Municipal Corporation of Delhi Versus Female Workers (Muster Roll) and another[ALL SC 2000 MARCH]

KEYWORDS:- iNDUSTRIAL DISPUTE – MUNICIPALITY WHETHER INDUSTRY-MATERNITY BENEFIT-CASUAL WORKERS-

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DATE:-08-03-2000-

AIR 2000 SC 1274 : (2000) 2 SCR 171 : (2000) 3 SCC 224 : JT 2000 (3) SC 13 : (2000) 2 SCALE 269

(SUPREME COURT OF INDIA)

Municipal Corporation of Delhi Appellant
Versus
Female Workers (Muster Roll) and another Respondent

(Before: S. Saghir Ahmad And D. P. Wadhwa, JJ.)

Spl. Leave Petn. (Civil) No. 12797 of 1998, Decided on: 08-03-2000.

Constitution of India, 1950—Articles 14, 11, 15, 38, 39, 42 and 43—Maternity Benefit Act, 1961—Sections 2, 3(b), 3(c) and 3(h)—Employees State Insurance Act, 1948—Section 50.

Counsel for the Parties:

Ms. Amita Gupta, Advocate, for Petitioner

K. K. Rai, Advocate, for Respondents.

Judgement

S. Saghir Ahmad, J—Female workers (muster roll), engaged by the Municipal Corporation of Delhi (for short, ‘the Corporation’), raised a demand for grant of maternity leave which was made available only to regular female workers but was denied to them on the ground that their services were not regularised and, therefore, they were not entitled to any maternity leave. Their case was espoused by the Delhi Municipal Workers Union (for short, ‘the Union’) and, consequently, the following question was referred by the Secretary (Labour), Delhi Administration to the Industrial Tribunal for adjudication:-

“Whether the female workers working on Muster Roll should be given any maternity benefit? If so, what directions are necessary in this regard?”

2. The Union filed a statement of claim in which it was stated that Municipal Corporation of Delhi employs a large number of persons including female workers on muster roll and they are made to work in that capacity for years together though they are recruited against the work of perennial nature. It was further stated that the nature of duties and responsibilties performed and undertaken by the muster roll employees are the same as those of the regular employees. The women employed on muster roll, which have been working with the Municipal Corporation of Delhi for years together, have to work very hard in construction projects and maintenance of roads including the work of digging trenches etc. but the Corporation does not grant any maternity benefit to female workers who are required to work even during the period of mature pregnancy or soon after the delivery of child. It was pleaded that the female workers required the same maternity benefits as were enjoyed by regular female workers under the Maternity Benefit Act, 1961. The denial of these benefits exhibits a negative attitude of the Corporation in respect of a humane problem.

3. The Corporation in their written statement, filed before the Industrial Tribunal, pleaded that the provisions under the Maternity Benefit Act, 1961 or Central Civil Services (Leave) Rules were not applicable to the female workers, engaged on muster roll, as they were all engaged ony on daily wages. It was also contended that they were not entitled to any benefit under the Employees’ State Insurance Act, 1948. It was for these reasons that the Corporation contended that the demand of the female workers (muster roll) for grant of maternity leave as liable to be rejected.

4. The Tribunal, by its Award dated 2nd of April, 1996, allowed the claim of the female workers (muster roll) and directed the Corporation to extend the benefits under the Maternity Benefit Act, 1961 to muster roll female workers who were in the continuous service of the Corporation for three years or more. The Corporation challenged this judgment in a Writ Petition before the Delhi High Court which was dismissed by the Single Judge on January 7, 1997. The Letters Patent Appeal (LPA No. 64 of 1998), filed thereafter by the Corporation was dismissed by the Division Bench on March 9, 1998 on the ground of delay.

5. Learned counsel for the Corporation contended that the Division Bench was not justified in rejecting the appeal on the ground of delay which ought to have been condoned as there was only a 33 days’ delay in filing the Letters Patent Appeal which was caused on account of the opinion of different Departments which had to be obtained before filing the Letters Patent Appeal. Since the High Court has already exercised its discretion and has not condoned the delay in filing the appeal, we find it difficult to enter into that controversy and examine the reasons why the appeal was filed before the Division Bench after the expiry of the period of limitation. However, since the question involved in this case is important, we deem it fit to express ourselves on the merits of the matter as we have heard the counsel for the Corporation on merits also.

6. Not long ago, the place of a woman in rural areas has been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in advance stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the Fundamental Rights contained in Chapter III of the Constitution. Article 14 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with this Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics Ltd. v. Workmen, AIR 1967 SC 948: (1967) 1 SCR 652, has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this Article provides as under:-

“(3) Nothing in this article shall prevent the State from making any special provision for women and children”.

7. In Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321: (1954) SCR 930, it was held that Article 15 (3) applies both to existing and future laws.

8. From Part III, we may shift to Part IV of the Constitution containing Directive Principles of State Policy. Article 38 provides that the State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life. Sub-Clause (2) of this Article mandates that the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities.

Article 39 provides, inter alia, as under:

“39. Certain principles of policy to be followed by the State – The State shall, in particular, direct its policy towards securing —

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) and (c) **********

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) . . . . . . . . . . . .”.

Articles 42 and 43 provides as under:

“42. Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions of work and for maternity relief.

43. Living wage, etc., for workers – The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.”

9. It is in the background of the provisions contained in Article 39, specially in Articles 42 and 43, that the claim of the respondents for maternity benefit and the action of the petitioner in denying that benefit to its women employees has to be scrutinised so as to determine whether the denial of maternity benefit by the petitioner is justified in law or not.

10. Since Article 42 specifically speaks of “just and humane conditions of work” and “maternity relief”, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of.

11. The Parliament has already made the Maternity Benefit Act, 1961. It is not disputed that the benefits available under this Act have been made available to a class of employees of the petitioner-Municipal Corporation. But the benefit is not being made available to the women employees engaged on muster-roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily wage basis.

12. Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of the Act. Section 3 contains definitions. The word “child” as defined in Section 3(b) includes a ‘still-born’ child. “Delivery” as defined in Section 3(c) means the birth of a child. “Maternity Benefit” has been defined in Section 3(h), which means the payment referred to in sub-section (1) of Section 5. “Woman” has been defined in Clause (o) of Section 3 which means “a woman employed, whether directly or through any agency, for wages in any establishment.” “Wages” have been defined in Clause (h) of Section 3 which provides, inter alia, as under:

“Wages means all remunerations paid or payable in cash to a woman”.

Section 5 provides, inter alia, as under:

“5. Right to payment of maternity benefit –

(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.

Explanation – For the purpose of this sub-section, the average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rates of wages fixed or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.

**********

Explanation – For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks which not more than six weeks shall precede the date of her expected delivery.

**********

**********”

13. The object and reasons as set out in Govt. of India Gazette, Part II, Section 2, dated 6-12-1960 (p-817), provide as under:

“This clause entitles a woman to receive maternity benefit at the rate of her average daily wage subject to a minimum of seventy-five naye paise per day for a maximum period of 12 weeks, including six weeks following the day of her delivery. The qualifying condition is employment for 240 days in the 12 months immediately preceding the expected date of delivery, but there is no such restriction as to entitlement in the case of an immigrant woman who is pregnant when she first arrives in Assam.”

14. With regard to the period of 240 days, the Select Committee remarked as under:

“The Committee are of the view that the qualifying condition of employment for a period of 240 days during the 12 months immediately preceding the expected date of delivery to entitle a worker to maternity benefit is too rigorous and the period should be reduced to 160 actual working days inclusive of the period of ‘lay-off’, if any.”

