{"id":119319,"date":"1963-02-08T00:00:00","date_gmt":"1963-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-bhikuse-yamasa-kshatriya-p-vs-union-of-india-and-another-on-8-february-1963-2"},"modified":"2017-04-22T19:46:49","modified_gmt":"2017-04-22T14:16:49","slug":"ms-bhikuse-yamasa-kshatriya-p-vs-union-of-india-and-another-on-8-february-1963-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-bhikuse-yamasa-kshatriya-p-vs-union-of-india-and-another-on-8-february-1963-2","title":{"rendered":"M\/S. Bhikuse Yamasa Kshatriya (P) … vs Union Of India, And Another on 8 February, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Bhikuse Yamasa Kshatriya (P) … vs Union Of India, And Another on 8 February, 1963<\/div>\n
Equivalent citations: 1963 AIR 1591, \t\t 1964 SCR (1) 860<\/div>\n
Author: S C.<\/div>\n
Bench: Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M., Gupta, K.C. Das, Shah, J.C.<\/div>\n
           PETITIONER:\nM\/s.  BHIKUSE YAMASA KSHATRIYA (P) LTD.,& ANR.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA, AND ANOTHER\n\nDATE OF JUDGMENT:\n08\/02\/1963\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nHIDAYATULLAH, M.\nGUPTA, K.C. DAS\n\nCITATION:\n 1963 AIR 1591\t\t  1964 SCR  (1) 860\n CITATOR INFO :\n R\t    1964 SC1260\t (6)\n R\t    1966 SC 370\t (11)\n RF\t    1974 SC1832\t (62,66,68)\n R\t    1974 SC2349\t (10)\n\n\nACT:\nBidi   Roller-Deemed  worker  by  Government   Notification-\nNotification,  if  invalid and\tdiscriminatory-If  infringes\nfundamental right-Factories Act, 1948, ss. 2 (1), 2 (m), 79,\n85-Constitution of India, Arts. 14,19 (1) (g).\n\n\n\nHEADNOTE:\nBidi  rollers  were  formerly given the\t benefit  of  weekly\nholidays and wages in lieu of holidays.\t But as a result  of\nthe  decision  of  this Court, the  owners  of\tbidi  making\nestablishments\tin the State of Maharashtra refused to\tgive\nthem those benefits. there was great unrest and consequently\nthe  State of Maharashtra issued a notification under s.  85\nof  the Factories Act which made bidi rollers in places\t set\nout  in\t the Schedule \"deemed workers\" and on  that  account\nentitled  to  the  benefits provided to\t workers  under\t the\nFactories Act.\nThe petitioners challenged before this Court the validity of\ns.  85 of the Factories Act and the notification  issued  in\nexercise  of the authority conferred thereby on\t the  ground\nthat  the  provisions of s. 85 and the\tnotification  issued\nthereunder   infringed\t the  fundamental  rights   of\t the\npetitioner   under   Arts.  14\tand  19\t (1)  (g)   of\t the\nConstitution.\nHeld,  that s. 85 which authorises the State  Government  to\nissue  a notification applying all or any of the  provisions\nof  the Factories Act to any place in which a  manufacturing\nprocess\t is  carried on and which involves  the\t consequence\nthat  the place is deemed a factory and the persons  working\ntherein are deemed workers, is not by itself  discriminatory\nso  as\tto  infringe  Art.  14\tof  the\t Constitution.\t The\nprovision also does not amount to authorising the imposition\nof  unreasonable restrictions upon the fundamental right  of\nthe  owner  of the factory to carry on\this  business.\t The\nimpugned  notification is not open to attack on\t the  ground\nthat  the  State issued the notification  by  selecting\t for\napplication of the provisions of the Act some out of the\n 861\nmany places in which Bidi-manufacturing processes are  being\ncarried\t on.  In so far as the notification seeks  to  apply\nthe.'  provisions of the Act imposing upon the owner  or  an\noccupier  of  the factory obligation to grant  annual  leave\nwith wages, it does not impose any unreasonable restriction.\nSection\t 85  was  enacted  with\t the  object  of  conferring\nauthority  on the State Government to extend in\t appropriate\ncases the provisions of the Factories Act to  establishments\nwhich are otherwise not factories within the meaning of\t the\nAct  and to ensure to persons working in factories  even  if\nnot  workers  within the meaning of the\t Act,  the  benefits\nprovided   thereby.   The  section  authorises\t the   State\nGovernment to make all or some of the provisions of the\t Act\napplicable  to any place wherein a manufacturing process  is\ncarried on with or without the aid of power, notwithstanding\nthat the number of persons employed therein is less than the\nnumber specified in the definition of \"factory\"or where\t the\npersons\t working therein are not employed by the  owner\t but\nare working with the permission of, or under agreement with,\nsuch owner.\nIf  s. 79 is made applicable as a result of  a\tnotification\nissued under s. 85, it would apply to those workers only who\nwork  in the factory for the full period  prescribed  tinder\nss. 61, 66 (1) and .71 of the Factories Act by the employer.\nA  deemed worker' who is paid only for work done by him\t and\nwho  is under no obligation to attend at any fixed time\t may\nbe  entitled to the benefit of annual leave with wages\tonly\nif  he fulfils the working conditions applicable to  workers\nas defined in s. 2 (1)of   the\t Factories   Act.     The\nprivilege  of  working\tfor a period less  than\t the  period\nprescribed for regular workers in afactory will not, if\nhe works for less than the prescribedhours,  come to  the\naid  of a \"deemed worker\" so as to enable him to  claim\t the\nbenefits of s. 79.  However, that privilege will not deprive\nhim  of\t the benefit of s. 79 if he fulfils  the  conditions\nrelating  to the duration of work.  The fact that a  \"deemed\nworker\"\t in  a\tfactory\t to  which  s.\t79  is\textended  by\nnotification, by virtue of his contract or otherwise, is not\nbound to attend at times fixed by the owner of the  factory,\ndoes  not  mean\t that he can never  fulfill  the  conditions\nrelating  to attendance for earning leave with wages.  If  a\n',deemed  worker\" attends the factory for the full  duration\nfixed as factory hours and works for 240 days or more during\na calendar year, he would be entitled to the benefits of ss.\n75 and 80 of the Act.\nThe Factories Act is an Act to consolidate and amend the law\nregulating labour in factories The Act has been\n862\nenacted\t primarily  with the object  of\t protecting  workers\nemployed  in factories against industrial  and\toccupational\nhazards.   For\tthat purpose, it seeks to  impose  upon\t the\nowner  or the , occupier certain obligations to protect\t the\nworkers\t unwary as well as negligent and to secure for\tthem\nemployment  in\tconditions  conducive to  their\t health\t and\nsafety.\nState  v.  Alisaheb Kashim Tamboli, I.L.R.  1955  Bom.\t642,\nShankar Balaji Waji v. State of Maharashtra, [1962] Supp.  1\nS.C.R. 249, Ram Chandra v. State (1956) I.L.R. 35 Pat.\t877,\nM\/s.   Bhikusa\tYamasa Kshatriya v. Sangamner  Akola  Taluka\nBidi   Kamgar  Union'<\/a>  [1963]  Supp.  1\t S.C.R.\t  524.\t and\nBridhichand Sharma v. The First Civil Judge, Nagpur,<\/a>  [1961]\n3 S.C.R. 161, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petition No. 145 of 1962.
