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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.163 OF 2007
with
CIVIL APPLICATION NO.1809 OF 2007
Poonya Steel Processors Pvt. Ltd. ..Petitioner.
Vs.
State of Maharashtra and others ..Respondents.
....
Mr. S.C. Naidu with Mr. Jay Choksi i/b M/s. C.R. Naidu & Co. for the
Petitioner.
Mr. A.P. Vanarase, AGP for Respondent No.1.
Ms. Lata Desai i/b Ms. Pallavi Divekar for Respondent No.2.
....
CORAM: DR. D.Y. CHANDRACHUD, J.
11th December, 2008.
ORAL JUDGMENT :
1. Rule, by consent of the learned counsel made returnable
forthwith. Counsel appearing for the Respondents waive service.
With the consent of the learned counsel and at their request, the
matter is taken up for hearing and final disposal.
2. The Petitioner has a factory at Taloja in the District of
Raigad and engages in the work of decoiling HR and UR coils. The
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Petitioner was registered with the Bombay Iron and Steel Labour
Board (the Second Respondent to these proceedings) and was
assigned Registration No.1901. The Second Respondent has been
constituted under the Maharashtra Mathadi, Hamal and other Manual
Workers (Regulation of Employment and Welfare) Act, 1969. The
Board is in charge of implementing the Bombay Iron and Steel
Unprotected Workers scheme which has been framed under the Act.
In paragraphs 4 and 5 of the Petition, the Petitioner has explained the
nature of its operations. For convenience of reference it would be
appropriate to extract the relevant averments in their entirety :
“4. The Petitioner company is engaged in the work of
decoiling HR and CR Coils. These coils come in a rollranging from 10 tons to 28 tons. The said coils are
decoiled, straightened and cut to size as per specifications
of the customers of the Petitioner company. The entire
work of lifting, shifting, stacking, decoiling, straightening,
cutting to size, re-loading, etc. is completely mechanical.
The Petitioner company has a work shed of around 24000
sq.ft.
5. The work shed has four overhead Electrically
Operated Traction cranes (EOT). The EOT cranes aremulti directional and are capable of carrying 28 metric tons.
The goods can be lifted, shifted, stacked and/or loaded both
by sling as well as by hook. The coils (HR/CR/GP) are sent
by the customers upto the work shed of the Petitioner
company. The work shed is so constructed that the
luggage compartment of the truck enters the work shed.
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The EOT crane is utilized for unloading and stacking the
coils in the stores. Upon receipt of the specifications thecoils are shifted from the store to the de-coiling machine by
the EOT cranes. The entire process from de-coiling topalliating is fully mechanized. No manual labour is required.
After the pallets are made the same are stacked. The
vehicles for picking up finished goods are sent by the
customers. The Petitioner company loads the pallets in thetruck by using EOT. The manual work involved in the entire
operation is to sling the pallets while loading it into the
truck. The said operation is performed by one manual
worker. It may be stated here that placing the hook to thecoil is an automatic job and carried out by the crane
operator. Hence the only operation where manual labour isrequired is during loading of the pallets.”
3. In the affidavit in reply that has been filed by the Second
Respondent it has been averred that the Petitioner uses cranes for
the purposes of unloading coils. However, some part of the work is
required to be done manually. The Board had initially allotted two
mathadi workers to carry out the said operations, comprised in Toli
No. 404. In October 2003 the union – the Third Respondent to these
proceedings – represented to the Board that the material of Tata Steel
and M/s. Ispat was being unloaded at the factory of the Petitioner and
that consequently Toli Nos.A-1 to A-16 which were allotted to Tata
Iron and Steel Company Limited should be alloted to the factory of the
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Petitioner.