15. Section 5-A provides that if the Employees’ State Insurance Act, 1948 is applied or becomes applicable to the establishment where a woman is employed, such woman shall continue to be entitled to receive the maternity benefits under this Act so long as she does not become qualified to claim maternity benefits under Section 50 of that Act.

16. It may be stated that Section 50 of the Employees State Insurance Act, 1948 provides as under:

“Maternity benefit – The qualification of an insured woman to claim maternity benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government.”

17. Section 5-B of the Maternity Act speaks of payment of maternity benefit in certain cases. Section 6 provides notice of claim for maternity benefit and payment thereof. Section 8 provides that every woman entitled to maternity benefit under this Act shall also be entitled to receive her employer a medical bonus of 250 rupees, if no pre-natal confinement or post-natal care is provided by the employer free of charge.

18. Section 9 contemplates leave for miscarriage or medical termination of pregnancy. Section 9-A contemplates leave for tubectomy operation whereas Section 10 provides for leave for illness arising out of pregnancy, delivery, premature birth of a child or miscarirage. Section 11 provides as under:

“11. Nursing breaks – Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.”

19. Section 12, which contains a very significant prohibition in regard to the service of a woman employee, provides as under:

“12. Dismissal during absence or pregnancy – (1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus.

Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.

(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissal shall be final.

(c) Nothing contained in this sub-section shall affect the provisions contained in sub-section (1).”

20. This section prohibits dismissal of a woman employee during or on account of her absence on maternity leave. It ensures that the conditions of her service would not be varied to her disadvantage during her absence.

21. Contravention of the provisions of this Act has been made an offence under Section 21 of the Act which provides as under:

“21. Penalty for contravention of Act by employer – (1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharge or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees:

Provided that the Court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lessor term or fine only in lieu of imprisonment.

(2) If any employee contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both:Provided that where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the Court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.”

22. Cognizance of offences has been provided for in Section 23, which is reproduced under:

“23. Cognizance of offences – (1) Any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 of which such woman is a member or a voluntary organisation registered under the Societies Registration Act, 1860 or an Inspector, may file a complaint regarding the commission of an offence under this Act in any Court of competent jurisdiction and no such complaint shall be filed after the expiry of one year from the date on which the office is alleged to have been committed.

(2) No Court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.”

23. Section 27 deals with the effect of laws and agreements inconsistent with this Act. Sub-section (1) provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service. Sub-section (2) of this section, however, provides that it will be open to a woman to enter into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those she would be entitled to under this Act.

24. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily wage basis.

25. The Industrial Tribunal, which has given an award in favour of the respondents, has noticed that women employees have been engaged by the Corporation on muster roll, that is to say, on daily wage basis for doing various of works in projects like construction of buildings, digging of trenches, making of roads, etc., but have been denied the benefit of maternity leave. The Tribunal has found that though the women employees were on muster roll and had been working for the Corporation for more than 10 years, they were not regularised. The Tribunal, however, came to the conclusion that the provisions of the Maternity Benefit Act had not been applied to the Corporation and, therefore, it felt that there was a lacuna in the Act. It further felt that having regard to the activities of the Corporation, which had employed more than a thousand women employees, it should have been brought within the purview of the Act so that the maternity benefits contemplated by the Act could be extended to the women employees of the Corporation. It felt that this lacuna could be removed by the State Govt. by issuing the necessary notification under the Proviso to Section 2 of the Maternity Act. This Proviso lays down as under:

“Provided that the State Government may, with the approval of the Central Government, after giving not less than two month’s notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.”

26. It consequently issued a direction to the management of the Municipal Corporation, Delhi to extend the benefits of Maternity Benefit Act, 1961 to such muster roll female employees who were in continuous service of the management for three years or more and who fulfilled the conditions set out in section 5 of the Act.

27. We appreciate the efforts of the Industrial Tribunal in issuing the above directions so as to provide the benefit of the Act to the muster roll women employees of the Corporation. This direction is fully in consonance with the reference made to the Industrial Tribunal. The question referred for adjudication has already been reproduced in the earlier part of the judgment. It falls in two parts as under:

(i) Whether the female workers working on muster roll should be given any maternity benefit ?

(ii) If so, what directions are necessary in this regard.

28. The award made by the Industrial Tribunal completely answers the question in both the respects.

29. Learned counsel for the Corporation contended that since the provisions of the Act have not been applied to the Corporation, such a direction could not have been issued by the Tribunal. This is a narrow way of looking at the problem which essentially is human in nature and anyone acquainted with the working of the Constitution, which aims at providing social and economic justice to the citizens of this country, would outrightly reject the contention. The relevance and significance of the doctrine of social justice has, times out of number, been emphasised by this Court in several decisions. In Messrs Crown Aluminium Works v. Their Workmen, (1958) SCR 651 , this Court observed that the Constitution of India seeks to create a democratic, welfare State and secure social and economic justice to the citizens. In J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. Badri Mali, (1964) 3 SCR 724 , Gajendragadkar, J., (as his Lordship then was), speaking for the Court, said (Para 19):

“Indeed the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, onesided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of social-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach.”

30. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. When who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period.

31. Next it was contended that therefore the benefits contemplated by the Maternity Benefit Act, 1961 can be extended only to workwomen in an ‘industry’ and not to the muster roll women employees of the Municipal Corporation. This is too stale an argument to be heard. Learned counsel also forgets that Municipal Corporation was treated to be an ‘industry’ and, therefore, a reference was made to the Industrial Tribunal, which answered the reference against the Corporation, and it is this matter which is being agitated before us.

32. Now, it is to be remembered that the Municipal Corporations or Boards have already been held to be “industry” within the meaning of “Industrial Disputes Act”. In Budge Budge Municipality v. P. R. Mukherjee, (1953) 1 Lab LJ 195 (SC), it was observed that the Municipal activity would fall within the expression “undertaking” and as such would be an industry. The decision was followed in Baroda Borough Municipality v. Its Workmen, (1957) 1 Lab LJ 8 , in which the Court observed that those branches of work of the Municipalities which could be regarded as analogous to the carrying-on a trade or business, would be “industry” and the dispute between the Municipalities and their employees would be treated as an “industrial dispute”. This view was reiterated in the Corporation of the City of Nagpur v. Its Employees, (1960) 1 Lab LJ 523 . In this case, various Departments of the Municipality were considered and certain Departments including General Administration Department and Education Department were held to be covered within the meaning of “industry”. The Punjab and Haryana High Court in Municipal Committee, Bhiwani v. Padam Singh, 1973 Lab IC 1512, held that fire-brigade service, maintained by Municipal Committee, was an “industry”. But a contrary view was taken by the Bombay High Court in Administrator of the City of Nagpur Municipal Corporation v. Presiding Officer, Labour Court, Nagpur, 1976 Lab IC 107, which held that the fire-brigade service, maintained by the Municipal Corporation, was not an “industry”. We are not, in this case, attempting to resolve the conflict between the Punjab and Haryana High Court and the Bombay High Court but what we intend to emphasise is that this Court has already held some of the Departments of the Municipal Corporation to be an “industry”. The High Courts have also held the running of dispensary as also sanitary and conservancy activities to be an “industry”. (See Sirur Municipality v. Its Workmen, (1960) 2 Lab LJ 657; Municipal Council, Washim v. Manguji Zenduji Dhamane, 1978 Lab IC 881). The Andhra Pradesh High Court in Rajendranagar Municipality v. B. V. Perraju, 1995 Lab IC 2102, has held that storing and distribution of water was a systematic activity of the Corporation which would fall within the definition of “industry”.

