838 SUPRE!v!E COCR T REPORTS [J v. Their Workmtn

first time in this Court. llahalakshmi Sugar Mills Company v. Their Workmtn, 1961 (II) L, L.J. 623, referred to. CrvIL APPELLATE . fURISDIOTION : Civil Appeal No. 225 of 1963. Appeal by special leave from the award dated November 26, 1902 of the Labour Court, Lucknow, in Adjudication Case No. 68 of 1962. G.S. Pathak and D.N. Mukherjee for appellant. M. Rajagopalan and /(. R. Chaudhuri for the r<!spondents.

1963. April 4. The Judgment of the Court was. delivered by DAS GUPTA J.-The twenty·one persons who are the respondents in this appeal were engaged from November 21, 1958, to February 5, 1959, in the work of removal of press-mud the sugar factory belonging to the appellant. On February 6, It also 1959, their appears that for the period of work of November 21, 1959, to February 5, 1959, they were paid wages at rates lower than Rs. 55/- per month which was services were terminated. n., Gufll• J. 1963 BaJti Sugar ,\fills Ltd, " Ram Ujagar Das Gu/J.'• J. 840 SUPREME COURT REPORTS [1004] VOL. prescribed wage for workmen of the mm1mum vacuum pan sugar factori<'S of Uttar Pradesh under the Standing Orders dated October :~. I !151!; issued by the Government of Uttar Pradesh. On .July 31, 1962, the Governor of Uttar Pradesh referred to the Labour Court, Lucknow, a dispute between these respondents and the Basti Sugar Mills Ltd. · In this the Basti Sugar Mills Ltd., was described as the employers and the respondeuts as their workmen. The mailers in dispute were thus mentioned in the order of reference : - "(!) Whether the employers have terminated the services of their workmen, named February ti, 1959 ·legally and/or Justi fiably ? If not, to what relief arc the workmen concerned entitled ~ the Annexure, will effect (2) Whether the action of the employers in paying to the workmen; named in the Annexure to issue No. 1, llt rates lower than the minimum prescribed wage of Rs. 55 per month, for the period from November 21, 1958 to February 5, 1959 what relief are the workmen concerned entitled and with what details." justified. If not, legal and/or The appellant contended that these 21 work men were not employed by the management of the sugar mills. The appellant's case was that the work of removal of press·mud had been given by the Company to a contractor, Banarsi Das, and that these 21 men were employed by that contractor to do the work. The management of the Company, to do with these men. it was said, had nothing Banarsi Das left the work on February G, 1959, and termination of the services of these workmen was made by him. The respondents through their I!ld3 Basti Sugar ,\lills Ltd. v. Ram Ujjagar DaJ G11.pta J, 2·S.C.R. SUPREME COURT REPORTS 841 Union contended, on the contrary, that they had been employed directly by the management of the Company. On a consideration of the evidence the Labour Court accepted the appellant's case that the work of removal of press-mud was being done through the contractor Banarsi Das and it was Banarsi Das under It further whom these 21 persons were employed. held that in view of the definition of "employer" in sub-cl. (iv) of s. 2 (i) of the Uttar Pradesh Industrial Disputes Act, 194 7, the appellant wa~ in law the employer of these 21 persons. It held accordingly that they were entitled to the benefit of the ::,tanding Orders regarding minimum wages and were also In that view the Labour entitled to reinstatement. Court ordered, (a) payment to the •..vorkmen at the rate of Rs. 55/- per month from February 6, 1959 upto the end of the crushing season of 1958 59; (b) reinstatement of the workmen if not already employed by the Company in the crushing season of 1962-63; and (c) payment of difference of wages computed at the rate of Rs. 55/· per month and Re. I/· per day in the case of Ram Ujagar and 14 anaas per day in the case of other workmen for the period November 21, 1958 to February 5, 1959. Against this order of the Labour Court the present appeal. has been filed by the Company with the special leave of this Court. Three points are raised by Mr. Pathak in support of the appeal. The first is that the defini tion of"employer" in sub·cl. (iv) of s. 2 (i) of the Act does not make the appellant, the employer of these workmen. The second . point, urged rather faintly, is that if the above definition be so construed as to make the contractor's labourers, workmen of the company the definition should be held to violate the provisions of Art. 19 (1) (g) of the Constitution, I • .. 