\nPetition  under\t Art. 32 of the Constitution  of  India\t for
\nenforcement of Fundamental rights.\n<\/p>\n
G.S.  Pathak,  J.  B. Dadachanji, O. C.\t Mathur\t for  the
\npetitioners.\n<\/p>\n
C. K. Daphtary,Solicitor-General of India, N.\t  S.
\nBindra and R. H. Dhebar, for the respondents.
\n1963.\tFebruary 8. The judgment of the Court was  delivered
\nby
\nSHAH,  J.-The first petitioner is a private limited  Company
\nincorporated  under the Indian Companies Act, 1913  and\t the
\nsecond petitioner is a Director of the Company.\t The Company
\nmaintains  23 establishments for manufacturing bidis in\t the
\nDistrict  of  Nasik, Poona and Ahmednagar in  the  State  of
\nMaharashtra.   A large majority of these establishments\t are
\nborne  on the registar of factories maintained by the  Chief
\nInspector of Factories under the Factories Act, 63 of  1948.
\nCraftsmen  called rollers, attend these\t establishments\t and
\nprepare bidis,
\n 863<\/span>
\nusing materials supplied by the Company.  The establishments
\nremain\topen during specified hours but the rollers are\t not
\nbound to attend for any fixed period ; a roller may come  to
\nand  leave the establishment according as is  convenient  to
\nhim,  and  he  is  paid for the\t bidis\tturned\tout  by\t him
\naccording  to a fixed tariff.  It appears that this  is\t the
\naccepted  modus\t of  work  in  bidi  establishments  in\t the
\nMaharashtra region.  These establishments were, it was\theld
\nby the Bombay High Court, ‘factories’ and the rollers  work-
\ning  therein  were  “workers’  within  the  meaning  of\t the
\nFactories  Act\t63 of 1948 : The State\tv.  Alisaheb  Kashim
\nTamboli\t (1).\tIn that case the High Court  held  that\t the
\nexpression “employed’ in s. 2 (1) of the Factories Act, 1948
\ndoes not necessarily involve the relationship of master\t and
\nservant, and therefore owners of bidi establishments had  to
\nconform\t to  the requirements of the Factories\tAct  and  to
\nafford to the workers the benefits provided under that\tAct,
\neven  though the workers did not maintain uniform  hours  of
\nattendance, and were paid only for bidis turned out by them.
\nBut  this  Court  in Shankar Balaji Waje  v.  The  State  of
\nMaharashtra<\/a>  (2)  —  (Subba Rao, J.  dissenting)-  held  in
\ndealing\t with  the case of workers in an  establishment\t for
\nmanufacturing  bidis whose attendance was  characterised  by
\nthe  features  hereinafter  set\t out,  that  they  were\t not
\nemployed within the meaning of s. 2 (1), and could not claim
\nthe privileges accorded to workers by ss. 79 and 80 of\tthat
\nAct.  The features noticed by the Court were, that there was
\nno agreement or contract of service between the owner of the
\nestablishment  and the bidi roller; the bidi roller was\t not
\nbound  to attend the factory for any fixed hours or to\twork
\nfor  any fixed period; he was free to go to the\t factory  at
\nany time he liked and was equally free to leave the  factory
\nwhenever he liked; the bidi roller could be absent from work
\non  any\t day,  and if his absence was expected to  be  of  a
\nduration  longer  than ten days he informed  the  owner\t not
\nbecause he had to obtain
\n(1) T.L.R. 1955 Bom. 624.\n<\/p>\n
(2) [1962] Supp.  1 S.C.R. 249.\n<\/p>\n
864<\/span><\/p>\n
permission or leave, but for assuring the owner that he\t did
\nnot intend to give up work at the factory;   there  was\t  no
\nactual supervision of work which the\tbidi  roller did  in
\nthe factory, and he was paid at fixed rates on the  quantity
\nof  bidis turned out there being no stipulation for  turning
\nout any minimum quantity of bidis in a day; bidi leaves were
\nsupplied  to  the rollers for being taken home and  cut\t and
\ntobacco was supplied at the factory, but they were not bound
\nto roll bidis at the factory – they could take the materials
\noutside\t after\tobtaining permission of the  owner;  at\t the
\nclose of the day the bidis used to be delivered to the owner
\nand bidis not up to the standard were rejected; and the bidi
\nworker’s attendance was not noted though the days he  worked
\ncould be ascertained from the work register.  The Court held
\non these facts that the bidi roller could not be said to  be
\n’employed’  by\tthe owner and was not  therefore  a  worker,
\nthere being no contract of employment, under which the\tbidi
\nroller\tagreed to serve the employer subject to his  control
\nand supervision.\n<\/p>\n
Since  this Judgment was pronounced, owners  of\t bidi-making
\nEstablishments in the State of Maharashtra commenced denying
\nto the bidi rollers benefit of weekly holidays and wages  in
\nlieu of holidays previously accorded to them and even denied
\naccess\tto the Inspectors appointed under the Factories\t Act
\nto  their  establishments.   There  are\t in  the  State\t  of
\nMaharashtra  more than 35000 bidi rollers borne on  the\t pay
\nrolls\tof  bidi-making\t establishments\t on   the   register
\nmaintained  by the Chief Inspector of Factories.  There\t are
\nalso many other bidi making establishments which are not  so
\nborne  on  the register of the Chief Inspector.\t  There\t was
\ngrave  unrest  among  the bidi rollers\tresulting  from\t the
\ndenial of benefits previously enjoyed by them.\tWith a\tview
\nto  protect  the bidi rollers against  exploitation  by\t the
\nowners of bidi making establishments and against
\n 865<\/span>
\ndeprivation of the benefits enjoyed by them, the  Government
\nof Maharashtra issued the following Notification in exercise
\nof the powers vested under
\ns.   85 of the Factories Act ; –\n<\/p>\n
\t      “In  exercise  of\t the  powers  conferred\t  by
\n\t      section  85 of the Factories Act, 1948  (LXIII
\n\t      of 1948), the Government of Maharashtra hereby
\n\t      declares\tthat all the provisions of the\tsaid
\n\t      Act  shall  apply to the places  specified  in
\n\t      column  2\t of  the  Schedule  appended  hereto
\n\t      wherein a manufacturing process is carried  on
\n\t      with  or\twithout the aid of power  or  is  so
\n\t      ordinarily   carried  on\tthe   establishments
\n\t      specified against them in column 3 of the said
\n\t      Schedule\tnotwithstanding\t that  the   persons
\n\t      working therein are not employed by the  owner
\n\t      of  such\tplaces\tbut  are  working  with\t the
\n\t      permission  of  or under agreement  with\tsuch
\n\t      owner :\n<\/p><\/blockquote>\n
\t      Provided that the manufacturing process is not
\n\t      being  carried on by the owner only  with\t the
\n\t      aid of his family.”\n<\/p><\/blockquote>\n
To the notification was appended a Schedule (including\tmany
\nof  the\t establishments\t of the\t Company)  setting  out\t the
\nparticulars    of   Districts,\t the   places\twhere\t the
\nestablishments\t were\tsituate\t and  the   names   of\t the
\nestablishments.\t The effect of the Notification was to\tmake
\nbidi  rollers  in  places set out in  the  Schedule  ‘deemed
\nworkers”,  and\toil that account entitled  to  the  benefits
\nprovided to workers under the Factories Act.
