1. This is a petition filed to challenge the validity of the notification dated 9 January, 1963 issued by the State Government under S. 5(1) of the Bombay Shops and Establishments Act, 1948 (hereinafter referred to as the Act), and for an injunction restraining respondent 2 who is the Inspector of Shops and Establishments, Bombay Municipal Corporation, from proceeding with certain criminal proceedings adopted by him against petitioner 1 in the Court of the Presidency Magistrate. The petitioners carry on business of tailors and outfitters. They say that in most of the tailoring establishments including their establishment, the practice consistently has been to keep one or two persons who are full time cutters. Such cutters do the main work of taking measurements and marking and cutting out the cloth. These persons are truly called the tailors. In addition to these cutters, most of the tailoring establishments entrust the work or job of stitching of garments to other persons who are known in the trade as stitchers. The petitioners say that there is no supervision or control by the establishment over the details or the manner in which the work should be done by the stitches According to them, the relationship of master and servant does not subsist between the owner of the establishment and such stitchers; such stitches are really independent contractors. The petitioners, therefore, say that the stitches are outside the purview of the Act. The petitioners do not enter the names of such stitches in the register maintained by them under the Act. In July, 1957, petitioner 1 was prosecuted for failure to maintain a register of employment, leave register and leave book in respect of his stitchers. Petitioner 1 was acquitted in these proceedings by the Presidency magistrate. No appeal was preferred by the State from the decision of the learned Presidency Magistrate. In December 1958, nine of the stitches working in the petitioners' establishment filed applications under the Payment of Wages Act to recover weekly-off wages. In these applications, which were heard together by the Payment of Wages Authority, the petitioners raised a preliminary objection that these stitches were independent contractors, that the relationship of employer and employer did not subsist between the stitches and the owner of the establishment and, therefore, the Payment of wages Authority had no jurisdiction to entertain these applications. The preliminary contention urged on behalf of the petitioners was accepted in those applications. It was held in those applications that stitches were independent contractors and, therefore, the Payment of Wages Authority had no jurisdiction to entertain those applications. The petitioners further say that similar prosecutions were launched against proprietors of other tailoring establishments for alleged contravention of the provisions of the Act but in all the proceedings, the proprietors of the establishments were acquitted. Even the appeals preferred by the State Government from those orders of acquittal were rejected by this Court. The petitioners further say that in order to circumvent the effect and implication of these judgments of the High Court, the State Government, in purported exercise of the powers under S. 5(1) of the Act, issued a notification dated 9 January, 1963 whereby the State Government has declared that a person working as a tailor on piece-rate wages in the premises of an establishment to be a person to whom the provisions of the Act applicable in relation to persons employed in shops [except the provisions of Ss. 14 and 63(1) thereof] shall apply with effect from February 1, 1963. After this notification was issued in April 1963, the Bombay Merchants, Tailors and Outfitters' Association made a representation to the Hon'ble Minister or Labour stating that the notification issued was practically unworkable and caused considerable hardship and financial burden upon the tailoring establishment. To this representation no reply has so far been received by the association. In July, 1963, petitioner 1 was again prosecuted on a complaint filed by respondent 2 for failure to maintain a register of employment in the form J or H prescribed by the rules made under the Act in respect of some of the employees. That prosecution was still pending when this petition was filed. The petitioners are challenging the validity of this notification issued by the State Government on 9 January, 1963 and also contend that the criminal proceedings adopted against petitioner 1 are illegal and without jurisdiction. The petitioners have only made the State of Maharashtra and the Inspector of Shops and Establishments, Bombay Municipal Corporation, who filed the complaint against the petitioners, as party-respondents to this petition. Later on, it appears that the Maharashtra Tailoring Workers' Union and the Bombay Labour Union, which are the unions registered under the Trade Unions Act, have been made party-respondents on their respective application.
2. The affidavit of Shanbaug, Under Secretary to the Government of Maharashtra, Industries and Labour Department, filed on behalf of respondent 1 shows that the Government does not accept the position that there is no relationship of master and servant between the owners of the establishment and the stitches and it is denied that there is no contract of service between the statuaries and the proprietor of the establishment or that such stitches are independent contractors. It is further stated that some tailoring establishments were deliberately avoiding to keep muster-rolls as required to be maintained under the Act with a view to deprive the stitches of the benefits and other facilities as are available to the other employees under the Act. The Government, therefore, with an intention to give such benefits issued the impugned notification dated 9 January, 1963.