33. Taking into consideration the enunciation of law as settled by this Court as also the High Courts in various decisions referred to above, the activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall within the definition of “industry”. The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore, be “workmen” and the dispute between them and the Corporation would have to be tackled as an industrial dispute in the light of various statutory provisions of the Industrial Law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not different.

34. Delhi is the capital of India. No other City or Corporation would be more conscious than the City of Delhi that India is a signatory to various International covenants and treaties. The Universal Declaration of Human Rights, adopted by the United Nations on 10th of December, 1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. This was followed by a series of Conventions. On 18th of December, 1979, the United Nations adopted the “Convention on the Elimination of all forms of discrimination against women”. Article 11 of this Convention provides as under:-

“Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular;

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.

(f) The right to protection of health and to satisfy in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.”.

(Emphasis supplied)

35. These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between Municipal Corporation of Delhi and the women employees (muster roll); and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the direction issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary Notification under the Proviso to Sub-section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages.

36. For the reasons stated above, the Special Leave Petition is dismissed.

DATE:-08-03-2000

National Policy for Domestic Workers in India

Press Information Bureau
Government of India
Ministry of Labour & Employment
05-March-2018 17:26 IST

National Policy for Domestic Workers

In a written reply to a question in Lok Sabha today, Union Minister of State (I/C) for Labour and Employment, Shri Santosh Kumar Gangwar told that discussion is underway regarding a Policy for Domestic Workers, the salient features of which are as follows:

  1. Inclusion of Domestic Workers  in the existing legislations
  2. Registration of Domestic workers.
  3. Right to form their own associations , trade unions
  4. Right to have minimum wages, access to social security, protection from abuse, harassment, violence
  5. Right to enhance their professional skills
  6. Protection of Domestic Workers  from abuse and exploitation
  7. Domestic Workers to have access to courts, tribunals, etc.
  8. Establishment of a mechanism for regulation of concerned placement agencies.

Many of the State Government like Rajasthan, Kerala, Punjab, Tamil Nadu and Tripura have included domestic workers in the schedule of the Minimum Wages Act and they are, therefore, entitled to file cases before the concerned authorities in case of any grievance in this regard.

This information was given by Shri Santosh Kumar Gangwar Union Minister of State (I/C) for Labour and Employment in written reply to a question in Lok Sabha today.

______________________

Connected Laws

Unorganised Workers’ Social Security Act, 2008

Practice of Labour Laws in India

parliament

DISMISSAL
RETRENCHMENT
CONTRACT LABOUR
DADAN LABOUR
CHILD LABOUR INCLUDING NEGELECTED CHILDREN
BONDED LABOUR MATTERS.
WAGES, BONUS, AD-HOC, CASUAL, DAILY WAGES & THEIR REGULARISATION.
WORKMEN COMPENSATION ACT
E.S.I.
FACTORY ACT
CONDITIONS OF SERVICE & INDUSTRIAL EMPLOYMENT (STANDING ORDER ACT,1946)
EMPLOYEES PROVIDENT FUND & MISCELLANEOUS PROVISION ACT,1952
TRADE UNION ACT
INDUSTRIAL DISPUTES ACT
MANAGEMENT DISPUTES MATTERS
AWARD OF INDUSTRIAL TRIBUNAL/LABOUR COURT
PAYMENT OF GRATUITY ACT
PAYMENT OF BONUS ACT.

Functions of the Chief Labour Commissioner (Central) in India

Keywords:- Labour Commissioner

Indian Law Encyclopedia

Chief Labour Commissioner (Central) CLC(C) is entrusted with the following functions.

1.Prevention and settlement of industrial disputes through conciliation/mediation.
2.Enforcement of Labour Laws and Rules made there under in Central Sphere.
3.Quasi-Judicial functions
4.Verification of Trade Union membership
5.Miscellaneous Functions

  1. Prevention And Settlement Of Industrial Disputes

The CIRM ensures harmonious industrial relations in the central sphere establishments through :
A) Intervention, mediation and conciliation in industrial disputes with a view to bring about settlements of disputes.
B) Implementation of settlements and awards
C) Interventions in situations of threatened strikes and lockouts with a view to avert them.

2.Enforcement of Labour Laws and Rules made there under

Enforcement of labour laws and rules made there under is an important function of the organisation of CLC ( C). Major establishments covered under the Central sphere include Railways, Mines, Banks, Insurance, Major Ports, Cantonment Boards, ONGC, Indian Oil, BPCL, HPCL, FCI. Under the Industrial Employment (Standing Order) Act, besides the above establishments all central public sector undertakings are covered and under Payment of Gratuity Act besides the above establishment all central public sector undertakings and establishments having branches in more than one state fall in Central Sphere.

3.Names of the Enactments Enforced in Central Sphere

  1. Industrial disputes Act, 1947
    2.Payment of Wages Act, 1936 & Rules made there under for Mines, Railways, Air Transport Services and Docks Wharves and Jetties in major ports
    3. Minimum Wages Act, 1948
    4.Contract Labour (Regulation & Abolition) Act, 1970
    5.Equal Remuneration Act, 1976
    6.Inter State Migrant Workmen (RE&CS) Act, 1979
    7.Payments of Bonus Act, 1965
    8.Child Labour (P&R) Act, 1986
    9.Payment of Gratuity Act, 1972
    10.Labour Laws (Exemption from Furnishing returns and Maintaining Registers by Certain Establishments) Act, 1988
    11.Building & other Construction Workers (RE&CS) Act, 1996
    12.Chapter VI-A of Indian Railway Act, 1989 Hours of Employment Regulations for Railway Employees
    13.Industrial Employment (Standing Orders) Act, 1946
    14. Maternity Benefit Act, 1961 (Mines & Circus Rules 1963)
    15. MES Contractors Workers Regulations

4.Quasi-Judicial functions

The officers of CIRM perform quasi-judicial functions under various labour enactments as shown below: –

CLC (C) Director General (Inspection) under BOCW (RE&CS) ACT (now the power is delegated to one of the Dy.CLCs(C) ) & Appellate Authority under IE (SO) Act & Right to Information Act, 2005
Dy. CLC(C) Appellate Authority under IE (SO) Act. Authority under Rule 25(2) (v)(a) and (b) of CL (R&A) Central Rules 1971.
RLC(C) Authority under M.W. Act. RLC?s(C) who are not heading a region have been declared as Registering and Licensing Officer under CL(R&A) Act and Registering officer under BOCW Act, Controlling Authority under P.G. Act and Authority under Equal Remuneration Act, Appellate Authority under CL(R&A) Act, P.G. Act, E.R. Act, Certifying officer under IE (SO) Act. Supervisor of Railway Labour under HOER.
ALC(C) Controlling Authority under P.G. Act., Authority under E.R. Act, Registering & Licensing Officer under CL(R&A) Act. Registering Officer under BOCW (RE&CS) Act & ISMW Act.

 5.Verification of Trade Union membership

 The officers of CIRM are required to conduct verification of trade union membership as under:-

a) Verification of Trade Union membership for recognition under Code of Discipline as directed by Ministry of Labour and Employment or by order of High Court, Supreme Court. b) Statutory verification for appointment of workmen Director in Nationalised and State Banks under i) State Bank of India and its subsidiaries (Appointment of Employee Directors) Rule, 1947. ii) Nationalized Banks (Management and Miscellaneous Provisions) Scheme, 1980. c) General verification of Central Trade Unions Organisation by checking records and sampling.