\nThe  petitioners  then\tchallenged  by\tthis  petition\t the
\nvalidity of s. 85 of the Factories Act and the\tNotification
\nissued\tin exercise of the authority conferred thereby,\t oil
\nthe  plea  that\t the  provisions  of  the  section  and\t the
\nNotification  issued  thereunder  infringe  the\t fundamental
\nrights\tof the petitioners under Arts. 14 and 19 (1) (g)  of
\nthe Constitution.\n<\/p>\n
866<\/span><\/p>\n
‘Factory’ is defined in s. 2 (in) of the Act as meaning “any
\npremises including the precincts thereof :-\n<\/p>\n
\t      (1)   Whereon tenor more,workers are  working,
\n\t      or  were working on any day of  the  preceding
\n\t      twelve  months,  and in any part\tof  which  a
\n\t      manufacturing process is being carried on with
\n\t      the  aid\toft-  power,  or  is  ordinarily  so
\n\t      carried on, or\n<\/p><\/blockquote>\n
\t      (ii)Whereon   twenty  or\tmore   workers\t are
\n\t      working,\tor  were working on any day  of\t the
\n\t      preceding\t twelve months, and in any  part  of
\n\t      which a manufacturing process is being carried
\n\t      on  without the aid of power or is  ordinarily
\n\t      so carried on,-\n<\/p><\/blockquote>\n
but does not include a mine subject to the operation of\t the
\nMines  Act,  1952, or a railway running shed;”\t‘Worker’  is
\ndefined\t in  s.\t 2  (1) of the\tAct  as\t meaning  “a  person
\nemployed, directly or through any agency, whether for  wages
\nor  not,  in any manufacturing process, or in  cleaning\t any
\npart  of the machinery or premises used for a  manufacturing
\nprocess,  or  in any other kind of work\t incidental  to,  or
\nconnected with the manufacturing process, or the subject  of
\nthe manufacturing process;’
\n   Premises  in which a manufacturing process is carried  on
\nwhere the number of workers is less than the minimumprescribed
\ndo  not\t fall within the definition of\t‘factory.   Again  a
\nperson to be a ‘worker’ must be employed in\t       a
\nmanufacturing process. or in cleansing machinery used for the
\nprocess, or in any  work incidental to or connected with
\nthe  manufacturing process.To attract the provisions of\t the
\nFactories Act which confer    certain\tbenefits    and
\nprivileges  upon workers and impose obligations upon  owners
\nof factories qua those workers, there must,
\n  867<\/span>
\ntherefore,  be\ta manufacturing process carried\t on  in\t any
\npremises, the number of persons working in the manufacturing
\nprocess\t or cleansing machinery used for the process  or  in
\nwork  incidental to or connected therewith be not less\tthan
\nthe number specified in the definition in s. 2 (in) and that
\nthe persons so working must be employed (under a contract of
\nservice\t for  wages or not and directly\t or  indirectly.   A
\nperson\tworking\t in a factory, but not under a\tcontract  of
\nservice cannot be regarded as a worker within the meaning of
\nthat expression in s.\t 2 (1) of the Act.\n<\/p>\n
     Section 85 of the Factories Act which occurs in Ch.  IX
\nprovides :\n<\/p>\n
\t      “(i) The State Government may, by notification
\n\t      in  the Official Gazette, declare that all  or
\n\t      any of the provisions of this Act shall  apply
\n\t      to  any place wherein a manufacturing  process
\n\t      is carried on with or without the aid of power
\n\t      or    is\t  so\tordinarily    carried\t on,
\n\t      notwithstanding that-\n<\/p><\/blockquote>\n
\t      (i)   the\t number of persons employed  therein
\n\t      is  less than ten, if working with the aid  of
\n\t      power and less than twenty if working  without
\n\t\t\t    the aid of power, or\n<\/p><\/blockquote>\n
\t      (ii)the\tpersons\t working  therein  are\t not
\n\t      employed by the owner thereof but are “working
\n\t      with  the\t permission of, or  under  agreement
\n\t      with,\t      such owner :\n<\/p><\/blockquote>\n
\t      Provided that the manufacturing process is not
\n\t      being  carried on by the owner only  with\t the
\n\t      aid of his family.\n<\/p><\/blockquote>\n
\t      (2)After\ta place is so declared, it  shall
\n\t      be deemed to be a factory for the purposes of
\n\t      868<\/span>
\n\t      this Act, and the owner shall be deemed to  be
\n\t      the occupier, and any person working therein,a
\n\t      worker.”\n<\/p><\/blockquote>\n
The  section  is  enacted  with\t the  object  of  conferring
\nauthority  to extend in appropriate cases the provisions  of
\nthe Act to establishments which are otherwise not  factories
\nwithin\tthe  meaning of the Act, and to\t ensure\t to  persons
\nworking in factories even if not workers within the  meaning
\nof  the\t Act., the benefits provided thereby.\tThe  section
\nauthorises  the State Government to make all or some of\t the
\nprovisions  of\tthe Act applicable to any  place  wherein  a
\nmanufacturing process is carried on with or without the\t aid
\nof  power,  notwithstanding  that  the\tnumber\tof   persons
\nemployed  therein is less than the numbers specified in\t the
\ndefinition  of\t‘factory.,  or\twhere  the  persons  working
\ntherein\t are not employed by the owner but are working\twith
\nthe permission of, or under agreement with, such owner.\t  On
\nthe  issue  of a Notification by the  State  Government\t the
\nplace designated will be deemed a factory, the owner of\t the
\nplace will be deemed an occupier and persons working therein
\nwill be deemed workers.\n<\/p>\n
\t    Section  85, it is contended, is invalid on\t the
\ngrounds\t that it imposes unreasonable restrictions upon\t the
\nfundamental right of the owner to carry on his business, and
\nit   enables   the  State  Government  by   a\tNotification
\narbitrarily to discriminate between owners of establishments
\nwho  are similarly situate, inasmuch as the Act\t confers  an
\nunguided  and  uncontrolled  power to select  places  to  be
\ndeemed\tfactories by a Notification under s. 85 of  the\t Act
\nand to impose thereby obligations laid by the Factories\t Act
\nupon  the owners of those places.  Before dealing  with\t the
\nimpact\tof  s.\t85 of the Factories  Act  and  the  impugned
\nNotification upon the fundamental rights of the petitioners,
\nit  would  be useful to make a brief retrospect\t of  factory
\nlegislation in India,
\n 869<\/span>
\nwith special reference to bidi-making establishments.