3. The first contention urged on behalf of the petitioners is that it is a condition precedent to the applicability of the Act that a person or persons to whom the Act is sought to be made applicable must satisfy the basic definition of an 'employee' under the Act; that there must exist the relationship of a master and servant or an employer and employee between the owner of the establishment and that person; that such a requirement and necessity of employment is basic and fundamental; that the entire scheme of the Act postulates the existence of this basic relationship and having regard to the scheme of the Act and the provisions of S. 5 thereof, it is not open to the State Government to declare any person whatever the nature of his functions and irrespective of his relationship with the management to be a person to whom the Act applies. It is further stated that powers under S. 5 of the Act can only be exercised in respect of a person who is working in the establishment as an employee and not to an independent contractor in respect of whom the essential attribute or requirement of employment is lacking. It is said that the stitches working in the petitioner' employment being independent contractors, the provisions of the Act cannot be extended to them by issuing a notification under S. 5(1) of the Act. The notification, according to the petitioners, is therefore, beyond the scope and ambit of the powers conferred by S. 5(1) of the Act.
4. The entire basis of argument depends upon the question whether the relationship of master and servant or employer and employee subsists between the petitioners and the stitches working in the establishment. The question whether relationship of master and servant or an employer and employee subsists has been the subject of consideration by their lordships of the Supreme Court in a large number of cases. In Dhrangadhra Chemical Works, Ltd. v. State of Saurashtra : (1957)ILLJ477SC , the question that arose for consideration before their lordships was whether agarias, a class of professional labourers, who were working as labourers were workmen within the meaning of the Industrial Disputes Act of 1947. The facts of the case show that the agarias work themselves with the members of the family and were free to engage extra labour on their own account. No hours of work were prescribed and no muster-rolls were maintained. The working hours of these agarias were not controlled by the owners of the pattas. The owners had not made any rules as regards the leave or holidays. Agarias were free to go out of the factory after making arrangements for the manufacture of salt. Thus certain features which are normally to be found in the contract of service were absent in the case of Agarias. The industrial tribunal held that on the whole the status of Agarias was that of workmen and not that of independent contractors particularly as supervision and control was exercised by the owner of the salt pattas extending to all the stages of manufacture from beginning to end. The view taken by the industrial tribunal was ultimately upheld by their lordships no the view of the facts found. It was held in this case that the real test whether a person was workmen, was whether he had been employed by the employer and a relationship of employer and employee or master and servant subsisted between them and it was well-settled that the prima facie test of such relationship was the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying indifferent industries and being by its nature incapable of being precisely defied. The correct approach, therefore was to consider whether, having regard to the nature of the work, there was due control and supervision of the employer. It was further held that the question whether the relation between the parties was one as between an employer and employee or master and servant was a pure question of fact depending upon the circumstances of each case.
5. The next case which was relied upon during the course of the argument was the case of Chintaman Rao v. State of Madhya Pradesh : 1958CriLJ803 . This as a case of bidi-manufacturer. In that case the owner of the factory was prosecuted for failure to maintain a register as required to be kept under the provisions of Ss. 62 and 63 of the Factories Act. The question that arose for consideration in that case was whether certain persons known as sattedars and those who work under these sattedars were workmen or not as defined under the Factories Act. The special feature of this case was that none of the workmen worked in the factory of the owner. The bidi is could be manufactured by them anywhere and there was no obligation on sattedars to work in the factory of the management. The sattedars were entitled to distribute tobacco to the workers for making bidi is in the workers respective homes. It was found that the sattedars undertook to supply bidi is manufactured in their own factories and at a price to be paid be the management on ( ?) delivery and approval. It was in these circumstances that their lordships held that the sattedars were independent contractors and the workers employed by them were not the workers of the management. In the course of the judgment, their lordships observed :
'The concept of employment involves three ingredients :
(2) employee, and
(3) the contract of employment.
The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and employee whereunder the employee agrees to serve the employer subject to his control and supervision.'
6. It was pointed out that there was a well-understood distinction between the contractor and the workman and between a contract for service and contract of service. A contractor is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control in respect to the details of the work. The identifying mark of a workman is that he should be under the control and supervision of the employer in respect of the details of the work. The prima facie test for the determination of the relationship between the employer and employee is the existence of the right in the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work. Thus the test laid down in Dhrangadhra Chemical Works, Ltd., case : (1957)ILLJ477SC (vide supra) was again reiterated in this case.
