One other contention of Shri Cama needs to be noticed.
Shri Cama argued before us that the 1969 Act being
inconsistent with the Contract Labour (Regulation and Abolition)
Act, 1970 would be repugnant to the said Act and therefore
invalid under Article 254 of the Constitution. He candidly
admitted that no such ground had been raised or argued before
the High Court, but asked that the Supreme Court allow him to
raise this plea as it is a pure question of law. We are afraid that
this is not possible for the reason that even if Shri Cama were
to be correct in his submission that the Central Parliamentary
Act of 1970 would impliedly repeal the 1969 State Act, yet
Section 30(1) of the said Act provides that despite the
provisions of the 1970 Act being allegedly inconsistent with the
1969 State Act, yet if contract labour employed in an
establishment are entitled to benefits which are more
favourable to them than those to which they would be entitled
under the 1970 Act, the contract labour shall continue to be
entitled to more favourable benefits, notwithstanding that they
also receive benefits in respect of other matters under the
Central Parliamentary Act. This being the case, it was
incumbent upon the writ petitioner not only to take up the plea
of repugnancy and implied repeal but also to state as a fact that
what the workmen would be entitled to under the 1969 State
Act would not be as beneficial as what they would be entitled to
under the 1970 Central enactment. This would then give the
respondent Board, in turn, an opportunity of either admitting or
denying this factual averment. There being no pleading to this
effect in the writ petition before the High Court, it is clear that it
is not possible for us to accede to Shri Cama’s request to go
into the argument on repugnancy and implied repeal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9999 OF 2010
PEPSICO INDIA HOLDING P. LTD. …APPELLANT
VERSUS
GROCERY MARKET & SHOPS BOARD
& ORS. ...RESPONDENTS
Dated;February 12, 2016.
Citation;(2016) 4 SCC493
R.F. Nariman, J.
1. These appeals involve an interpretation of the provisions
of the Maharashtra Mathadi, Hamal and Other Manual Workers
(Regulation of Employment and Welfare) Act, 1969, (hereinafter
1Page 2
referred to as “the 1969 Act”) read with the Grocery Markets or
Shops Unprotected Workers (Regulation of Employment and
Welfare) Scheme, 1970 (hereinafter referred to as “the 1970
Scheme”). The brief facts necessary for a decision in Civil
Appeal No.10000 Of 2010 (Supreme Petro-Chem Limited v.
State of Maharashtra and others) are that under Section 5 of
the said 1969 Act, if any question arises whether any scheme
applies to any class of unprotected workers, the matter shall be
referred to the State Government and the decision of the State
Government which shall be taken after consulting the Advisory
Committee constituted under Section 14 shall be final. By an
order dated 24.6.2008, the State Government after referring to
submissions from the appellants as well as submissions from
the Board, held:-
“4. Govt has analyzed overall situation, documents
application of the organization dated 01.03.2003
and information about the product and its raw
material. Govt has come to the following
conclusion:
a. Company is manufacturing Polystyrene.
b. For manufacturing styrene and
Polybutadin are used as raw material.
Polybutadin comes in rubber form and it is
not natural rubber.
2Page 3
c. Polystyrene is a hard plastic.
d. Polystyrene is not a petrochemical
product but a chemical product.
e. Even Polystyrene manufacturing is
considered as petrochemical production it is
finally a chemical production only. The
material used to manufacture the product is
also chemical.
f. There is no written reference in the
Mathadi Act that petrochemical should be
kept out of the act but chemical itself
includes everything.
g. Mathadi Act and scheme is for the
betterment of workers and purpose of the
scheme is to make applicable to the
chemical manufacturing companies. It is not
mentioned in the scheme that petrochemical
products should be excluded and as
petrochemical is not mentioned in the
scheme so the scheme is not applicable to
the said organization is not acceptable.
5. In the situation Samitte and Govt. has come to
the conclusion that Grocery market and shops
unprotected workers (Regulation of Employment
and Welfare) Act 1970 is applicable to Supreme
Petrochem Ltd.
6. In the company loading unloading work of
chemical product and its raw material is carried out.
And with respect to this Mathadi kind of work is
carried out in the company. As said by the
company this work is carried out by two Cooperative
societies. These societies do the work by
employing the workers and get compensation from
the company. Company says that these employees
get the facilities like Provident fund and others. But
in the report filed by the mandal on 20.09.2006 this
3Page 4
statement has not been proved. As per the decision
given by Hon. High Court in 2006 (3) CLR PG 999,
there is no meaning to what company is saying.
Instead of that it proves that in the said company
Mathadi kind of work carries out.
8. In this situation Maharashtra Mathadi Hamal and
other Manual Workers (Regulation of Employment
and Welfare) Act 1969, Grocery Markets or Shops
Unprotected Workers (Regulation of employment
and welfare) Scheme 1970 is applicable to the said
organization. Therefore, application given under
section 5 of Mathadi Act is rejected by the
Government.”
2. The said order was challenged before the Bombay High
Court by filing a writ petition. The writ petition was dismissed by
the impugned judgment dated 10.2.2009 after holding:-
“4. It is rather difficult to digest the arguments of the
learned counsel. Basically, what we find is that the
petitioners are manufacturing polysterene and
polysterene is a combination of styrene and
polybutadin. Polybutadin comes in rubber form and
is not a petrochemical though it is not a natural
rubber. Styrene is one of the by-product of the
petrochemical which is used by the petitioner for
manufacturing polysterene. Therefore, the
petitioners are not manufacturing any
petrochemicals, but one of the by-product of the
petrochemical is used by the petitioners to
manufacture polysterene and polysterene is hard
plastic.
5. All these aspects have been considered by
the Government authorities and thereafter the
authorities concluded that the petitioners are not
4Page 5
dealing with petrochemicals as they have submitted.
We agree with the findings of the authority.
Assuming for a moment that the petitioners are
dealing in petrochemicals, yet the Act will be
applicable to them because the words used in this
application clause referred to above is the product
including the manures and thereby, every type of
production has been covered. What is important to
note is that the manures which are like urea etc. are
also derivatives of the petrochemicals and thereby
by inclusive clause the manures which could have
been saved probably have been included there.
Therefore, the word “product” has been used by the
Legislature in its wisdom with all its cognate
variations and it cannot be interpreted to have a
limited meaning. What we find is that the
petrochemical is a part of the chemical. Chemical is
the genesis while petrochemical is species of the
said genesis and thereby if the chemical industry is
covered it is rather difficult to hold that the
petrochemical industries are not covered.
6. What is important to be looked into is whether
in this industry the work which the mathadis are
carrying out is available or not. If, in that industry,
the work of mathadis is available then only because
the industry is dealing in some different aspect, that
work cannot be given to some other unorganized
workers. The basic test, after having ascertained
that the industry is covered by law, is to find out that
the work of mathadis is available and if it is
available, the Act and the Scheme will apply to the
industry. It is not disputed that the mathadi work is
not available. The only distinction which was tried
to be made out was with regard to petrochemicals
and that, therefore, the Act is not applicable, which
submission we have already rejected for the
reasons stated above. We find that the
Government has rightly decided the matter under
5Page 6
Section 5 and no interference is called for at the
hands of this court.”
3. Shri J.P. Cama, learned senior advocate appearing on
behalf of the appellants has argued that the 1969 Act only
applies to employments that are specified in the Schedule.
Inasmuch as grocery markets or shops are mentioned in Item 4
of the Schedule, according to learned counsel, employment in
factories which occurs only in Item 5 of the said Schedule could
not possibly be attracted as Item 5 only speaks of
establishments which are not covered by any other entries in
the Schedule. Inasmuch as the 1970 Scheme in the present
case is a scheme dealing with employment in grocery markets
or shops, Item 5 of the Schedule is not attracted, and the 1970
Scheme is ultra vires the 1969 Act insofar as it provides for
employment in factories which manufacture chemical products
and are covered by entry 5 of the Schedule to the said 1969
Act. He also referred to Section 1(4A) of the 1969 Act to state
that insofar as employment in factories in district Raigad are
concerned, item 5 in column 4 of the table appended to Section
6Page 7
1(4A) speaks of “colour chemicals” and “products including
fertilizers”, and not “chemical products”. This being so,
chemical products in any case are outside Section 1(4A), and
the 1970 Scheme insofar as it purports to include within it under
clause 2(1)(f) “chemical products”, is therefore ultra vires
Section 1(4A). Further, according to learned counsel, what is
allegedly manufactured in the appellant’s factory are petro
chemicals and not chemicals. He has referred to a number of
documents which include various licences and letters from
authorities clearly stating that what is manufactured in the
appellant’s factory are only petro chemicals. For that reason
also, petro chemicals not being chemicals would not be within
the coverage of the 1969 Act or the 1970 Scheme. He further
argued, referring to Section 4(1)(b) of the 1969 Act that if the
1970 Scheme is to be made applicable to petro chemicals
manufactured in factories, the only method of doing so is if a
demand or request is made by a majority of the employers or
workers that the provisions of the grocery markets or shops
scheme should be applied to another scheduled employment –
that is, manufacturing petro chemicals in factories, and it is only
7Page 8
after consultation with the employers and workers that the State
Government may apply the provisions of the 1970 Scheme to
the appellant’s factory manufacturing petro chemicals. This not
having been done, the 1970 Scheme cannot apply to the
appellant. Learned counsel further argued that in point of fact
there is no work of transportation undertaken by the employer
from the employer’s factory to the purchaser’s premises. He
argued that the factory was by and large mechanised and that
the petro chemical products manufactured at the factory were
picked up by purchasers by employing contract labour that was
arranged by the purchasers themselves. This being so, the
1969 Act and the 1970 Scheme would have no application to
the appellant’s factory.
4. Shri S. Chinchwadkar, learned advocate appearing on
behalf of the respondent-Board has countered each of the
arguments of Mr. Cama. According to Shri Chinchwadkar Entry
5 appearing in the Schedule to the 1969 Act is a residuary entry
which takes in all employments not otherwise covered by any
scheme under any of the other items of the Schedule, and as
8Page 9
petro chemicals manufactured in factories were admittedly not
covered by any of the other items, they would fall within the
residuary entry. Further, according to learned counsel, the
nomenclature of the scheme is irrelevant so long as the
provisions of the 1970 Scheme actually cover the appellant’s
activities carried out in factories. He further argued referring to
Sections 3 and 4 of the 1969 Act that there can be a composite
scheme in which several scheduled employments or groups of
employments can be bunched together, which has been done
in the present case. He also argued with reference to Section
1(4A) that item 5 in column 4 when it referred to “products
including fertilizers” would include all products including
chemical products, and that therefore the 1970 Scheme is intra
vires the 1969 Act. He also referred to the State Government
order, which was impugned before the High Court and upheld,
in order to show that the State Government had applied its
mind under Section 5 of the 1969 Act, and that such order
should not be interfered with in the exercise of judicial review
under Article 226 of the Constitution. He also referred us to the
definition of “establishment” contained in section 2(4) which
9Page 10
would mean “any place or premises including the precincts
thereof in which any scheduled employment is being carried
on”. According to him, inasmuch as lifting of the appellant’s
product was being carried on from the precincts of the factory,
the appellant would be covered by the 1969 Act and the 1970
Scheme. He also referred in some detail to Bhuwalka Steel
Industries Limited v. Bombay Iron & Steel Labour Board,
(2010) 2 SCC 273 to buttress his proposition that this Court,
following the Full Bench of the Bombay High Court, has
construed the 1969 Act as a welfare legislation, and having
regard to its object has expressly stated that employers should
realise their social obligations qua this segment of workers who
are non-protected workers, as defined by the said Act.