6  Functions under Right to Information Act, 2005.

Right to Information Act was introduced in October, 2005. All the RLCs(C) in the field have been declared as CPIO and Dy. CLCs(C) in the field have been declared as Appellate Authority. Dy CLC(C) in Headquarters has been declared as CPIO and Chief Labour Commissioner (C) is the Appellate Authority for Hqrs w.e.f. 17th January, 2007. During the year 2005-06 total no. of cases disposed off were 56 under the Right to Information Act, 2005.

7 Miscellaneous Functions

In addition to the above, CIRM performs many miscellaneous functions described below: In addition to the above, CIRM performs many miscellaneous functions described below:

1. Conducting periodic meetings of Minimum Wages Advisory Board and notifying V.D.A. every six months as per A.I.C.P.I. number.
2. Defending M.O.L. in Writ Petitions filed against Ministry in different High Courts
3. Investigations of Complaints.
4. Assisting Central Advisory Contract Labour Board as convenors of different sub-committees to examine the question of abolition of contract labour system in different employments.
5. Assisting Ministry in preparation of different reports required to be submitted to ILO.
6. Supplying information to Ministry for replying Parliament Questions on statutes enforced by CLC organization.
7. Advising M.O.L&E in Conflict situation like strikes of All India Nature and other Labour matters.
8. Assisting Ministry in interpretation/clarification of complicated legal issues raised by other employing Ministries, State Governments, employers and workmen.
9. Attending to Parliamentary Committees and other important delegations as per advice of the Ministry.
10. Keeping Liaison with State Government Labour Departments for collection of information as per directions of Ministry.
11. Assisting M.O.L&E in training of C.L.S. officers. Monitoring the work of and providing guidance to ALWCs, DLWCs, LWCs posted in the industrial and other establishments under the control of the Central Government.

A Dealing subjects under jurisdiction of CLC(C)    
  1. Industrial Dispute (IDs ) and Conciliation in matter of Major Ports, Railways Defence Undertakings, Food Corporation of India, Post & Telegraph, CPWD, Banks, Insurance, Air Transport Corporations, Coal Mines and Non Coal Mines including oil fields and controlled industries i.e. Oil Refinery, Atomic, Minerals, Mines and Projects under Industrial Dispute Act 1947.
  2. Implementations of Settlements and Awards on industries mentioned as (1) above.
  3. Important Strikes and Lockout in the industries mentioned as (1) above.
  4. Complaints/ Grievances received from any union or individual pertaining to industries mentioned as (1) above.
  5. Parliament Questions/ Writ Petitions on industries mentioned as (1) above.
  6. FOCs & offer regarding above matters referred by Ministry of Labour & Employment for opinion in respect of Industries mentioned as (1) above.
  7. Any other matter concerning to Coal Mines and Non Coal Mines not specifically assigned to any other Section.
  8. Submission of weekly Review of Labour Situation.
  9. Monthly report for Cabinet on Labour Situation/ Monthly Statistical report to Cabinet / Weekly Statement regarding important strikes/ Lockout continuing for more than seven days in central sphere. Matters relates to State Sphere.
  10. Complaints/ Grievance is received from any Union or Individual pertaining to industries mentioned as (1) above.
  11. FOCs referred by Ministry of Labour for opinion in respect of Industries mentioned as (1) above.
  12. Any other matter concerning to Coal Mines and Non Coal Mines mot specifically assigned any other

Bhupendra Kumar Chimanbhai Kachiya Patel Vs. Divisional Controller GSRTC Nadiad[ALL SC 2018 MARCH]

KEYWORDS:- appointment and absorption-temporary or badli kamdar- appreciation of evidence under article 136-

c

Supreme Court cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution. It is more so when the Single Judge and Division Bench did not agree with the factual findings of the Tribunal and rightly reversed those findings. It is binding on the Supreme Court.

DATE:-March 07, 2018

SUPREME COURT OF INDIA

Bhupendra Kumar Chimanbhai Kachiya Patel Vs. Divisional Controller GSRTC Nadiad

WITH[ SEE BELOW]

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the final judgments and orders passed by the High Court of Gujarat at Ahmedabad dated 28.06.2016 in L.P.A. No.550/2016, dated 22.08.2017 in L.P.A. Nos.1344-1347/2017, dated 04.07.2017 in L.P.A. Nos.1185/2014, 1199, 1252, 1254-1259, 1261, 1264-1278, 1281-1282, 1284, 1286, 1288, 1291-1296, 1298/2014, dated 21.06.2016 in L.P.A. Nos.497-500/2016 and dated 04.07.2017 in L.P.A. Nos.1200, 1287, 1289, 1297 and 1299/2014 whereby the Division Bench of the High Court dismissed the appeals filed by the appellants herein and upheld the orders passed by the Single Judge of the High Court.

3. In order to appreciate the issues involved in these appeals, it is necessary to set out the facts in detail. The facts and the legal issues arising in all  these appeals are similar in nature except the date of their initial appointment and absorption, which vary from case to case in the service of the respondent.

4. For the sake of convenience, the facts mentioned in Reference I.T. No.44/2011 (Annexure- 12) of the paper book of SLP Nos. 28519-28522 of 2017 are mentioned hereinbelow.

5. Prafulbhai Hirabhai Solanki, one of the appellants herein, whose name appears at page 18 of the SLP paper book joined the services of the respondent-Gujarat State Road Transport Corporation (hereinafter referred to as “the Corporation) on 04.06.1999 as “Badali Kamdar” at Mangrol Depot of Junagadh Section. He was employed as a daily wager.

6. On 21.12.1989, the Corporation and the Union of the workers entered into a settlement to resolve several issues in relation to the service conditions of the employees working in the Corporation.

7. Clause 20 of the Settlement, which is relevant for the disposal of these appeals, deals with the placement and absorption of the “Badali Kamdar” in the permanent cadre of conductor and grant of time scale to such workers. It provides a procedure as to how, when and in what manner, the services of a “Badali Kamdar” shall be regularized and absorbed in a particular time scale.

8. In terms of clause 20 of the settlement dated 21.12.1989, the Corporation considered the case of the appellant when the vacancy occurred in the permanent cadre on the post of Conductor and accordingly he was absorbed as permanent  employee in the services of the Corporation on 27.08.2008 as Conductor. He was given the time scale with effect from 27.08.2008 with consequential benefits.

9. Like the appellant, there were hundreds of “Badali Kamdars” who were working in the set up of Corporation at all relevant time. The cases of these “Badali Kamdars” were also considered with a view to find out as to whether they fulfill the conditions set out in clause 20 for making them permanent in the set up of the Corporation as and when permanent vacancy arose in the cadre of the Conductor. Those who were found eligible and fulfilled the conditions were absorbed in the services as permanent employees on the post of conductor and were accordingly given the time scale on the expiry of completion of 180 days in the cadre. They were accordingly made permanent in terms of the procedure prescribed in clause 20 of the Settlement.

10. This led to dispute between these employees and the Corporation. The dispute was essentially as to from which date this benefit, namely, to make them permanent and the benefit of time scale should be granted to such “Badali Kamdars”.

11. According to the employee (appellant), he was entitled to claim this benefit on his completing 180 days of the service from the date of his initial joining of the service as “Badali Kamdar”, i.e., 04.06.1999 and not from the date of absorption whereas according to the Corporation, the appellant and all employees alike the appellant were rightly granted the benefit on the expiry of 180 days from the date when they were absorbed in the permanent cadre, i.e., as in the case of the appellant from 27.08.2008 as provided in clause 20 of the Settlement.

