IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3061 OF 1997
1. Union of India through the Secretary ) to the Government of India, Ministry )
of Finance, Department of Economic )
Affairs, North Block, New Delhi. )
2. The General Manager, ) India Security Press, )
Nashik Road - 422 101 (Nashik) ) ....Petitioners versus
1. Shri ِArun Vithal Bonde )
2. Smt. M.G. Purohit. )
3. Smt. Suniti Sudhir Sane )
4. Kunjana George, )
5. Smt.Nirmala Ramesh Joshi )
6. Shri Shankiar Pandurang Golesar )
7. Smt. Ashalata Hitange )
8. Smt. Mery Singh )
9. Shri Keru Karbhari Shinde )
10. Shri Deepak Daga Nikam )
11. Shri Sunil Kumar Messary )
12. Smt. Sarjabai Pavanu Taide )
13. Smt. Chandrabhagabai Vishnu Sawant )
14. Smt. Shahaubai Hari Pawar )
15. Smt. Rukhmanibai Maruti Ware )
16. Shri Suryakant Shivram Deshpande )
17. Shri Nandkishor Vishwanath Ranade )
18. Shri Balasaheb Bhikaji Munde )
19. Shri Sanjay Manajui Salve )
20. Shri Gulab Nanabhau Ghorpade )
21. Shri Cherian Varkey Mathew )
22. Smt. Vasundhara Nitin Pagare )
23. Shri Ashok Baburao Vidhate )
24. Smt. Amruta Hemant Kulkarni ) 2
25. Shri Balasaheb Bhikaji Rokade )
26. Shri Arun Shankar Tajanpure )
27. Shri Sanjay Kashinath Gaikwad )
28. Shri Balu Tukaram Shinde )
29. Shri Prabhakar Baliram Bankar )
30. Shri Dilip Baburao Bhoye )
31. Shri Sudam Malaji Mahajan )
32. Shri Prakash Baburao Bhoye )
33. Shri Sukhdev Raghu Pagare )
34. Shri Shaikh Javed Abdul Latif )
35. Shri Sandip Umakant Patil )
36. Shri Ajit Tukaram Sonar )
37. Shri Devendra Shankar Pakhale )
38. Smt. Shaila Rajendra Muley )
39. Shri Govind Ramdas Patil )
40. Shri Sanjay Nanaji Jadhav )
41. Shri Ashok Madhavrao Khandale )
42. Shri Sudhir Pralhad Deshmukh )
43. Shri Jairam Bhagaji Gadekar )
44. Shri Eknath Rajaram Mali )
45. Shri Sampat Shipalli Kondavale )
46. Shri Namdeo Sahadu Shinde )
47. Shri Prabhakar Shivram Deshpande )
48. Shri Anant Ganpat Shinde )
49. Smt. Yamunabai Vishnupant Kale )
50. Shri Dhananjay Trimbak Mahajan )
51. Shri Shravan Sukhdeo Lokhande )
52. Shri Santulal S. Kanojia )
53. Shri Deonath K. Shrivastava )
54. Shri Muralidhar Raghunath Dabhade )
55. Shri Gokul Prasad Gupta )
56. Shri Rajendra Arun Mahale )
57. Shri Shantaram Nargan Sarode )
58. Shri Shiv Kumar Bahari )
59. Shri Dnaneswar Baburao Sonawane )
60. Shri Dada Maroti Bhalerao )
61. Shri Santosh Janardhan Kulthe ) )
Respondens No.1 to 61, all employees )
of I.S.P. Hospital, Nehru Nagar, )
Nashik Road 422101 (Nashik) )
62. Shri S.B. Panse, ) Presiding Officer, Central Government )
Labour Court No.2, Mumbai, having )
Office at 4th Floor, City Ice Building )
298, P. Nariman Street, Fort, )
Mumbai 400 001. ) .. Respondents Mr. Y.S. Bhate with Mr. N.R. Prajapati for the Applicants. Ms. Seema Sarnaik for the Respondents No.1 to 61. CORAM : S.J. VAZIFDAR, J.
DATE : 3RD MARCH, 2010.
ORAL JUDGMENT :
1. The Petitioners have sought a writ or certiorari to quash and set aside the Awards dated 5th December, 1996, and 21st March, 1997, passed by the Presiding Officer, Central Government, Labour Court No.