5. We have heard learned counsel for the parties. Before
entering into the merits of the controversy before us, we would
like to set out the relevant provisions of the 1969 Act and the
1970 Scheme made thereunder. The long title of the 1969 Act
is important in that it sets out the object for which the 1969 Act
was enacted, and is as follows:-
10Page 11
“An Act for regulating the employment of
unprotected manual workers employed in certain
employments in the State of Maharashtra to make
provision for their adequate supply and proper and
full utilization in such employments, and for matters
connected therewith. WHEREAS, it is expedient to
regulate the employment of unprotected manual
workers such as, Mathadi, Hamal etc., engaged in
certain employments, to make better provision for
their terms and conditions of employments, to
provide for their welfare, and for health and safety
measures where such employments require these
measures; to make provision for ensuring an
adequate supply to, and full and proper utilization
of, such workers in such employments to prevent
avoidable unemployment; for these and similar
purposes, to provide for the establishment of
Boards in respect of these employments and (where
necessary) in the different areas of the State; and to
provide for purpose connected with the matters
aforesaid; It is hereby enacted in the Twentieth Year
of the Republic of India as follows: -
The Sections of the Act relevant for deciding these appeals are
set out hereinbelow and read as follows:
“1. Short title, extent, application and
commencement. –
(3) It applies to the employments specified in the
Schedule hereto.
(4A) Notwithstanding anything contained in subsection
(4), and in Government Notification,
Industries and Labour Department, No. UMA.
11Page 12
1272/Lab-IV, dated the 28th March 1972, this Act
shall be deemed to have come into force in the
areas specified in column 2 of the Table below on
the dates and in respect of the employments
specified in columns specified in columns 3 and 4
against each such areas in the said Table,
respectively.
TABLE
Sl.
No.
1
Areas
2
Date
3
Name of the
employment
4
1 (a) Thane and
Kalyan Talukas of
the Thane District;
and Panvel Taluka
of the Kulaba (now
Raigad) District)
(b) The whole of
the Thane and
Raigad Districts
excluding the
Thane and Kalyan
Talukas of the
Thane District and
Panvel Taluka of
the Raigad District.
26th day of
Dec. 1979.
1
st day of
August 1983.
(1) Employment in
Grocery Market or Shops, in
connection with loading,
unloading, stacking, carrying,
weighing, measuring (filling,
stitching sorting, cleaning) or
such other work including
work preparatory or incidental
to such operations.
(2) Employment in markets
and other establishments, in
connection with loading,
unloading, stacking, carrying,
weighing, measuring (filling,
stitching, sorting, cleaning) of
soda ash, coal-tar, lime,
colour chemicals, chemical
products including fertilizers,
gunny bags, coir ropes,
ropes, mats, hessian cloth,
hessian yarn, oil cake, husk
chuni and chhal or such other
work including work
preparatory or incidental to
such operations.
(3) Employment in onion and
potato wholesale markets in
connection with loading,
unloading, stacking carrying,
12Page 13
weighing, measuring (filling,
stitching, sorting, cleaning) of
such other work including
work preparatory or incidental
to such operations.
(4) Employment in factories
and mills manufacturing
grocery products if such
employment is connected
with loading, unloading,
stacking, carrying, weighing,
measuring (filling, stitching,
sorting, cleaning) or such
other work including work
preparatory or incidental to
such operations carried on by
workers covered by entry 5 in
the Schedule to this Act.
(5) Employment in factories
and mills manufacturing
colour chemicals, products
including fertilizers, if such
employment is in connection
with loading, unloading,
stacking, carrying, weighing,
measuring (filling, stitching,
sorting, cleaning) or such
other work including work
preparatory or incidental to
such operations carried on by
workers covered by entry 5 in
the Schedule to this Act.
2. Definitions.
(3) "employer", in relation to any unprotected
workers engaged by or through contractor, means
the principal employer and in relation to any other
unprotected worker, the person who has ultimate
control over the affairs of the establishment, and
includes any other person to whom the affairs of
13Page 14
such establishment are entrusted, whether such
person is called an agent, manager or is called by
any other name prevailing in the scheduled
employment;
(4) "establishment", means any place or premises,
including the precincts thereof, in which or in any
part of which any scheduled employment is being or
is ordinarily carried on;
(7) "principal employer" means an employer who
engages unprotected workers by or through a
contractor in any scheduled employment;
(9) "scheduled employment" means any
employment specified in the Schedule hereto or any
process or branch of work forming part of such
employment;
(10) "scheme" means a scheme made under this
Act;
(11) "unprotected worker" means a manual worker
who is engaged or to be engaged in any scheduled
employment;
(12) "worker" means a person who is engaged or
to be engaged directly or through any agency,
whether for wages or not, to do manual work in any
scheduled employment and, includes any person
not employed by any employer or a contractor, but
working with the permission of, or under agreement
with the employer or contractor; but does not
include the members of an employer's family.
3. Schemes for ensuring regular employment of
unprotected workers. –
(1) For the purpose of ensuring an adequate
supply and full and proper utilization of unprotected
workers in scheduled employments, and generally
for making better provision for the terms and
14Page 15
conditions of employment 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 or
employments, and provide for the terms and
conditions of work of registered unprotected
workers, and make provision for the general welfare
in such employments.
4. Making, variation and revocation of scheme. –
(1) The State Government may, after consultation
with the Advisory Committee, by notification in the
Official Gazette and subject to the condition of
previous publication, make one or more schemes
for any scheduled employment or group of
scheduled employments, in one or more areas
specified in the notification; and in like manner add
to, amend, vary or substitute another scheme for,
any scheme made by it:
Provided that, no such notification shall come into
force, unless a period of one month has expired
from the date of publication in the Official Gazette:
Provided further that, the State Government may –
(a) if it considers necessary, or
(b) if a demand or request is made by a majority
of the employers or workers in any other
scheduled employment, that the provisions of
any scheme so made for any scheduled
employment or any part thereof should be
applied to such other scheduled employment,
after consulting the employers and workers in
such scheduled employment by notification in the
Official Gazette, apply the provisions of such
scheme or part thereof to such scheduled
employment, with such modifications, if any, as
may be specified in the notification.
15Page 16
(2) The provisions of section 24 of the Bombay
General Clauses Act, 1904, shall apply to the
exercise of the power given by sub-section (1) as
they apply to the exercise of a Power given by a
Maharashtra Act to make rules subject to the
condition of previous publication.
5. Disputes regarding application of scheme. - If
any question arises whether any scheme applies to
any class of unprotected workers or employers, the
matter shall be referred to the State Government
and the decision of the State Government on the
question, which shall be taken after consulting the
Advisory Committee constituted under section 14,
shall be final.
SCHEDULE
4. Employment in Grocery Markets or shops, in
connection with loading, unloading, stacking,
carrying, weighing, measuring, filing, stitching,
sorting, cleaning or such other work including work
preparatory or incidental to such operations.
5. Employment in markets, and factories and other
establishments, in connection with loading,
unloading, stacking, weighing, measuring, filing,
stitching, sorting, cleaning or such other work
including work preparatory or incidental to such
operations carried on by workers not covered by
any other entries in this Schedule.
16Page 17
6. The provisions of the 1970 Scheme, insofar as they are
relevant for decision in the present appeals, are set out
hereinbelow and read as follows:
“No. UWA-1469.(GR)_160783/LAB-IV :- In exercise
of the powers conferred by sub-section (1) of
section 4 of the Maharashtra Mathadi, Hamal and
Other Manual Workers (Regulation of Employment
and Welfare) Act, 1969 (Mah. XXX of 1969) and of
all other powers enabling it in that behalf the
Government of Maharashtra after consultation with
the Advisory Committee, hereby makes the
following scheme for employment in grocery
markets and shops in connection with loading,
unloading, stacking, carrying, weighing, measuring
or such other work including work preparatory or
incidental to such operations in the areas specified
in the Schedule appended to this Scheme, the
same having been previously published as required
by sub-section(1) of the said section 4, namely:-
2. Objects and Application:-
(1) Objects:- The objects of the scheme are to
ensure an adequate supply and full and proper
utilization of unprotected workers employed in-
(a) Grocery Markets or Shops in connection with
loading, unloading, stacking, carrying, weighing,
measuring [filling, stitching, sorting, cleaning] or
such other work including work preparatory or
incidental to such operations:
(b) Markets and other establishments in
connection with loading, unloading, stacking,
17Page 18
carrying, weighing, measuring [filling, stitching,
sorting, cleaning] of soda ash, coaltar, lime,
colour chemicals, chemical products including
fertilizers, gunny bags, coir ropes, ropes, mats,
hessian, cloth, hessian yarn, oil, cakes, husk,
chuni, chhala, or such other work including work
preparatory or incidental to such operation carried
on by workers not covered by any other entries in
the schedule for efficient performance of work and
generally for making better provisions for the
terms and conditions of employment of such
workers and make provision for their general
welfare.
(c) onion and potato wholesale markets in
connection with loading, unloading, stacking,
carrying, weighing measuring [filling, stitching,
sorting, cleaning], or such other work, including
work preparatory or incidental to such operations.
(d)factories and mills manufacturing grocery
products if such employment is connected with
loading, unloading, stacking, carrying, weighing,
measuring, [filling, stitching, sorting, cleaning] or
such other work including work preparatory or
Incidental to such operations carried on by
workers covered by entry 5 in the schedule to the
Act;
(e)railway yards and goods sheds in connection
with loading, unloading, stacking, carrying,
weighing, measuring [filling, stitching, sorting,
cleaning] of grocery articles or such other work
preparatory or incidental to such operations by
workers who are not employed by Railway
Authorities and
(f) factories and mills manufacturing colour
chemicals, chemicals products including
fertilizers, in connection with the loading,
unloading, stacking, carrying, weighing,
18Page 19
measuring [filling, stitching, sorting, cleaning] or
such other work including work preparatory or
incidental to such operation carried on by workers
covered by entry 5 in the Schedule to the said
Act;
42. Cost of operating the scheme and provision for
amenities and benefits to registered workers –
(1) The cost of operating this scheme and for
providing different benefits, facilities and amenities
to registered workers as provided in the Act and
under this scheme shall be defrayed by payments
made by the registered employers to the Board.
Every registered employer shall pay to the Board
such amount by way of levy in respect of registered
workers allotted to and engaged by him as the
Board may, from time to time specify by public
notice or written order to the registered employer
and in such manner and at such time as the Board
may direct.
(2) In determining what payments are to be made
by the registered employers under sub-clause (1)
the Board may fix different rate of levy for different
categories of work, or registered workers, provided
that the levy shall be so fixed that the same rate of
levy will apply to all registered employers who are in
like circumstances.
(3) The Board shall not sanction any levy
exceeding fifty percent of the total wage bill without
the prior approval of the State Government.
(4) A registered employer shall on demand make
a payment to the Board by way of deposit or provide
such, other security for the due payment of the
amount referred to in sub-clause (1), as the Board
may consider necessary.
19Page 20
(5) The Secretary shall furnish from time to time,
to the Board such statistics and other information as
may reasonably be required in connection with the
operation and financing of the scheme.
(6) If a registered employer fails to make the
payment due from him under sub-clause (1) within
the time specified by the Board the Secretary shall
serve a notice on the registered employer to the
effect that unless he pays his dues within three days
from the date of receipt of the notice, the supply of
registered workers to him shall be suspended. On
the expiry of the notice period the Secretary shall
suspend the supply of registered workers to
defaulting registered employer until he pays his
dues.
43. Provident Fund and Gratuity:-
(1) The Board shall frame and operate rules
providing for contributory Provident Fund for
registered workers. The rules shall provide for the
rate of contribution, the manner and method of
payment and such other matters as may be
considered necessary so however that the rate of
contribution is not less than 6 ½ per cent of the
wages of a registered worker and is not more than 8
per cent of such wages.