7. Then a reference was made to the case of Birdhichand Sharma v. First Civil Judge, Nagpur, and others : (1961)IILLJ86SC . This was also a case of bidi-manufacturer. That case had arisen upon an application made by certain persons for wages in lieu of leave under the Payment of Wages Act. The contention of the owner of the factory was that the applicants in that case were not workers within the meaning of the Factories Act and were not entitled to leave wages. It was found that the bidi-rollers who made the applications had to work at the factory and were not at liberty to work at their houses. There attendance was noted in the factory. They had to work within factory hours though they were not bound to do work for the entire period and could go away whenever they liked. However, it was a term of the agreement that if they came after midday they were not supplied with tobacco and were thus not allowed to work even though the factory continued to work up to 7 p.m. on that day. It was also found that if a bidi-roller remained absent for eight days, he could be remained. These bidi-rollers were paid according to the amount of work done and the bidi is which did not come up to the standard would be rejected. On these facts it was held that the bidi-rollers were workers under the Factories Act and not independent contractors. It was pointed out by their lordship that the nature and extent of control varied in different industries and could not by its very nature be precisely defined. When the operation was of a simple nature and did not require supervision all the time, control could be exercised of rejecting bidi is which did not come method of rejecting bidi is which did not come up to the proper standard. Such supervision was sufficient to make the bidi- rollers the employees of the employers and not independent contractors. It was also emphasized that the nature of control required to make a person a servant of the master would depend upon the facts of each case.
8. The next case to which a reference was made was that of Shanker Balaji Waje v. State of Maharashtra : (1962)ILLJ119SC . This was also a case of a bidi-manufacturer. In that case, the attendance of the bidi-roller was characterized by very special features. There was no agreement or contract of service between the owner of the establishment and the bidi-roller. The bidi-roller was not bound to attend or factory for any fixed hours or to work for any fixed period. He was free to go to the factory at any time he liked and was equally free to leave the factory whenever he liked. The bidi-roller could be absent from the work on any day and if his absent was expected to be of a duration for owner, not for the purpose of inform the owner, not for the purpose of taking his permission or leave, but for the purpose of assuring him that he had no intention to give up work at the factory. There was no actual supervision of work which the bidi-roller did in the factory and he was paid at fixed rates on the quantity of bidi is turned out, there being no stipulation for turning out the minimum quantity of bidi is in a day. The bidi leaves which were supplied to the bidi-rollers for being taken to the home and cut and tobacco were supplied at the factory but they were not called to roll the bidi is at the factory. The bidi-rollers could take the material outside the factory after obtaining the permission of the owners. At the close of the day, the bidi is used to be delivered to the owner and the bidi is not up to the standard were rejected, The bidi-workers' attendance was not noted, though the days he worked could be ascertained from the register. On these facts, it was held that the bidi-roller could not be said to be employee of the owner and was not therefore, a worker, there being no contract of employment under which the bidi-rollers agreed to serve the employer subject to supervision and control. Thus the criteria laid down in Dhrangadhra Chemical Works, Ltd., case : (1957)ILLJ477SC (vide supra) of due control and supervision was followed for coming to the conclusion whether a person was employed or an independent contractor.
9. Reference was then made to the case of Bhikusa Yamasa Kshatriya (Private), Ltd. v. Union of India and another : (1963)ILLJ270SC ; the principal question argued in this case was as regards the constitutionality of the provisions of S. 85 the Factories Act and the notification issued by the State of Maharashtra thereunder. The question there involved was about the application of S. 79 of the Factories Act with reference to the leave, and the difficulty felt in Shankar Balaji Waje case : (1962)ILLJ119SC (vide supra) as to how leave could be calculated in the circumstances, was explained with reference to the decision in Birdhichand Sharma case : (1961)IILLJ86SC (vide supra).
10. The last case to which reference was made is also the case of a bidi manufacturer, viz., D. C. Dewan Mohideen Sahib & Sons and another v. United Bidi Workers' Union 1964 II L.L.J. 633. The facts of that case show that a bidi-manufacturer was getting the work of rolling the bidiis done through contractors. Such persons in their turn engage a number of other persons. The persons so engaged took the leaves home for cutting in proper shapes. The work of rolling the bidi is was done by such persons in the premises of intermediaries with the materials supplied to them by such intermediaries. The necessary materials such as thread, bidi leaves and tobacco were supplied to the intermediaries by the bidi-manufacturers. Payment was made to the bidi-rollers on piece rate wages. Such payment to the bidi- rollers plus their commission due to the intermediaries was ultimately made by the said bidi manufacturer. The evidence showed that the intermediaries were found to be persons who were in all respects under the control of the owner. On these facts the industrial tribunal held that the bidi-rollers were the employees of the bidi manufacturer and that the system of such work was adopted to camouflage the industrial law. On these facts it was held that the so-called intermediaries were not independent contractors as branch managers of or were functioning but were mere employees the various bidi-manufacturers. It was also held that the bidi rollers themselves were the employees of the bidi-manufacturer and not of the so-called independent contractors. The decisions above referred to were cited and the principles laid down therein were applied.
