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The Management of Government Soap Factory, Bangalore-12 Vs. the Presiding Officer, Labour Court, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 277 of 1967
Judge
Reported inAIR1970Kant225; AIR1970Mys225; ILR1969KAR484; (1970)1MysLJ104
ActsIndustrial Disputes Act, 1947 - Sections 2, 33C, 33C(2) and 59; Constitution of India - Articles 226 and 227; Factories Act, 1948 - Sections 2(1), 103 and 151
AppellantThe Management of Government Soap Factory, Bangalore-12
RespondentThe Presiding Officer, Labour Court, Bangalore and ors.
Appellant AdvocateD.S. Huglur, Adv.
Respondent AdvocateS. Krishnaiah, Adv.
Excerpt:
- indian penal code, 1890.sections 306, 34 & 107: [r.b. naik,j] abetment of suicide accused wife not desirous of making a living with her husband living in a joint family - left the house of her husband and started living in house of parents she insisted that her husband should provide a luxurious bungalow to lead a luxurious life and if he is incapable of organizing big house, he should hang himself legal notice from husband was not replied -deceased husband went to house of accused and made a request that accused should join him deceased was harassed and insulted by wife and parents-in-law he felt that he should end his life - consumed poison - police after investigation filed charge-sheet against his wife i.e., accused under section 306 read with section 34 of the ipc - accused.....chandrashekhar, j.1. this is a petition for quashing the order of the labour court, bangalore, which directed the management of the government soap factory, bangalore (hereinafter referred to as the management) to pay extra wages to respondents 2 and 3 for overtime work.2. most of the material facte are not in dispute. respondents 2 and 3 were employed as watchmen in the petitioner-factory (hereinafter referred to as the factory) and they have since retired from such employment. between the years 1957 and 1959 the factory was shifted from its premises near vidhana soudha to its hew building in raiajinagar. during that period respondents 2 and 3 worked overtime. the respective numbers of hours of overtime work done by them are not in dispute. they claimed extra wages for such overtime.....
Judgment:

Chandrashekhar, J.

1. This is a petition for quashing the order of the Labour Court, Bangalore, which directed the management of the Government Soap Factory, Bangalore (hereinafter referred to as the Management) to pay extra wages to respondents 2 and 3 for overtime work.

2. Most of the material facte are not in dispute. Respondents 2 and 3 were employed as watchmen in the petitioner-Factory (hereinafter referred to as the Factory) and they have since retired from such employment. Between the years 1957 and 1959 the Factory was shifted from its premises near Vidhana Soudha to its hew building in Raiajinagar. During that period respondents 2 and 3 worked overtime. The respective numbers of hours of overtime work done by them are not in dispute. They claimed extra wages for such overtime work. The management paid each of them such extra wages at the respective single rate of wage without . Dearness Allowance. Rs. 576-47 and Rs. 553-88 were said to respondents 2 and 3 respectively.

3. Not being satisfied with the amounts paid to them, respondents 2 and 3 presented before the Labour Court, Bangalore, an application under Section 33-C(2) of the Industrial Disputes Act (herein alter referred to as the I.D. Act). They claimed extra wages at the rate of twice the ordinary rate of wages including Dearness Allowance. Their claim was resisted by the Management. The Labour Court upheld their claim and directed the Management to pay respondents 2 and 3 Rs. 1886-47 and Rs. 1302-88 respectively. Feeling aggrieved by the order of the Labour Court, the Management has presented this petition.

4. At the stage of the hearing of the petition, a memo was filed on behalf of the Management stating that it was willing to pay to respondents 2 and 3 a further sum of Rs. 1550 to be divided amongst them proportionate to their claims and that this sum would be paid without prejudice to the contentions of the Management in this petition. Mr. S. Krishnaiah, learned counsel for respondents 2 and 3, received this sum without prejudice to their claim as upheld by the Labour Court.

5. Elaborate arguments were addressed by Mr. Hulgur learned Government Pleader, who appeared for the Management, and Mr. Krishnaiah.

6. The principal ground on which the order of the Labour Court is assailed by the Management is that respondents 2 and 3 were not workers within the meaning of Section 2(1) of the Factories Act, 1948 (hereinafter referred to as the Act) and hence they were not entitled to extra wages for overtime work at the rate of twice the ordinary rate of wages under Section 59 of Act. Another ground on which the order of the Labour Court is impugned, is that after respondents 2 and 3 had retired from employment of the Factory, they could not make an application under Section 33-C(2) of the I. D, Act.