842 SUPREME COURT REPORTS [l!J64] VOl. 1963 B4Sti Su1ar Mil/$ Lid. v. Ram Ujota' Du Gup111 J. The third point urged is that, In any case, the res pondents arc not entitled to the benefit of Standing Orders which fixed the minimum wage for the workmen of the Vacuum Pan Sugar Factories of Uttar Pradesh. Section 2 (i) of the Act contains an inclusive definition of employer. The effect of sub·cl. (iv) of s. 2 (i) is that where the owner of any industry in the . course of or for the purpose of conducting the industry contracts with any person for the execution by or under such person of the whole or any part of any work which is ordinarily a part of the industry, the owner of such industry is an employer within the meaning of the Act. Mr. Pathak's su11gestion that the effect of this definition is that the owner of the in dustry becomes the employer of the contractor is wholly untenable and cau even be described as fantastic to deserve serious consideration. The ob vious purpose of this extended definition of the word "employer" is to make the owner of industry, in the circumstances mentioned in the sub clause, the employer of the workmen engaged in the work which is done through contract. The words used in the sub.clause are clearly sufficient to achieve this purpose. It is true, as pointed out by Mr. Pathak, that the definition of the word "workmen" did not contain any words to show that the. contract labour was included. That however does not affect the pos1t1on. The words of the definition of workmen (including an in s. 2 (z) to mean "any person apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or rewacd, whether the terms of employment be express or implied" are by themselves sufficiently wide to bring in persons doing work in an industry whether the employment was the contractor of the . by the management or by 1963 ilasn Sugar Milts v. Ram Uj1gar Das Gupta J. 2 S.C.R. SUPREME COllRT REPORTS 843 the definition of management. Unless howe'Ver the word "employer" included the management of the industry even when the employment was by the contractor the workmen employed by the contractor could not get the benefit of the Act since a dispute between them and the management would not be an industrial dispute between "employer" and work It was with a view to remove this difficulty in men. the way of workmen employed by contractors that the definition of employer has been· extended hy sub-cl. (iv) of s. 2 (i). The position thus is: (a) that the respondents are workmen within the meaning of s. 2 (z), being persons employed in the industry to do 'manual work for reward, and (b) they were employed by '!:. contractor with whom the appellant company had contracted in the course of concluding . the industry for the execution by' the said contractor of the work of removal of press-mud which is ordi narily a part of the industry. It follows therefore from s. 2 (z) read with sub-cl. (iv) of s. 2 (i) of the Act that they are workmen of the appellant company and the appellant company is their employer. There is no. substance therefore in the first point raised by the learned . counsel for the appellant. the result of The second point, viz., that this definition contravenes the appellant's fundamental rights under Art. 19 (I) (g) is equally devoid of substance. Assuming this definition of employer in sub-cl. (iv) of s. 2 (i) is the imposition of some restrictions on the appellant's right to carry on trade or business, it cannot be doubted for a moment that the imposition of such restrictions is in the insterest of the general public. For, the interests of the general public require that the device of the engagement of a contractor for doing work which is ordinarily part of the industry should not be allowed to be availed of by owners of industry for evading . the provisions of the Industrial Disputes Act. That these provisions are in the interests of the general j • .. 844 SUPREME COURT REPORTS [1964] VOL. . 