Provided that pending the framing of the rules it
shall be lawful for the Board to fix the rate of
contribution and the manner and method of
payment thereof.
(1a) In framing rules for the contributory Provident
Fund the Board shall take into consideration, the
provisions of the Employees’ Provident Funds Act
20Page 21
1952 as amended from time to time and the
schemes made thereunder for any establishment.
(2)The Board shall frame rules for payment of
gratuity to registered workers.
(2a) In framing rules for the payment of gratuity to
registered workers, the Board shall take into
consideration the provisions of the Payment of
Gratuity Act, 1972 as amended from time to time.
(3) The rules of the provident fund and Gratuity
framed by the Board shall be subject to the previous
approval of the State Government.”
7. The first contention of Shri Cama, that the 1970 Scheme,
insofar as it provides for employment in a factory manufacturing
chemical products, is ultra vires the Schedule to the 1969 Act,
has to be rejected. We agree with learned counsel for the
respondent that clause 5 of the Schedule to the Act is a
residuary clause which would rope in employment in factories in
connection with loading, unloading, etc. carried on by workers
not covered by any other entries in the Schedule. Admittedly,
manufacture of petro chemicals in factories is not covered by
any other entry including entry 4 to the Schedule. For this
reason, we are of the view that the provisions of the 1970
21Page 22
Scheme dealing with manufacture of petro chemicals in
factories would be within the coverage of the residuary entry i.e.
Item 5 of the Schedule to the 1969 Act. This being so, no part
of the 1970 Scheme is ultra vires the 1969 Act.
8. The second submission of learned counsel for the
appellant has also to be rejected for the reason that clause 2(1)
(f) of the 1970 Scheme is intra vires Section 1(4A) table column
4 item 5 of the 1969 Act. It is clear that the expression
“products including fertilizers” is wider than “chemical products
including fertilizers”. The 1969 Act’s terminology being wider
than the terminology of the impugned 1970 Scheme, obviously
the 1970 Scheme when it speaks of “chemical products”
manufactured in factories and covered by entry 5 in the
schedule to the 1969 Act would be intra vires the expression
“products including fertilizers”.
9. The further submission of Shri Cama, learned senior
counsel, that the appellant allegedly manufactures petro
chemical products and not chemical products has been
correctly repelled by the Division Bench of the Bombay High
22Page 23
Court by stating that “petro chemical products” would be a
species of the genus “chemical products”. In fact, the appellant
has admitted that it manufactures polystyrene (granules).
Polystyrene in turn has been described as an inexpensive and
hard plastic which is a vinyl polymer. In the report of the
working group on chemicals and petro chemicals in the 11th
Five Year Plan from 2007-2008 to 2011-2012 made by the
Department of Chemicals and Petro Chemicals, it is stated:-
“1. Petrochemicals are derived from various
chemical compounds, mainly hydrocarbons. These
hydrocarbons are derived from crude oil and natural
gas. Among the various fractions produced by
distillation of crude oil, petroleum gases, naphtha,
kerosene and gas oil are the main feedstocks for
the petrochemical industry. Ethane and natural gas
liquids obtained from natural gas are the other
important feedstocks used in the petrochemical
industry. Olefins (Ethylene, Propylene & Butadiene)
and Aromatics (Benzene, Toluene & Xylenes) are
the major building blocks from which most
petrochemicals are produced.
2. Petrochemical manufacturing involves
manufacture of building blocks by cracking or
reforming operation; conversion of building blocks
into intermediates such as fibre intermediates
(Acrylonitrile, Caprolactum, Dimethyl
Terephthalate/Purified Terephthalic Acid, Mono
Ethylene Glycol); precursors (Styrene, Ethylene
Dichloride, Vinyl Chloride Monomer etc.) and other
23Page 24
chemical intermediates; production of synthetic
fibers, plastics, elastomers, other chemicals and
processing of plastics to produce consumer and
industrial products.
10. A perusal of the aforesaid report shows that not only are
petro chemicals derived from various chemical compounds, but
also that petro chemical manufacturing involves among other
things the production of plastics. In fact, in a report made by
the Inquiry Officer appointed under Section 13 of the Act, the
authorized officer came to the conclusion:
“Under these circumstances, my opinion is that
polystyrene production is not a petroleum product
but it is a chemical or chemical product. For a
moment if it is accepted that company is a
petrochemical company and producing
petrochemical, even though petrochemical is also
one of the chemical and therefore no reason is seen
for not accepting a chemical production and
Mathadi Act and Scheme are not applicable. After
all petrochemicals are chemicals. It is not
mentioned anywhere that petrochemicals should be
omitted while implementing Mathadi Act and
Scheme. Under the circumstances, I am giving my
ruling that company’s above point is not valid and
hence Mathadi Act and Scheme is applicable to the
company.”
24Page 25
11. From the above, it is clear that the conclusion reached by
the Government in its order dated 24.6.2008 that petrochemical
products are a species of chemical products and that
the appellant manufactures chemical products, cannot be said
to be perverse. We must not forget that the High Court in
dismissing the writ petition was exercising the power of judicial
review which would not go to the merits of the controversy
before the Government but would only go to perversity –that no
reasonable person invested with the same power could
possibly arrive at the conclusion arrived at by the Government.
Even otherwise, we must not forget that we are dealing with a
welfare legislation whose primary object is to provide adequate
employment for and better terms and conditions for the
employment of daily wagers, and to provide for their general
welfare, which includes health and the safety measures, and to
provide them with various other facilities including provident
fund and gratuity. Arguments indulging in unnecessary
hairsplitting have therefore necessarily to be dismissed out of
hand.
25Page 26
12. Another submission made by learned senior counsel
appearing on behalf of the appellant is that the 1970 Scheme
deals with grocery markets or shops as its title suggests and
cannot therefore include within it’s scope petro chemicals
manufactured in factories without following the drill of Section
4(1)(b) of the 1969 Act. This argument again has to be rejected
for the reason that both Sections 3 and 4 of the Act refer to a
scheme which provides for registration of unprotected workers
“in any scheduled employment or employments” (as per Section
3(1) of the 1969 Act). Further, Section 4(1) of the 1969 Act also
makes it clear that the State Government may make one or
more Schemes for any scheduled employment or group of
scheduled employments. On a reading of these provisions it
becomes clear that there can be a composite scheme which
takes within its ken various employments which may be
contained in more than one entry of the Schedule to the 1969
Act. This being so, it is clear that merely naming a particular
composite scheme as a grocery market or shop scheme does
not carry the matter further. It is clear that the present scheme
specifically takes within its ken factories manufacturing
26Page 27
chemical products covered by entry 5 in the schedule to the
1969 Act, and would therefore be a scheme which provides for
registration of unprotected workers in different scheduled
employments and/or a group of scheduled employments. This
being the case, it is clear that the attack based on
nomenclature of the 1970 Scheme as a grocery market or
shops scheme must fail.
13. We also agree with learned counsel for the respondent
that Section 2(4) of the 1969 Act, which defines
“establishment”, would not only include any place or premises
in which manufacture of petro chemicals is being carried on, but
would also include the precincts thereof, which would include
transportation made beyond the factory gate but within the
precincts of the factory. This being the case, it is common
ground that workers are necessary and are being used by the
appellant to load the appellant’s products on to the vehicles
provided by the appellant’s purchasers. This being the case,
any argument that the factories’ manufacturing activities are
27Page 28
mechanized and that there is no need for manual labour would
have no material bearing to the case at hand.
14. This Court, while approving a Full Bench decision of the
Bombay High Court, has in the Bhuwalka Steel case
interpreted the expression “unprotected worker” occurring in
Section 2(11) of the 1969 Act as meaning every manual worker
who is engaged or to be engaged in any scheduled
employment, irrespective of whether or not he is protected by
other labour legislations. This Court referred to the Objects and
Reasons for the 1969 Act in the following terms:
“The Statement of Objects and Reasons mentions
that report was made by the Committee to the
Government on 17.11.1967. In that report, it was
mentioned that the persons engaged in vocations
like mathadi, hamals, casual workers employed in
docks, lokhandi jatha workers, salt pan workers and
other manual workers mostly work outside fixed
premises in the open and are mostly engaged on
piece-rate system in a number of cases. They are
not employed directly, but are either engaged
through Mukadum or Toliwalas or gangs as and
when there is work and they also work for different
employers on one and the same day. The volume of
work is not always constant. In view of the peculiar
nature of work, its variety, the precarious means of
employment and the system of payment and the
particular vulnerability to exploitation of this class of
28Page 29
labour, the Committee had come to the conclusion
that the application of the various labour laws to
such workers was impracticable and regulation of
their working and other conditions by introducing
amendments to the existing labour laws was not
possible. Therefore, the Committee recommended
that the working and the employment conditions of
such unprotected workers should be regulated by a
special enactment.
The Statement of Objects and Reasons
further mentions that after holding series of
meetings with the representatives of the interests
affected by the proposed legislation and after
considering all these suggestions and examining
the recommendations of the Committee,
Government had decided to bring the Bill which
seeks to regulate the employment of mathadis,
hamals and other manual workers employed in
certain employments, to make better provision for
their terms and conditions of employment, to
provide for their welfare, for health and safety
measures, where such employments require those
measures, to make provision for ensuring an
adequate supply to, and full and proper utilization of
such workers in such employments, to prevent
avoidable unemployment and for such purposes to
provide for the establishment of Boards in respect
of these employments and (where necessary) in the
different areas of the State and to provide for
purposes connected with the matters aforesaid.
(emphasis supplied)” (at Paras 9 and 10)
15. After construing Section 2(11) of the 1969 Act to cover all
“unprotected workers”, i.e. all manual labour engaged in any
29Page 30
scheduled employment irrespective of protection under other
Labour Legislation, this Court went on to hold:-
“Before parting with the judgment, we must refer to
the fact that this legislation, which came way back in
1969, has in its view, those poor workmen, who
were neither organized to be in a position to bargain
with the employers nor did they have the compelling
bargaining power. They were mostly dependent
upon the Toliwalas and the Mukadams. They were
not certain that they would get the work everyday.
They were also not certain that they would work
only for one employer in a day. Everyday was a
challenge to these poor workmen. It was with this
idea that the Board was created under Section 6 of
the Mathadi Act. Deep thoughts have gone into,
creating the framework of the Boards, of the
schemes etc. With these lofty ideas that the Act was
brought into existence. In these days when Noble
Laureate Professor Mohd. Yunus of Bangladesh is
advocating the theory of social business as against
the business to earn maximum profits, it would be
better if the employers could realize their social
obligations, more particularly, to the have-nots of
the society, the workers who are all contemplated to
be the inflicted workers in the Act.” (at Para 83)
16. Taking a cue from the Objects and Reasons for this piece
of social legislation and from the well known doctrine of
construing such legislation in an expansive manner to further
the object of welfare Legislation of the kind mentioned
hereinabove, and not to stultify such object, we hold that the
30Page 31
Bombay High Court cannot be faulted in its reasoning. It must
also not be forgotten that the object of the 1970 Scheme is not
only to provide work to both employer and employee but also to
provide amenities and benefits to registered workers. These
amenities and benefits are to be provided by the Board to
employees by charging the employer with a levy which cannot
exceed 50% of the total wage bill of the employer without the
prior approval of the State Government. We are told that in the
present case the levy amount is 41%, which is utilized not only
to look after the health of the workers, but also to give them
terminal benefits such as provident fund and gratuity provided
for by clause 43 of the 1970 Scheme.