\nThe  Indian Legislature enacted Act 15 of 1881 as the  first
\nAct  which  dealt with factories.  The Act  was\t limited  in
\nscope : it was followed by Act 11 of 1891 which in turn\t was
\nfollowed by Act 12 of 191 1. Diverse amendments were made to
\nthat  Act from time to time.  In 1929 a Royal Commission  of
\nLabour\t in   India  was  appointed  to\t make\ta   detailed
\ninvestigation\tinto   labour  problems.    The\t  Commission
\ninvestigated the conditions in various industries  including
\nthe  bidi-making industry and submitted its report  in\tJune
\n1931 containing diverse recommendations for amendment of the
\nIndian\tFactories  Act, 1911.  The Commission  stressed\t the
\nneed  for exercise of power to extend the provisions of\t the
\nAct to industries not covered by the definition of the\tterm
\n‘factory’,  and considered the bidi-making industry in\tthat
\ncontext\t  inparticular.\t   In  describing   the\t  conditions
\nprevailing in bidi manufactories, the Commission observed :\n<\/p>\n
\t      “Every  type  of building is used,  bat  small
\n\t      workshops preponderate and it is here that the
\n\t      graver  problems mainly arise.  Many of  these
\n\t      places are small airless boxes, often  without
\n\t      any windows, where the workers are crowded  so
\n\t      thickly  on  the ground that there  is  barely
\n\t      room to squeeze between them.  Others are dark
\n\t      semi-basements with damp mud floors unsuitable
\n\t      for  manufacturing processes, particularly  in
\n\t      an industry where workers sit or squat on\t the
\n\t      floor  throughout the working  day.   Sanitary
\n\t      conveniences  and\t adequate  arrangements\t for
\n\t      removal\tof  refuse  are\t generally   absent.
\n\t      Payment  is almost universally made by  piece-
\n\t      rate, the hours are frequently unregulated  by
\n\t      the  employer and many smaller  workshops\t are
\n\t      open day and
\n\t      870<\/span>
\n\t      night.  Regular intervals for meals and weekly
\n\t      holidays\tare generally non-existent.  In\t the
\n\t      case of adults these matters are automatically
\n\t      regulated\t by  individual\t circumstances,\t the
\n\t      worker  coming  and going as  he\tpleases\t and
\n\t      often, indeed, working in more than one  place
\n\t      in  the course of the week.   Nevertheless  in
\n\t      the  case of full-time workers, i.  e.,  those
\n\t      not  using,  bidi-making\tas  a  supplementary
\n\t      source of income, the hours are too frequently
\n\t      unduly  long,  the length of the\tworking\t day
\n\t      being  determined by the worker’s own  poverty
\n\t      and the comparatively low yield of the  piece-
\n\t      rates paid.”\n<\/p><\/blockquote>\n
The  Commission recommended the enactment of a separate\t Act
\napplicable in the first instance to all places without power
\nmachinery,  employing fifty or more persons during any\tpart
\nof  the year and suggested that the  Provincial\t Governments
\nmay  be\t authorised to extend any provision of\tthe  Act  to
\nfactories employing less than the prescribed number when  in
\ntheir  opinion\tconditions  justify such  action.   But\t the
\nIndian Legislature enacted a comprehensive measure-Act 25 of
\n1934-amending  and consolidating the provisions\t of  factory
\nlegislation  in India.\tThe object of the Act was to  reduce
\nhours of work, improve working Conditions in the  factories,
\nprovide for adequate inspection and strict observance of the
\nAct  :\tbut  -places where  the\t manufacturing\tprocess\t was
\ncarried on without the aid of power were notcovered by\tthe
\ndefinition of ‘factory’ in s. 2 (j). The  Legislature  by
\nAct 16 of 1941 amended\t s. 5 and authorised the  Provincial
\nGovernment  by\tNotification  in  the  Official\t Gazette  to
\ndeclare all or any of the provisions applicable to factories
\nto any place wherein manufacturing process was being carried
\non  or was so ordinarily carried on with or without the\t aid
\nof power where ten or more persons were working therein.\n<\/p>\n
 871<\/span><\/p>\n
A  Labour  Investigation  Committee  was  appointed  by\t the
\nGovernment  of\tIndia  in  February,  1944  to\t investigate
\nconditions  of employment in respect of various\t industries.
\nThis  Committee enquired into the conditions of\t workmen  in
\nthe  bidi, cigar and cigarette industry, and  observed\tthat
\nthe  picture  drawn by the Royal Commission on\tthe  working
\nconditions in the bidi industry remained largely true.\tThey
\nobserved:\n<\/p>\n
\t      “The prominent features of the bidi and  cigar
\n\t      industries are long hours and insanitary\tcon-
\n\t      ditions  of  work\t and  employment  of   child
\n\t      labour.\tWomen  are also\t employed  in  large
\n\t      numbers in this industry. x x x x
\n\t      x x x x x The bidi and cigar labour., however,
\n\t      satisfies\t many  of the  criteria\t of  sweated
\n\t      labour,  such  as\t sub-contract  system,\tlong
\n\t      hours,  insanitary  working  conditions,\thome
\n\t      work  (in\t bidis),  employment  of  women\t and
\n\t      children,\t irregularity  of  employment,\t low
\n\t      wages, and lack of bargaining power.”\n<\/p><\/blockquote>\n
Dealing\t especially  with the conditions prevailing  in\t the
\nProvince of Bombay they observed
\n\t      “‘In  Bombay  these  workshops  are   situated
\n\t      immediately  behind  panshops.  x x  x  x\t The
\n\t      conditions  of  these  workshops,\t so  far  as
\n\t      sanitation,   light   and\t  ventilation\t are
\n\t      concerned.,  beggar  description.\t  They\t are
\n\t      dark,  dingy  places with very  few,  if\tany,
\n\t      windows\tand   the   approaches\t are\tvery
\n\t      insanitary.   Workers  are  huddled  together,
\n\t      men,  women  and in some cases  children,\t and
\n\t      there  is hardly any space to move.   One\t can
\n\t      see bags of tobacco
\n\t      872<\/span>
\n\t      heaped in one corner and manufactured bidis in
\n\t      another.\t Most  of  the\tworkshops  have\t  no
\n\t      lavatories  and where they ate, they are in  a
\n\t      most   deplorable\t condition.   Some  of\t the
\n\t      workshops have low wooden ceiling above  which
\n\t      some  workers  sit and carry  on\ttheir  work.\n<\/p>\n
\t      These  are not usually reached  by  staircases
\n\t      and  the\tworkers\t have to go  up\t with  great
\n\t      difficulty.”\n<\/p>\n
\t\t     The Committee recorded its\t conclusions
\n\t      as follows
\n\t      matters\t requiring  immediate  attention  in
\n\t      the   bidi  and  cigar  industries   are\t the
\n\t      unhealthy working\t   conditions.,\t long  hours
\n\t      of  work,employment  of  women  and  children,
\n\t      deductions  from\twages and  the\tsub-contract
\n\t      system  of Organisation.\tIt is  desirable  to
\n\t      abolish  the out-work system and to  encourage
\n\t      establishment of big factories in the bidi and
\n\t      cigar   industries,   if\t protective   labour
\n\t      legislation is to be enforced with any  degree
\n\t      of success.”\n<\/p>\n
Application of factory legislation to protect the legitimate
\ninterests of bidi rollers was therefore a crying  necessity.
