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Devjibhai M. Chokshi Vs. Ahmedabad Manufacturing and Calico Printing Company Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberAppeal (I.C.) No. 423 of 1956
Judge
Reported in(1958)IILLJ126Bom
ActsBombay Industrial Disputes Act, 1938 - Sections 2(3); Bombay Industrial Relations Act - Sections 11
AppellantDevjibhai M. Chokshi
RespondentAhmedabad Manufacturing and Calico Printing Company Ltd.
Excerpt:
labour and industrial - retail shop - section 2 (3) of bombay industrial disputes act, 1938 and section 11 of bombay industrial relations act - whether provisions of bombay industrial relations act and standing orders applicable to retail shop which was run independently of working of textile mill - retail shop was not covered by act - held, appellant working in retail shop did not come within purview of act. - .....a permanent employee of the respondent mills company, working as a clerk in the sales department (retail shop) for two years. he was discharged from 13 november 1955, on the ground that his services as a temporary clerk in one of the retail shops of the mill were no longer required. sometime in december 1955, he was taken back in service in one of the retail shops in a temporary post. the appellant contended that he was not a temporary clerk nor the juniormost, and he prayed for an order setting aside his discharge from 13 november 1955, as improper, and for being reinstated to his former permanent post. 2. the company by its written statement replied that the appellant was working as a temporary clerk in the retail shop run by the company. the provisions of the bombay industrial.....
Judgment:
ORDER

1. This appeal against an order of the Judge, First Labour Court. Ahmedabad, arises out of the following facts. The appellants made an application to the labour court in which he stated that he was a permanent employee of the respondent mills company, working as a clerk in the sales department (retail shop) for two years. He was discharged from 13 November 1955, on the ground that his services as a temporary clerk in one of the retail shops of the mill were no longer required. Sometime in December 1955, he was taken back in service in one of the retail shops in a temporary post. The appellant contended that he was not a temporary clerk nor the juniormost, and he prayed for an order setting aside his discharge from 13 November 1955, as improper, and for being reinstated to his former permanent post.

2. The company by its written statement replied that the appellant was working as a temporary clerk in the retail shop run by the company. The provisions of the Bombay Industrial Relations Act and standing orders did not apply to a retail shop which is runs independently of the working of the textile mill. The appellant was given a notice on 3 October 1955, that his service would be terminated from 31 October 1955. As, however, some other temporary work was available he was given an extension till 12 November 1955 and was ultimately discharged on 13 November 1955. In the last week of December some temporary hands were needed for clearance sale at the retail shop No. 1 and as the appellant was one of the retrenched employees he was taken back in service on a temporary post in the retail shop which he is still holding.

3. The learned labour judge held that the appellant did not come under the purview of the Bombay Industrial Relations Act and dismissed the application. In support of his decision he has relied on the case of the Simplex Mills Company, Ltd. v. Their workmen 1955 II L.L.J. 46 decided by the Labour Appellate Tribunal.

4. When this appeal was first set down for bearing on 20 February 1958, Sri Daru argued the appeal for the appellant. It appeared to us that the appeal raised issues of importance to the industry and involved the question of the correct interpretation of the notification of the Government of Bombay extending the Bombay Industrial Relations Act to the cotton textile industry in Bombay. We issued notices to the representative union for the cotton textile industry in Ahmedabad viz., the Textile Labour Association, the Millowners' Association and the Government. The Textile Labour Association has supported the appeal and argued the case for the appellant. The Millowners' Association and the Assistant Government Pleader who appeared for the State Government have supported the stand taken by the respondent mills company.