12. This issue was accordingly referred to the Industrial Tribunal, Rajkot at the instance of the appellant under Section 10 of the Industrial Dispute Act (hereinafter referred to as “the Act”). Several such references were made to the Industrial Tribunal at the instance of similarly situated employees.

13. By award dated 08.08.2013 (Annexure-P-12), the Industrial Tribunal answered the reference in favour of the employees and accordingly granted them benefit, which the employees had claimed. In other words, the Industrial Tribunal held that the appellant (employee) is entitled to claim the permanent absorption in his service in the time scale as Conductor with effect from the completion 9 of his 180 days of service period from the date of his initial joining, i.e., 04.06.1999. The Corporation was accordingly asked to pay all consequential benefits from such date. In substance, the Industrial Tribunal rejected the stand taken by the Corporation.

14. The Corporation felt aggrieved and filed writ petition in the High Court of Gujarat at Ahmadabad. The Single Judge of the High Court, by order dated 18.09.2014, allowed the writ petition and set aside the award of the Industrial Tribunal. The Single Judge accepted the stand taken by the Corporation and accordingly upheld their action in granting the benefit to the employee (appellant) from 27.08.2008 as provided in clause 20 of the Settlement.

15. The appellants (employees) felt aggrieved and filed intra court appeals before the Division Bench. By impugned judgments and orders, the Division Bench dismissed the appeals filed by the employees and upheld the orders of the Single Judge, which has given rise to filing of these appeals by way of special leave by the employees in this Court.

16. Heard Mr. Colin Gonsalves, learned senior counsel for the appellants and Mr. Tushar Mehta, learned Additional Solicitor General for the respondent.

17. Mr. Colin Gonsalves learned senior counsel appearing for the appellants(employees) while assailing the legality and correctness of the impugned orders contended that the reasoning and the conclusion arrived at by the Industrial Tribunal was just, proper and legal and hence it should not have been interfered with by the High Court (Single Judge and Division Bench).

18. Learned counsel urged that the findings of the Industrial Tribunal were based on proper appreciation of evidence adduced by the parties and hence such findings could not be faulted with. Learned counsel took us through the evidence to show that the findings recorded by the Industrial Tribunal deserve to be upheld as against the findings of Single Judge and Division Bench.

19. Learned counsel placed reliance on some judicial orders passed in previous litigation between the Corporation and its employees which, according to him, decided the issue in question in favour of the employees.

20. Learned senior counsel for the appellants submitted that in the light of these judicial orders, the similar order should be passed in these appeals also.

21. In reply, Mr. Tushar Mehta, learned Additional Solicitor General, appearing for the respondent supported the impugned judgment and contended that the concurrent findings of the High Court (Single Judge and Division Bench) deserve to be upheld.

22. Placing reliance on clause 20 of the settlement, learned ASG contended that the action taken by the Corporation is in conformity with the requirements of Clause 20 and hence deserves to be upheld.

23. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeals.

24. As rightly argued by the learned ASG, the issue in question has to be decided in the light of clause 20 of the Settlement.

25. One cannot dispute the legal proposition that the settlement once arrived at between the employer and the employees as provided in Section 18 of the Act, it is binding on the employer and the employees.

26. It is not in dispute that on 21.12.1989, the Corporation and the Union of the workers of the Corporation has entered into the settlement in respect of various issues in relation to their service conditions. One such issue was in relation to the absorption of Badali Kamdars in the permanent cadre of the Corporation. Clause 20 provides the manner in which it is to be given effect to by the parties.

27. Clause 20 of the Settlement dated 21.12.1989 reads as under:

“In reference to the representation made to delete the provision of the section 29 of the settlement dated 23/11/1984 and implement the provision of section 43 of the settlement dated 22/10/1964 it is determined that after preparing the Division wise list of the selected employees they will be given temporary/daily wager appointment against the permanent posts in the division/unit, and if such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorize leave then they will be taken on time scale.

This provision will not be applicable to the employees on work charge working in the Civil Engineering Department and such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorized leave then they will be taken in time scale and they will be entitled to all benefits available to time scale employees.

The absence due to authorized leave for the above purpose will not be considered break and these days will not be considered for 180 days service. As per permission of S.T.T. 1981, if the recruitment of the staff has been done as a temporary or badli kamdar then after completion of their 180 days of service on the permitted vacancies they would be taken on time scale serially. Such workers will be granted all benefits as per the Rules along with the notional increment with effect from 1.8.87 and there will not be any recoveries made from them nor there will be any arrears paid. The workmen taken into service are not required during the monsoon, therefore they can be retrenched as per the requirement and after the monsoon if their services are required then again as per seniority they will be taken in time scale. If there is any permanent post vacant then the appointment of the administrative staff will be made on time scale.”

28. It is not in dispute that the Corporation has followed the procedure provided in clause 20 while granting the employees their permanent cadre and the time scale of conductor. In other words, all eligible “Badali Kamdars” were absorbed in the set up and accordingly granted benefit in terms of the procedure prescribed in clause 20 of the Settlement.

29. It is also clear from the undisputed facts that firstly, the appellant (employee concerned) was appointed as “Badali Kamdar” in the set up of Corporation on 04.06.1999; Secondly, clear vacancy 16 arose in the permanent cadre of Conductor in and around 27.08.2008; Thirdly, as per the seniority list of the “Badali Kamdars”, the appellant was accordingly absorbed in the permanent cadre at the time scale with effect from 27.08.2008 on completion of 180 days of his service in the cadre and, as a consequence thereof, was given all the benefits of the said post from the said date; and lastly, since then the appellant and all employees alike him are continuing on their respective post.

30. In our considered opinion, in the light of what we have held above, there is no basis for the appellants (employees) to claim the aforesaid benefit from the date of their initial appointment as “Badali Kamdar”. Indeed, there is neither any factual foundation nor any legal foundation to claim such benefit.

31. Learned counsel for the appellants was also not able to show any document, such as any term/condition in the appointment letter or in the settlement or any Rule/Regulation framed by the Corporation recognizing such right in appellants’ favour to enable them to claim such benefit from the date of their initial appointment.

32. Clause 20 of the Settlement is the only clause which recognizes the appellant’s right for consideration of his case on individual basis and to grant him the benefit subject to his fulfilling conditions specified therein which, in appellant’s case, were found satisfied and accordingly, he was granted the benefit along with each such employees.

33. It is pertinent to mention that the appellants neither challenged the settlement nor its applicability. In other words, the legality or/and 18 binding nature of settlement dated 21.12.1989 was never questioned in these proceedings. In this view of the matter, the settlement is binding on both parties in terms of Section 18 of the Act.

34. The concept of “Badli Kamdar” is statutorily recognized under the Act. Explanation to Section 25C defines the term “Badli Kamdar”. The appellant never questioned his status as “Badli Kamdar”. Indeed, it is due to the status of “Badli Kamdar”, which he enjoyed for few years in the service of Corporation, he got the benefit of absorption in permanent cadre.

35. So far as the reliance placed by the learned counsel for the appellants on some previous judicial orders are concerned, in our view, they are of no help to the appellants inasmuch as those orders turned on the facts involved in the case and 19 secondly, we find that in those cases, parties did not even lead any evidence (see Para-3 of the order dated 27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book), and lastly, one case was based on clause 49 of 1956 settlement and clause 19 of 1985 settlement.

36. In substance, in our view, those orders did not directly deal with the issues, which are the subject matter of these appeals and, even if, they deal with the issue in question, as urged by the learned counsel, then also, in our view, those cases turned on their own facts.

37. In this view of the matter, those orders were rightly not relied on by the High Court and we find no good ground to take different view and accordingly reject this submission.