2. Petitioner No.2 is the India Security Press. Respondent Nos. 1 to 61 are the employees appointed and posted to work in the dispensary of the hospital established by the Petitioners for the purpose of rendering medical assistance to the workers, staff and officers of the India Security Press. They were engaged as dressers, ward-boys etc. 4
and were admittedly all Class-IV employees. Some of them have, during the pendency of the proceedings, retired and/or been transferred.
3. The employees filed applications under Section 33-C(2) of the Industrial Disputes Act, 1947, contending that they were entitled to get payment of overtime allowance at twice the rate of their ordinary wages. This was on the basis of Section 59 of the Factories Act, 1948. It is not necessary to deal with the facts regarding any of the employees as the question that arises for consideration is based only on the provisions of law viz. the Factories Act, 1948 and the Bombay Shops & Establishments Act, 1948. Further, there is no dispute that each of the Class-IV employees worked in the dispensary or hospital which was run and managed by the Petitioners expressly and exclusively for the purposes of the India Security Press. Nor do I intend dealing here with the merits of the individual employees including as regards the number of hours of work that they actually put in and the amount of overtime that they are entitled to. That is a matter of computation.
4. The first question that falls for consideration is whether the said employees can be said to have worked in a factory. Sections 2 (k), (l), (m) and 59 of the Factories Act read as under :- 5
"2 (k) "manufacturing process" means process for - (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise
treating or adapting any article or substance with a view to its use, sale, transport,
delivery or disposal; or
[(ii) pumping oil, water, sewage, or
any other substance; or]"
(iii) generating, transforming or transmitting power; or
[(iv) composing types for printing,
printing by letterpress, lithography, photogravure or other similar process or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or
[(vi) preserving or storing any article in cold storage.]
(l) "worker" means a person [employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration 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, [but does not include any member of the armed forces of the Union;] [emphasis supplied] (m) "factory" means any premises including the precincts thereof -
(i) whereon ten or more workers are working, or were working on any day of the preceding 6
twelve months, and in any part of which a
manufacturing process is 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."
59. Extra wages for overtime. - (1) Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect to overtime work, be entitled to wages at the rate of twice his ordinary rate of wages."
5(A). In the case of Dr. H.M. Datar v. P.S. Shivram, General Manager, India Security Press in Writ Petition No.3846 of 1983, a learned Single Judge of this Court, by an order and judgment dated 8th July, 1991, considered the same issue. In that case, the applicants worked in various capacities in the same dispensary attached to the same factory of the India Security Press. Thus, the employer and the location were the same as in the present case. In that sense, the facts of this case are identical. Only the designation of the Petitioners therein and the employees herein i.e. Respondent Nos.1 to 61 is different. If anything, the case of Respondent Nos.1 to 61 is, for that reason, stronger.
(B) It was contended on behalf of the India Security Press that the Petitioner there was not working in the factory, but in the dispensary of the department which was situated within the precincts of the factory and that they were not borne on the establishment of the factory, but were borne on the general establishment. It was further contended that the Petitioners were not required to enter the factory for the performance of their usual duties, except emergency cases on rare occasions.
(C) After referring to the provisions of the Factories Act and the Maharashtra Factories Rules, 1963, the learned Judge held that the dispensary was connected with the India Security Press and was governed by the provisions of the Factories Act and that, therefore, the Petitioners were entitled to overtime wages as stipulated in Section 59 of the Factories Act. As noted by the learned Judge, the crucial point that had arisen in that case was whether the dispensary in question was a part and parcel of the India Security Press and/or was an integral part of the India Security Press. This was in view of the impugned order therein holding that the dispensary was a separate entity and not a part of the India Security Press. This finding was set aside. The learned Judge, based on a letter addressed by the General Manager of the India Security Press to the Under Secretary of the Government of India, 8
Ministry of Finance, observed that the India Security Press had a dispensary in the residential area for twenty-five years with appropriate medical staff which catered to the requirements of the workers "while on duty as well as those staying in the India Security Press and that emergency duties were also arranged to meet any exigency during day and night". In other words, it was found that there was a dispensary attached to and for the purpose of providing medical care for the workmen-employees of the India Security Press. It was further held that the dispensary was situated in the precincts of the India Security Press. The service conditions of the persons working in the dispensary are also governed by the Fundamental Rules of the India Security Press and the expenditure in relation to the dispensary was borne by the India Security Press. Only the employees of the India Security Press were entitled to the benefits of the dispensary. The learned Judge, therefore, allowed the Writ Petition and set aside the impugned orders. The India Security Press was directed to file the calculations of the amounts due and payable in order to enable the court to compute the amounts and directed payment thereof.
