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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)
ig ) ....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 )
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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
ig )
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) )
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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.
igCORAM : 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.
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.
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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 :-
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“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) printing by composing types for printing, letterpress, lithography, photogravure or other similar process or book-binding;] 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 themanufacturing 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,
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6twelve months, and in any part of which a
manufacturing process is being carried onwith 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 beingcarried 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, inrespect 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.
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(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,
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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
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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 commercialestablishment 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::: Downloaded on – 09/06/2013 15:39:52 :::
10such 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-
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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 oremployed 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 thisChapter, 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
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12employed 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.
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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
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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.
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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
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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
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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.
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