17. It was further submitted by Shri Cama that on a conjoint
reading of the definitions of “employer”, “principal employer”
and “worker” contained in Sections 2(3), (7), (12), as the two
societies are contractors employing contract labour for and on
behalf of the appellant company’s purchasers, the appellant
company cannot be said to be the “principal employer” who is
liable to be registered under the 1969 Act. We are afraid that
this contention does not lie in the mouth of the appellant
31Page 32
company. By an application made for registration under the
1969 Act dated 11.10.1996, in column No.7 which reads as
follows:-
“7. Are you employing workers through contractors?
If so, state the name of the contractors”
the Company has specifically mentioned two cooperative
societies and one other contractor thereby admitting that it
actually employed about 30 workers itself through contractors.
18. By a letter dated 1.3.2003, i.e. almost 7 years after the
appellant company had been registered as an employer under
the 1969 Act, the appellant company applied to remove its
name from the register contained in the 1969 Act. This was
followed up by a representation dated 10.5.2004 in which the
appellant company stated:-
“The company, although did not engage any
mathadi workmen, in view of the prosecution,
registered itself on 11/10/1996, and was issued
Registration No.4516. After registration, the
Company with a view to close the matter pleaded
guilty in the proceedings filed by the Board before
the Labour Court. The Company submits that no
Toli was allotted to it in spite of being registered till
21/3/2001, as the Board was well aware that the
Company itself did not engage any persons for
loading trucks and that the truckers/customers
32Page 33
engaged persons from the Societies for loading
work. The Company conducted and continued its
business as usual and sold its products on ex-work
basis whereby the customer as earlier sent
Truckers along with persons who were from the
Societies for loading.”
19. Similarly in the writ petition filed before the High Court,
the appellant company’s own pleading in paragraph 8 is that
the appellant registered itself with the respondent No.2 Board
under pressure of the Board believing that the Act and the
scheme were applicable. It was granted registration No.4516.
Further, in proceedings under the Act against the company it
admitted that it pleaded guilty for not having registered itself.
This being the state of facts before us, we cannot characterize
the State Government’s finding in its order dated 24.6.2008 as
even incorrect, let alone perverse. As pointed out above, in
paragraph 6 of its order, the State Government specifically
arrived at a finding that Mathadi work was carried out in the
company by two cooperative societies who had the work done
by employing workers and got compensated by the appellant
company. This being the case, there is no factual foundation
for Shri Cama’s argument that it is the appellant’s purchasers
and not the appellant company itself that is the principal
employer under the Act.
20. One other contention of Shri Cama needs to be noticed.
Shri Cama argued before us that the 1969 Act being
inconsistent with the Contract Labour (Regulation and Abolition)
Act, 1970 would be repugnant to the said Act and therefore
invalid under Article 254 of the Constitution. He candidly
admitted that no such ground had been raised or argued before
the High Court, but asked that the Supreme Court allow him to
raise this plea as it is a pure question of law. We are afraid that
this is not possible for the reason that even if Shri Cama were
to be correct in his submission that the Central Parliamentary
Act of 1970 would impliedly repeal the 1969 State Act, yet
Section 30(1) of the said Act provides that despite the
provisions of the 1970 Act being allegedly inconsistent with the
1969 State Act, yet if contract labour employed in an
establishment are entitled to benefits which are more
favourable to them than those to which they would be entitled
under the 1970 Act, the contract labour shall continue to be
entitled to more favourable benefits, notwithstanding that they
also receive benefits in respect of other matters under the
Central Parliamentary Act. This being the case, it was
incumbent upon the writ petitioner not only to take up the plea
of repugnancy and implied repeal but also to state as a fact that
what the workmen would be entitled to under the 1969 State
Act would not be as beneficial as what they would be entitled to
under the 1970 Central enactment. This would then give the
respondent Board, in turn, an opportunity of either admitting or
denying this factual averment. There being no pleading to this
effect in the writ petition before the High Court, it is clear that it
is not possible for us to accede to Shri Cama’s request to go
into the argument on repugnancy and implied repeal.
21. This appeal is, accordingly, dismissed.
Civil Appeal No.9999 of 2010
22. In this appeal, the fact situation is that the appellant
company is manufacturing soft drinks being aerated water and
bottled water. A State Government order dated 18.8.2008
made under Section 5 of the Act rendered the following finding:-
35Page 36
“5. The Government has perused all the case
papers and considered the above circumstances.
After examining all the aspects of the case the
Government has arrived at the following findings:-
(a) The company products drinking water
and drinks of various kinds such as Pepsi,
Mirinda and Seven-up.
(b) In the said products the Company
uses as raw material such as Sugar, Caustic
Soda, Carbonic Acid; Ascorbic Acid; Coffin,
Sequesters Agents, Buffering; Carmel
Water, Emulsifying and Stabilizing.
(c) “Drink” is one of the substances of
food products;
(d) “Drink” is a grocery product;
(e) The raw material from which they are
produced are also primarily consumable
food products.
(f) The raw material required for the
manufacture of the product as also the
product manufactured are both consumable
food products (liquid and solid).
(g) Mathadi Act and the Scheme famed
thereunder being beneficent and benevolent
welfare Schemes and the object is to make
the same applicable to the companies
manufacturing grocery market products as
provided in the Grocery Markets & Shops
Unprotected Workers (Regulation of
Employment and Welfare) Scheme, 1970.
6. In the above circumstances, the State has
come to the finding that the Scheme of the Grocery
36Page 37
Bazar and Shops Workers Board is applicable to
the Company.
7. The company is engaged in products of drinks
and drinking water and consequently in carrying on
works in the nature of Mathadi such also loading,
unloading, stacking, carrying setting up of raw
material. The said works was carried out by 49
workers of contractor M/s M.M. Patil under the
supervision the Grocery Board Supervisor. The
said workers, excepting their wages, were deprived
of P.F. contribution, paid holidays, house rent,
workmen’s compensation, bonus and other medical
benefits. In these circumstances, the provisions of
the Maharashtra Mathadi, Hamal and other Manual
Workers (Regulation of Employment and Welfare)
Act, 1969 and the Grocery Markets or Shops
Unprotected Workers (Regulation of Employment
and Welfare) Scheme, 1970 are applicable to your
establishment. Therefore, the application made by
you to the Government under the provisions of
section 5 of the Mathadi Act is rejected.”
23. A writ petition filed against the said order before the
Bombay High Court failed. The High Court dismissed the
petition as follows:-
“The second submission is that the petitioners are
manufacturing Soft Drinks like Pepsi, Mirinda,
Seven-up etc. and it is not a grocery items. It is not
disputed before this court that in the manufacturing
process of these soft drinks, the petitioners are
using sugar, carbonic acid, ascorbic acid, coffin,
sequestrates agents. The petitioners are using
caustic soda for cleaning bottles. But we find that
37Page 38
these soft drinks are provided to refresh persons
and to provide energy to them when they are
exhausted. The items, like sugar or carbonic
hydride provide energy. It is also not disputed that
all these items used in the manufacturing process
are the grocery items and accordingly the State
Government has also made observations that these
are the grocery items. Apart from that the Oxford
Dictionary has given the meaning of “grocery”.
According to said dictionary “Grocery” means items
of food in a grocery shop or a super-market. Nowa-days,
all the Soft Drinks are available in the
grocery shops and the super-markets. They are the
items of food and, therefore, they are all grocery
items. Apart from this, it is not disputed by the
learned counsel that in all the manufacturing
process, loading and unloading activities are carried
out, which are the activities of the Mathadi
Kamgara. We do not find any substance in the
contentions raised. The writ petition is rejected.”
24. Shri Giri, in addition to the submissions raised by Shri
Cama, on his special facts submitted that it was fallacious to
take into account raw materials that ultimately went into the
manufacturing of the finished products and to state that the said
raw materials being groceries would therefore make the final
product also a “grocery”. He further argued that the expression
“grocery” would only comprise articles which are required as
daily necessities such as oil, grain, etc. in households, and this
not being the case, soft drinks manufactured and bottled water
38Page 39
would be outside the expression “grocery”. He also argued that
when the Act was extended to the appellant company’s factory,
in the year 1983, whatever may be the position today, the
position in 1983 was clear and obviously the items
manufactured by the appellant company would not have fallen
within the expression “grocery” as understood in 1983.
25. Learned counsel appearing on behalf of the Board has
repelled all these arguments stating that the expression
“grocery” was wide enough to include all items of food and drink
which would necessarily take in the appellant company’s
products. He reiterated his argument on construing a beneficial
enactment such as the 1969 Act to achieve the object set out
and that assuming that the term “grocery” has a narrower
meaning, obviously the broader meaning should be taken into
account. Further, he also stated that whatever the position was
in 1983, at the stage of the show cause notice in 2005 and by
the date of the State Government order in 2008 both soft drinks
manufactured as well as bottled water manufactured by the
appellant company were certainly household items among the
middle class and rich sections of society.
39Page 40
26. The definition of “grocery” contained in the Oxford
Advanced Learner’s Dictionary of Current English, 9th Edition, is
as follows:-
“grocery – (grocery store) a shop/store that sells
food and other things used in the home. In
American English ‘grocery store’ is often used to
mean supermarket. 2. Groceries – food and other
goods sold by a grocer or at a supermarket.”
We also find a useful definition contained in Collins English
Dictionary, Third Edition –
“groceries – merchandise, esp. Foodstuffs, sold by a
grocer”.
27. That the expression “grocery” in 2005, when the Act was
sought to be applied to the appellant company, would include
soft drinks manufactured by the appellant company and bottled
water as daily household goods among the middle class and
rich sections of society, was not seriously contested by Shri
Giri. The argument that we should find the meaning of the
expression “grocery” on the date on which the Act was
extended to the area in which the appellant company’s factory
was situate is fallacious in law. This Court in The Senior
40Page 41
Electric Inspector and others v. Laxmi Narayan Chopra and
others, 1962 (3) S.C.R. 146, when confronted with a similar
argument to that made by Shri Giri, repelled the said argument
in the following terms:
“The legal position may be summarized thus: The
maxim contemporanea expositio as laid down by
Coke was applied to construing ancient statutes but
not to interpreting Acts which are comparatively
modern. There is a good reason for this change in
the mode of interpretation. The fundamental rule of
construction is the same whether the Court is asked
to construe a provision of an ancient statute or that
of a modern one, namely, what is the expressed
intention of the Legislature. It is perhaps difficult to
attribute to a legislative body functioning in a static
society that its intention was couched in terms of
considerable breadth so as to take within its sweep
the future developments comprehended by the
phraseology used. It is more reasonable to confine
its intention only to the circumstances obtaining at
the time the law was made. But in a modern
progressive society it would be unreasonable to
confine the intention of a Legislature to the meaning
attributable to the word used at the time the law was
made, for a modern Legislature making laws to
govern a society which is fast moving must be
presumed to be aware of an enlarged meaning the
same concept might attract with the march of time
and with the revolutionary changes brought about in
social, economic, political and scientific and other
fields of human activity. Indeed, unless a contrary
intention appears, an interpretation should be given
to the words used to take in new facts and
situations, if the words are capable of
comprehending them. We cannot, therefore, agree
41Page 42
with the learned Judges of the High Court that the
maxim contemporanea expositio could be invoked
in construing the word “telegraph line” in the Act.”
(at 156, 157)
28. We thus find that the High Court was absolutely correct in
not interfering with the State Government order dated
18.8.2008 and in dismissing the writ petition filed by the
appellant company. For the same reasons given in Civil Appeal
No.10000 of 2010, we therefore reject this appeal as well. The
appeal is, accordingly, dismissed, with no order as to costs.
…..........................J.
(Kurian Joseph)
…..........................J.
(R.F. Nariman)
New Delhi;
February 12, 2016.