7. The second ground can conveniently be dealt with first.

8. Section 33-C(2) of the I. D. Act provides, inter alia, that where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms- of money and if any question arises as to the amount of money due or/as to the amount at which such benefit should be computed, then the question may be decided by such Labour Court as may be specified in this behalf by the appropriate Government.

9. It was contended by the Management that though respondents 2 and 3 were, before their retirement, workmen as defined in the I. D. Act, they had ceased to be workmen when they presented their application before the Labour Court, that their application could be regarded as one under Section 33-C(2) of the I. D. Act, and that the Labour Court had no jurisdiction to entertain that application and to make the impugned order.

10. A similar contention was repelled by the Madras High Court in Tiruchi Srirangam Transport Co., Private Ltd. v. Labour Court, Madurai, : (1961)ILLJ729Mad in which Ramachandra lyer, J. (as he then was) said that the clear object of Section 33-C of the I. D. Act, is to provide for the adjudication of individual claims not necessarily by persons who are still under the employment of the Management but by discharged persons as well. His Lordship added that tile words, 'any workman', should necessarily include a discharged workman as well and that the Labour Court would have jurisdiction to entertain the claim of a discharged workman.

11. In Manicka Mudaliar v. Labour Court, Madras, (1961) 1 Lab LJ 592 (Mad), Rajamannar, C. J., who spoke for the Bench, said that an application under Section 33-C(2) of the I. D. Act may be made by a person who was a workman during the period in respect of which he was entitled to any benefit.

12. We are in respectful agreement with the view expressed in the above decisions of the Madras High Court. We think the Labour Court was right in following the aforesaid decisions and holding that it was competent for respondents 2 and 3 to make the application under Section 33-C(2) of the I. D. Act even though they had retired from employment of the factory.

13. We shall now deal with the principal ground urged by the management.

14. There is no dispute that the petitioner-Factory comes within the meaning of 'Factory' as defined in Section 2(m) of the Act, Section 59 of the Act provides for payment of extra wages for overtime work at the rate of twice the ordinary rate of wages. This benefit is, however, available only to persons who are workers within the meaning of Section 2(1) of the Act. The term, 'worker' has somewhat a restricted meaning in the Act and not every employee in a factory comes within the definition of 'worker'.

15. Section 2(1) of the Act defines 'worker' as a person employed, directly or through any agency, whether for wages or not,

(i) m any manufacturing process, or

(ii) in cleaning any part of the machinery or premises used for a manufacturing process, or

(iii.) in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.

16. The material part of Section 2(k) which defines the expression, 'manufacturing process', reads.

2. In this Act, unless there is anything repugnant in the subject or con-text,--

*****(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:

17. Thus it is seen that unless a person employed in a factory, is engaged in any of the aforesaid categories of work, he cannot be regarded as a worker for the purpose of the Act, though he may be an employee in that factory.

18. Mr. Hulgur contended that respondents 2 and 3 who were watchmen, were not workers within the meaning of Section 2(1) of the Act, as they were not employed in any of the aforesaid categories of work.

19. Mr, Krishnaiah contended that the question whether respondents 2 and 3 were workers within the meaning of Section 2(1) of the Act, was purely a question of fact, that it was for the Labour Court to come to a conclusion whether they were or were not such workers, and that its decision on that question cannot be interfered with by this court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution,

20. We shall first deal with the contention of Mr. Krishnaiah that the finding of the Labour Court that respondents 2 and 3 were workers, is a finding of fact which cannot be interfered in this writ petition.

