Civil Appeal Nos. 9999 and 10000 of 2010. Case: Pepsico India Holding P. Ltd. and Ors. Vs Grocery Market and Shops Board and Ors.. High Court of Madras (India)
| Case Number | Civil Appeal Nos. 9999 and 10000 of 2010 |
| Judges | Kurian Joseph and Rohinton Fali Nariman, JJ. |
| Issue | Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 - Sections 1(4A), 2(3), 2(4), 2(7), 2(11), 2(12), 3, 3(1), 4, 4(1), 5, 6, 13, 14; Grocery Market and Shops Unprotected Workers (Regulation of Employment and Welfare) Act, 1970; Bombay General Clauses Act, 1904 - Sections 24, 24(1); Employees' ... |
| Judgement Date | February 12, 2016 |
| Court | High Court of Madras (India) |
Judgment:
Rohinton Fali Nariman, J.
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These appeals involve an interpretation of the provisions of the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969, (hereinafter referred to as "the 1969 Act") read with the Grocery Markets or Shops Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1970 (hereinafter referred to as "the 1970 Scheme"). The brief facts necessary for a decision in Civil Appeal No. 10000 of 2010 (Supreme Petro-Chem Limited v. State of Maharashtra and Ors. are that Under Section 5 of the said 1969 Act, if any question arises whether any scheme applies to any class of unprotected workers, the matter shall be referred to the State Government and the decision of the State Government which shall be taken after consulting the Advisory Committee constituted Under Section 14 shall be final. By an order dated 24.6.2008, the State Government after referring to submissions from the Appellants as well as submissions from the Board, held:
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Govt. has analyzed overall situation, documents application of the organization dated 01.03.2003 and information about the product and its raw material. Govt. has come to the following conclusion:
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Company is manufacturing Polystyrene.
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For manufacturing styrene and Polybutadin are used as raw material. Polybutadin comes in rubber form and it is not natural rubber.
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Polystyrene is a hard plastic.
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Polystyrene is not a petrochemical product but a chemical product.
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Even Polystyrene manufacturing is considered as petrochemical production it is finally a chemical production only. The material used to manufacture the product is also chemical.
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There is no written reference in the Mathadi Act that petrochemical should be kept out of the act but chemical itself includes everything.
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Mathadi Act and scheme is for the betterment of workers and purpose of the scheme is to make applicable to the chemical manufacturing companies. It is not mentioned in the scheme that petrochemical products should be excluded and as petrochemical is not mentioned in the scheme so the scheme is not applicable to the said organization is not acceptable.
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In the situation Samitte and Govt. has come to the conclusion that Grocery market and shops unprotected workers (Regulation of Employment and Welfare) Act 1970 is applicable to Supreme Petrochem Ltd.
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In the company loading unloading work of chemical product and its raw material is carried out. And with respect to this Mathadi kind of work is carried out in the company. As said by the company this work is carried out by two Cooperative societies. These societies do the work by employing the workers and get compensation from the company. Company says that these employees get the facilities like Provident fund and others. But in the report filed by the mandal on 20.09.2006 this statement has not been proved. As per the decision given by Hon. High Court in 2006(3) CLR PG 999, there is no meaning to what company is saying. Instead of that it proves that in the said company Mathadi kind of work carries out.
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In this situation Maharashtra Mathadi Hamal and other Manual Workers (Regulation of Employment and Welfare) Act 1969, Grocery Markets or Shops Unprotected Workers (Regulation of employment and welfare) Scheme 1970 is applicable to the said organization. Therefore, application given Under Section 5 of Mathadi Act is rejected by the Government.
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The said order was challenged before the Bombay High Court by filing a writ petition. The writ petition was dismissed by the impugned judgment dated 10.2.2009 after holding:
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It is rather difficult to digest the arguments of the learned Counsel. Basically, what we find is that the Petitioners are manufacturing polysterene and polysterene is a combination of styrene and polybutadin. Polybutadin comes in rubber form and is not a petrochemical though it is not a natural rubber. Styrene is one of the by-product of the petrochemical which is used by the Petitioner for manufacturing polysterene. Therefore, the Petitioners are not manufacturing any petrochemicals, but one of the by-product of the petrochemical is used by the Petitioners to manufacture polysterene and polysterene is hard plastic.