\nThe Factories Act, 1948 extended the definition of  factory.
\nThe  bidi  making industry was spread in  small\t units\tover
\nextensive  areas,  and the working conditions in  the  units
\nvaried\tconsiderably,  and  presumably on  that\t account  no
\nlegislation  applicable exclusively to establishments  manu-
\nfacturing bidies was undertaken, but establishments in which
\nthe number of persons working exceeded the number  specified
\nin cl. (in) of s. 2 were registered under the Factories Act.
\nIt  is true that even then a number of\testablishments\twere
\nnot  brought within the operation of the Factories Act,\t but
\nwith  the enactent of the Minimum Wages Act and fixation  of
\nminimum\t  wages\t by  the  diverse  States  there  was\tsome
\nimprovement in the condition of bidi rollers.\n<\/p>\n
873<\/span><\/p>\n
Under s. 85 of the Factories Act of 1948 power was  reserved
\nto make the Act applicable to any place in which manufacture
\nof  bides was carried on could be exercised but it does\t not
\nappear to have been exercised for the reason that the larger
\nestablishments\tin  which bidi-making was  carried  on\twere
\nregarded  as covered by the Factories Act, it being  assumed
\nthat the expression “employed’ in s. 2 (1) of the  Factories
\nAct   included\t mere\tengagement  or\t occupation   in   a
\nmanufacturing process without any contract giving rise to  a
\nrelation  of master and servant : State V.  Alisaheb  Kashim
\nTamboli\t (1)  and Ram Chandra Prasad v. The State  of  Bihar
\n(2).\n<\/p>\n
   The\tFactories Act, as the preamble recites is an Act  to
\nconsolidate   and  amend  the  law  regulating\t labour\t  in
\nfactories.  The Act is enacted primarily with the object  of
\nprotecting workers employed in factories against  industrial
\nand  occupational  hazards.  For that purpose  it  seeks  to
\nimpose upon the owners or the occupiers certain\t obligations
\nto protect workers unwary as well as negligent and to secure
\nfor them employment in conditions conducive to their  health
\nand  safety.  The Act requires that the workers should\twork
\nin  healthy and sanitary conditions and for that purpose  it
\nprovides that precautions should be taken for the safety  of
\nworkers and prevention of accidents.  Incidental  provisions
\nare  made for securing information necessary to ensure\tthat
\nthe  objects are carried out and the State  Governments\t are
\nempowered to appoint Inspectors, to call for reports and  to
\ninspect\t the  prescribed registers with a view\tto  maintain
\neffective  supervision.\t  The  duty of the  employer  is  to
\nsecure\tthe  health  and safety of workers  and\t extends  to
\nproviding   adequate  plant.,  machinery   and\t appliances,
\nsupervision over workers, healthy and safe premises,  proper
\nsystem\t of  working  and  extends  to\t giving\t  reasonable
\ninstructions.\tDetailed  provisions are therefore  made  in
\ndiverse chapters of the Act imposing obligations upon the
\n(1) I.L.R. 1955 Bom. 642.\n<\/p>\n
(2) (1956) I.L.R. 35.  Patna  877.\n<\/p>\n
874<\/span><\/p>\n
owners of the factories to maintain inspecting staff and for
\nmaintenance   of   health,   cleanliness,   prevention\t  of
\novercrowding  and provision for amenities such as  lighting,
\ndrinking  water,  etc. etc.  Provisions are  also  made\t for
\nsafety of workers and their welfare, such as restrictions on
\nworking\t hours\tand on the employment of young\tpersons\t and
\nfemales and grant of annual leave with wages.  Employment in
\na manufacturing process was at one time regarded as a matter
\nof  contract between the employer and the employee  and\t the
\nState  was  not\t concerned to impose  any  duties  upon\t the
\nemployer.  It is however now recognised that the State has a
\nvital  concern in preventing exploitation of labour  and  in
\ninsisting  upon proper safeguards for the health and  safety
\nof  the\t workers.   The Factories  Act\tundoubtedly  imposes
\nnumerous  restrictions upon the employers to secure  to\t the
\nworkers\t adequate safeguards for their health  and  physical
\nwell-being.  But imposition of such restrictions is not\t and
\ncannot\tbe regarded, in the context of the modem outlook  on
\nindustrial  relations,\tas unreasonable.  Extension  of\t the
\nbenefits  of the Factories Act to premises and\tworkers\t not
\nfalling strictly within the purview of the Act, is  intended
\nto  serve  the same purpose.  By authorising  imposition  of
\nrestrictions  for the benefit of workers who in the view  of
\nthe  State  stand  in need of some or  all  the\t protections
\nafforded  by the Factories Act, but who are not governed  by
\nthe Act, the Legislature is merely seeking to effectuate the
\nobject\tof  the\t Act i. e. it authorises  extension  of\t the
\nbenefit\t of  the Act to persons to whom the  Act,  to  fully
\neffectuate the object, should have been, but has on  account
\nof  administrative or other difficulties not been  extended.