Print Page
Shri Cama argued before us that the 1969 Act being
inconsistent with the Contract Labour (Regulation and Abolition)
Act, 1970 would be repugnant to the said Act and therefore
invalid under Article 254 of the Constitution. He candidly
admitted that no such ground had been raised or argued before
the High Court, but asked that the Supreme Court allow him to
raise this plea as it is a pure question of law. We are afraid that
this is not possible for the reason that even if Shri Cama were
to be correct in his submission that the Central Parliamentary
Act of 1970 would impliedly repeal the 1969 State Act, yet
Section 30(1) of the said Act provides that despite the
provisions of the 1970 Act being allegedly inconsistent with the
1969 State Act, yet if contract labour employed in an
establishment are entitled to benefits which are more
favourable to them than those to which they would be entitled
under the 1970 Act, the contract labour shall continue to be
entitled to more favourable benefits, notwithstanding that they
also receive benefits in respect of other matters under the
Central Parliamentary Act. This being the case, it was
incumbent upon the writ petitioner not only to take up the plea
of repugnancy and implied repeal but also to state as a fact that
what the workmen would be entitled to under the 1969 State
Act would not be as beneficial as what they would be entitled to
under the 1970 Central enactment. This would then give the
respondent Board, in turn, an opportunity of either admitting or
denying this factual averment. There being no pleading to this
effect in the writ petition before the High Court, it is clear that it
is not possible for us to accede to Shri Cama’s request to go
into the argument on repugnancy and implied repeal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9999 OF 2010
PEPSICO INDIA HOLDING P. LTD. …APPELLANT
VERSUS
GROCERY MARKET & SHOPS BOARD
& ORS. ...RESPONDENTS
Dated;February 12, 2016.
Citation;(2016) 4 SCC493
R.F. Nariman, J.
1. These appeals involve an interpretation of the provisions
of the Maharashtra Mathadi, Hamal and Other Manual Workers
(Regulation of Employment and Welfare) Act, 1969, (hereinafter
1Page 2
referred to as “the 1969 Act”) read with the Grocery Markets or
Shops Unprotected Workers (Regulation of Employment and
Welfare) Scheme, 1970 (hereinafter referred to as “the 1970
Scheme”). The brief facts necessary for a decision in Civil
Appeal No.10000 Of 2010 (Supreme Petro-Chem Limited v.
State of Maharashtra and others) are that under Section 5 of
the said 1969 Act, if any question arises whether any scheme
applies to any class of unprotected workers, the matter shall be
referred to the State Government and the decision of the State
Government which shall be taken after consulting the Advisory
Committee constituted under Section 14 shall be final. By an
order dated 24.6.2008, the State Government after referring to
submissions from the appellants as well as submissions from
the Board, held:-
“4. Govt has analyzed overall situation, documents
application of the organization dated 01.03.2003
and information about the product and its raw
material. Govt has come to the following
conclusion:
a. Company is manufacturing Polystyrene.
b. For manufacturing styrene and
Polybutadin are used as raw material.
Polybutadin comes in rubber form and it is
not natural rubber.
2Page 3
c. Polystyrene is a hard plastic.
d. Polystyrene is not a petrochemical
product but a chemical product.
e. Even Polystyrene manufacturing is
considered as petrochemical production it is
finally a chemical production only. The
material used to manufacture the product is
also chemical.
f. There is no written reference in the
Mathadi Act that petrochemical should be
kept out of the act but chemical itself
includes everything.
g. Mathadi Act and scheme is for the
betterment of workers and purpose of the
scheme is to make applicable to the
chemical manufacturing companies. It is not
mentioned in the scheme that petrochemical
products should be excluded and as
petrochemical is not mentioned in the
scheme so the scheme is not applicable to
the said organization is not acceptable.
5. In the situation Samitte and Govt. has come to
the conclusion that Grocery market and shops
unprotected workers (Regulation of Employment
and Welfare) Act 1970 is applicable to Supreme
Petrochem Ltd.
6. In the company loading unloading work of
chemical product and its raw material is carried out.
And with respect to this Mathadi kind of work is
carried out in the company. As said by the
company this work is carried out by two Cooperative
societies. These societies do the work by
employing the workers and get compensation from
the company. Company says that these employees
get the facilities like Provident fund and others. But
in the report filed by the mandal on 20.09.2006 this
3Page 4
statement has not been proved. As per the decision
given by Hon. High Court in 2006 (3) CLR PG 999,
there is no meaning to what company is saying.
Instead of that it proves that in the said company
Mathadi kind of work carries out.
8. In this situation Maharashtra Mathadi Hamal and
other Manual Workers (Regulation of Employment
and Welfare) Act 1969, Grocery Markets or Shops
Unprotected Workers (Regulation of employment
and welfare) Scheme 1970 is applicable to the said
organization. Therefore, application given under
section 5 of Mathadi Act is rejected by the
Government.”
2. The said order was challenged before the Bombay High
Court by filing a writ petition. The writ petition was dismissed by
the impugned judgment dated 10.2.2009 after holding:-
“4. It is rather difficult to digest the arguments of the
learned counsel. Basically, what we find is that the
petitioners are manufacturing polysterene and
polysterene is a combination of styrene and
polybutadin. Polybutadin comes in rubber form and
is not a petrochemical though it is not a natural
rubber. Styrene is one of the by-product of the
petrochemical which is used by the petitioner for
manufacturing polysterene. Therefore, the
petitioners are not manufacturing any
petrochemicals, but one of the by-product of the
petrochemical is used by the petitioners to
manufacture polysterene and polysterene is hard
plastic.
5. All these aspects have been considered by
the Government authorities and thereafter the
authorities concluded that the petitioners are not
4Page 5
dealing with petrochemicals as they have submitted.
We agree with the findings of the authority.
Assuming for a moment that the petitioners are
dealing in petrochemicals, yet the Act will be
applicable to them because the words used in this
application clause referred to above is the product
including the manures and thereby, every type of
production has been covered. What is important to
note is that the manures which are like urea etc. are
also derivatives of the petrochemicals and thereby
by inclusive clause the manures which could have
been saved probably have been included there.
Therefore, the word “product” has been used by the
Legislature in its wisdom with all its cognate
variations and it cannot be interpreted to have a
limited meaning. What we find is that the
petrochemical is a part of the chemical. Chemical is
the genesis while petrochemical is species of the
said genesis and thereby if the chemical industry is
covered it is rather difficult to hold that the
petrochemical industries are not covered.
6. What is important to be looked into is whether
in this industry the work which the mathadis are
carrying out is available or not. If, in that industry,
the work of mathadis is available then only because
the industry is dealing in some different aspect, that
work cannot be given to some other unorganized
workers. The basic test, after having ascertained
that the industry is covered by law, is to find out that
the work of mathadis is available and if it is
available, the Act and the Scheme will apply to the
industry. It is not disputed that the mathadi work is
not available. The only distinction which was tried
to be made out was with regard to petrochemicals
and that, therefore, the Act is not applicable, which
submission we have already rejected for the
reasons stated above. We find that the
Government has rightly decided the matter under
5Page 6
Section 5 and no interference is called for at the
hands of this court.”
3. Shri J.P. Cama, learned senior advocate appearing on
behalf of the appellants has argued that the 1969 Act only
applies to employments that are specified in the Schedule.
Inasmuch as grocery markets or shops are mentioned in Item 4
of the Schedule, according to learned counsel, employment in
factories which occurs only in Item 5 of the said Schedule could
not possibly be attracted as Item 5 only speaks of
establishments which are not covered by any other entries in
the Schedule. Inasmuch as the 1970 Scheme in the present
case is a scheme dealing with employment in grocery markets
or shops, Item 5 of the Schedule is not attracted, and the 1970
Scheme is ultra vires the 1969 Act insofar as it provides for
employment in factories which manufacture chemical products
and are covered by entry 5 of the Schedule to the said 1969
Act. He also referred to Section 1(4A) of the 1969 Act to state
that insofar as employment in factories in district Raigad are
concerned, item 5 in column 4 of the table appended to Section
6Page 7
1(4A) speaks of “colour chemicals” and “products including
fertilizers”, and not “chemical products”. This being so,
chemical products in any case are outside Section 1(4A), and
the 1970 Scheme insofar as it purports to include within it under
clause 2(1)(f) “chemical products”, is therefore ultra vires
Section 1(4A). Further, according to learned counsel, what is
allegedly manufactured in the appellant’s factory are petro
chemicals and not chemicals. He has referred to a number of
documents which include various licences and letters from
authorities clearly stating that what is manufactured in the
appellant’s factory are only petro chemicals. For that reason
also, petro chemicals not being chemicals would not be within
the coverage of the 1969 Act or the 1970 Scheme. He further
argued, referring to Section 4(1)(b) of the 1969 Act that if the
1970 Scheme is to be made applicable to petro chemicals
manufactured in factories, the only method of doing so is if a
demand or request is made by a majority of the employers or
workers that the provisions of the grocery markets or shops
scheme should be applied to another scheduled employment –
that is, manufacturing petro chemicals in factories, and it is only
7Page 8
after consultation with the employers and workers that the State
Government may apply the provisions of the 1970 Scheme to
the appellant’s factory manufacturing petro chemicals. This not
having been done, the 1970 Scheme cannot apply to the
appellant. Learned counsel further argued that in point of fact
there is no work of transportation undertaken by the employer
from the employer’s factory to the purchaser’s premises. He
argued that the factory was by and large mechanised and that
the petro chemical products manufactured at the factory were
picked up by purchasers by employing contract labour that was
arranged by the purchasers themselves. This being so, the
1969 Act and the 1970 Scheme would have no application to
the appellant’s factory.
4. Shri S. Chinchwadkar, learned advocate appearing on
behalf of the respondent-Board has countered each of the
arguments of Mr. Cama. According to Shri Chinchwadkar Entry
5 appearing in the Schedule to the 1969 Act is a residuary entry
which takes in all employments not otherwise covered by any
scheme under any of the other items of the Schedule, and as
8Page 9
petro chemicals manufactured in factories were admittedly not
covered by any of the other items, they would fall within the
residuary entry. Further, according to learned counsel, the
nomenclature of the scheme is irrelevant so long as the
provisions of the 1970 Scheme actually cover the appellant’s
activities carried out in factories. He further argued referring to
Sections 3 and 4 of the 1969 Act that there can be a composite
scheme in which several scheduled employments or groups of
employments can be bunched together, which has been done
in the present case. He also argued with reference to Section
1(4A) that item 5 in column 4 when it referred to “products
including fertilizers” would include all products including
chemical products, and that therefore the 1970 Scheme is intra
vires the 1969 Act. He also referred to the State Government
order, which was impugned before the High Court and upheld,
in order to show that the State Government had applied its
mind under Section 5 of the 1969 Act, and that such order
should not be interfered with in the exercise of judicial review
under Article 226 of the Constitution. He also referred us to the
definition of “establishment” contained in section 2(4) which
9Page 10
would mean “any place or premises including the precincts
thereof in which any scheduled employment is being carried
on”. According to him, inasmuch as lifting of the appellant’s
product was being carried on from the precincts of the factory,
the appellant would be covered by the 1969 Act and the 1970
Scheme. He also referred in some detail to Bhuwalka Steel
Industries Limited v. Bombay Iron & Steel Labour Board,
(2010) 2 SCC 273 to buttress his proposition that this Court,
following the Full Bench of the Bombay High Court, has
construed the 1969 Act as a welfare legislation, and having
regard to its object has expressly stated that employers should
realise their social obligations qua this segment of workers who
are non-protected workers, as defined by the said Act.