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All these aspects have been considered by the Government authorities and thereafter the authorities concluded that the Petitioners are not dealing with petrochemicals as they have submitted. We agree with the findings of the authority. Assuming for a moment that the Petitioners are dealing in petrochemicals, yet the Act will be applicable to them because the words used in this application clause referred to above is the product including the manures and thereby, every type of production has been covered. What is important to note is that the manures which are like urea etc. are also derivatives of the petrochemicals and thereby by inclusive clause the manures which could have been saved probably have been included there. Therefore, the word "product" has been used by the Legislature in its wisdom with all its cognate variations and it cannot be interpreted to have a limited meaning. What we find is that the petrochemical is a part of the chemical. Chemical is the genesis while petrochemical is species of the said genesis and thereby if the chemical industry is covered it is rather difficult to hold that the petrochemical industries are not covered.
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What is important to be looked into is whether in this industry the work which the mathadis are carrying out is available or not. If, in that industry, the work of mathadis is available then only because the industry is dealing in some different aspect, that work cannot be given to some other unorganized workers. The basic test, after having ascertained that the industry is covered by law, is to find out that the work of mathadis is available and if it is available, the Act and the Scheme will apply to the industry. It is not disputed that the mathadi work is not available. The only distinction which was tried to be made out was with regard to petrochemicals and that, therefore, the Act is not applicable, which submission we have already rejected for the reasons stated above. We find that the Government has rightly decided the matter Under Section 5 and no interference is called for at the hands of this Court.
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Shri J.P. Cama, learned senior advocate appearing on behalf of the Appellants has argued that the 1969 Act only applies to employments that are specified in the Schedule. Inasmuch as grocery markets or shops are mentioned in Item 4 of the Schedule, according to learned Counsel, employment in factories which occurs only in Item 5 of the said Schedule could not possibly be attracted as Item 5 only speaks of establishments which are not covered by any other entries in the Schedule. Inasmuch as the 1970 Scheme in the present case is a scheme dealing with employment in grocery markets or shops, Item 5 of the Schedule is not attracted, and the 1970 Scheme is ultra vires the 1969 Act insofar as it provides for employment in factories which manufacture chemical products and are covered by entry 5 of the Schedule to the said 1969 Act. He also referred to Section 1(4A) of the 1969 Act to state that insofar as employment in factories in district Raigad are concerned, item 5 in column 4 of the table appended to Section 1(4A) speaks of "colour chemicals" and "products including fertilizers", and not "chemical products". This being so, chemical products in any case are outside Section 1(4A), and the 1970 Scheme insofar as it purports to include within it under Clause 2(1)(f) "chemical products", is therefore ultra vires Section 1(4A). Further, according to learned Counsel, what is allegedly manufactured in the Appellant's factory are petro chemicals and not chemicals. He has referred to a number of documents which include various licences and letters from authorities clearly stating that what is manufactured in the Appellant's factory are only petro chemicals. For that reason also, petro chemicals not being chemicals would not be within the coverage of the 1969 Act or the 1970 Scheme. He further argued, referring to Section 4(1)(b) of the 1969 Act that if the 1970 Scheme is to be made applicable to petro chemicals manufactured in factories, the only method of doing so is if a demand or request is made by a majority of the employers or workers that the provisions of the grocery markets or shops scheme should be applied to another scheduled employment- that is, manufacturing petro chemicals in factories, and it is only after consultation with the employers and workers that the State Government may apply the provisions of the 1970 Scheme to the Appellant's factory manufacturing petro chemicals. This not having been done, the 1970 Scheme cannot apply to the Appellant. Learned Counsel further argued that in point of fact there is no work of transportation undertaken by the employer from the employer's factory to the purchaser's premises. He argued that the factory was by and large mechanised and that the petro chemical products manufactured at the factory were picked up by purchasers by employing contract labour that was arranged by the purchasers themselves. This being so, the 1969 Act and the 1970 Scheme would have no application to the Appellant's factory.
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Shri S. Chinchwadkar, learned advocate appearing on behalf of the Respondent-Board has countered each of the arguments of Mr. Cama. According to Shri Chinchwadkar Entry 5 appearing in the Schedule to the 1969 Act is a residuary entry which takes in all employments not otherwise covered by any scheme under any of the other items of the Schedule, and as petro chemicals manufactured in factories were admittedly not covered by any of the other items, they would fall within the residuary entry. Further, according to learned Counsel, the nomenclature of the scheme is irrelevant so long as the provisions of the 1970 Scheme actually cover...
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