\nProvisions  made for the benefit of ‘deemed workers’  cannot
\ntherefore  be regarded as not reasonable within the  meaning
\nof Art. 19 (1) (g) of the Constitution.\n<\/p>\n
The  Factories\tAct primarily applies to  establishments  in
\nwhich ten or more persons are working
\n 875<\/span>
\nwhere  power  is used and twenty or more  persons  where  no
\npower  is used, thereby excluding from its  operation  small
\n2establishments.   Presumably,\tthe  Legislature  felt\tthat
\nuniform\t  application\tof   the  Factories   Act   to\t all
\nestablishments\tin which a manufacturing process is  carried
\non  requiring even small establishments to comply  with\t the
\nelaborate requirements of the Factories Act may impose great
\nadministrative\tstrain\tupon  governmental  machinery,\t and
\ninvolve\t hardship  ordinarily  not  commensurate  with\t the
\nbenefit secured thereby.  But the Legislature with a view to
\nprevent\t circumvention\tof the provisions of  the  Factories
\nAct, and to secure to the persons working in  establishments
\nwhere\tmanufacturing  process\tis  carried   on,   adequate
\nsafeguards where necessity is felt has authorised the  State
\nGovernment  by Notification to declare any place which\tdoes
\nnot fall within the definition of.”factory” to be a  factory
\nand  to\t make  all  or any of  the  provisions\tof  the\t Act
\napplicable thereto.  Similarly the Act is primarily intended
\nto  govern  relations  of persons  standing  as\t master\t and
\nservant\t in  connection\t with  manufacturing  processes\t  in
\nfactories, and liberty of contract otherwise was not  sought
\nto be affected by the principal provisions of the Act.\t But
\nhere   again  the  Legislature\thas  authorised\t the   State
\nGovernment to issue Notifications applying the provisions of
\nthe  Act even to those establishments in which\tpersons\t are
\nworking with the permission or under agreement with, but not
\nas  employees  of the owners.  Exclusion  from\trestrictions
\ninherent  in the definitions of “‘factory” and “worker”\t has
\nits source not in any desire to afford special privileges to
\nany   class  of\t owners.   The\tpolicy\tunderlying   s.\t  85
\nauthorising  the State Government to extend the\t benefit  of
\nthe Act is apparent on its face.  The section aims at making
\nprovision  for\tsecuring the health and\t safety\t of  persons
\nengaged\t in hazardous employments, and for that purpose\t the
\nLegislature  has entrusted to the State Governments, in\t the
\ncase of establishments
\n876<\/span>
\nnot  falling expressly within the regulatory  provisions  of
\nthe  Act,  authority to extend those provisions,  where\t the
\nnecessity  to regulate, having regard to the  circumstances,
\nis  felt.  The power to extend the regulatory provisions  of
\nthe  Act  is therefore not intended to confer  an  arbitrary
\npower  to pick and choose between  establishments  similarly
\nsituate\t it is granted with a view to secure the  protection
\nof persons engaged in industrial occupations in the jig\t lit
\nof  special  circumstances  of\ta  particular  industry,   a
\nlocality or an establishment, where circumstances justifying
\nthe  extension of the protection exist.\t The  conditions  of
\nsmall  establishments in different parts of the country\t may
\nand  do widely vary.  Control in respect of some  industries
\nor establishments not governed by the Factories Act may\t not
\nbe  necessary,,\t whereas  necessity in that  behalf  may  be
\nacutely felt in others.\t It is to carry out effectively\t the
\nobject\tunderlying the Act that power has been given to\t the
\nState\tGovernment  to\tdecide\twith  reference\t  to   local
\nconditions  whether it is desirable that the  provisions  of
\nthe  Act  or any of them should be made\t applicable  to\t any
\nestablishment  which  is not covered by\t the  definition  of
\n“”factory”  or to workers in a factory who are not  entitled
\nto  the\t benefits of the Act, because of the  definition  of
\n“employment.”\n<\/p>\n
\t      In M\/S.  Bhikusa Yamasa Kshatriya v. Sangamner
\n\t      Akola Taluka Bidi Kamgar Union<\/a> (1), in dealing
\n\t      with the validity of certain provisions of the
\n\t      Minimum  Wages  Act, it was observed  by\tthis
\n\t\t\t    Court :\n<\/p><\/blockquote>\n
\t      “The  object  and policy\tof  the\t Legislature
\n\t      appear on the face of the Act.  The object  of
\n\t      the  Act\tis to prevent  exploitation  of\t the
\n\t      workers,\tand  for  that purpose\tit  aims  at
\n\t      fixation of minimum wages which the  employers
\n\t      must   pay.    The   Legislature\t undoubtedly
\n\t      intended to apply the Act to those  industries
\n\t      or localities
\n\t      (1)   [1963] Supp.  1 S.C.R. 524.\n<\/p><\/blockquote>\n
\t       877<\/span><\/p>\n
\t      in  which by reason of causes such as  unorga-<\/p><\/blockquote>\n
\t      nized  labour  or\t absence  of  machinery\t for
\n\t      regulation of wages, the wages paid to workers
\n\t      were,  in\t the light of the general  level  of
\n\t      wages, and subsistence level, inadequate. x  x
\n\t      x\t x x x x It is to carry out effectively\t the
\n\t      purpose of this enactment that power has\tbeen
\n\t      given to the appropriate Government to  decide
\n\t      with reference to local conditions, whether it
\n\t      is  desirable  that minimum  wages  should  be
\n\t      fixed  in\t regard to any\tscheduled  trade  or
\n\t      industry, in any locality, and if it is deemed
\n\t      expedient\t to  do so, the rates at  which\t the
\n\t      wages  should  be\t fixed in  respect  of\tthat
\n\t      industry\tin  the\t locality.   By\t  entrusting
\n\t      authority\t to  the appropriate  Government  to
\n\t      determine\t the minimum wages for any  industry
\n\t      in any locality or generally, the\t Legislature
\n\t      has not divested itself of its authority,\t nor
\n\t      has  it conferred uncontrolled power upon\t the
\n\t      State  Government.  x  x x x x x x  x  x\tx  x
\n\t      Selective\t application of a law  according  to
\n\t      the  exigencies’.\t where\tit  is\t sanctioned,
\n\t      ordinarily     results\t in\t permissible
\n\t      classification.\tArticle\t 14  forbids   class
\n\t      legislation but not reasonable  classification
\n\t      for the purpose of legislation.  If the  basis
\n\t      of classification is indicated expressly or by
\n\t      implication,  ‘by delegating the functions  of
\n\t      working out the details of a scheme, according
\n\t      to  the objects of the statute and  principles
\n\t      inherent\ttherein,  to a body  which  has\t the
\n\t      means to do so at its command, the legislation
\n\t      will   not  be  exposed  to  the\t attack\t  of
\n\t      unconstitutionality.  In other words, even  if
\n\t      the   statute   itself   does   not   make   a
\n\t      classification for the purpose of applying its
\n\t      provisions,  and\tleaves it to  a\t responsible
\n\t      body to select and classify persons, objects,
\n\t      transactions, localities or things for special
\n\t      treatment, and sets out the policy of
\n\t      878<\/span>
\n\t      principles for its guidance in the exercise of
\n\t      its authority in the matter of selection,\t the
\n\t\t\t    statute  will not be struck down as\t i
\nnfringing
\n\t      Art. 14 of the Constitution.”\n<\/p>\n
The  principle\tof that case will apply in  considering\t the
\nplea  of discrimination raised by the petitioners.   Section
\n85 of the Factories Act permits selective application of the
\nbeneficent  provisions\tof the Act to  workers\tnot  covered
\nthereby.   The power is conferred to carry  out\t effectively
\nthe  purpose of the Act, and to an authority which  has\t the
\nmeans  at its command for making the requisite enquires\t for
\nascertaining  whether extension of the benefits is,  in\t the
\ninterest of the workers and the public generally,  demanded.
\nSuch a provision cannot be regarded as discriminatory.
\nIt  is true that even if a statute which  permits  executive
\naction\tto  be taken is not ultra vires, but  the  executive
\naction\ttaken under the statute in the matter  of  selection
\nmay  be ultra vires if it infringes any\t fundamental  right.
\nIn  the\t present case, however, the affidavit of Mr.  V.  N.
\nPimenta, Under Secretary to Government of Maharashtra in the
\nIndustries  and\t Labour Department,  discloses\tclearly\t the
\nbasis on which the factories mentioned in the Schedule\twere
\nselected by the Notification under s. 85(1).  In paragraph 7
\nof his affidavit it is stated :\n<\/p>\n
\t      “‘On  careful  consideration of the  facts  of
\n\t      this   (Shankar\tBalaji\tWaje’s)\t  case\t the
\n\t      Government of Maharashtra was of the view that
\n\t      for  the\tpurpose\t of.  protecting  the\tbidi
\n\t      rollers against any arbitrary treatment by the
\n\t      bidi   manufacturers,  and  to  maintain\t the
\n\t      protection  given to them under the  Factories
\n\t      Act which they had hitherto obtained prior  to
\n\t      the decision of this Hon’ble Court in the case
\n\t      of Shankar Balaji Waje a Notification under s.