38. Mr. Colin Gondsalves, learned senior counsel for the appellants then referred extensively to the evidence led by the parties to support his submission.

39. We are afraid we cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution. It is more so when the Single Judge and Division Bench did not agree with the factual findings of the Tribunal and rightly reversed those findings. It is binding on this Court.

40. In the light of the foregoing discussion, we find no merit in the appeals which thus fail and are accordingly dismissed.

J. [R.K. AGRAWAL]

J. [ABHAY MANOHAR SAPRE]

New Delhi;

March 07, 2018

___________________

[Civil Appeal No.2546 of 2018 Arising out of S.L.P. (C) No.6105 of 2018) (D.No.35250 of 2017]

Prakashbhai Ishwarlal Dave Vs. Divisional Controller GSRTC Junagarh

[Civil Appeal Nos.2594-2598 of 2018 arising out of S.L.P. (C) Nos. 28519-28522 of 2017]

Ghanshyam Pratapsinh Parmar Vs. Divisional Controller GSRTC Rajkot

[Civil Appeal No. 2556-2592 of 2018 arising out of S.L.P.(C) Nos.6115-6151 of 2018) (D. No.30838 of 2017]

Pradhyumansinh Lakhuba Jadeja Vs. Divisional Controller GSRTC

[Civil Appeal No.2547-2555 of 2018 arising out of S.L.P. (C) No. 6106-6114 of 2018) (D. No.30615 of 2017]

National Kamgar Union Vs. Kran Rader Pvt. Ltd. Ors[SC 2018 JANUARY]

KEYWORDS:- INDUSTRIAL DISPUTE-ARTICLE 227- ARTICLE 136-

Capture

  • It is the duty of the High Court while exercising the supervisory jurisdiction to see that the subordinate Court has exercised its powers in accordance with law and did not commit any illegality or perversity in reaching to its conclusion. While recording a finding, if it is noticed by the High Court that the subordinate Court has failed to take into consideration the material evidence or recorded a finding without there being any evidence, then the High Court would be entitled to interfere in such finding in exercise of its supervisory jurisdiction under Article 227 of the Constitution. Such is the case here.
  • Once the Courts record a finding on such question, be that of concurrence or reversal, the finding is usually held binding on this Court while hearing the appeal under Article 136 of the Constitution.  It is only when such finding is found to be against any provision of law or evidence or is found to be wholly perverse to the extent that no average judicial person could ever record such finding, it would not be held binding on the superior Court.

  • This Court has, however, cautioned that it must be remembered that even if the question raised is one of the mixed question of fact and law, this Court would not readily interfere with the conclusion of the Tribunal unless it is satisfied that said conclusion is manifestly or obviously erroneous.

DATE:-January 5, 2018

ACTS:-Trade Union Act, 1926,Section 25 FFA of the Industrial Disputes Act, 1947 , Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971,

SUPREME COURT OF INDIA

National Kamgar Union Vs. Kran Rader Pvt. Ltd. Ors.

[Civil Appeal No.20 of 2018 arising out of S.L.P. (C) No.18413 of 2015]

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the appellant-Trade Union against the final judgment and order dated 12.09.2014 passed by the High Court of Judicature at Bombay in Writ Petition No.5241 of 2003 whereby the High Court allowed the writ petition filed by respondent No.1-Kran Rader Pvt. Ltd. and set aside the award dated 08.04.2003 passed by the Industrial Court, Pune in a Complaint (ULP) No.544 of 1990 and, in consequence, dismissed the complaint filed by the appellant herein.

3. In order to appreciate the short issue involved in the appeal, it is necessary to set out few relevant facts infra.

4. The appellant is the Trade Union registered under the Trade Union Act, 1926 having several members working in Factories. Respondent No.1 owned a factory (manufacturing unit) at Pune. This Unit was originally owned by respondent Nos. 2 and 3 who, in turn, sold it to respondent No.4 in 1991 and then it was owned by respondent No.1. The Unit was engaged in the manufacture of several components like Traction Gears for supply to Railways, forging for oil industries and other manufacturing units etc. The members of the appellant-Union were working in respondent No.1’s factory at all relevant time.

5. In 1990, respondent No.1 suffered business loss in running the said manufacturing unit and, therefore, decided to close down the said unit permanently. With that end in view, respondent No.1 served a notice of closure to the State Government (Maharashtra) under Section 25 FFA of the Industrial Disputes Act, 1947 (in short, “ID Act”) on 29.08.1990 with a copy to the appellant-Union expressing therein their intention to close the operation of the Unit on expiry of 60 days with effect from 29.10.1990.

6. The appellant-Union, felt aggrieved of the closure notice issued by respondent No.1, filed complaint against respondent No.1 under Section 28 read with Items 9 and 10 of the Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as “the Act”) in the Industrial Court at Pune in October 1990 being Complaint(ULP) No.544/1990.

7. In substance, the grievance of the appellant in their complaint was that since respondent No.1 had employed more than 100 workers on an average per working day for preceding 12 months in their manufacturing unit, the provisions of Chapter VB (Section 25-K) of the ID Act and, in turn, all the relevant provisions contained therein were applicable to respondent No.1. It was alleged that due to this reason, it was obligatory upon respondent No.1 to have ensured compliance of all the relevant provisions applicable for closure of the Unit.

It was alleged that since admittedly the relevant provisions applicable to closure were not complied with by respondent No.1, a case was made out under the ID Act read with the Act to seek a declaration that the intended closure declared by respondent No.1, vide their notice dated 29.08.1990, is illegal under the ID Act read with the Act with a further grant of all consequential reliefs to each worker arising out of grant of such declaration sought by the appellant in the Complaint in their favour.

8. Respondent No.1 (employer) filed a reply and denied therein the allegations made by the appellant-Union in their complaint. According to Respondent No.1 they never employed more than 100 workers in their Unit so as to attract the rigor of Chapter VB and other related provisions of the ID Act to give effect to the closure. In other words, according to respondent No.1, the strength of workers working in their Unit was always less than 100 in number, therefore, the provisions of Chapter VB and the related provisions of the I.D. Act had no application to respondent No.1. It was, therefore, contended that the decision taken by respondent No.1 to close the Unit with effect from 29.10.1990 was legal, proper and in accordance with law and hence could not be faulted with.

9. The parties adduced evidence (documentary/oral) in support of their respective 6 contentions. The Industrial Court, by its award dated 08.04.2003, allowed the appellant’s complaint. It was held that respondent No.1 had employed 115 workers at all relevant time in their Unit, therefore, the provisions of Chapter VB of the ID Act were required to be followed while effecting the closure of the Unit. It was held that since the relevant provisions were not complied with by respondent No.1, the closure in question was bad in law entitling the members of the appellant-Union to claim all consequential benefits arising therefrom as if there was no closure of the Unit.

10. Respondent No.1 felt aggrieved and filed a writ petition before the Bombay High Court. By impugned judgment, the Single Judge allowed the writ petition and while setting aside of the award of the Industrial Court dismissed the appellant’s complaint. The High Court held that the total strength of the workers working at all relevant time in respondent No.1’s Unit was 99 and not 115 as 7 held by the Industrial Court. It was held that due to this reason, it was not necessary for respondent No.1 to ensure compliance of the provisions of Chapter VB of the ID Act while declaring the closure of their Unit.

11. The appellant-Union felt aggrieved and filed the present appeal by way of special leave in this Court.

12. Heard Mr. B.H. Marlapalle, learned senior counsel for appellant and Mr. D.J. Bhanage and Mr. Sanjay R. Hegde, learned senior counsel for respondents.

13. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we find no good ground to interfere in the impugned judgment of the High Court. In other words, the reasoning assigned by the High Court appears to be just and reasonable calling no interference for the reasons mentioned hereinbelow.

14. The main question, which arises for consideration in this appeal, is only one, viz., how many workers were working in the Unit of respondent No.1 at all relevant time, whether the strength of the workers was above 100 or below 100. In other words, the question, which arises for consideration, is whether the provisions of Section 25-K of Chapter VB of the ID Act were applicable to respondent No. 1-Unit at the relevant time.

15. If the strength of the workers was above 100 at the relevant time, in that event, the provisions of Section 25-K were applicable to respondent No.1 whereas if the strength was below 100, in such event, the provisions of Section 25K had no application. In the case of former, the appellant-Union succeeds and in the case of later, respondent No.1 succeeds.

16. As mentioned above, the Industrial Court held that 115 workers were found working at the relevant time whereas the High Court held that 99  workers were found working in the Unit of respondent No.1 at the relevant time.

17. There can be no dispute to the proposition that the question as to what is the total strength of the workers employed in the Unit or, in other words, how many workers were working in a particular unit is essentially a question of fact. Such question is required to be decided by the Courts on appreciation of evidence adduced by the parties.

18. Once the Courts record a finding on such question, be that of concurrence or reversal, the finding is usually held binding on this Court while hearing the appeal under Article 136 of the Constitution.

19. It is only when such finding is found to be against any provision of law or evidence or is found to be wholly perverse to the extent that no average judicial person could ever record such finding, it would not be held binding on the superior Court.

20. When the question arises as to what is the status of a “workman”, this Court has held that it has to be inferred as a matter of law from facts found and if the question involved is one of drawing a legal inference as to the status of a party from facts found, it is not a pure question of fact. It is held that if the inference drawn by the Tribunal in regard to the status of the workman involved the application of certain legal tests, it necessarily becomes a mixed question of fact and law.

21. This Court has, however, cautioned that it must be remembered that even if the question raised is one of the mixed question of fact and law, this Court would not readily interfere with the conclusion of the Tribunal unless it is satisfied that said conclusion is manifestly or obviously erroneous. (See AIR 1967 SC 428)

22. With a view to examine the question from both angels which is taken note of above, we perused the evidence and also called upon the parties to file additional evidence before this Court and it was filed.

23. Having perused the record, we are not inclined to interfere in the finding recorded by the High Court though of reversal. In other words, we are inclined to agree with the reasoning of the High Court and accordingly hold that the total strength of workers employed at the relevant time in respondent No.1’s Unit was 99 and that the status of disputed employees could not be conclusively proved to be that of a “workman” for the reasons stated infra.

24. First, the High Court assigned the reasons as to why the finding of the Industrial Court holding the strength of workers as 115 is not factually and legally sustainable. Second, the reasons assigned are neither arbitrary nor against the record and nor perverse to that event so as to call for any interference by this Court. Third, in these circumstances, this Court would be slow to appreciate the entire evidence afresh on this question in this appeal and lastly, such being a question of fact or a mixed question of law and fact, it is binding on this Court.

25. Inspite of this, we have gone through the evidence with a view to find out as to whether the High Court has committed any jurisdictional error in reaching to its conclusion. In our view it is not. We notice that the Industrial Court held that there was no dispute regarding the status of 79 workers. The dispute of status of an employee was confined only to 36 employees, namely, whether their status was that of the “worker” or “supervisor”. The Industrial Court, however, held that the status of all the 36 employees was that of “worker” and accordingly recorded a finding that 79+36 = 115 employees were working as “worker” in the Unit at the relevant time.

26. The High Court, however, while reversing the aforementioned finding of the Industrial Court came 13 to a conclusion that out of 36 employees, only 20 employees could be regarded as “worker” and, therefore, the total strength of workers at all relevant time was 79+20 = 99. In our opinion, the High Court rightly held that there was no cogent evidence adduced by the appellant to prove the status of remaining 16 employees as to whether they also could be regarded as “worker” employed in the Unit and, therefore, it was not possible to hold that the total strength of the workers at the relevant time was more than 100, i.e., 115.

27. We, while concurring with the reasoning of the High Court, also find that since the Industrial Court did not elaborately discuss the issue regarding the status of employees while holding the strength of workers at 115 except clubbing 36(20+16) with 79, the High Court was right in going into the evidence to the extent permissible and reversed the finding of Industrial Court. In our view, the Industrial Court should have examined the status of each such disputed employee independently for holding whether they could also be regarded as “worker”. It was, however, not done so.

28. Mr. B.H. Marlapalle, learned senior counsel for the appellant-Union, strenuously argued with the help of the entire evidence and the relevant provisions of the Factories Act, 1948 and the Payment of Wages Act including the statutory forms prescribed in the two Acts for filing the details of workers working in the Unit that the finding of the Industrial Court appears to be more plausible and reasonable as compared to the finding recorded by the High Court on this question and hence the finding of the Industrial Court deserves to be restored.

29. We cannot accept this submission of learned counsel for the appellant in the light of what we have held above. In our view, the appellant, in order to prove the status of 16 employees, did not adduce any cogent evidence as against the evidence of the respondent No.1. It is, therefore, not possible for this Court to hold that the finding of the High Court is wholly arbitrary or illegal or against the evidence. We do not wish to go into this factual question any more.

30. Learned counsel for the appellant then urged that the High Court has committed a jurisdictional error when it went on to re-appreciate the evidence and then reversed the finding of the Industrial Court under Article 227 of the Constitution. In our view, it does not appear to be so.

31. It is the duty of the High Court while exercising the supervisory jurisdiction to see that the subordinate Court has exercised its powers in accordance with law and did not commit any illegality or perversity in reaching to its conclusion.

32. While recording a finding, if it is noticed by the High Court that the subordinate Court has failed to take into consideration the material evidence or recorded a finding without there being any evidence, then the High Court would be entitled to interfere in such finding in exercise of its supervisory jurisdiction under Article 227 of the Constitution. Such is the case here.

33. In the light of foregoing discussion, we do not consider proper to disturb the findings recorded by the High Court which are more plausible and reasonable rather than that of the Industrial Court.

34. In view of the foregoing discussion, we also hold that respondent No.1 had employed 99 workers in their manufacturing Unit at the time of declaring the closure of the Unit in 1990. Since the strength of workers was below 100, it was not necessary for respondent No.1 to ensure compliance of Chapter VB. In other words, in such circumstances, the provisions of Section 25-K had no application to respondent No.1.

35. This takes us to examine the next question as to how much compensation and under which heads the workers are entitled to receive from respondent No.1 (Company).

36. Learned counsel for respondent No.1, however, stated that out of total workers, most of the workers have settled their claims by accepting the compensation offered by respondent No.1 voluntarily. Learned counsel stated that the compensation paid to each worker consisted of

(i) amount of Gratuity payable under the Payment of Gratuity Act,

(ii) closure compensation payable under the I.D. Act, and over and above these two statutory payments of compensation, the respondent No.1 also paid 30 days’ wages for each completed year of service as ex gratia payment to each worker. It was also stated that now hardly 16 workers or so remain unpaid because they did not accept the compensation when offered to them and preferred to prosecute the present litigation.

37. Learned counsel for respondent No.1 stated that the total compensation paid to every worker in 1990-1991 varies between Rs.1 lakh to Rs.2 lakhs.

38. Taking into consideration the aforementioned background facts and circumstances of the case, we consider it just and proper to award in lump sum a compensation of Rs.2,50,000/- (Rs.Two Lakhs and Fifty Thousand) to each worker who did not accept the compensation.