5. We have heard learned counsel for the parties. Before
entering into the merits of the controversy before us, we would
like to set out the relevant provisions of the 1969 Act and the
1970 Scheme made thereunder. The long title of the 1969 Act
is important in that it sets out the object for which the 1969 Act
was enacted, and is as follows:-
10Page 11
“An Act for regulating the employment of
unprotected manual workers employed in certain
employments in the State of Maharashtra to make
provision for their adequate supply and proper and
full utilization in such employments, and for matters
connected therewith. WHEREAS, it is expedient to
regulate the employment of unprotected manual
workers such as, Mathadi, Hamal etc., engaged in
certain employments, to make better provision for
their terms and conditions of employments, to
provide for their welfare, and for health and safety
measures where such employments require these
measures; to make provision for ensuring an
adequate supply to, and full and proper utilization
of, such workers in such employments to prevent
avoidable unemployment; for these and similar
purposes, to provide for the establishment of
Boards in respect of these employments and (where
necessary) in the different areas of the State; and to
provide for purpose connected with the matters
aforesaid; It is hereby enacted in the Twentieth Year
of the Republic of India as follows: -
The Sections of the Act relevant for deciding these appeals are
set out hereinbelow and read as follows:
“1. Short title, extent, application and
commencement. –
(3) It applies to the employments specified in the
Schedule hereto.
(4A) Notwithstanding anything contained in subsection
(4), and in Government Notification,
Industries and Labour Department, No. UMA.
11Page 12
1272/Lab-IV, dated the 28th March 1972, this Act
shall be deemed to have come into force in the
areas specified in column 2 of the Table below on
the dates and in respect of the employments
specified in columns specified in columns 3 and 4
against each such areas in the said Table,
respectively.
TABLE
Sl.
No.
1
Areas
2
Date
3
Name of the
employment
4
1 (a) Thane and
Kalyan Talukas of
the Thane District;
and Panvel Taluka
of the Kulaba (now
Raigad) District)
(b) The whole of
the Thane and
Raigad Districts
excluding the
Thane and Kalyan
Talukas of the
Thane District and
Panvel Taluka of
the Raigad District.
26th day of
Dec. 1979.
1
st day of
August 1983.
(1) Employment in
Grocery Market or Shops, in
connection with loading,
unloading, stacking, carrying,
weighing, measuring (filling,
stitching sorting, cleaning) or
such other work including
work preparatory or incidental
to such operations.
(2) Employment in markets
and other establishments, in
connection with loading,
unloading, stacking, carrying,
weighing, measuring (filling,
stitching, sorting, cleaning) of
soda ash, coal-tar, lime,
colour chemicals, chemical
products including fertilizers,
gunny bags, coir ropes,
ropes, mats, hessian cloth,
hessian yarn, oil cake, husk
chuni and chhal or such other
work including work
preparatory or incidental to
such operations.
(3) Employment in onion and
potato wholesale markets in
connection with loading,
unloading, stacking carrying,
12Page 13
weighing, measuring (filling,
stitching, sorting, cleaning) of
such other work including
work preparatory or incidental
to such operations.
(4) Employment in factories
and mills manufacturing
grocery products if such
employment is connected
with loading, unloading,
stacking, carrying, weighing,
measuring (filling, stitching,
sorting, cleaning) or such
other work including work
preparatory or incidental to
such operations carried on by
workers covered by entry 5 in
the Schedule to this Act.
(5) Employment in factories
and mills manufacturing
colour chemicals, products
including fertilizers, if such
employment is in connection
with loading, unloading,
stacking, carrying, weighing,
measuring (filling, stitching,
sorting, cleaning) or such
other work including work
preparatory or incidental to
such operations carried on by
workers covered by entry 5 in
the Schedule to this Act.
2. Definitions.
(3) "employer", in relation to any unprotected
workers engaged by or through contractor, means
the principal employer and in relation to any other
unprotected worker, the person who has ultimate
control over the affairs of the establishment, and
includes any other person to whom the affairs of
13Page 14
such establishment are entrusted, whether such
person is called an agent, manager or is called by
any other name prevailing in the scheduled
employment;
(4) "establishment", means any place or premises,
including the precincts thereof, in which or in any
part of which any scheduled employment is being or
is ordinarily carried on;
(7) "principal employer" means an employer who
engages unprotected workers by or through a
contractor in any scheduled employment;
(9) "scheduled employment" means any
employment specified in the Schedule hereto or any
process or branch of work forming part of such
employment;
(10) "scheme" means a scheme made under this
Act;
(11) "unprotected worker" means a manual worker
who is engaged or to be engaged in any scheduled
employment;
(12) "worker" means a person who is engaged or
to be engaged directly or through any agency,
whether for wages or not, to do manual work in any
scheduled employment and, includes any person
not employed by any employer or a contractor, but
working with the permission of, or under agreement
with the employer or contractor; but does not
include the members of an employer's family.
3. Schemes for ensuring regular employment of
unprotected workers. –
(1) For the purpose of ensuring an adequate
supply and full and proper utilization of unprotected
workers in scheduled employments, and generally
for making better provision for the terms and
14Page 15
conditions of employment 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 or
employments, and provide for the terms and
conditions of work of registered unprotected
workers, and make provision for the general welfare
in such employments.
4. Making, variation and revocation of scheme. –
(1) The State Government may, after consultation
with the Advisory Committee, by notification in the
Official Gazette and subject to the condition of
previous publication, make one or more schemes
for any scheduled employment or group of
scheduled employments, in one or more areas
specified in the notification; and in like manner add
to, amend, vary or substitute another scheme for,
any scheme made by it:
Provided that, no such notification shall come into
force, unless a period of one month has expired
from the date of publication in the Official Gazette:
Provided further that, the State Government may –
(a) if it considers necessary, or
(b) if a demand or request is made by a majority
of the employers or workers in any other
scheduled employment, that the provisions of
any scheme so made for any scheduled
employment or any part thereof should be
applied to such other scheduled employment,
after consulting the employers and workers in
such scheduled employment by notification in the
Official Gazette, apply the provisions of such
scheme or part thereof to such scheduled
employment, with such modifications, if any, as
may be specified in the notification.
15Page 16
(2) The provisions of section 24 of the Bombay
General Clauses Act, 1904, shall apply to the
exercise of the power given by sub-section (1) as
they apply to the exercise of a Power given by a
Maharashtra Act to make rules subject to the
condition of previous publication.
5. Disputes regarding application of scheme. - If
any question arises whether any scheme applies to
any class of unprotected workers or employers, the
matter shall be referred to the State Government
and the decision of the State Government on the
question, which shall be taken after consulting the
Advisory Committee constituted under section 14,
shall be final.
SCHEDULE
4. Employment in Grocery Markets or shops, in
connection with loading, unloading, stacking,
carrying, weighing, measuring, filing, stitching,
sorting, cleaning or such other work including work
preparatory or incidental to such operations.
5. Employment in markets, and factories and other
establishments, in connection with loading,
unloading, stacking, weighing, measuring, filing,
stitching, sorting, cleaning or such other work
including work preparatory or incidental to such
operations carried on by workers not covered by
any other entries in this Schedule.
16Page 17
6. The provisions of the 1970 Scheme, insofar as they are
relevant for decision in the present appeals, are set out
hereinbelow and read as follows:
“No. UWA-1469.(GR)_160783/LAB-IV :- In exercise
of the powers conferred by sub-section (1) of
section 4 of the Maharashtra Mathadi, Hamal and
Other Manual Workers (Regulation of Employment
and Welfare) Act, 1969 (Mah. XXX of 1969) and of
all other powers enabling it in that behalf the
Government of Maharashtra after consultation with
the Advisory Committee, hereby makes the
following scheme for employment in grocery
markets and shops in connection with loading,
unloading, stacking, carrying, weighing, measuring
or such other work including work preparatory or
incidental to such operations in the areas specified
in the Schedule appended to this Scheme, the
same having been previously published as required
by sub-section(1) of the said section 4, namely:-
2. Objects and Application:-
(1) Objects:- The objects of the scheme are to
ensure an adequate supply and full and proper
utilization of unprotected workers employed in-
(a) Grocery Markets or Shops in connection with
loading, unloading, stacking, carrying, weighing,
measuring [filling, stitching, sorting, cleaning] or
such other work including work preparatory or
incidental to such operations:
(b) Markets and other establishments in
connection with loading, unloading, stacking,
17Page 18
carrying, weighing, measuring [filling, stitching,
sorting, cleaning] of soda ash, coaltar, lime,
colour chemicals, chemical products including
fertilizers, gunny bags, coir ropes, ropes, mats,
hessian, cloth, hessian yarn, oil, cakes, husk,
chuni, chhala, or such other work including work
preparatory or incidental to such operation carried
on by workers not covered by any other entries in
the schedule for efficient performance of work and
generally for making better provisions for the
terms and conditions of employment of such
workers and make provision for their general
welfare.
(c) onion and potato wholesale markets in
connection with loading, unloading, stacking,
carrying, weighing measuring [filling, stitching,
sorting, cleaning], or such other work, including
work preparatory or incidental to such operations.
(d)factories and mills manufacturing grocery
products if such employment is connected with
loading, unloading, stacking, carrying, weighing,
measuring, [filling, stitching, sorting, cleaning] or
such other work including work preparatory or
Incidental to such operations carried on by
workers covered by entry 5 in the schedule to the
Act;
(e)railway yards and goods sheds in connection
with loading, unloading, stacking, carrying,
weighing, measuring [filling, stitching, sorting,
cleaning] of grocery articles or such other work
preparatory or incidental to such operations by
workers who are not employed by Railway
Authorities and
(f) factories and mills manufacturing colour
chemicals, chemicals products including
fertilizers, in connection with the loading,
unloading, stacking, carrying, weighing,
18Page 19
measuring [filling, stitching, sorting, cleaning] or
such other work including work preparatory or
incidental to such operation carried on by workers
covered by entry 5 in the Schedule to the said
Act;
42. Cost of operating the scheme and provision for
amenities and benefits to registered workers –
(1) The cost of operating this scheme and for
providing different benefits, facilities and amenities
to registered workers as provided in the Act and
under this scheme shall be defrayed by payments
made by the registered employers to the Board.
Every registered employer shall pay to the Board
such amount by way of levy in respect of registered
workers allotted to and engaged by him as the
Board may, from time to time specify by public
notice or written order to the registered employer
and in such manner and at such time as the Board
may direct.
(2) In determining what payments are to be made
by the registered employers under sub-clause (1)
the Board may fix different rate of levy for different
categories of work, or registered workers, provided
that the levy shall be so fixed that the same rate of
levy will apply to all registered employers who are in
like circumstances.
(3) The Board shall not sanction any levy
exceeding fifty percent of the total wage bill without
the prior approval of the State Government.
(4) A registered employer shall on demand make
a payment to the Board by way of deposit or provide
such, other security for the due payment of the
amount referred to in sub-clause (1), as the Board
may consider necessary.
19Page 20
(5) The Secretary shall furnish from time to time,
to the Board such statistics and other information as
may reasonably be required in connection with the
operation and financing of the scheme.
(6) If a registered employer fails to make the
payment due from him under sub-clause (1) within
the time specified by the Board the Secretary shall
serve a notice on the registered employer to the
effect that unless he pays his dues within three days
from the date of receipt of the notice, the supply of
registered workers to him shall be suspended. On
the expiry of the notice period the Secretary shall
suspend the supply of registered workers to
defaulting registered employer until he pays his
dues.
43. Provident Fund and Gratuity:-
(1) The Board shall frame and operate rules
providing for contributory Provident Fund for
registered workers. The rules shall provide for the
rate of contribution, the manner and method of
payment and such other matters as may be
considered necessary so however that the rate of
contribution is not less than 6 ½ per cent of the
wages of a registered worker and is not more than 8
per cent of such wages.