1963 Ba1ti Su~ar MiUs Lld . •• &zm 1,ja1a' Das Gupta J. public c~nnot be and has not been disputed. That being the position, the impugned ddini1ion which gives the benefit of the provision of 1he Act to the workmen engaged under a contract in doing work which is ordinarily part of the industry cannot but be held to be also in the interesls of the general public. In the standing Orders This brings us to Mr. Palhak's main contention that in any case the respondents are not 'workmen' within the meaning of the Standing· Orders and so the benefit of the minimum wage cannot get prescribed thereby. word "workmen" is defined to mean "any person (including an apprentice) employed by a factory, to do any skilled or uuskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied" but does not include any person mentioned in els. (i) and (ii). We are not concerned in this case with these clauses. Mr. Pathak argues that on a reasonable construction, the words "employed by a factory" in this definition can only mean "employed by the management of the factory" an<! can not include persons employed by a.contractor of the factory. He points out that this d~finition of 'workmen' in the Standing Orders uses the words "employed by a factory" though the definition of 'workmen' in the Act itself uses the words "employed in any industry" and contends that the words "by a factory" were deliberately used instead of words "in a factory" to exclude , persons other than those employed by the management of the factory from the benefit of the reason Standing Orders. Neither grammar nor supports this argument. On the ordinary grammatical sense of the words "employed by a factory" they include, in our opinion, every person who is employed to do the work of the factory. The use of the word "by" has '

2.S.C.R. SUPREME COURT REPORTS 845 nothing to do with the question as to who makes the appointment .. The reason why "by" was used insiead of "in" appears to be to ensure that if a person has been employed to do the work of the industry, whether the work is done inside the factory or out~ide the factory, he will get the benefit of the Standing Orders. 1963 Basti Sug~r Mills Ltd. v. Ram Ujazar Das Gupta J • . We can also see no reason why the Government in making the Standing Orders would think of denying to some of the persons who fall within the definition the benefit of the the Act, of workmen under Standing Orders. The · Standing · Orders were made under s. 3 (b) of the Act under which the State Government may make provision "for requiring employers, workmen or both to observe · for such period as may be specified in the order such terms and conditions of employment as may be determined in accordance with the order." The purpose of the order was thus clearly to require employers ·to observe certain terins and conditions of employment of their workmen as defined in the It is unthinkable that in doing so the Govern Act. ment would want to exclude from its benefit~-parti­ culary, that of the minimum wage-a class of work men who would otherwise get the benefit under the definitions of workmen ·and employer . in the Act itself. No reason has been suggested and we cannot think of any. We have therefore come "employed by a the words enough contractors of factory also. include workmen employed by the conclusion that are wi\ie factory" Mr. Pathak wanted to raise a new point based on the provisions of cl. (K) of the Standing Orders. That clause provides that a seasonal workman who for illness or any other has worked or, but unavoidable cause, would have worked under a !ltUri Sugar Mills Ltd. . 1963 •. ~Ml Ujagar Uas Gupta J. , 846 SUPREME COURT REPORTS [lll64J VOL. In view of this Mr. Pathak . factory during the whole of t,he second half of the.last preceding season will be employed by the factory in the current season. wants to urge that it will be difficult for the appellant to give effect to the order of reinstatement of these 21 workmen as that would mean getting rid of at least some workmen who are entitled to be employed by the factorv under the provisions of cl. (K). If the facts were known to be as suggested by the learned Counsel we would have felt obliged to take note of these provisions of cl. (K) and would have thought fit to make an order as was made by this Court in similar circumstances in Maha/akshmi Sugar Mills Company ), making it clear that these Ltd. v. Their Workmen (1 21 workmen should be re-employed in the crushing season of 1962-63 only in so for as it was possible to do so without breach of the provisions of cl. (K) of the Standing Orders. There are no materials on the record however to sh.1w how many of the workmen the crushing alr~ady employed by the Company in season of I 9ti2-196:l had actully worked in the latter half of I!J()[.(i2 season. In the written statement of the Company. no such point about the difficulty of reinstatement of anv of these 21 workmen because of the provisions of c1: (K) was raised. In these circum stamces. we have not allowed l\fr. Pathak to raise th!s n~w pka for the first time in this Court. A> all the pDint> raised in the appeal fail, the appeal is dismis~cd with costs. Appeal dismissed. (I) 1961 (Iii LL. J. 623,