39. Let Rs.2,50,000/- (Rs.Two Lakhs and Fifty Thousand) be paid to each such worker after making proper verification. If any worker is not available for any reason, the amount payable to such worker be paid to his legal representatives or nearest relatives, as the case may be, after making proper verification.

40. Respondent No.1 will, accordingly, deposit the entire compensation payable to all such workers with details in the Industrial Court, Pune. A notice will then be served to each worker or his legal 19 representatives, as the case may be, by the Industrial Court to enable the workers to withdraw the amount from the Industrial Court.

41. The amount will be paid to every worker or his nominee as the case may be by the demand draft issued in his/her name or in the name of legal representatives, as the case may be. It will be duly deposited in his/her Bank account to enable him/her to withdraw the same.

42. The appellant would submit necessary details of each such worker before the Industrial Court. The Industrial Court would ensure compliance of the directions of this Court and complete all formalities within three months from the date of this order.

43. We make it clear that this order is applicable only to those workers who did not accept the compensation from respondent No.1.

44. In other words, those workers who already accepted the compensation will not be entitled to get any benefit of this order.

45. With these directions, the appeal stands disposed of finally.

 [R.K. AGRAWAL]

 [ABHAY MANOHAR SAPRE]

New Delhi;

January 5, 2018

Wages minimum

Tagwages– Means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, [and includes house rent allowance], but does not include—
(i) the value of—
(a) any house-accommodation, supply of light, water, medical attendance, or
(b) any other amenity or any service excluded by general or special order of the
appropriate Government;
(ii) any contribution paid by the employer to any Pension Fund or Provident Fund or under any scheme of social insurance;
(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(v) any gratuity payable on discharge;


S22. Penalties for certain offences.—Any employer who—
(a) pays to any employee less than the minimum rates of wages fixed for that employee’s class of work, or less than the amount due to him under the provisions of this Act, or (b) contravenes any rule or order made under section 13,
shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both:
Provided that in imposing any fine for an offence under this section, the Court shall take into consideration the amount of any compensation already awarded against the accused in any proceedings taken under section 20.

Cognizance of offences.—(1) No Court shall take cognizance of a complaint against any person for an offence—
(a) under clause (a) of section 22 unless an application in respect of the facts constituting such offence has been presented under section 20 and has been granted wholly or in part, and the appropriate Government or an officer authorised by it in this behalf has sanctioned the making of the complaint;
(b) under clause (b) of section 22 or under section 22A except on a complaint made by, or with the sanction of, an Inspector.
(2) No Court shall take cognizance of an offence—
(a) under clause (a) or clause (b) of section 22, unless complaint thereof is made within one month of the grant of sanction under this section;
(b) under section 22A, unless complaint thereof is made within six months of the date on which the offence is alleged to have been committed.

Bar of suits—No Court shall entertain any suit for the recovery of wages


BULLET 2Employee” means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate Government; but does not include any member of the Armed Forces of the Union.


Maintenance of registers and records.—(1) Every employer shall maintain such registers and records giving such particulars of employees employed by him, the work performed by them, the wages paid to them, the receipts given by them and such other particulars and in such form as may be prescribed.
(2) Every employer shall keep exhibited, in such manner as may be prescribed, in the factory, workshop or place where the employees in the scheduled employment may be employed, or in the case of out-workers, in such factory, workshop or place as may be used for giving out-work to them, notices in the prescribed form containing prescribed particulars.
(3) The appropriate Government may, by rules made under this Act, provide for the issue of wage books or wage slips to employees employed in any scheduled employment in respect of which minimum rates of wages have been fixed and prescribe the manner in which entries shall be made and authenticated in such wage books or wage slips by the employer or his agent.


S 20. Claims.—(1) The appropriate Government may, by notification in the Official Gazette, appoint  [any Commissioner for Workmen’s Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub-section (1) of section 13 or of wages at the overtime rate under section 14,] to employees employed or paid in that area.

Dock worker”

TagDock worker:  means a person employed or to be employed in, or in the vicinity of, any port on work in connection with the loading, unloading, movement or storage of cargoes, or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving port;

Scheme for employment

S 3. Scheme for ensuring regular employment of workers.—(1) Provision may be made by a scheme for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or not, in a port.
(2) In particular, a scheme may provide—
(a) for the application of the scheme to such classes of dock workers and employers as may be specified therein;
(b) for defining the obligations of dock workers and employers subject to the fulfilment of which the scheme may apply to them and the circumstances in which the scheme shall cease to apply to any dock workers or employers;
(c) for regulating the recruitment and entry into the scheme of dock workers, [and the registration of dock workers and employers], including the maintenance of registers, the removal either temporarily or permanently, of names from the registers and the imposition of fees for registration;

(d) for regulating the employment of dock workers, whether registered or not, and the terms and conditions of such employment, including rates of remuneration, hours of work and conditions as to holidays and pay in respect thereof;
(e) for securing that, in respect of periods during which employment, or full employment, is not available for dock workers to whom the scheme applies and who are available for work, such workers will, subject to the conditions of the scheme, receive a minimum pay;
(f) for prohibiting, restricting or otherwise controlling the employment of dock workers to whom the scheme does not apply and the employment of dock workers by employers to whom the scheme does not apply;
[(ff) for creating such fund or funds as may be necessary or expedient for the purposes of the scheme and for the administration of such fund or funds;]
(g) for the training  of dock workers, in so far as satisfactory provision therefore does not
exist apart from the scheme;
[(gg) for the welfare of the officers and other staff of the Board;]
(i) for the manner in which, and the persons by whom, the cost of operating the scheme is to be defrayed;
[(j) for constituting  the authority to be responsible for the administration of the scheme;]
(k) for such incidental and supplementary matters as may necessary or expedient for the purposes of the scheme.
(3) A scheme may further provide that a contravention of any provision thereof shall be punishable with imprisonment for such term as may be specified but in no case exceeding three months in respect of a first contravention or six months in respect of any subsequent contravention, or with fine which may extend to such amount as may be specified but in no case exceeding five hundred rupees in respect of a first contravention or one thousand rupees in respect of any subsequent contravention, or with both imprisonment and fine as aforesaid.


Dock Labour Boards for implementation of Scheme said above

Dock Labour Boards.—(1) The Government may, by notification in the Official Gazette, establish a Dock Labour Board for a port or group of ports to be known by such name as may be specified in the notification.

5B. Functions of a Board.—(1) A Board shall be responsible for administering the scheme for the port or group of ports for which it has been established and shall exercise such powers and perform such functions as may be conferred on it by the scheme.


BULLET 2Calcutta Dock Labour Board was constituted under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948 with the objective of regulation of employment of Dock workers in connection with handling of cargo on board the vessel in the Port of Kolkata within the limits from Konnagar to Budge-Budge. The Board started functioning since 5th October, 1953.There is a 15 member Board, five representing Central Govt., 5 from labour unions and 5 from employers of dock workers and shipping companies. At present the Board is administering two schemes i.e Calcutta Dock Workers (Regulation of Employment) Scheme, 1970 and Calcutta Dock Clerical & Supervisory (Regulation of Employment) Scheme, 1970.

Ref : THE DOCK WORKERS (REGULATION OF EMPLOYMENT) ACT, 1948

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Industry classification categorizes companies into industrial groupings based on similar production processes, products, or nature of the business.

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  • Retail – Departmental Stores
  • Steel
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  • Telecom Equipment
  • Textiles
  • Transport Related Services
  • Travel Support Services
  • Utilities: Non-Electrical

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