11. It is in the light of these decisions that I have to decide whether the stitches who are working in the premises of the petitioners' establishment on piece-rate wages are employees or whether they are independent contractors as sought to be suggested on behalf of the petitioners. It is alleged by the petitioners in Para. 3 of the petition that the stitches cannot be really called 'tailors,' because they merely stitch the cloth as per the markings indicated on the cloth by the cutters. The case pleaded in the establishments, stitches carry outing establishments, stitches carry out their work of stitching garments at their places of residence; for their own convenience they go to the establishment or to portions of the premises provided for them by the tailoring establishment and carry out the stitching work there. They go to the premises of the establishment not under the terms of the contract but with the permission of the owners for their own convenience. In most cases, sewing machines, implements and accessories are supplied by the tailoring establishment and the stitches also pay rent to the tailoring establishment for the sewing machines, implements and accessories supplied to them by the tailoring establishment. The stitches are under no obligation to attend on every day the establishment. There is also no obligation for them to carry out any particular work, much less any particular work within a stipulated time. The stitches are free to come and go whenever they liked and as they like and to do as much or as little work as they liked. In fact, there are no fixed hours of work for them. In some tailoring establishments including that of the petitioners, stitches are permitted to work for more than one tailoring establishment. No muster-roll is kept in respect of such stitches who remain absent without giving prior intimation to the establishment. The stitches are at liberty to select any particular type of work as they liked. In the case of stitches who are working at their place of residence they are at liberty to get the work done either by themselves or through other stitches engaged by them. Such stitches are remunerated on piece-rate wages depending upon the garment stitched. It is added that there is no supervision or control over the details or the manner of doing the work by the stitches and, therefore, no relationship of master and servant subsists between the owners of the establishments and such stitchers. The pleas of the petitioners is that such stitches are independent contractors. I am not, in the present case concerned with the case of stitches who are working ordinarily at the place of their residence. The impugned notification is only made applicable to persons working as tailors on piece-rate wages in the premises of the establishments. Even though most of these allegations refer to the work to be done by the stitchers, surprisingly the petitioners have not made any of the stitches working in their establishment as party respondents to this petition, but have chosen to make only the State Government and the Inspector of Shops and Establishments as the only respondents in this petition, observed earlier, the trade unions have applied to this parties to this petition, as by this petition, the petitioners had generally challenged the validity of the impugned notification which was applicable to all the tailoring establishments.
12. In the affidavits filed on behalf of the respondents, most of these allegations are not specifically dealt with but it is, however, denied that in most of the establishments stitches carry out the work to be performed by them, either at the residence or for the convenience of the stitches on the premises of the owners or to the portions of the premises provided for them by the tailoring establishment and carry out the stitching therein. It is affirmatively stated in these affidavits that in most of the tailoring establishments, the stitches regularly work in the establishment under the control and supervision of the respective owners of the establishments and that, therefore, they are the employees within the meaning of the Act. However, no particulars are given in these affidavits as regards the nature or the extent of the control or supervision exercised by the owners of the establishments. As pointed out in the case of Dhrangadhra Chemical Works : (1957)ILLJ477SC (vide supra) the prime fact of the relation of the master and the servant was the existence of a right in the employer not merely to direct what work was to be done but also to direct the manner in which it was to be done. The nature or extent of such control may very in different industries of being precisely defined. Nature incapable of being precisely defined. In the present case, I find that there is an assertion on behalf of the respondents that there is due control and supervision while there is a denial thereof on the part of the petitioners. The decisions in the cases of Dhrangadhra Chemical Works : (1957)ILLJ477SC (vide supra) and Birdhichand Sharma : (1961)IILLJ86SC above referred to shows that the workers may be employees if there is due control or supervision even though there may be no fixed hours of work and even though they may be at liberty to come whenever they liked and go. Such features by themselves alone are not decisive for the determination whether the relationship of master and servant subsists. This being a pure question of fact, in the absence of evidence it is not possible to decide on the facts alleged whether the control or supervision can be or was in fact exercised by the petitioners over the stitches working in or under the establishment. It is not difficult to comprehend cases where a master can give directions as to the manner of the work to be done by the starchier in his establishment. He may give directions as to the nature of the stitching, viz., whether the stitches should be close to each other or at a distance; he may give directions as to the manner or the type of the thread or the