Workmen of Delhi Electric Supply Undertaking v. The Management of Delhi Electric Supply undertaking)
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 3770 of 2013 Power Grid Corporation of India Ltd., through its Chief Manager S. S. Ghosal, S/o Late P. N. Ghosal, Residence of A-360, Mamta Bhawan, Road No. – 4B, Ashok Nagar, P.O. & P.S. Argora, Ranchi – 834002 … … Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Department of Labour and Employment, Government of Jharkhand, Ranchi, P.O. & P.S. Doranda, District Ranchi 3. The Inspector of Factories, Ranchi Circle No. 2, Ranchi, P.O. & P.S. … … Respondents Doranda, District Ranchi CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondents 06/12th June 2024 --- --- : Mr. V. P. Singh, Sr. Advocate Mr. B. B. Sinha, Advocate : Mr. Ankit Kumar, Advocate 1. 2.
Legal Reasoning
Heard the learned counsel for the parties. This writ petition has been filed challenging the order as contained in letter No. 43 dated 07.02.2013 (Annexure-1) and also letter No. 67 dated 05.04.2013 (Annexure-2) both issued by the respondent No. 3 whereby the petitioner has been directed to obtain license under the provisions of Section 6 of the Factories Act, 1948. Arguments of the petitioner 3. The learned senior counsel for the petitioner has submitted that the petitioner is a Government of India undertaking and undertakes the work of construction, operation and maintenance of transmission lines throughout the country and to facilitate transfer of power within or across various region of the country including rural electrification and for transmission of electricity, the petitioner has established several sub-stations at various places and one such sub-station of 400 KV is also located at Rajaulatu, Namkum (Ranchi). 1 4.
Decision
It is their further case in the writ petition that the power received in the sub-station is transformed and further transmitted on wards and as such no manufacturing process is involved in functioning of the sub-station. 5. The specific case of the petitioner is that since the petitioner at its sub- station is not engaged in any generation of electricity, therefore, the activity of the petitioner at the sub-station does not fall within the meaning of “manufacturing process” and consequently, the petitioner is not liable to get itself registered under the provisions of Factories Act, 1948. 6. In support of his submissions, the learned senior counsel has relied upon the judgment passed by the Hon’ble Supreme Court in the case reported in (1974) 3 SCC 108 (Workmen of Delhi Electric Supply Undertaking vs. The Management of Delhi Electric Supply undertaking) [in Civil Appeal No. 1409/1968]. The learned senior counsel has also relied upon the judgment passed by a Division Bench of the Hon’ble Andhra Pradesh High Court reported in 1997 (1) ALT 134 (Power Grid Corporation of India vs. State of Andhra Pradesh) and has submitted that the activity of the petitioner at the sub-station involved in this case does not come within the definition of “manufacture”. He submits that in the said case decided by the Hon’ble Andhra Pradesh High Court the term “industrial purpose” was subject-matter of consideration which was defined under the provisions of Non Agricultural Lands Assessment Act, 1963 (NALA) wherein the concept of manufacture has been considered and the aforesaid judgment passed by the Hon’ble Supreme Court has been relied upon. Arguments of the respondents 7. The learned counsel appearing on behalf of the respondents, on the other hand, while opposing the prayer of the petitioner has submitted that the impugned direction was issued to the petitioner after due inspection and the petitioner had also filed its objection which was rejected vide letter No. 118 dated 27.04.2013 (Annexure-3) but the said letter is not under challenge in the present proceedings. He has also submitted that the reason for rejection of the stand taken by the petitioner as per Annexure-3 is that the transmission station 2 of the petitioner engages employees and workers and it has definite premise which satisfies the definition under Section 2 (k) and 2 (m) of the Factories Act, 1948. Section 2 (k) and 2 (m) of the Factories Act, 1948 defines “manufacturing process” and “factory” respectively. 8. The learned counsel has referred to the counter-affidavit and has submitted that the petitioner is having a transmitting power sub-station located at Rajaulatu, Namkum (Ranchi) which satisfies all the criteria and condition to be called “factory”. It has a fixed and well defined operation site with building and equipment such as transformer, capacitors, synchronous, condensers, structures, cable and switchgears where power is step up/step down for supply to the consumers. The sub-station engages more than 10 workers in its premises. The learned counsel submits that the impugned direction issued by the respondents does not call for any interference. 9. The learned counsel has relied upon the judgment passed by the Hon’ble Calcutta High Court in the case of Board of Councillors, Bhatpara vs. Cesc Limited and Others reported in AIR 2007 (NOC) 2185 (Cal.) and has referred to paragraph 40 and 41 which are quoted as under: - “40. Therefore, the Court would not make any alteration which is contrary to legislative intent and after construing all the sections of the said Acts, we have to come to the conclusion that the generation of electricity is the beginning of the process and it culminates upon transmission of power to the customers, that is the reason for giving the definition by legislators under Section 2(k)(i) of the Factories Act, 1948. 