6. The Supreme Court, by an order dated 8th October, 1992, dismissed the Special Leave Petition against the judgment and observed 9
that the liability for overtime had ceased with the amendment to Section 70 of the Bombay Shops & Establishments Act, 1948 with effect from 26th June, 1986 as the amendment had the effect of deleting the non- obstante clause in Section 70 of that Act as it stood earlier. As I will presently indicate, this observation pertained to the employment category of the Petitioner in that Writ Petition, who was a doctor/Assistant Medical Officer with the India Security Press. The provisions would not affect Respondent Nos.1 to 61 in this Writ Petition who are Class-IV employees.
7(A). Section 70 of the Bombay Shops & Establishments Act, prior to the amendment, read as under :-
"70. Persons employed in a factory to be governed by the Factories Act and not by this Act :
Nothing in this act shall be deemed to apply to a Factory and the provisions of the Factories Act, 1948 shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a Factory provided that, where any shop or commercial establishment situate within the precincts of a Factory is not connected with the manufacturing process of the factory the provisions of this Act, shall apply to it. Provided further that, the State Government may, by notification in the Official Gazette, apply all or any of the provisions of the Factories Act, 1948, to any shop or commercial establishment situated within the precincts of a factory and on the application of that Act to 10
such shop or commercial establishment, the provisions of this act shall cease to apply to it."
(B). Section 70 of the Bombay Shops & Establishments Act after the amendment reads as under :-
"70: Persons employed in factory to be governed by Factories Act and not by this Act :
Nothing in this Act shall be deemed to apply to a Factory to which the provisions of the Factories Act, 1948, (LXIII of 1948) apply.
Provided that, where any shop or commercial establishment situate within the precincts of a factory is not connected with the manufacturing process of the factory the provisions of this Act shall apply to it." The amendment to Section 70 was in view of the judgment of the Supreme Court in the case of Union of India vs. G.N. Kokil.
8. The effect of the amendment was considered by the judgment of a Division Bench of this court dated 31st January, 2006, in the case of Union of India vs. A.K. Biswas & ors. in Writ Petition No. 5956 of 2005. The India Security Press was Petitioner No.2 in this Writ Petition. The Respondent therein was posted to work in the Technical Section. He was not a Class-IV employee as are the Respondent- 11
employees in the present case. The Division Bench referred to the provisions of Section 64 of the Factories Act and Rule 100 of the Maharashtra Factories Rules which read as under :- "64. Power to make exempting rules.- (1) The State Government may make rules defining the persons who holds positions of supervisions or management or are employed in a confidential position in a factory, [or empowering the Chief Inspector to declare any person, other than a person defined by such rules, as a person holding position of supervision or management or employed in a confidential position in a factory if, in the opinion of the Chief Inspector, such persons holds such position or is so employed] and the provisions of this Chapter, other than the provisions of clause (b) of sub- section (1) of section 66 and of the proviso to that sub- section, shall not apply to any person so defined [or declared]:"
"Rule 100. Persons defined to hold positions of supervision or employed in a confidential position. (1) In a factory the following persons shall be deemed to hold position of supervision or management within the meaning of sub-section (1) of section 64, provided they are not required to perform manual labour or clerical work as a regular part of their duties namely;
(x) Foreman, Chargeman, Overseer and Supervisor." The Division Bench noted that the result of the amendment was to modify the provisions of Section 70 insofar as they laid down an exception to the applicability of the Factories Act to all persons 12
employed in a factory, irrespective of whether or not they were workers. In other words, the Section, as it stood, had the effect of overriding Rule 100 of the Maharashtra Factories Rules. This was reversed by virtue of the amendment. Thus, in the result, the effect of the amendment was that Rule 100 would have full force and effect. Consequently, persons belonging to the categories mentioned therein would be excluded from the purview of the Factories Act.
Considering the designation and the nature of work of the Respondents therein who were posted to work in the Technical Section of the India Security Press as Supervisors, the Division Bench held that the question as to whether the exemption in Rule 100 would apply to them was a question of fact to be determined by the Central Administrative Tribunal. To reiterate, Rule 100 included supervisors provided they were not required to perform manual labour or clerical work as a regular part of their duties. Thus, whether the Respondents therein were supervisors would depend upon the nature of their duties. As the pleadings were found to be insufficient in this regard, the Division Bench remanded the proceedings to the Tribunal to enable the parties to place the relevant material relating to the applicability of Rule 100 with a direction to the Tribunal to decide the issue on the basis of the judgment.