needle to be used in stitching garments; he may ask the stitches to re-stitch a garment in case of bad or defective workmanship and the extent of such control by its very nature can only depend upon the facts of each case. In the absence of the stitches employed by the petitioners in their establishment, it is not possible to find whether the petitioners exercise due control and supervision over them not only in respect of the work to be done but also in respect of the manner in which it should be done. However, I am Inclined to decide this petition on the assumption that there is no such control or exercised supervision over the stitches and therefore, such stitches must the assumed to be independent contractors and there is no relationship of master and servant between them and the petitioners. In connexion with the question whether the stitches working in or under the petitioners' establishment are independent contractors, Sri Sorabji invited my attention to the order made by the Payment of Wages Authority in the application made by stitches working in their establishment for recovering weekly-off wages. These applications were made before the Payment of Wages Authority. Before the authority it was contended on behalf of the petitioners that the stitches were independent contractors and met employees and, therefore. The authority had no jurisdiction to entertain any application under the Payment of Wages Act. The evidence was led on behalf of the stitches in these applications and ultimately it was held by the Payment of Wages authority that there was no due not control and supervision of the petitioners over the stitchers' work and therefor, the relationship of master and servant did not subsists between the petitioners and the stitchers. These stitches were held to be independent workers and not employees. The stitches did not prefer any appeal from this decision of the authority and Sri Sorabji contended that in view of the provision of S. 17(2) of the Payment of Wages Act, this decision has before final and issue as to whether the stitches working in or under the establishment of the petitioners are employees of independent contractors is barred by the principles of res judicata. The principle of res judicata can only be invoked if the earlier decision relied upon is between the same parties. In the present case, the decision of the payment of Wages Authority was arrived at between the petitioners on the one hand and the stitches on the other. In the present application. The stitches are not party respondents. The respondents to this petition originally were the State of Maharashtra and the Inspector of Shops and Establishments working under the Bombay Municipal Corporation. Later on, the two trade unions representing the stitches in general were on their applications made' party-respondents. Sri, Sorabji contends that as these two trade unions have been made party-respondents it must be assumed that they represent' stitches working in the petitioners' establishment therefore, the stitches are in any event represented in this case. Under S. 13 of the India Trade Unions Act, every registered trade union has been made body corporate by the same under which it is registered and shall have perpetual succession and common seal with power to acquire and hold both movable and immovable property and to contract, and it can sue or be sued by its name. Thus a registered trade union is legal entity apart from its members and even if it is assumed that the stitches working in the petitioners' establishment or some of them in any event are the members of either respondent 3 or 4, it cannot be said that they are parities to this proceeding.
13. Sri Sorabji however, invited my attention to the case of Pandit M. S. M. Sharma v. Dr. Suresh Krishna Sinha and others : 1SCR96 in support of the plea. That the stitches of the petitioners are duly represented in this case. In that case. The petitioner was called upon to show cause before the Committee of Privileges of Bihar Legislative Assembly why he should not be proceeded against for the breach of privilege of the Speaker and the Assembly for publishing an inaccurate account of the proceedings of the Legislative Assembly. He moved the Supreme Court under Art. 32 of the Constitution for quashing the said proceeding and the question for decision in substance was whether the said privileges conferred by Art. 194(3) of the Constitution was subject to the fundamental rights of a citizen under Art. 19(1)(a) of the Constitution. In that case. The Supreme Court found against the petitioner. Thereafter the Assembly was prorogued for several times, the Communities of privilege reconstituted and a fresh notice was issued to the petitioner. The petitioner then filed another petition in substance to reopen the decision to raise the same controversy again and to contend that the earlier decision was wrong. It was held that the general principles of res judicata applied and the earlier judgment could not be allowed to be reopened and must bind the petitioner and the Legislative Assembly of Bihar and the reconstitution of the Committee of Privilege in the meantime could make no difference. Sri Sorabji contends that even though the members of the Privilege Committee changed, it was held that the principles of res judicata applied. Similarly in the present case as respondents 3 and 4 have applied to this Court to be made party-respondents to this petition, it must be held that the parties to this petition are the same as those who were parties to the applications under the Payment of Wages Authority. This contention, in my opinion, is not Well-founded. The parties to the applications before the Payment of Wages Authority were the petitioners and the nine stitches while those stitches are not parties to the present proceedings. In fact, each one of the respondents was not a party to the proceedings before the Payment of Wages Authority. The decision relied upon, therefore, can be of no assistance to the petitioners.