5. It has been urged on behalf of the appellant that the labour court was in error in deciding that the appellant did not come within the purview of the Bombay Industrial Relations Act, that the case relied on by the learned labour judge in regard to head offices of textile mills was not correctly decided, and that in any case even if the head offices are held to be not covered by the Bombay Industrial Relations Act, retail shops run by textile mills must be held to be covered. Reliance has been placed on an earlier decision of the President of this Court, in the case of the Ahmedabad . (the Calico mills), Ahmedabad v. Textile Labour Association, Ahmedabad 1954 II L.L.J. 580. That case concerned certain clerks engaged by the company and working in its office in the Maskati Market and it was held that they were employees governed by the Bombay Industrial Relations Act. That was, however, not a case of a retail shop. The facts in that case were peculiar as there was evidence that the clerks concerned worked in the morning in the mill and when necessary were sent to the Maskati Market office and the company had all along regarded these clerks as employees of the mills. The present case is that of a retail shop which is about a mile from the mill, and the appellant had at no time worked in the mill but was employed on a temporary post in the retail shop. The notification that has to be interpreted for deciding the point raised in the appeal is as follows :-

'In exercise of the powers conferred by Sub-section (3) of S. 2 of the Bombay Industrial Disputes Act. 1938 (Bom. XXV of 1938), and in supersession of Government notification in the Political and Services Department. No. 2847/34/2, dated 14 March 1939, the Government of Bombay is pleased to direct that the provisions of the Act, which have been extended to the Province of Bombay under Government notification in the Political and Services Department, No. 2847/34/1, dated 14 March 1939, shall apply to the cotton textile industry as specified below :-

(a) All concerns using power and employing twenty or more workers which are engaged in cotton spinning.

(b) All concerns using power and employing twenty or more workers which are engaged in cotton weaving with or without an admixture of silk, rayon, artificial silk or one or more of these.

(c) all mechanics' shops attached to and all dyeing, bleaching and printing departments whether situated within or outside the precincts and forming an integral part of the concern falling under Clause (a) or (b).'

6. In the decision with regard to head offices of textile mills, referred to above, the Labour Appellate Tribunal gave a number of reasons for holding that head offices were to covered by this notification, one of them being :

'The word 'concern' is capable of the meaning which has been placed upon it by the adjudicator and, had the notification stopped at Clause (b), it is possible that we might have come to the same conclusion as he has done, namely, that the word refers to cotton textile businesses as a whole. Had the intention of Government, however, been to attach this meaning to the word, it would have been unnecessary for the Government in Clause (c) to extend the provisions of the Act to -

'all mechanics' shops attached to and all dyeing, bleaching and printing departments in any of the concerns falling under Clause (a) or (b). The word 'concern' occurring in the three clauses must be construed to have the same meaning throughout, and it is not possible to give the word in Clause (c) the extended meaning which has been put upon it by the adjudicator. That being so, the word must be read in the limited sense and does not include the head office of the respondent company.' 1955 II L.L.J. 46

7. This reasoning which appears to us, with respect, to be correct would apply also to a retail shop. The normal mode of disposal of cloth made in a mill is wholesale through agents, and this is organized by the head office, but some mills in Ahmedabad have started retail shops where the cloth made in the mill is sold retail. This is done, as was stated before us during the hearing of the appeal, to popularize the cloth of the mill. But a retail cloth shop is not necessary to the running of a spinning and weaving concern, so that a concern engaged in spinning and weaving would be incomplete without a retail shop. It would appear that the notification would include departments which are ordinarily part of the work of a concern such as the winding, spooling or packing department, even though the particular department may be doing no work of spinning or weaving but we do not think the notification can be stretched to include a retail shop owned by a mill company. If the head office, which is directly connected with the conduct of the cotton textile concern, is not covered by the notification, and not governed by the Bombay Industrial Relations Act, a fortiori a retail shop run by mill company would not be within the purview of the notification. In notifications in respect of certain other industries under the Bombay Industrial Relations Act there is a different wording. For instance, in the case of the sugar industry the notification, dated 4 October 1952, says that the Act shall apply to the following industry, viz. :-

'The manufacture of sugar and its by-products, including -

(i) the growing of sugarcane on farms belonging to or attached to concerns engaged in the said manufacture; and :

(ii) all agricultural and industrial operations connected with the growing of sugarcane or the said manufacture, engaged in by such concerns.