\n\t      85 of the Factories’
\n\t       879<\/span>
\n\t      Act, 1948 should be issued.  Accordingly,\t the
\n\t      Government of Maharashtra issued the  impugned
\n\t      Notification including therein those factories
\n\t      which were on the register of Factories  main-
\n\t      tained by the Chief Inspector of Factories.”\n<\/p><\/blockquote>\n
He  further  stated  that probably  there  were\t other\tbidi
\nmanufacturing establishments to which the provisions of\t the
\nFactories Act were applicable, but these factories were\t not
\nwithin the purview of the impugned Notification because they
\nwere  not on the register of factories maintained under\t the
\nFactories  Act and on the basis of which the impugned  Noti-
\nfication  was  issued.\t But such  establishments  were\t not
\nincluded  in  that register because of the  failure  of\t the
\nowners\tto  register  them.   Mr.  Pimenta  said  that\t the
\nGovernment  was making enquiries about such other  factories
\nand  that  they\t would or would not  be\t brought  under\t the
\npurview of the Act, as circumstances demanded, by  amendment
\nof  the impugned notification under s. 85 of  the  Factories
\nAct  when the enquiries were over.  He further\tstated\tthat
\nthe impugned Notification was issued to maintain  industrial
\npeace  and  harmony.   There is nothing\t on  the  record  to
\ndiscredit   these   statements.\t   Before,   the    impugned
\nNotification  was issued, the Bombay and other\tHigh  Courts
\nhad  held that bidi workers who though not servants  of\t the
\nowners\tof  the bidi factories in which they  were  working,
\nwere  still employed in a manufacturing process to whom\t the
\nbenefits of the Factories Act were admissible.\tAs a  result
\nof  the clarification of the legal position by the  decision
\nof  this Court in Shankar Balagi Waje’s case (1), there\t was
\ngrave  unrest  among bidi rollers and the  State  Government
\nfelt obliged to intervene for the protection of bidi rollers
\nagainst deprivation of benefits previously accorded to\tthem
\nfor  an appreciable length of time, and with that object  in
\nview  in  the first instance applied the provisions  of\t the
\nFactories  Act by Notification issued under s\/85(1)  to\t all
\nsuch
\n(1)  [1962] Supp.  1 S.C.R. 249.\n<\/p>\n
880<\/span><\/p>\n
establishments\tas were included in the list  maintained  by
\nthe  Chief Inspector of Factories and commenced\t an  enquiry
\nfor  including others which were not included in that  list.
\nIn the situation which arose inclusion of bidi manufactories
\nregistered   as\t factories  with  the  Chief  Inspector\t  of
\nFactories  in  which bides were rolled by  workers  must  be
\ndeemed to be a rational basis for classification.  The\tfact
\nthat  to other factories carrying on the same  business\t but
\nnot  included  in  the\tlist  of  the  Chief  Inspector\t  of
\nFactories,  the\t provisions  of the Act\t were  not  extended
\nimmediately does not expose the Notification to a charge  of
\nabsence\t of rational classification.  Selective\t application
\nof  a  law  by\tan authority such as a\tState  based  on  an
\nobjective  test such as entry in the list maintained by\t the
\nChief  Inspector of Factories in the exercise  of  statutory
\nauthority, would in the light of the emergency, be deemed to
\nbe  a  rational basis for classification.  It  also  appears
\nfrom  the  affidavit of Mr. Pimenta that the  Government  of
\nMaharashtra is holding enquiries about other factories which
\nmay  properly be, but are not, included, because of  absence
\nof  adequate information.  The exclusion of owners  of\tbidi
\nestablishments,\t not on the list of the Chief  Inspector  of
\nFactories,  is ex facie not due to any differentiation\tmade
\nwith “an evil eye or uneven hand” but on account of the felt
\nnecessity  of a situation which caused great hardship  to  a
\nlarge  number of workers, and rectification of which in\t the
\ninterest of maintaining industrial peace brooked no delay.
\n  It  was  urged, however, that the application of  all\t the
\nprovisions  of\tthe Factories Act  without  considering\t the
\nappropriateness\t of  extending\tthe  individual\t provisions,
\ninfringed  Art.\t 19 of the Constitution.  It  was  submitted
\nthat  provisions  like\tss. 79 and 80 which  only  apply  to
\nfactories  employing  per-sons who work under  contracts  of
\nservice\t with  the  owner would be  wholly  inapplicable  to
\npersons who work
\n 881<\/span>
\nunder contracts not of service with the owner of the factory
\nand  who are under no obligation to attend the\tfactory\t for
\nany  fixed  duration during working hours or for  any  fixed
\nnumber\tof days during the year, and providing benefits\t for
\nsuch  persons  by  extending  those  provisions\t amounts  to
\nimposing  unreasonable\trestrictions upon the right  of\t the
\nowner of the factory.  Section 79 (1) provides for grant  of
\nannual leave with wages for the number of days calculated at
\ncertain rates to every worker who has worked for a period of
\n240  days  or  more in a factory  during  a  calendar  year.
\nSection 80 is consequential upon s. 79 : it provides that  a
\nworker\tshall -be paid for the leave allowed to him  at\t the
\nrate equal to the daily average wage of his total full\ttime
\nearnings  for the days on which lie worked during the  month
\nimmediately  preceding his leave exclusive of any  over-time
\nand  bonus  but\t inclusive of dearness\tallowance  and\tcash
\nequivalent   of\t  the\tadvantage   accruing   through\t the
\nconcessional  sale  to the worker of food grains  and  other
\narticles.   Section 79 clearly applies to workers  who\twork
\nfor  the full period of employment during factory hours\t and
\nfor the prescribed number of days and it may appear at first
\nsight  somewhat\t inappropriate that the\t benefit  of  annual
\nleave with wages should be extended by Notification under s.
\n85  (1) to persons who do not work for the hours  fixed\t for
\nthe establishment But it is in our judgment clear that\ts.79
\nif it is made applicable by Notification under s. 85   would
\napply to those workers only who work in the factory for\t the
\nfull  period prescribed under ss. 61, 71 and 66 (1)  of\t the
\nFactories  Act by the employer for not less than the  number
\nof qualifying days.  A “deemed worker” who is paid only\t for
\nwork  done by him and who is under no obligation to  attened
\nat any fixed time may be entitled to benefit of annual leave
\nwith  wages  only  if  he  fulfils  the\t working  conditions
\napplicable  to\tworkers as defined in s. 2 (1) of  the\tAct.
\nThe  privilege of working for a period less than the  period
\nprescribed for regular
\n882<\/span>
\nworkers in a factory will not, if he works for less than the
\nprescribed  hours, come to the aid of a deemed worker so  as
\nto  enable  him\t to claim the benefits of s.  79;  but\tthat
\nprivilege will not deprive him, if he fulfils the conditions
\nrelating  to the duration of work, of the benefit of s.\t 79.