21. Mr. Krishnaiah sought support for his contention from the observations in South India Estate Labour Relations Organisation v. State of Madras, : AIR1955Mad45 . There a question arose whether certain categories of employees were workmen as defined In Section 2(s) of the I. D. Act Venkatarama Aiyar, J., who spoke for the Bench, said at page 50:

'Whether a particular person is or is not a workman is a question that has to be decided on proof of the nature of the work which he is to perform and that is a question of fact. It is for the Tribunal to come to a conclusion on the evidence whether having regard to the nature of their duties, maistries and kole maistries are workmen as defined in the Act Vide 'In re: Kadar Moideen', : AIR1953Mad406 . If the Tribunal decides that maistries and kole maistries are not workmen, then it will not make any award with reference to them. It is not for this court now to decide whether they are workmen or not. That jurisdiction is vested in the Tribunal. See-- 'Rex v. Fulham', (1951) 2 KB 1 at PP. 6, 9 and 11.' On the other hand, Mr. Hulgur contended that the question whether an employee is a worker within the meaning of Section 2(1) of the Act, is a collateral fact upon which the jurisdiction of the Industrial Tribunal (hereinafter referred to as the Tribunal) or the Labour Court, turns, that the Tribunal or the Labour Court cannot conclusively decide such collateral question, and that its decision on that question is amenable to scrutiny by this court in exercise of its writ jurisdiction.

22. In support of his contention, Mr. Hulgur relied on the decision in Malabar Industrial Co., Ltd. v. Industrial Tribunal, : AIR1959Ker326 . There also, the question that arose for decision, was whether; certain categories of employees were or; were not workmen as defined in Section 2(s) of the I. D. Act After referring to' several Indian and English decisions M. S. Menon, J., who spoke for the Bench, observed at page 329:

'As far as action under Article 226 of the Constitution is concerned, we think that the scrutiny of facts found by the Tribunal should be no more and no less than what this court will undertake in the case of an appeal where appeals are competent Anything more will be unnecessary, anything less will be insufficient All this, of course, is subject to the overriding principle that the issue of writs and directions under the Article Is in the discretion of the Court, and cannot be claimed as matter of right.'

23. As to the scope of review by the High Court, of a finding of the Tribunal (or the Labour Court) whether certain categories of employees are or are not workmen as defined in Section 2(s) of the I. D. Act the diametrically opposite views expressed by the Madras and the Kerala High Courts in the aforesaid two decisions, appear to us to be two extreme views, if we may say so with respect

24. What exactly is the nature of duties and functions of a category of employees, is generally a question of fact which is for the Tribunal or the Labour, Court to decide. Unless its finding is based on no evidence, or unless there is any violation of principles of natural justice in reaching that conclusion, this Court will not interfere with such finding. Whether the nature of the work of an employees, as found by the Tribunal or the Labour Court, brings such an employee within the definition of 'workmen' under Section 2(s) of the I. D, Act or within the definition of 'worker' under Section 2(1) of the Act, Is, in our opinion, a question of law and the finding of the Tribunal or the Labour Court on such question can be interfered with by this Court, if it (such finding) suffers from an error of law apparent on the face of the record.

25. Mr. Krishnaiah next contended that the work of a watchman though not connected with the manufacturing process.can be regarded as being Incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process. Alternatively, Mr. Krishnaiah contended that even if the normal work of a watchman cannot be regarded as incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process, the extra work which respondents 2 and 3 were entrusted when they worked overtime, was of such a character which must be regarded as part of the manufacturing process of incidental to, or connected with it.

26. As to the nature of the normal duties, and functions of respondents 2 and 3, as watchmen, there is no dispute. They had to look after the premises of the Factory and of the properties therein to check at the gate of Factory incoming and outgoing motor lorries and carts, and to search the employees of the Factory at Ingress or egress.

27. Respondents 2 and 3 alleged that during the shifting of the Factory, they were asked to do, in addition to their normal duties and functions, the work of dismantling the machinery, loading the same into lorries and to generally assist in the work of shifting. The Management denied that they (respondents 2 and 3) were asked to do such extra work. After assessing the evidence on this point, of respondents 2 and 3 and of the witnesses examined on the side of the Management, the Labour Court held that respondents 2 and 3 were helping in dismantling of the machinery of the Factory and loading such machinery into lorries during the shifting of the Factory. This finding is a pure finding of fact. It cannot be said that there is no evidence in support of that finding. Hence this finding of fact does not warrant interference In this writ petition.

28. We shall now examine--(i) Whether the normal duties and functions of respondents 2 and 3 as watchmen, would fall within any of the categories of work specified in Section 2(1) of the Act; and

(ii) Whether the extra work which had been entrusted to respondents 2 and 3 during the shifting of the Factory, would fall within any of such categories of work.