14. Having regard to the view taken by me, viz., that the parties to these proceedings were not parties to the proceedings before the Payment of Wages Authority, it is unnecessary to consider the other larger issues that were canvassed in connexion with the application of the principles of res judicata. It will suffice it for the present purpose that these contentions are noted. It was urged on behalf of the respondents that a Payment of Wages Authority is not a Court or is not in any event a tribunal having conclusive jurisdiction to decide the question arising under the Payment of Wages Act. Secondly, it was urged that the finding of the Payment of Wages Authority that the stitches are not employees but are independent contractors can never operate as res judicata because ultimately the authority had found that it had no jurisdiction to entertain the applications. It is not necessary to decide these contentions urged on behalf of the respondents, having regard to the view that I have taken as stated above. Section 5 of the Act is as under :
'5. (1) Notwithstanding anything contained in this Act, the (state) Government may, by notification in the official gazette, declare any establishment or class of establishments to which, or any person or class of persons to whom this Act or any of the provisions thereof does not for the time being apply, to be an establishment or class of establishments or a person or class of persons to which or whom this Act or any provisions thereof with such modifications or adaptations as' may in the opinion of the State Government be necessary shall apply from such date as may be specified in the notification.
(2) On such declaration under sub-section (1), any such establishment or class of establishment or such persons or class of persons shall be deemed to be an establishment or class of establishment to which or to be an employee or class of employees to whom, this Act applies and all or any of the provisions of this Act with such adaptation or modification as may be specified in such declaration, shall apply to such establishment or class of establishment or to such employee or class of employees.'
15. The impugned notification was issued by the State Government under Sub-section (1) noted above. Emphasis was laid by Sri Sorabji on the words 'person or class of persons to whom this Act or any of the provisions thereof does not for the time being supply.' Then it was argued that the basis requirement of employment must exist before the Government can apply the provisions of the Act to such a person. He said that by a declaration under Sub-section (1) the operation of the Act can only be extended to persons like part-time employees or the members of family of the employer who are employed in the establishment but who are excluded by the definition of the word 'employee' given in Sub-section (6) of S. 2. Such a contention, in my opinion, imposes too narrow a construction upon the scope and ambit of Sub-section (1) Though by a declaration under Sub-section (1) of S. (5), the Government can extend the operation of the Act to any person or class of persons, it is implicit in the section and the general scheme of the Act that the persons to whom the Act is made applicable are connected with the establishment. Declaration can be made in respect of a person or class of persons between him and the establishment a reasonable nexus exists. However there is no warrant for restricting the nature of this connexion or nexus merely to employee. This subsection is enacted with the object of conferring authority to extend in appropriate cases the provision of the Act to establishments to which or to person or class of persons to whom the Act or the provisions thereof were not for the time being made applicable. The preamble of the Act shows that the object of this legislation was to consolidate and amend the law relating to the regulation of conditions of work and employment in the various establishment mentioned therein. With a view to achieve this object of the legislation, declaration can be made in respect of a person who is either employed in the establishment or is otherwise working in the establishment. I however, do not wish to convey that these are the only categories of persons for whom declaration can be made under this subsection nor do I intend to enumerate exhaustively and precisely the class of persons about whom a declaration can be made under this sub-section. The object of this legislation, as stated in the affidavit filed on behalf or respondent 2, it is primarily to protect workers employed or working in shops and establishments against occupational hazards. To achieve this object the Act seeks to impose upon the owners of the establishment certain obligations to protect the workers who may be unwary or negligent and to secure for them employment in conditions conducive to their health, safety and dignity. The Act regulates the hours of working and weekly holidays. In the Shops and Establishment with a view to secure proper rest to the employees. It makes the provision for leave to be compulsorily given to workmen in the interest of their health. Thus the benefit of the provisions of this Act can, by proper declaration, be conferred upon all persons or class of persons between whom and the establishment reasonable nexus exists. By the impugned notification, the Government declares persons working as tailors on piece-rate wages in the premises of the establishment to be persons to whom the provisions of the Act applicable in relation to persons employed in shops [except the provisions of Ss. 14 and 63(1) thereof], shall apply. It is clear from this notification that it will only apply if the three conditions therein laid down are fulfilled. They are :
(1) the person must work as a tailor;
(2) he must work on piece-rate wages;
(3) he must work in the premises of the establishment.
16. These essential ingredients indicate that there is a close and reasonable relation and nexus between such a person and establishment and it is, therefore, not necessary that the relationship of master and servant must exist before a declaration can be made by the Government under S. 5(1) of the Act in respect of him.