Provided that pending the framing of the rules it
shall be lawful for the Board to fix the rate of
contribution and the manner and method of
payment thereof.
(1a) In framing rules for the contributory Provident
Fund the Board shall take into consideration, the
provisions of the Employees’ Provident Funds Act
20Page 21
1952 as amended from time to time and the
schemes made thereunder for any establishment.
(2)The Board shall frame rules for payment of
gratuity to registered workers.
(2a) In framing rules for the payment of gratuity to
registered workers, the Board shall take into
consideration the provisions of the Payment of
Gratuity Act, 1972 as amended from time to time.
(3) The rules of the provident fund and Gratuity
framed by the Board shall be subject to the previous
approval of the State Government.”
7. The first contention of Shri Cama, that the 1970 Scheme,
insofar as it provides for employment in a factory manufacturing
chemical products, is ultra vires the Schedule to the 1969 Act,
has to be rejected. We agree with learned counsel for the
respondent that clause 5 of the Schedule to the Act is a
residuary clause which would rope in employment in factories in
connection with loading, unloading, etc. carried on by workers
not covered by any other entries in the Schedule. Admittedly,
manufacture of petro chemicals in factories is not covered by
any other entry including entry 4 to the Schedule. For this
reason, we are of the view that the provisions of the 1970
21Page 22
Scheme dealing with manufacture of petro chemicals in
factories would be within the coverage of the residuary entry i.e.
Item 5 of the Schedule to the 1969 Act. This being so, no part
of the 1970 Scheme is ultra vires the 1969 Act.
8. The second submission of learned counsel for the
appellant has also to be rejected for the reason that clause 2(1)
(f) of the 1970 Scheme is intra vires Section 1(4A) table column
4 item 5 of the 1969 Act. It is clear that the expression
“products including fertilizers” is wider than “chemical products
including fertilizers”. The 1969 Act’s terminology being wider
than the terminology of the impugned 1970 Scheme, obviously
the 1970 Scheme when it speaks of “chemical products”
manufactured in factories and covered by entry 5 in the
schedule to the 1969 Act would be intra vires the expression
“products including fertilizers”.
9. The further submission of Shri Cama, learned senior
counsel, that the appellant allegedly manufactures petro
chemical products and not chemical products has been
correctly repelled by the Division Bench of the Bombay High
22Page 23
Court by stating that “petro chemical products” would be a
species of the genus “chemical products”. In fact, the appellant
has admitted that it manufactures polystyrene (granules).
Polystyrene in turn has been described as an inexpensive and
hard plastic which is a vinyl polymer. In the report of the
working group on chemicals and petro chemicals in the 11th
Five Year Plan from 2007-2008 to 2011-2012 made by the
Department of Chemicals and Petro Chemicals, it is stated:-
“1. Petrochemicals are derived from various
chemical compounds, mainly hydrocarbons. These
hydrocarbons are derived from crude oil and natural
gas. Among the various fractions produced by
distillation of crude oil, petroleum gases, naphtha,
kerosene and gas oil are the main feedstocks for
the petrochemical industry. Ethane and natural gas
liquids obtained from natural gas are the other
important feedstocks used in the petrochemical
industry. Olefins (Ethylene, Propylene & Butadiene)
and Aromatics (Benzene, Toluene & Xylenes) are
the major building blocks from which most
petrochemicals are produced.
2. Petrochemical manufacturing involves
manufacture of building blocks by cracking or
reforming operation; conversion of building blocks
into intermediates such as fibre intermediates
(Acrylonitrile, Caprolactum, Dimethyl
Terephthalate/Purified Terephthalic Acid, Mono
Ethylene Glycol); precursors (Styrene, Ethylene
Dichloride, Vinyl Chloride Monomer etc.) and other
23Page 24
chemical intermediates; production of synthetic
fibers, plastics, elastomers, other chemicals and
processing of plastics to produce consumer and
industrial products.
10. A perusal of the aforesaid report shows that not only are
petro chemicals derived from various chemical compounds, but
also that petro chemical manufacturing involves among other
things the production of plastics. In fact, in a report made by
the Inquiry Officer appointed under Section 13 of the Act, the
authorized officer came to the conclusion:
“Under these circumstances, my opinion is that
polystyrene production is not a petroleum product
but it is a chemical or chemical product. For a
moment if it is accepted that company is a
petrochemical company and producing
petrochemical, even though petrochemical is also
one of the chemical and therefore no reason is seen
for not accepting a chemical production and
Mathadi Act and Scheme are not applicable. After
all petrochemicals are chemicals. It is not
mentioned anywhere that petrochemicals should be
omitted while implementing Mathadi Act and
Scheme. Under the circumstances, I am giving my
ruling that company’s above point is not valid and
hence Mathadi Act and Scheme is applicable to the
company.”
24Page 25
11. From the above, it is clear that the conclusion reached by
the Government in its order dated 24.6.2008 that petrochemical
products are a species of chemical products and that
the appellant manufactures chemical products, cannot be said
to be perverse. We must not forget that the High Court in
dismissing the writ petition was exercising the power of judicial
review which would not go to the merits of the controversy
before the Government but would only go to perversity –that no
reasonable person invested with the same power could
possibly arrive at the conclusion arrived at by the Government.
Even otherwise, we must not forget that we are dealing with a
welfare legislation whose primary object is to provide adequate
employment for and better terms and conditions for the
employment of daily wagers, and to provide for their general
welfare, which includes health and the safety measures, and to
provide them with various other facilities including provident
fund and gratuity. Arguments indulging in unnecessary
hairsplitting have therefore necessarily to be dismissed out of
hand.
25Page 26
12. Another submission made by learned senior counsel
appearing on behalf of the appellant is that the 1970 Scheme
deals with grocery markets or shops as its title suggests and
cannot therefore include within it’s scope petro chemicals
manufactured in factories without following the drill of Section
4(1)(b) of the 1969 Act. This argument again has to be rejected
for the reason that both Sections 3 and 4 of the Act refer to a
scheme which provides for registration of unprotected workers
“in any scheduled employment or employments” (as per Section
3(1) of the 1969 Act). Further, Section 4(1) of the 1969 Act also
makes it clear that the State Government may make one or
more Schemes for any scheduled employment or group of
scheduled employments. On a reading of these provisions it
becomes clear that there can be a composite scheme which
takes within its ken various employments which may be
contained in more than one entry of the Schedule to the 1969
Act. This being so, it is clear that merely naming a particular
composite scheme as a grocery market or shop scheme does
not carry the matter further. It is clear that the present scheme
specifically takes within its ken factories manufacturing
26Page 27
chemical products covered by entry 5 in the schedule to the
1969 Act, and would therefore be a scheme which provides for
registration of unprotected workers in different scheduled
employments and/or a group of scheduled employments. This
being the case, it is clear that the attack based on
nomenclature of the 1970 Scheme as a grocery market or
shops scheme must fail.
13. We also agree with learned counsel for the respondent
that Section 2(4) of the 1969 Act, which defines
“establishment”, would not only include any place or premises
in which manufacture of petro chemicals is being carried on, but
would also include the precincts thereof, which would include
transportation made beyond the factory gate but within the
precincts of the factory. This being the case, it is common
ground that workers are necessary and are being used by the
appellant to load the appellant’s products on to the vehicles
provided by the appellant’s purchasers. This being the case,
any argument that the factories’ manufacturing activities are
27Page 28
mechanized and that there is no need for manual labour would
have no material bearing to the case at hand.
14. This Court, while approving a Full Bench decision of the
Bombay High Court, has in the Bhuwalka Steel case
interpreted the expression “unprotected worker” occurring in
Section 2(11) of the 1969 Act as meaning every manual worker
who is engaged or to be engaged in any scheduled
employment, irrespective of whether or not he is protected by
other labour legislations. This Court referred to the Objects and
Reasons for the 1969 Act in the following terms:
“The Statement of Objects and Reasons mentions
that report was made by the Committee to the
Government on 17.11.1967. In that report, it was
mentioned that the persons engaged in vocations
like mathadi, hamals, casual workers employed in
docks, lokhandi jatha workers, salt pan workers and
other manual workers mostly work outside fixed
premises in the open and are mostly engaged on
piece-rate system in a number of cases. They are
not employed directly, but are either engaged
through Mukadum or Toliwalas or gangs as and
when there is work and they also work for different
employers on one and the same day. The volume of
work is not always constant. In view of the peculiar
nature of work, its variety, the precarious means of
employment and the system of payment and the
particular vulnerability to exploitation of this class of
28Page 29
labour, the Committee had come to the conclusion
that the application of the various labour laws to
such workers was impracticable and regulation of
their working and other conditions by introducing
amendments to the existing labour laws was not
possible. Therefore, the Committee recommended
that the working and the employment conditions of
such unprotected workers should be regulated by a
special enactment.
The Statement of Objects and Reasons
further mentions that after holding series of
meetings with the representatives of the interests
affected by the proposed legislation and after
considering all these suggestions and examining
the recommendations of the Committee,
Government had decided to bring the Bill which
seeks to regulate the employment of mathadis,
hamals and other manual workers employed in
certain employments, to make better provision for
their terms and conditions of employment, to
provide for their welfare, for health and safety
measures, where such employments require those
measures, to make provision for ensuring an
adequate supply to, and full and proper utilization of
such workers in such employments, to prevent
avoidable unemployment and for such purposes to
provide for the establishment of Boards in respect
of these employments and (where necessary) in the
different areas of the State and to provide for
purposes connected with the matters aforesaid.
(emphasis supplied)” (at Paras 9 and 10)
15. After construing Section 2(11) of the 1969 Act to cover all
“unprotected workers”, i.e. all manual labour engaged in any
29Page 30
scheduled employment irrespective of protection under other
Labour Legislation, this Court went on to hold:-
“Before parting with the judgment, we must refer to
the fact that this legislation, which came way back in
1969, has in its view, those poor workmen, who
were neither organized to be in a position to bargain
with the employers nor did they have the compelling
bargaining power. They were mostly dependent
upon the Toliwalas and the Mukadams. They were
not certain that they would get the work everyday.
They were also not certain that they would work
only for one employer in a day. Everyday was a
challenge to these poor workmen. It was with this
idea that the Board was created under Section 6 of
the Mathadi Act. Deep thoughts have gone into,
creating the framework of the Boards, of the
schemes etc. With these lofty ideas that the Act was
brought into existence. In these days when Noble
Laureate Professor Mohd. Yunus of Bangladesh is
advocating the theory of social business as against
the business to earn maximum profits, it would be
better if the employers could realize their social
obligations, more particularly, to the have-nots of
the society, the workers who are all contemplated to
be the inflicted workers in the Act.” (at Para 83)
16. Taking a cue from the Objects and Reasons for this piece
of social legislation and from the well known doctrine of
construing such legislation in an expansive manner to further
the object of welfare Legislation of the kind mentioned
hereinabove, and not to stultify such object, we hold that the
30Page 31
Bombay High Court cannot be faulted in its reasoning. It must
also not be forgotten that the object of the 1970 Scheme is not
only to provide work to both employer and employee but also to
provide amenities and benefits to registered workers. These
amenities and benefits are to be provided by the Board to
employees by charging the employer with a levy which cannot
exceed 50% of the total wage bill of the employer without the
prior approval of the State Government. We are told that in the
present case the levy amount is 41%, which is utilized not only
to look after the health of the workers, but also to give them
terminal benefits such as provident fund and gratuity provided
for by clause 43 of the 1970 Scheme.