29. Mr. Krishnaiah did not contend that watchman as such, can be regarded as being employed in any manufacturing process. He did not also contend that respondents 2 and 3 were employed in cleaning any part of the machinery or premises used for manufacturing process. But he argues that the normal duties and functions of a watchman should be regarded as being incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.

30. On the other hand, it was contended by Mr. Hulgur that none of the functions and duties of a watchman, namely, keeping a watch over the premises of the factory and the properties therein, checking at the gate of the factory lorries and carts entering or leaving the premises of the Factory, or searching employees at the ingress or egress of the Factory, can be said to be incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.

31. The word 'process' occurring after the word, 'manufacturing', in Section 2(1) of the Act, can be taken to mean activity. That was how that word which occurs in Section 151 of the Factories Act, 1937 (the English Act) was construed in Joyce v. Boots Cash Chemists, (1950) 2 All ER 719,

31-A. Neither of learned counsel cited any decision in which the expression, the subject of the manufacturing process', occurring in Section 2(1), has been explained. In State of Uttar Pradesh v. M. P. Singh, : 1960CriLJ750 , the Supreme Court did not decide bu1226t left open the question as what the precise meaning of that expression is.

32. Of the several meanings of the word, 'subject', stated in the Shorter Oxford Dictionary, those which are appropriate to the present context, appear to us to be: 'a thing affording matter for action of a specified kind; that which is or may be operated upon mechanically or manually.' Applying these meanings, the expression, 'the subject of the manufacturing process', may be construed, as any article, material, thing or ingredient which is used in the activity of manufacture for deriving the end product of the manufacturing activity. It seems to us, that this expression does not refer to the: finished product or end product of the manufacturing activity but refers to the articles or raw materials to which the manufacturing activity is being applied for deriving such finished product or end product

. 33. In the present case, the expression. 'the subject of the manufacturing process, does not. In our opinion, refer to soaps which are finished products of the Factory, but to raw materials and other things subjected to the manufacturing activity for obtaining the finished product, namely, soap.

34. The more important expression which calls for interpretation in the present case, is, 'incidental to, or connected with'.

35. We shall now refer to certain decisions cited by learned counsel in which the question whether a particular employee in a factory was a worker, came up for consideration.

36. In B.P. Hira Works Manager, Central Rly. v. C. N. Pradhan, : (1959)IILLJ397SC , the Payment of Wages Authority,Bombay, held that time-keepers in the Railway workshop who maintain official record of attendance of workshop staff, prepare pay-sheets for them, maintain their leave accounts, dispose of final settlement cases for 'the said staff and maintain records for statistical information, were employees of the workshop but were not workers under the Factories Act. On the other hand, the Progress Timekeepers whose work consists in preparing the progress time-sheets and operation time-sheets of machine shop staff working on various jobs dealing with production of railway spare parts, were held to be persons employed in work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process and as such they were workers within the meaning of Section 2(1) of the Factories Act. In the appeal before the Supreme Court, the management contended that Progress Time keepers were not workers, while it was contended for the respondents- that time-keepers were also workers as defined in Section 2(1) of the Act. But the Supreme Court did not decide those questions.

37. In Ramandam v. Emperor, AIR 1927 Mad 345, children employed in sorting groundnuts in a yard close to the room where the machinery for decortications of groundnuts was used, were held to be engaged in the work incidental to the manufacturing process or connected with the article subject to the process of manufacturing. We are in respectful agreement with this decision.

38. In Abdul Latif v. Karamat Ali, (1962) 2 Lab LJ 335 (All) a single Judge of the Allahabad High Court held that a Munim in a Glass Factory was a worker as defined in Section 2(1) of the Act. Mithan Lal. J took the view that keeping accounts, of a factory is a work incidental to the manufacturing process in such factory. With all respect to His Lordship, we find it difficult to agree with that view.

39. The above decision of Mithan Lal J. was followed in Central Rly. Workshop v. Vtshwanath, (1966) 2 Lab LJ 717 (All). There, the nature of the work of Timekeepers was to prepare the pay-sheets of the workshop staff, maintain leave accounts, dispose of settlement cases and maintain records for statistical purposes. Katju, J. held that they were workers for the purpose of the Act The reasoning of His Lordship is that the work of persons who are actually engaged in handling machines cannot be done properly if there is lack of the necessary arrangements and regulation of their duties and that Time-Keepers who keep information regarding the work done by such persons should be regarded as doing work incidental to, or connected with, the manufacturing process.