17. That this should be the construction of the provisions of Sub-sec, (1) of S. 5 is reinforced by the language used in Sub-section (2) thereof. This sub-section provides for the effect of the declaration or for the consequence thereof. It states that on such a declaration being made, the establishment shall be deemed to be an establishment to which the Act applies or the person or class of employees to whom, the Act will apply. As the language of this sub-section shows, it creates a legal fiction. If the relationship of an employer or employee or master and, servant was a pre-requisite to the declaration being made under Sub-section (1) there was no necessity of creating such a legal fiction. It is pointed but in East End Dwellings Company, Ltd. v. Finsbury Borough Council 1952 A C 109 :
'If you are bidden to treat an imaginary state of affairs as real, you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.'
18. This shows that the fact that a person in respect of whom a declaration has been made is made a deemed employee, it must follow, so that the relationship of master and servant employer and employee must be deemed to exist though in actuality it may not be so.
19. Before this notification was issued, it appears that the Government was primarily of the view that persons like stitches in tailoring establishment were entitled to the benefits conferred by this Act. In fact, when such benefits were denied by the owners of such establishments to such stitchers, criminal proceedings were adopted against such owners. In these proceedings as a result of the evidence lad, it was judicial determined that such stitches were not employees as normally understood but were independent contractors and were not entitled to the benefits conferred by this Act As the stitches working in the premises of the tailoring establishment were closely and intimately connected with the establishment, the State Government issued the impugned notification so that such persons may have the advantage of this beneficial legislation. The effect of the declaration, as S. 5(2) above, is that a person in respect of whom a declaration is made, is 'a deemed employee' within the meaning of the Act.
20. It was urged by Sri Sorabji that the issue of such a notification in respect of stitches working in the premises of tailoring establishment does not properly fit in with the scheme of the Act. In my opinion, the real test to determine this question is whether the scheme of the Act is rendered unworkable or whether impracticable, consequences are likely to ensue if the provisions of the Act are extended to stitches working in the premises of the tailoring establishment As the preamble shows the object of this legislation was to regulate conditions of work and employment in various establishments therein mentioned. Thus what was intended by the legislature was not merely to regulate the employment but also the work in the establishment. Section 7 provides for registration of establishment Under this section, the owner of the establishment is required to send a statement in the prescribed form giving various particulars therein mentioned. The prescribed form requires inter alia particulars to be furnished in respect of the said total number of employees. If the tailors working on piece-rate wages in the premises of the tailoring establishment are treated as employees, there is no difficulty for the owner to furnish the particular qua them as required by the form. The scheme of the Act shows that different provisions have been made in respect of different types of establishment. Chapter III deals with shops and commercial establishments. Chapter IV deals with residential hotels, restaurants and eating houses and chap. V, deals with theatres or other places of public amusement or entertainment. We are concerned in the present case with the provisions applicable to shops which are dealt with in Chap. III. Sections 10 and 11 of this chapter deal with the opening and closing hours of the shop. These conditions are in fact complied with by the petitioners even before the issue of the impugned notification. Section 14 deals with daily and weekly hours of working shops. The operation of this section has been excluded by the impugned notification. Section 15 provides for interval for rest and the object of it is that an employee shall not be required or permitted to work for more than five hours before he has had an interval for rest at lest one hour. Section 16 says that the spread over of an employee in a shop shall not exceed eleven hours in any day. Section 18 provides for weekly holidays in shops. Section 35 provides for leave to which an employee under the Act will be entitled. Under this section. Ordinarily an employee who has been employed for not less than three months in any year shall for every 60 days on which he has worked during the year be allowed leave, consecutive or otherwise, for a period of not more than five days. It may at first sight appear inappropriate to extend the benefit of such leave to a person who does not work for fixed hours in the establishment and go when he likes or who can remain absent without any previous permission of the owner of the establishment The section can only apply employees who work for the full period of the establishment during normal hours and for the prescribed number of days. An identical question arose for consideration in Bhikusa Yamasa Kshatriya (Private), Ltd. v. Union of India : (1963)ILLJ270SC where similar provisions of the Factories Act came to be considered by their lordships of the Supreme Court. Section 79 of the Factories Act provides for leave and S. 85 thereof empowered of State Government to extend the operation of the Act to factories and workers who were not ordinarily factory workers as defined under the said Act. It was pointed out that 'S. 79' if it is made applicable by notification under S. 25 will apply to those workers only who work in the factory for the full period prescribed under Ss. 61, 71 and 66(1) of the Factories Act by the employer for not less than the number of qualifying days. A 