\nThe  fact that a deemed worker in a factory, to which s.  79
\nis extended by a Notification, by virtue of his contract  or
\notherwise  is  not bound to attend -it times  fixed  by\t the
\nowner of the factory does not mean that he can never fulfill
\nthe conditions relating to attendance for earning leave with
\nwages.\tIf a deemed worker attends the factory for the\tCull
\nduration  fixed as factory hours and works for 240  days  or
\nmore  during  a calendar year, he would be entitled  to\t the
\nbenefits of ss. 79 and 80 of the Act.\n<\/p>\n
The  observations  made in Shankar Balaji Waje’s  case\t(1),
\nthat Pandurang was not bound to work for the period of\twork
\ndisplayed in the factory and therefore “his days of work for
\nthe  purpose  of  s.  79 could not  be\tcalculated”  is\t not
\ninconsistent  with  the view expressed by  us.\t In  Shankar
\nBalaji\tWaje’s\tcame (1), no Notification under\t s.  85\t was
\nissued\t by  the  State\t Government,  and  the\t Court\t was
\nconsidering,   whether\thaving\tregard\tto  the\t  conditions
\ngoverning his attendance, he could be regarded as a  worker.
\nThe observation relied upon does not mean and could not have
\nintended to mean that if a Notification under s. 85 had been
\nissued\tand  the workers concerned had worked for  the\tfull
\nperiod\tof work displayed in the factory for more  than\t 240
\ndays  in  the preceding year, he would still not  have\tbeen
\nentitled  to annual leave with wages.  In our  judgment\t the
\nright  to leave with wages arises in favour of a  worker  or
\ndeemed\tworker under s. 79 only if he has worked during\t the
\nfull period of factory employment for the prescribed  number
\nof  days  in  the previous year because by the\tuse  of\t the
\nexpression  ‘days’ in s. 79, working for the full period  of
\nwork displayed in the
\n(1)  [1962] Supp.  S.C R. 249.\n<\/p>\n
 883<\/span><\/p>\n
factory\t under the appropriate section of the Factories\t Act
\nis  contemplated.   Work for a period less than\t the  period
\ndisplayed  will\t not, in computing the number  of  days,  be
\ntaken into account as a day within the meaning of s. 679.
\n\tWe  may also observe that in Bridhichand  Sharma  v.
\nFirst,\tCivil Judge, Nagpur<\/a> (1), this Court in dealing\twith
\nthe  question  whether rollers in a bidi  factory  who\twere
\nobliged\t to work within the factory hours, but not  for\t the
\nentire period were entitled to the benefit of s. 79, held on
\na  consideration  of all the circumstances,  that  the\tbidi
\nrollers\t being employed in the factory were  workers  within
\nthe  meaning of s. 2 (1) of the Factories Act, and  entitled
\nto  that  benefit.   It was also  observed  that  the  leave
\nprovided   rider s. 79 arises as a matter of right when\t the
\nworker\thas attended for the minimum number of working\tdays
\nand  he\t is entitled to it, and absence of the\tworker\tfrom
\nattendance  for a longer period than that provided by s.  79
\nhad  no\t bearing on his right to leave under  that  section.
\nThat was again a case not covered by a Notification under s.\n<\/p>\n
85.  On the facts proved the Court held that the workers  in
\nthe factory were ’employed’ and would if they fulfilled\t the
\nrequirements of s. 79-viz, the total number of days    of
\nwork-be\t entitled  to  the benefit of leave  with  Pay.\t The
\nattendance to qualify for leave in that case had   obviously
\nto be for the appropriate full period fixed by the owner  of
\nthe factory.\n<\/p>\n
As  we\thave already observed the Act primarily\t applies  to
\nworkers\t  strictly  so\tcalled\twho  are  employed  in\t any
\nmanufacturing  process in a factory, but it is open  to\t the
\nState  Government by a Notification to apply all or  any  of
\nthe  provisions\t of  the  Act  to  any\tplace  wherein\t any
\nmanufacturing\tprocess\t is  carried  on  and  if   such   a
\nNotification is issued the place so declared is to be deemed
\na factory under the Act, the owner to be deemed an  occupier
\nand the person working therein a worker notwithstanding\t the
\nfact that
\n (1) [1961] 3 S.C.R. 161.\n<\/p>\n
884<\/span><\/p>\n
the  number of persons working therein are not\temployed  by
\nthe owner thereof but are working with the permission of  or
\nunder  agreement with such owner.  If by imposing  liability
\nto afford to workers strictly so-called under the Act, there
\nis no infringement of the fundamental right of the owner  of
\nthe  factory to carry on his business, a similar  obligation
\nin favour of deemed workers, who satisfy the requirements of
\nS.  79, cannot, having regard to the object of the  statute,
\nbe regarded as infringing that fundamental right.  Therefore
\nby  imposing liability to afford to “deemed  worker”  annual
\nleave with wages under s. 79 and s.\t80   in\t  the\tsame
\nmanner and to the same extent as is\tafforded to  workers
\nstrictly so-called under s. 2(1) of\tthe  Factories\tAct,
\nno  unreasonable  restriction  has  been  imposed  upon\t the
\noccupier or the owner of the factory.\n<\/p>\n
  To  conclude: in our judgment s. 85 which  authorises\t the
\nState Government to issue a Notification applying all or any
\nof  the\t provisions  of\t the Act to any\t place\tin  which  a
\nmanufacturing process is carried on, and which involves\t the
\nconsequence  that  the\tplace is deemed a  factory  and\t the
\npersons working therein are deemed workers is not by  itself
\ndiscriminatory\t so   as  to  infringe\tArt.   14   of\t the
\nConstitution;  nor does the provision amount to\t authorising
\nimposition of unreasonable restriction upon the\t fundamental
\nright of the owner of the factory to carry on his  business.
\nThe impugned Notification issued under s. 85(1) is also\t not
\nopen  to attack on the ground that the State has issued\t the
\nNotification by selecting for application of the  provisions
\nof   the  Act,\tsome  out  of  the  places  in\twhich\tbidi
\nmanufacturing  processes  are  carried\ton.   Nor  does\t the
\nNotification  in so far as it seeks to apply the  provisions
\nof  the\t Act imposing upon the owner or an occupier  of\t the
\nfactory\t obligation to grant annual leave with wages  impose
\nany unreasonable restriction,
\n 885<\/span>
\nOn  that view the petition must fail and is  dismissed\twith
\ncosts, two sets, one hearing fee.\n<\/p>\n
Petition Dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Bhikuse Yamasa Kshatriya (P) … vs Union Of India, And Another on 8 February, 1963 Equivalent citations: 1963 AIR 1591, 1964 SCR (1) 860 Author: S C. Bench: Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M., Gupta, K.C. Das, Shah, J.C. PETITIONER: M\/s. BHIKUSE YAMASA KSHATRIYA (P) LTD.,& ANR. Vs. RESPONDENT: UNION […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-119319","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. 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