17. It was further submitted by Shri Cama that on a conjoint
reading of the definitions of “employer”, “principal employer”
and “worker” contained in Sections 2(3), (7), (12), as the two
societies are contractors employing contract labour for and on
behalf of the appellant company’s purchasers, the appellant
company cannot be said to be the “principal employer” who is
liable to be registered under the 1969 Act. We are afraid that
this contention does not lie in the mouth of the appellant
31Page 32
company. By an application made for registration under the
1969 Act dated 11.10.1996, in column No.7 which reads as
follows:-
“7. Are you employing workers through contractors?
If so, state the name of the contractors”
the Company has specifically mentioned two cooperative
societies and one other contractor thereby admitting that it
actually employed about 30 workers itself through contractors.
18. By a letter dated 1.3.2003, i.e. almost 7 years after the
appellant company had been registered as an employer under
the 1969 Act, the appellant company applied to remove its
name from the register contained in the 1969 Act. This was
followed up by a representation dated 10.5.2004 in which the
appellant company stated:-
“The company, although did not engage any
mathadi workmen, in view of the prosecution,
registered itself on 11/10/1996, and was issued
Registration No.4516. After registration, the
Company with a view to close the matter pleaded
guilty in the proceedings filed by the Board before
the Labour Court. The Company submits that no
Toli was allotted to it in spite of being registered till
21/3/2001, as the Board was well aware that the
Company itself did not engage any persons for
loading trucks and that the truckers/customers
32Page 33
engaged persons from the Societies for loading
work. The Company conducted and continued its
business as usual and sold its products on ex-work
basis whereby the customer as earlier sent
Truckers along with persons who were from the
Societies for loading.”
19. Similarly in the writ petition filed before the High Court,
the appellant company’s own pleading in paragraph 8 is that
the appellant registered itself with the respondent No.2 Board
under pressure of the Board believing that the Act and the
scheme were applicable. It was granted registration No.4516.
Further, in proceedings under the Act against the company it
admitted that it pleaded guilty for not having registered itself.
This being the state of facts before us, we cannot characterize
the State Government’s finding in its order dated 24.6.2008 as
even incorrect, let alone perverse. As pointed out above, in
paragraph 6 of its order, the State Government specifically
arrived at a finding that Mathadi work was carried out in the
company by two cooperative societies who had the work done
by employing workers and got compensated by the appellant
company. This being the case, there is no factual foundation
for Shri Cama’s argument that it is the appellant’s purchasers
and not the appellant company itself that is the principal
employer under the Act.
20. One other contention of Shri Cama needs to be noticed.
Shri Cama argued before us that the 1969 Act being
inconsistent with the Contract Labour (Regulation and Abolition)
Act, 1970 would be repugnant to the said Act and therefore
invalid under Article 254 of the Constitution. He candidly
admitted that no such ground had been raised or argued before
the High Court, but asked that the Supreme Court allow him to
raise this plea as it is a pure question of law. We are afraid that
this is not possible for the reason that even if Shri Cama were
to be correct in his submission that the Central Parliamentary
Act of 1970 would impliedly repeal the 1969 State Act, yet
Section 30(1) of the said Act provides that despite the
provisions of the 1970 Act being allegedly inconsistent with the
1969 State Act, yet if contract labour employed in an
establishment are entitled to benefits which are more
favourable to them than those to which they would be entitled
under the 1970 Act, the contract labour shall continue to be
entitled to more favourable benefits, notwithstanding that they
also receive benefits in respect of other matters under the
Central Parliamentary Act. This being the case, it was
incumbent upon the writ petitioner not only to take up the plea
of repugnancy and implied repeal but also to state as a fact that
what the workmen would be entitled to under the 1969 State
Act would not be as beneficial as what they would be entitled to
under the 1970 Central enactment. This would then give the
respondent Board, in turn, an opportunity of either admitting or
denying this factual averment. There being no pleading to this
effect in the writ petition before the High Court, it is clear that it
is not possible for us to accede to Shri Cama’s request to go
into the argument on repugnancy and implied repeal.
21. This appeal is, accordingly, dismissed.
Civil Appeal No.9999 of 2010
22. In this appeal, the fact situation is that the appellant
company is manufacturing soft drinks being aerated water and
bottled water. A State Government order dated 18.8.2008
made under Section 5 of the Act rendered the following finding:-
35Page 36
“5. The Government has perused all the case
papers and considered the above circumstances.
After examining all the aspects of the case the
Government has arrived at the following findings:-
(a) The company products drinking water
and drinks of various kinds such as Pepsi,
Mirinda and Seven-up.
(b) In the said products the Company
uses as raw material such as Sugar, Caustic
Soda, Carbonic Acid; Ascorbic Acid; Coffin,
Sequesters Agents, Buffering; Carmel
Water, Emulsifying and Stabilizing.
(c) “Drink” is one of the substances of
food products;
(d) “Drink” is a grocery product;
(e) The raw material from which they are
produced are also primarily consumable
food products.
(f) The raw material required for the
manufacture of the product as also the
product manufactured are both consumable
food products (liquid and solid).
(g) Mathadi Act and the Scheme famed
thereunder being beneficent and benevolent
welfare Schemes and the object is to make
the same applicable to the companies
manufacturing grocery market products as
provided in the Grocery Markets & Shops
Unprotected Workers (Regulation of
Employment and Welfare) Scheme, 1970.
6. In the above circumstances, the State has
come to the finding that the Scheme of the Grocery
36Page 37
Bazar and Shops Workers Board is applicable to
the Company.
7. The company is engaged in products of drinks
and drinking water and consequently in carrying on
works in the nature of Mathadi such also loading,
unloading, stacking, carrying setting up of raw
material. The said works was carried out by 49
workers of contractor M/s M.M. Patil under the
supervision the Grocery Board Supervisor. The
said workers, excepting their wages, were deprived
of P.F. contribution, paid holidays, house rent,
workmen’s compensation, bonus and other medical
benefits. In these circumstances, the provisions of
the Maharashtra Mathadi, Hamal and other Manual
Workers (Regulation of Employment and Welfare)
Act, 1969 and the Grocery Markets or Shops
Unprotected Workers (Regulation of Employment
and Welfare) Scheme, 1970 are applicable to your
establishment. Therefore, the application made by
you to the Government under the provisions of
section 5 of the Mathadi Act is rejected.”
23. A writ petition filed against the said order before the
Bombay High Court failed. The High Court dismissed the
petition as follows:-
“The second submission is that the petitioners are
manufacturing Soft Drinks like Pepsi, Mirinda,
Seven-up etc. and it is not a grocery items. It is not
disputed before this court that in the manufacturing
process of these soft drinks, the petitioners are
using sugar, carbonic acid, ascorbic acid, coffin,
sequestrates agents. The petitioners are using
caustic soda for cleaning bottles. But we find that
37Page 38
these soft drinks are provided to refresh persons
and to provide energy to them when they are
exhausted. The items, like sugar or carbonic
hydride provide energy. It is also not disputed that
all these items used in the manufacturing process
are the grocery items and accordingly the State
Government has also made observations that these
are the grocery items. Apart from that the Oxford
Dictionary has given the meaning of “grocery”.
According to said dictionary “Grocery” means items
of food in a grocery shop or a super-market. Nowa-days,
all the Soft Drinks are available in the
grocery shops and the super-markets. They are the
items of food and, therefore, they are all grocery
items. Apart from this, it is not disputed by the
learned counsel that in all the manufacturing
process, loading and unloading activities are carried
out, which are the activities of the Mathadi
Kamgara. We do not find any substance in the
contentions raised. The writ petition is rejected.”
24. Shri Giri, in addition to the submissions raised by Shri
Cama, on his special facts submitted that it was fallacious to
take into account raw materials that ultimately went into the
manufacturing of the finished products and to state that the said
raw materials being groceries would therefore make the final
product also a “grocery”. He further argued that the expression
“grocery” would only comprise articles which are required as
daily necessities such as oil, grain, etc. in households, and this
not being the case, soft drinks manufactured and bottled water
38Page 39
would be outside the expression “grocery”. He also argued that
when the Act was extended to the appellant company’s factory,
in the year 1983, whatever may be the position today, the
position in 1983 was clear and obviously the items
manufactured by the appellant company would not have fallen
within the expression “grocery” as understood in 1983.
25. Learned counsel appearing on behalf of the Board has
repelled all these arguments stating that the expression
“grocery” was wide enough to include all items of food and drink
which would necessarily take in the appellant company’s
products. He reiterated his argument on construing a beneficial
enactment such as the 1969 Act to achieve the object set out
and that assuming that the term “grocery” has a narrower
meaning, obviously the broader meaning should be taken into
account. Further, he also stated that whatever the position was
in 1983, at the stage of the show cause notice in 2005 and by
the date of the State Government order in 2008 both soft drinks
manufactured as well as bottled water manufactured by the
appellant company were certainly household items among the
middle class and rich sections of society.
39Page 40
26. The definition of “grocery” contained in the Oxford
Advanced Learner’s Dictionary of Current English, 9th Edition, is
as follows:-
“grocery – (grocery store) a shop/store that sells
food and other things used in the home. In
American English ‘grocery store’ is often used to
mean supermarket. 2. Groceries – food and other
goods sold by a grocer or at a supermarket.”
We also find a useful definition contained in Collins English
Dictionary, Third Edition –
“groceries – merchandise, esp. Foodstuffs, sold by a
grocer”.
27. That the expression “grocery” in 2005, when the Act was
sought to be applied to the appellant company, would include
soft drinks manufactured by the appellant company and bottled
water as daily household goods among the middle class and
rich sections of society, was not seriously contested by Shri
Giri. The argument that we should find the meaning of the
expression “grocery” on the date on which the Act was
extended to the area in which the appellant company’s factory
was situate is fallacious in law. This Court in The Senior
40Page 41
Electric Inspector and others v. Laxmi Narayan Chopra and
others, 1962 (3) S.C.R. 146, when confronted with a similar
argument to that made by Shri Giri, repelled the said argument
in the following terms:
“The legal position may be summarized thus: The
maxim contemporanea expositio as laid down by
Coke was applied to construing ancient statutes but
not to interpreting Acts which are comparatively
modern. There is a good reason for this change in
the mode of interpretation. The fundamental rule of
construction is the same whether the Court is asked
to construe a provision of an ancient statute or that
of a modern one, namely, what is the expressed
intention of the Legislature. It is perhaps difficult to
attribute to a legislative body functioning in a static
society that its intention was couched in terms of
considerable breadth so as to take within its sweep
the future developments comprehended by the
phraseology used. It is more reasonable to confine
its intention only to the circumstances obtaining at
the time the law was made. But in a modern
progressive society it would be unreasonable to
confine the intention of a Legislature to the meaning
attributable to the word used at the time the law was
made, for a modern Legislature making laws to
govern a society which is fast moving must be
presumed to be aware of an enlarged meaning the
same concept might attract with the march of time
and with the revolutionary changes brought about in
social, economic, political and scientific and other
fields of human activity. Indeed, unless a contrary
intention appears, an interpretation should be given
to the words used to take in new facts and
situations, if the words are capable of
comprehending them. We cannot, therefore, agree
41Page 42
with the learned Judges of the High Court that the
maxim contemporanea expositio could be invoked
in construing the word “telegraph line” in the Act.”
(at 156, 157)
28. We thus find that the High Court was absolutely correct in
not interfering with the State Government order dated
18.8.2008 and in dismissing the writ petition filed by the
appellant company. For the same reasons given in Civil Appeal
No.10000 of 2010, we therefore reject this appeal as well. The
appeal is, accordingly, dismissed, with no order as to costs.
…..........................J.
(Kurian Joseph)
…..........................J.
(R.F. Nariman)
New Delhi;
February 12, 2016.
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