4. Following the representation submitted by the union, the
Board allotted Toli Nos. A-1 to A-16 to the Petitioner on 6th November,
2003. The Petitioner objected to the allotment of the aforesaid tolies
and claimed before the Board that it was not doing any work for Tata
Iron and Steel Company Limited. The Board in its reply filed in these
proceedings has clarified that it deputed its inspector to inspect the
factory of the Petitioner, when it was found that the work of cutting,
decoiling and slitting of material belonging to various companies was
being carried out. According to the Petitioner it engages in carrying
out job work for various third parties and the material which is
received thereupon is sent back. The Board was satisfied with the
explanation submitted by the Petitioner and on 9th December, 2003
the allotment of Tolies A-1 to A-16 to the Petitioner was cancelled.
Simultaneously the Board allotted Toli No. 404 comprising of two
manual workers to the Petitioner for carrying on its scheduled
operations. The Chairman of the Board visited the establishment of
the Petitioner on 2nd June, 2005. In its reply the Board has stated that
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the inspection revealed that the Petitioner was carrying out job work
for various companies and manual work of fixing slings over the
material was being carried out only by two mathadi workers. The
Board has stated that it was of the view that since most of the work
was mechanized, the two mathadi workers allotted by the Board were
adequate and there did not appear to be a need to increase the
number of workers. However, if the work increases in future,
additional strength of mathadi workers would have to be given. An
intimation was accordingly furnished by the Chairman of the Board to
the Joint Commissioner of Labuor.
5. On 30th August, 2006 a meeting was held under the
chairmanship of the State Minister of Labour to resolve the issue in
regard to the allotment of mathadi workers to the establishment of the
Petitioner. On behalf of the Board a statement was made by its
representative that the Board had already allotted two mathadi
workers on Toli No.404 to the Petitioner and the work may be allowed
to be carried out by the aforesaid workers. However, in the event that
there was an increase in the quantum of work in future, the Board
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would consider allotting workers from Toli Nos. A-1 to A-16. The
Minister of Labour, however, issued a direction that while keeping the
allotment of the existing two workers in tact, the Board should allot
eight workers from Toli Nos.A-1 to A-16 to the Petitioner and that
necessary proceedings should be adopted against the Petitioner by
issuing a notice to show cause.
6.
The order passed on 30th August, 2006 has been called into
question in these proceedings.
7. On behalf of the Petitioner it has been submitted that (i) The
impugned order was passed in violation of the principles of natural
justice since the Petitioner was not furnished a due opportunity of
being heard; (ii) The order that is passed is ultra vires the provisions
of the Act and the Scheme and (iii) the Minister of Labour has
usurped the powers of the Board.
8. As already noted earlier the Second Respondent has filed
an affidavit in reply in these proceedings and the learned counsel
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appearing on behalf of the Board has placed before the Court the
material facts as set out therein. The Learned AGP has attempted to
sustain the order passed by the Board.
9. Section 3 of the Act provides that for the purpose of ensuring
an adequate supply and full and proper utilization of unprotected workers
in scheduled employments and generally for making better provisions
for the terms and conditions of such workers, the State Government
may by means of a scheme provide for the registration of employers
and unprotected workers in any scheduled employment and provide
for the terms and conditions of work of registered unprotected
workers. Sub section (2) of Section 3 lays down the provisions which
may be made in a scheme framed under the Act. Among them in
clause (d) is regulating the employment of registered unprotected
workers and the terms and conditions of employment. The power to
frame schemes is vested in the State Government under Section 4.
The State Government is empowered to establish one or more
Boards under Section 6 of the Act. Under Section 7 the Board is
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responsible for administering the scheme. Under sub-section (4) of
Section 7 the Board in the exercise of powers and discharge of its
functions is to be bound by such directions as the State Government
may for reasons to be stated in writing give to it from time to time. As
already noted earlier, it is in exercise of the statutory powers
conferred upon it that the State Government has framed the Bombay
Iron and Steel Unprotected workers scheme.
10.
The Petitioner was alloted two mathadi workers from Toli
No. 404 following its registration under the scheme. On a complaint
made to the Board that the petitioner was handling material for certain
third parties, the Board initially allotted eight workers from Toli Nos.