'deemed worker' who is paid only for the work done by him and who is under no obligation to attend at any fixed time, may be entitled to the benefit of annual leave with wages only if he fulfills the working conditions applicable to workers as defined in S. 2(1) of the Act. The privilege for a period less than the period prescribed for regular workers in a factor will not, if he works for less than the prescribed hours, come to the aid of a deemed worker so as to enable him to claim the benefits of S. 79; but that privilege will not deprive him, if he fulfills the conditions relating to the duration of work of the benefit of S. 79. The fact that a deemed worker in a factory, to which S. 79 is extended by a notification, by virtue of his contract or otherwise is not bound to attend at times fixed by the owner of the factory does not mean that he can never fulfill the conditions relating to attendance for earning leave with wages. If a deemed worker attends the factory for the full duration fixed as factory hours and works for 240 days or more during a calendar year, he should be entitled to the benefits of Ss. 79 and 80 of the Act. These observation apply mutatis mutandis to a 'deemed employee' to whom the operation of the Act has been extended by a notification issued under S. 5(1) of the Act. Chapter VIII of the Act provides for the health and safety and deals with] cleanliness, ventilation, lighting, precautions against fire and first aid. The requirements of this chapter had to be fulfilled by the petitioners even before the impugned notification was issued by the State Government. Section 63(1) provides for overtime wages but the operation of this section has been excluded by the impugned notification as sometimes difficulty may arise in calculating overtime wages in respect of workers who may come and go at their will. These are the relevant section to the benefit of which a deemed employee will been entitled as a result of the declaration made by the Status Government. No impracticable results are likely to follow nor the scheme of the Act likely to be rendered unworkable by extending the operation of the Act to such deemed employees.
21. The next contention urged by Sri Sorabji on behalf of the petitioners is that the impugned notifications is discriminatory in its nature. It is stated that there are traders or establishments were persons carry out the work at stipulated rates in or on the premises of the establishment, as, for example, in case of goldsmiths, as, for watch repairers and potters. These persons are similarly situated, according to the petitioners, to the persons in respect of them the impugned notification has been issued. It is said that, therefore, the impugned notification is violating the fundamental right guaranteed under Art. 14 of the these contentions are denied in the affidavits filed on behalf of respondents. In the affidavit file on behalf of respondent 1 it is denied that the establishments such as those of goldsmiths, cobblers, watch-repairers and potters are similarly situated as tailoring establishment. In the affidavit filed on behalf of the other respondents, it is stated that persons working in the tailoring establishment, on piece-rate wages form a class by themselves and require to be protected against the exploitation by the owners of the tailoring establishment. The basis for classification made by the impugned notification is, therefore, rational and has substantial relationship with the object to be achieved under the Act. In view of this plea taken in the affidavits in reply, Sri Sorabji conceded that this will raise disputed questions of fact and it will not be proper for him to agitate such a question in this proceeding.
22. In the petition, the petitioners have challenged the validity of the impugned notification on the ground that it imposes unreasonable restriction on the fundamental rights guaranteed to the petitioners under Art. 19(1)(g) of the Constitution. This notification was issued after the proclamation of emergency was declared and in view of the provisions of Art. 358 of the Constitution. Sri Sorabji fairly conceded that he would not be able to urge such a plea so long as the proclamation of emergency continues.
23. The last contention urged on behalf of the petitioners is that even if the impugned notification is valid and can be issued, having regard to the provisions of S. 5(1) of the Act it cannot be made applicable to the petitioners' establishment. The argument is that by this notification, declaration has been made only in respect of persons working as tailors on piece-rate wages, it is said that under the Act the word 'wages' shall have the same meaning as is given to it under the payment of Wages Act. IT is pointed out that the definition of the word 'wages' under the Payment of Wages Act presupposes the existence of the relationship of master and servant or employer and employee. As that bias requirement is absent in the present case, the stitches working in the petitioners' establishment cannot fall within the scope of the impugned notification even if it were valid. In my opinion, there is no merit in this contention. The expression 'piece-rate wages' is used in this notification in order to emphasize that a person who is not paid remuneration per day or per week or per month but who is remunerated on piece-rate wages for the job or the work done by him, should have the benefits of this Act. The word 'wages' is not used in its technical sense as defined in the Payment of Wages Act. The expression 'piece-rate wages' is more or less synonymous with the expression 'piece-rate basis' and the person who works as a tailor on piece-rate basis in the premises of the establishment is entitled to the benefit of the provisions of the Act, mentioned in this notification.
24. In the result, the petition is dismissed with costs. AS respondents 3 and 4 have been made party-respondents, on their own application, the fair order as to costs as regards them should be that they should bear their own costs. The petitioners shall pay the costs of respondents 1 and 2 only.