40. With all respect to His Lordship, we find it difficult to subscribe to the view that mere keeping information regarding work done by persons handling machines, can be regarded as being incidental to, or connected with, the manufacturing process.

41. Mr. Krishnaiah argued that the expression, 'incidental to', or connected with', should be construed very liberally so as to include every activity in a factory which has some nexus, however, remote, with the manufacturing process or the subject of the manufacturing process. But such a construction would render every employee in a factory a worker. But it could not have, been the intention of the Legislature to treat every employee in a factory as a worker for the purpose of the Act. If such was the intention of the Legislature, there was no need for such an elaborate definition of the term, 'worker', and equally elaborate definition of the term 'manufacturing process. We think the expression, 'incidental to, or connected with should be construed so as to imply proximate and not remote relationship between the work of the employees in question and the manufacturing process. Unless there is such proximate relationship, a work done by an employee cannot be said to be incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.

42. In the present case, the reasoning of the Labour Court for holding that respondents 2 and 3 who were watchmen in the Factory, were workers, is as follows:

'Keeping a watch over the premises including the machinery and the goods manufactured in the Factory, searching the workmen connected with the manufacturing process and then preventing the goods being pilfered out searching the lorries in-corning and outgoing for the same purpose, cannot but be considered as work connected with the manufacturing process. Even a person cleaning the premises used for manufacturing process is considered to be a 'worker' under the definition. I cannot understand why a person keeping a watch over the premises to prevent untoward incidents happening, cannot be considered as 'worker' under the Act.'

43. Labour Court has overlooked that a person cleaning the premises used for manufacturing process, is, by the statute, expressly brought within the definition of 'worker'. But for such inclusive definition, it is doubtful whether such person could be regarded as being employed in any work incidental to, or connected with, the manufacturing process. That a person cleaning any part of such premises is included in the definition of 'worker', is of no assistance in determining the question whether a watchman is or is not aworker as defined under the Act

44. We think the relationship between the work done by respondents 2 and 3 as watchmen of the Factory and the manufacturing process or the subject of the manufacturing process, is too remote to regard such work as being incidental to, or connected with, the manufacturing process. Likewise, the relationship between such work and the articles which are the subject of the manufacturing process, is also too remote to regard such work as being incidental to or connected with, the subject of the manufacturing process.

45. In support of its conclusion thatrespondents 2 and 3 were workers underthe Factories Act, the Labour Court, hasalso relied on the following circumstances:

(i) The names of respondents 2 and 3appeared in the Attendance andAcquittance Registers maintained inthe Factory;

(ii) Watchmen were also paid by the Management incentive bonus, production bonus which were payable to workers;

(iii) The work Service Rules of the

Factory governed watchmen also.

(iv) Watchmen also worked according to usual shifts hours of the Factory; and

(v) In a general shift watchmen assigned for the shift, were given tokens like all other workmen in the general shift.

46. We think none of the above circumstances has any relevance to the nature of the work done by the watchmen. Whether a watchmen comes within the definition of 'worker', must depend upon the nature of his work and whether such work has any proximate relation to the manufacturing process, or the subject of the manufacturing process, does not depend on his service conditions. We think the Labour Court erred in relying on these wholly irrelevant circumstances in coming to the conclusion that watchmen were workers as defined in the Act.

47. The Labour Court also relied on the presumption under Section 103 of the Act, to support its conclusion, that watchmen were workers as defined in the Act. Section 103 provides that if a person is in a factory at any time, except during intervals for meals or rest, when the work is going on or the machinery is in motion, he shall, until the contrary is proved, be deemed, for the purpose of the Act find the rules made thereunder, to have been at that time employed in the factory. The presumption under this section is that, in such circumstances, a person is employed and not that he is a worker, in the factory. Hence the presumption is of no assistance to determine whether a watchman in the factory is a worker.

48. We shall now examine whether the special work entrusted to respondents 2and 3 during the course of shifting of the factory, was such as could be regarded as being incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.

49. The Labour Court has not given a finding on this question because it took the view that this aspect was not material to determine the question whether respondents 2 and 3 were workers and to decide the dispute involved in the case.