A-1 to A-16 by its order dated 6th November, 2003. The Petitioner
objected to the allotment contending that as a matter of fact it was not
carrying on any work for Tata Iron and Steel Company Limited and
hence, there was no justification to allot the workers from Toli Nos. A-
1 to A-16 on the ground that they have been allotted to the aforesaid
company. As the Board states in its reply in these proceedings the
inspectors of the Board were deputed to carry out an inspection of the
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factory of the Petitioner. The Board has stated on affidavit that it was
satisfied with the explanation furnished by the Petitioner and
cancelled the letter of allotment on 9th December, 2003 and allotted
two manual workers from Toli No. 404 to the Petitioner for its
operations. The Board has also stated that an inspection was carried
out on 2nd June, 2005 by its chairperson when it was noticed that
since most of the work was mechanized, the two mathadi workers
who were allotted by the Board were adequate to deal with the
volume of the work. The Board which is a statutory authority primarily
responsible for administering the Scheme was therefore clearly of the
view that the nature and volume of work which was being carried out in
the establishment of the Petitioner would justify the allotment of
two mathadi workers who had been allotted from Toli No.404.
11. The Minister of Labour convened a meeting on 30th August,
2006 and proceeded to issue a direction that in addition to the
aforesaid two workers, eight other workers from Toli Nos.A-1 to A-16
should be allotted to the factory of the Petitioner. The minutes of the
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meeting are bereft of any justification in support of such a direction.
Undoubtedly, the State Government is vested with a controlling and
directing power under Sub – section (4) of Section 7. This provision,
however, lays down that the Board would be bound by such directions
as the State Government may for reasons to be stated in writing
issue to it from time to time. Reasons are, however, conspicuous by
their absence in the impugned order. The power which is conferred
controlling and directing
upon the State Government under Section 7(4) is in the nature of a
power. The directions which the
Government can give under Section 7(4) are not to be issued at the
whims and fancies of the Government, but for stated reasons, where
the Board has failed to achieve the objects of the Act or to discharge
its functions where, in the present case, the Board had upon a
physical inspection determined the complement of workers required at
the factory and having regard to the nature and extent of
mechanization at the establishment determined a particular
complement of mathadi workers, the State Government ought to
have given due deference to the view taken by the Board. Even
assuming that the Government was within its jurisdiction to override
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the decision of the Board in exercise of powers under Section 7(4),
such a decision can be overridden on cogent grounds when a
justification is made out for reasons in writing. That has not been
done. The exercise of powers by the State Government under
Section 7(4) is ultra vires because the conditions precedent for the
exercise of such powers have not been fulfilled. In the meeting that
was held on 30th August, 2006, there was no factual determination to
the effect that the reasons which had weighed with the Board in
allotting two mathadi workers were incorrect or that the nature and
volume of work would justify the allotment of an additional strength of
workers. The Board it may be noted had stated in the meeting of 30th
August, 2006, should there be an increase in work in the
future, it would consider allotting additional workers from Toli Nos.A-1
to A-16. The direction which has been issued by the State
Government is without any underlying rationale or justification. The
Petition will accordingly have to be allowed. The impugned direction
will have to be set aside. The Petition is accordingly disposed of by
setting aside the directions contained in the minutes of the meeting
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dated 30th August, 2006 (Exhibit H) and the consequential notice
dated 15th November, 2006 (Exhibit M). However, it is clarified that
this shall not preclude the Board, the Second Respondent, from
taking recourse to its statutory powers to assess from time to time the
strength of mathadi workers that is required to be allotted to the
establishment of the Petitioner for carrying out work in any scheduled
employment under the Act and the Scheme. The powers of the Board
shall not be restricted in any manner by the terms of this order. The
Petition is accordingly disposed of. There shall be no order as to
costs.
In view of the disposal of the Petition, the Civil Application
shall stand disposed of.
*****
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