41. In this circumstances, we have to come to the conclusion that setting up of a 'switching-cum-substation' is clearly for industrial use within the meaning of the 1979 Act.” Findings of this Court 10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute that the petitioner has a sub-station at Rajaulatu, Namkum (Ranchi) and it receives power in the sub-station which is transformed and further transmitted on wards. 11. This Court finds that the impugned letter dated 05.04.2013 refers to an inspection report and on the basis of such inspection report, it was observed 3 that the aforesaid power sub-station has a fixed periphery and manufacturing process is transmitting power and therefore it is covered under the provisions of Factories Act, 1948. In the said letter, it was also mentioned that the judgment of the Hon’ble Supreme Court passed in Civil Appeal No. 1409/1968 (supra) which has been relied upon by the petitioner as mentioned above relates to payment of overtime and other benefits and the Hon’ble Supreme Court has not exempted the petitioner from the provisions of Factories Act, 1948. 12. It further appears that another communication dated 27.04.2013 was issued by the respondents indicating that the transmission station engages employees and workers and has a definite premise and therefore it falls within the definition of “Factory” and “Manufacturing Process” under Section 2k (iii) and Section 2m (i) of the Factories Act, 1948. 13. The matter essentially relates to the dispute as to whether the aforesaid sub-station of the petitioner is required to be registered under the provisions of Factories Act, 1948. 14. The relevant definition for the aforesaid purpose has been mentioned in Section 2(k), 2(l) and 2(m) of the Factories Act, 1948 which are quoted as under: - “(k) “manufacturing process” means any process for— (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or [(ii) pumping oil, water, sewage or any other substance, or] (iii) generating, transforming or transmitting power; or [(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding;] [or] (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; [or] (vi) preserving or storing any article in cold storage;] (l) “worker” means a person [employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not], in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process [but does not include any member of the armed forces of the Union]; (m) “factory” means any premises including the precincts thereof— 4 (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,— but does not include a mine subject to the operation of [the Mines Act, 1952 (35 of 1952)], or [a mobile unit belonging to the armed forces of the Union, railway running shed or a hotel, restaurant or eating place];” 15. This Court finds that the definition of “Manufacturing Process” specifically includes generating, transforming or transmitting power under Section 2(k) (iii) of the Factories Act, 1948 and as per Section 2(m), the minimum number of workers required to be employed is 10. 16. This Court is of the considered view that the definition of “Factory” clearly provides that where ten or more workers are working, or were working on any day preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, such premises is a Factory. The definition of “manufacturing process” as held above specifically includes generating, transforming or transmitting power. It is the case of the petitioner itself that the power received in the sub-station is transformed and transmitted on wards. 17. This Court finds that in the impugned communications it has been clearly mentioned that the aforesaid sub-station of the petitioner has a fix periphery and the petitioner is engaged in manufacturing process and engages workmen. This Court finds that the impugned orders have been passed after due inspection and upon receiving response on the inspection from the petitioner but the petitioner has neither filed the inspection report nor filed its reply for consideration and the impugned letters reveal that the petitioner had objected to the registration only on account of aforesaid judgement passed by the Hon'ble Supreme Court. This Court also finds that the petitioner has not made any such case that the petitioner is not to be registered on account of want of requisite number of workmen in the sub-station and the statement made in the counter affidavit that the petitioner has been engaging more than 10 workmen in the sub-station has not been denied in the rejoinder to the 5 counter affidavit. The inspection report and its objection has not been filed by the petitioner; the plea raised by the respondents in the counter affidavit that the petitioner engages more than 10 workmen in the sub-station has not been denied in the rejoinder and therefore it is an admitted fact on record and it cannot be said that the respondents are justifying their action by taking a stand for the first time in the counter affidavit. 