Note. - For the purposes of this notification all service or employment connected with the conduct of the above industry shall be deemed of be part of the industry when engaged in or by an employer engaged in that industry.'

8. There is no such 'note' in the notification with regard to the concerns in the cotton textile industry. It has been argued that the notification with regard to the cotton textile industry should also be construed in the light of this note, but we do not think we would be justified in importing this 'note' in construing the cotton textile notification.

9. On behalf of the appellant reliance is placed on a decision of the United States Supreme Court in Borden Company v. Borella, quoted in The Law Governing Labour Disputes and Collective Bargaining by Ludwig Teller - April 1947 Supplement, p. 254. The question in that case was whether clerical and administrative employees employed by the Borden Company in an office building geographically separated from its plant were entitled to the protection of the Fair Labour Standards Act. The Court held that they were because they were engaged in an activity in aid of the production of goods for commerce. We think that this decision is of no help in the present case where we have to construe the notification referred to above.

10. In the course of the arguments for the appellant we were referred to the statement in the order of the labour judge that it was admitted that some clerks were transferred to the mills from the shop and vice versa : but the labour judge did not consider this as having a material bearing on the question whether retail shop employees were covered by the Bombay Industrial Relations Act. In the present case the appellant had never worked in the mill; his service was admittedly only in retail shop. In any case whether the mill company in fact effected such transfers has not a material bearing on the question whether the retail shop comes within the purview of the notification; such transfers are effected also from the head office to a mill and vice versa and the fact that such transfers are made would not, by itself, affect the correct interpretation of the notification or attract the applicability of the notification to the head office or a retail shop. It was urged that it would be anomalous that the Bombay Industrial Relations Act should be applicable to some employees of a concern, and not to others, and that it would not be fair to deprive the employees of the retail shop run by the mill company of the benefits of the Bombay Industrial Relations Act. We are however concerned with the correct interpretation of the notification referred to above. Section 11 of the Bombay Industrial Relations Act permits the Registrar to recognize any concern in an industry to be an undertaking. A company may be engaged in more than one industry or undertaking. A cotton mill company, for instance, may run, in the same compound in which the mill is situated, a chemical factory, and such factory would not be covered by the notification relating to the cotton textile industry. Moreover, as against the argument regarding anomaly referred to above, it could be urged that it would be anomalous that a retail cloth shop owned by a mill company would be governed by the Bombay Industrial Relations Act while a retail cloth shop next door not owned by a mill would not be governed by the Bombay Industrial Relations Act, though the employees in both do the same kind of work, and the business in both is the same, namely, retail sale of cloth. There would be this difference that in the one the mill sells its own cloth, while in the other the cloth sold is bought from others. But this alone cannot make any difference in so far as the application of the notification is concerned.

11. The learned Assistant Government Pleader who has appeared for Government, while supporting generally the stand taken by the respondent company and the Millowners' Association, has argued that the intention of Government was to restrict the applicability of the notification to activities between the entry of bales of cotton and the stage at which ready-made cotton cloth is packed into bales. To this the union replied that such an interpretation would exclude from the operation of the Act a number of occupations recognized to be in the cotton textile industry. When we asked the assistant Government pleader whether employees of the mill company looking after a godown in the mill in which cloth is stored would not be covered by the notification, he stated that they would not be covered. It appears to us that the interpretation sought to be put by the assistant Government pleader is rather narrow. In any case we are not called upon to give a comprehensive and complete definition of what activities are included in the notification. The point that falls to be decided in this appeals is whether the retail shop in question is covered by the notification and we are of the view that it is not.

12. For the foregoing reasons we have come to the conclusion that the decision of the labour judge is correct. The appeal is dismissed.


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