50. Mr. Krishnaiah referred to the definition of 'manufacturing process' in Section 2(k) and submitted that that definition could bring a wide range of activities like altering, repairing, breaking up, demolishing and adapting any article or substance with a view to its use, transport and delivery. Mr. Krishnaiah argued that dismantling of the plant and machinery in the old premises of the Factory loading and unloading of dismantled materials into lorries in the course of shifting of the Factory, would come within the ambit of the activities of altering, breaking up, and adapting, specified in Sub-clause (i) of Clause (k) of Section 2 of the Act.

51. In support of this contention, Mr. Krishnaiah referred to the decision in Hari Krishna v. State, : (1960)ILLJ42All . There, the question was whether certain persons temporarily employed to repair the compressor of a Rice Mill, which had gone out of order, while the manufacturing process was going on, were workers as defined in Section 2(1) of the Act. It was held that such repair was incidental to, or connected with, the manufacturing process. But that decision is not of any assistance to Mr. Krishnaiah, because repair of machinery cannot be put on the same footing as dismantling of machinery and transporting it during the shifting of a factory. Such dismantling and shifting are unusual activities and cannot be said to be incidental to, or connected with, the manufacturing process, or the subject of manufacturing process in that factory.

52. Mr. Krishnaiah, next relied on Provincial Govt. C. P. & Berar v. R. Robinson, AIR 1947 Nag 83. There, the facts are these. A new battery of boilers was being erected in the premises of the Jabbalpore Electric Supply Co., Ltd. The work of erection was done by another firm of Engineers, which had employed certain persons. The sole question was whether such persons were workers as defined in Section 2(h) of the Factories Act 1934. The Magistrate had taken the view that as the new boilers were merely being erected, and could not be used for generating power, the persons employed in erecting them were not engaged in any manufacturing process or in any work incidental to, or connected with it. Reversing that view, a Bench of the Nagpur High Court said:

'If a boiler had burst and persons were employed in repairing it, the boiler could not, while the repair was going on, be used for the purpose of generating power, but we think it is clear that such persons would be persons employed in the work connected with the subject of the manufacturing process. In the same way we think that persons erecting new boilers would be persons employed in the work connected with the subject of the manufacturing process. The definition of 'worker' is a very wide one, and it is wide enough, in our opinion, to include persons employed in repairing machinery or putting up new machinery, even if such machinery is not in actual use.'

53. It is not necessary for the purpose of this case to express any opinion as to the correctness of the view taken by their Lordships of Nagpur High Court that erection of new boilers by way of expansion of a factory, is of the same character as repairing a boiler which has gone out of order or even replacing a worn-out or damaged boiler by a new one. The present case is distinguishable from Nagpur case, because the activities in question in the present case were not erection of additional machinery In an existing factory but dismantling the machinery in the existing premises and transporting the same for being re-erected in new premises.

54. The activities of altering, breaking up, demolishing and adapting, referred to in sub-clause (i) of Section 2(k) of the Act, are all those done in the course of manufacture, that is, in the process of transformation of raw materials into the finished product. In our opinion, dismantling of machinery and plant in the existing premises of a factory and transporting the same for being shifted to new premises, cannot be said to be any part of the process of manufacturing. Such shifting of plant and machinery to new premises, is not a normal activity of a factory. It is an extraordinary activity which is de hors the ordinary manufacturing process. In the present case, dismantling and transport of plant and machinery of the Factory were not for the purpose of normal activity of repair or replacement, but were for the usual purpose of shifting of the Factory itself from old premises to new premises.

55. Thus, even the special work assigned to respondents 2 and 3 during the period of shifting of the Factory, cannot be said to be a work which was incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process so as to make respondents 2 and 3 come within the definition of workers even during this period.

56. The finding of the Labour Court that respondents 2 and 3 were workers as defined in Section 2(1) of the Act, is the result of relying on irrelevant circumstances, and is manifestly erroneous. Consequently, the conclusion based on such finding, that respondents 2 and 3 are entitled to over-time wages under Section 59 of the Act, cannot stand.

57. In the result, we allow this petition and quash the order of the Labour Court. But in the circumstances of the case, we direct the parties to bear their own COStS.

58. Petition allowed.


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