not extent to the beedi industry. For the first time, by a Notification dated May 17, 1977 mate by Government of India the beedi Industry was added to Schedule I of the Act with effect from May 31, 1977. This was followed by another Notification dated May 23, 1977 issued by the Central Government amending clause (b) of sub-paragraph 3 of paragraph I of the Employees'Provident Funds Scheme, 1952 in order to bring the beedi industry within the province of that scheme with effect from May 31, 1977. The Central Government Provident Funds Commissioner thereupon wrote to all the Regional Provident Funds Commissioners for the enforcement of the scheme in the beedi industry.The petitioners in the Writ Petitions who were engaged in the manufacture and sale of beedis, challenged the constitutional validity of the Notifications dated May 17, 1977 ant May 23, 1977, ant the enforcement of the Scheme in so far as it related to home workers ant sought a declaration that the Employees' Deposit-Linked Insurance Scheme ant the Employees' Family Pension Scheme framed under the Employees' Provident Funds Act are unenforceable in respect of the beedi industry, contenting that: (i) while the Employees' Provident Funds Act ant the Scheme may be applicable to the workers employed in the factory itself, they cannot be extended to home workers because there is no- relationship of employer ant employee between the manufacturers ant the home workers, (ii) the Employees'Provident Funds Act ant the Scheme cannot be applied to home workers in the beedi industry inasmuch as they are subject to no retirement age and there is no 57power in the manufacturer to retire such home workers on the ground of superannuation, ant (iii) the extension of the Scheme to the beedi industry constitutes an unreasonable restriction on the Fundamental rights of the petitioners guaranteed by sub-cl. (g) of clause (1) of Article 19 of the Constitution and also violates Articles 14 and 31 of the Constitution in as much as the financial burden occasioned thereby is so excessive that it is obvious that the Central Government did not apply its mind to the paying capacity of the industry.On the question whether the workers employed at their homes in the manufacture of beedis are entitled to the benefit of the Employees' Provident Fund Scheme ant Miscellaneous Provisions Act 1952 ant the Schemes framed thereunder.Dismissing the Writ Petitions,^HELD: 1. The home workers are 'employees' within the definition of 'employee' contained in clause (f) of s. 2 of the Employees' Provident Funds Act 1952, and the Schemes framed thereunder. The terms of the definition of 'employee'in section 2(f) of the Act are wide. They include not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include mot only persons employed in the factory but also persons employed in connection with the work of the factory. A home worker, by virtue of the fact that he rolls beedis, is involved in an activity connected with the work of the factory. It is therefore mot possible to accept the narrow construction sought by the 'petitioners that the words 'in connection with' in the definition of 'employee' in section 2(f) must be confined to work performed in the factory itself as a part of the total process of the manufacture.[67 G, 63 C-E]2. The conditions and the circumstances in which the home workers of a single manufacturer go about their work, including the receiving of raw material, rolling the beedis at home and delivering them to the manufacturer subject to the right Of rejection indicates sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. The work of rolling beedis is mot of a sophisticated nature, requiring control and supervision at the time when the work is done. It is a simple operation which has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old, men and women, with 58equal facility. It does not require a high order of skill.The right of rejection can constitute in itself an effective degree of supervision and control, and there is evidence to show that the rejection takes place in the presence of the home worker. This factor however plays a merely supportive role in determining the existence of the relationship of master and servant. The element of personal service is of little significance when the test of control and supervision lies in the right of rejection. [67 C-F]Shri Chintaman Rao and Another v. The State of Madhya Pradesh, [1958] S.C.R.. 1340, Shri Birdhichand Sharma v.First Civil Judge, Nagpur and Others, [1961] 3 S.C.R. 161.Shanker Balaji Waje v. State of Maharashtra [1962] Suppl. 1S.C.R. 249, M/s. Orissa Cement Ltd. v. Union of India,[1962] Suppl. 3 S.C.R. 837, D.C. Dewan Mohindeen Sahib and Sons v. The Industrial Tribunal, Madras, [1964] 7 S.C.R.646, Silver Jubilee Tailoring House v. Chief Inspector of Shops & Establishments, [1974] 1 S.C.R. 747, Mangalore Ganesh Beedi Works etc. v. Union of India etc. [1974] 3S.C.R. 221, referred to.3. Clause (a) of sub-para. (1) of Para 69 of the Employees' Provident Funds Scheme provided that "a member may withdraw the full amount standing to his credit in the fund on retiring from service after attaining the age of 55 years". The law does not envisage the fixation of a retirement age before that provision can apply. A worker is entitled to withdraw the amount in the Fund if he retires at any time after attaining the age of 55 years. There 18 no reference to any predetermined age of superannuation. [68 A-B]4. The expression 'retirement' does mot, in the absence of anything more, necessarily imply a fixed age for leaving service. It has a wide connotation. In a context where no age of superannuation has been fixed, the expression must take on its ordinary meaning of the normal cessation of service by an act of the employer or of the worker. That a person may retire even before reaching any specified age 18 exemplified by cl. (b) of sub-para (1) of para 69 which speaks of "retirement on account of permanent and total incapacity for work due to bodily or mental infirmity." [68C]Delhi Cloth & General Mills Co. Ltd. v. Workmen and other etc. [1969] 2 S.C.R. 307, referred to.Regional Provident Fund Commissioner, Andhra Pradesh v.Shri T.S. Hariharan, [1971] Suppl. S.C.R. 305, distinguished.59 5. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and the Rules made thereunder by the Maharashtra Government have been framed specifically on the basis that in certain matters home workers enjoy a status akin to the general category of workers. In the Maharashtra Beedi ant Cigar Workers (Conditions of Employment) Rules 1968, there is specific provision in respect of the payment of wages to home workers. The contention that the provisions of the Employees Provident Funds Act and the Schemes cannot be implemented at all in respect of the beedi industry has therefore to be rejected. [69 C, E, F]See the full content of this document
Extract
Messrs. P.M. Patel & Sons And Others, Etc. VS. Union Of India And Others, Etc.
PETITIONER: MESSRS. P.M. PATEL & SONS AND OTHERS, ETC.Vs.RESPONDENT: UNION OF INDIA AND OTHERS, ETC.DATE OF JUDGMENT25/09/1985BENCH: PATHAK, R.S.BENCH: PATHAK, R.S.TULZAPURKAR, V.D.SEN, AMARENDRA NATH (J)CITATION: 1987 AIR 447 1985 SCR Supl. (3) 55 1986 SCC (1) 32 1985 SCALE (2)860CITATOR INFO : F 1992 SC 573 (12,14,39)ACT: Employees' Provident Funds and Miscellaneous Provisions Act 1952 Section 2(f) - Workers employed- at their homes in manufacture of beedis - Whether entitled to benefit of the Act.Relationship of Master and servant - Element of personal service - Of little significance when test of control and supervision enables a right of rejection.JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 3605 to 3609 of 1978 etc.(Under Article 32 of the Constitution of India.)M.N. Phadke, B. Kanta Rao, M.Q. Qazi, V.N. Ganpule and Mrs. Veena Khanna for the Petitioners.Abdul Khader, Girish Chander and Miss A. Subhashini for the Respondents.Mr. Rameshwar Nath for the Interveners.The Judgment of the Court was delivered byPATHAK, J. This and the connected cases raise the important question whether the workers employed at their homes in the manufacture of beedis are y entitled to the benefit of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and the & heme framed thereunder.The question for consideration is surrounded`by a welt...
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