18. This Court is of the considered view that the term “manufacturing process” has been defined under the provisions of Factories Act, 1948 and the “factory” has also been defined and therefore the activity of transforming or transmitting of power has been specifically included in the definition of 'manufacturing process' as defined under Section 2k(iii) of the Factories Act, 1948 and therefore on the basis of materials placed on record, this Court is of the considered view that the petitioner is engaged in “manufacturing process” as defined under the aforesaid Act of 1948 and is a factory as defined under the aforesaid Act of 1948. 19. So far as the judgment passed by the Hon’ble Supreme Court reported in (1974) 3 SCC 108 (supra) is concerned, the Hon’ble Supreme Court was essentially considered the demand of the employees of Delhi Electric Supply Undertaking with regard to conveyance allowance and overtime allowance and while considering this aspect of the matter, the Hon’ble Supreme Court has also taken into consideration the work assigned to the said workmen. This Court finds that the Hon’ble Supreme Court has referred to the definition of factory and also has made a reference to Halsbury's Laws of England. 3rd ed. Vol. 17 to hold that a 'factory' must occupy a fix site. The Hon’ble Supreme Court further considered the materials on record which clearly showed that there were several stations and zonal sub-stations which were left unattended and this could not be the situation if 'manufacturing process' was not taking place in those premises. With regards to the nature of work performed by the workmen it was recorded that the workmen involved in the said case were essentially dealing with daily complaints from the consumers, keeping regular reports and attend to the defects in the consumers' 6 premises and they had to go out for field work and they had to sit in office for maintenance and preparation of the relevant records. It was found that it could not be said that any 'manufacturing process' either took place in the sub- stations or in the zonal stations and the said sub-stations and zonal sub-stations did not satisfy the definition of 'factory'. The Hon’ble Supreme Court also recorded that they were conscious that the question whether a particular unit is a factory has to be decided by applying the ingredients contained in the definition of “factory” under the Factories Act and therefore, the fact that a witness, however highly placed he may be, said that a particular unit is not a 'factory' would not be conclusive on the matter. The Hon’ble Supreme Court had actually considered the materials on record to hold that the concerned sub- station was not a 'factory'. This Court finds that in the aforesaid judgment the materials placed on record were taken into consideration by the Hon'ble Supreme Court to hold that the sub-station was not a 'factory'. It was never held that a sub-station can never be a factory even if the activity falls within the definition of “manufacturing process” and the premises falls within the definition of “factory” as defined under the factories Act, 1948. Thus, there is no blanket declaration that sub-stations would not be covered by the Factories Act, 1948. Thus, essentially it would depend upon the facts of each case. 20. In the present case, the impugned order itself reflects that the premises of the sub-station had a definite boundary and it is also the case of the petitioner in paragraph 5 that the petitioner in the sub- station is involved in transforming and further transmitting the electricity and therefore the petitioner's activity in the sub-station would be covered by the definition of “manufacturing process” as defined under the provisions of Factories Act, 1948. The impugned order and action has been taken on the basis of inspection report which was forwarded to the petitioner, to which the petitioner had also filed a response but the petitioner has neither placed on record the inspection report nor has placed on record the reply so filed for the reasons best known to the petitioner. 21. So far as the other judgment which has been relied upon by the petitioner passed by the Hon’ble Andhra Pradesh High Court reported in 1997 (1) ALT 7 134 (supra) is concerned, this Court finds that the said judgment does not apply to the facts of this case as the issue involved in the said case was essentially related to interpretation of “industrial purpose” as defined under Section 2d of the NALA Act and in the said judgement the aforesaid judgment passed by the Hon’ble Supreme Court was also relied upon to observe that mere transmission of electricity did not amount to process of manufacture. This Court has already distinguished the aforesaid judgment of the Hon’ble Supreme Court. The activity in the present case is not that of mere transmission but the activity is that of transformation and transmission for which a sub- station has been established with fixed boundaries engaging more than 10 workmen in the sub-station. 22. In view of the aforesaid facts and circumstances based on materials on record, this Court is of the considered view that the petitioner is engaged in “manufacturing process” as defined under Section 2k of the Factories Act, 1948 in its sub-station and is accordingly a “Factory” within the definition of Factories Act, 1948 and consequently the petitioner is under a legal obligation to get itself registered in terms of the provisions of Factories Act, 1948. 23. Considering the totality of the facts and circumstances of this case, this Court finds no merit in this writ petition, which is accordingly dismissed. 24. 25. Pending I.A., if any, is closed. Interim order, if any, stands vacated. Mukul (Anubha Rawat Choudhary, J.) 8