9. If there was any doubt about the nature of the duties of the Respondent-employees in the present case, I would have followed the same course as did the Division Bench viz. remanding the matter to Respondent No.62. It is, however, not necessary to do so in the present case for the reason that the Respondent-employees are admittedly Class- IV employees and do not fall within the purview of the term "supervisor" in Rule 100. They are, therefore, clearly covered by the provisions of the Factories Act and entitled to the benefit of Section 59 thereof.
10. This leaves for consideration the question whether Respondent Nos.1 to 61 fall within the ambit of the expression "worker" in Section 2(l) of the Factories Act. In other words, whether Respondent Nos.1 to 61 can be said to be persons employed in any manufacturing process or in any kind of work incidental to or connected with the manufacturing process.
11. In my view, Respondent Nos.1 to 61 clearly fall within the ambit of the expression "worker" for the work that they do is incidental to and connected with the manufacturing process. The workers who actually work on the machines are employed in the manufacturing 14
process. Section 2(l), however, includes workers employed "in any other kind of work incidental to, or connected with the manufacturing process". The ambit of these words is very wide and must necessarily include those who are not employed in the manufacturing process." The words "any other kind of work" emphasizes that the work is other than that of the manufacturing process itself. The nature of the "other work" may not be the manufacturing process per se or a part thereof. The work may be entirely different. It must, however, be incidental to or connected with it. Such other work must have a nexus to or be proximate with the manufacturing process for instance by contributing to or facilitating the manufacturing process.
12. An important criteria in determining whether the "other kind of work" is "incidental to, or connected with the manufacturing process" is to examine the effect thereof on the manufacturing process. The test would be to ascertain the effect on the manufacturing process if the said work is not done. If the manufacturing process is adversely affected by such work not being done, it would be an indication that such work is incidental to, or connected with the manufacturing process. It would bear a nexus to and be proximate with the manufacturing process. The effect must also be apparent and proximate, not illusory, fanciful or too remote.
13. The determination of this question would depend upon the facts of each case. It is not the nature of such other work alone, but the manner and circumstances in which it is done that would determine whether it is incidental to, or connected with the manufacturing process. Thus, it is not every doctor, driver watchman and technician whose work can be said to be incidental to, or connected with the manufacturing process, but only those whose work bears some nexus to or proximity with the manufacturing process who could be said to be workers within the meaning of Section 2(l).
14. Medical facilities benefit anyone irrespective of the terms on which it is rendered. Medical and other facilities may well be permitted by an employer to its employees as a term of the employment independent of and unconnected in any manner with the manufacturing process. On the other hand they may, although obviously benefiting the employee, be necessary for facilitating the business/manufacturing process itself. While the former case would not fall within the ambit of the expression ".....any other kind of work incidental to or connected with the manufacturing process", the latter would.
15. As noted in Datar's case, the dispensary in the present case 16
is not only within the precincts of the India Security Press, it is also an integral part thereof and the staff of the dispensary catered to the requirements of the workers even "while on duty". The dispensary and those working therein thus provide assistance to those engaged in the manufacturing process not independently of and unconnected with the manufacturing activities as a separate facility but directly in relation to and in connection with their work in and of the manufacturing process. The services rendered by those working in the dispensary are not a mere perquisite or facility as an incidence of service or as a term of the employment of those involved in the actual manufacturing process unconnected with the Petitioners manufacturing activities. They are actually connected with the manufacturing process through those involved with the same.
16. Take for instance a case where one or more workers is injured while at work. The medical assistance would be provided to them at site facilitating their continuing to work even immediately. In the absence of the medical facility, the manufacturing activities/process would be affected. The rendering of medical assistance at work on the other hand would facilitate the same. The connection is thus apparent.
17. The Petitioner did not invite my attention to any 17
circumstances that indicated the contrary. Nor did they dispute the factual aspect regarding the work of those employed in the dispensary.
18. In the circumstances, the impugned orders are upheld. The orders shall be implemented and the amounts shall be paid with interest at 12 per cent per annum from the date they were due till payment, on or before 30th June, 2010. There shall, however, be no order as to costs.