P.V. Dixit, J.
1. This reference by the learned Sessions Judge of Indore arises out of the prosecutions of three persons Ravelsingh, G. C. Mehta and Manekchand for an offence under Sub-section (2) of Section 22 of the Minimum Wages Act 1948 in the Court of the Additional District Magistrate of Indore. The prosecutions were initiated on separate complaints filed by the Labour Inspector of the Central Government.
During the course of the trial, all the accused persons raised the objection that as the building work, which they were executing for the Western Railway under a contract entered into between them and the President of India acting through the Western Railway Administration, was not a 'scheduled employment carried on by or under the authority of the Central Government,' the Labour Inspector appointed by the Central Government was not competent to make any complaint against them for offences under Section 22(2) of the Minimum Wages Act and that, therefore, the Additional District Magistrate could not take cognizance of the complaints filed by the Labour Inspector of the Central Government. This objection was rejected by the trial Magistrate.
The accused persons then preferred four separate revision petitions before the Sessions Judge of Indore. By a common order disposing of these revision petitions, the learned Sessions Judge has made this reference saying that the Labour Inspector of the Central Government was not competent to make the complaints that he did and recommending that the proceedings taken by the Additional District Magistrate of Indore on these complaints be quashed.
2. In order to appreciate the point raised for determination in this reference, it is necessary to refer to the material provisions of the Minimum Wages Act 1948. Under Section 18 of the Act every employer, which term has been defined in Section 2(e). is required to maintain certain registers and records. The failure to. maintain a register or a record required to be maintained under S 18 is punishable under Section 22(2) of the Act. Sub-section (4) of Section 22 says that no Court shall take cognizance of an offence under Sub-section (2) except on a complaint made by, or with the sanction of, an Inspector. The Inspector referred to in S, 22(4) means the Inspector appointed under Section 19 of the Act. The section provides:
'The appropriate Government may, by notification in the official Gazette, appoint such persons as it thinks fit to be Inspectors for the purposes of this Act, and define the local limits within which they shall exercise their functions. .....'
Section 2(b) gives the definition of 'appropriate Government' as follows:
'appropriate Government' means:
(i) in relation to any scheduled employment carried on by or under the authority of the Central Government, by a railway administration or in relation to a mine, oilfield or major port, or any corporation established by a Central Act, the Central Government, and;
(ii) in relation to any other scheduled employment, the State Government;'
Scheduled employment has been defined in Section 2(g) as:
'an employment specified in the schedule, or any process or branch or work forming part of such employment'.
The schedule includes as entry No. 7 'employment on road construction or in building operations'. The accused persons entered into separate contracts with the President of India acting through the Western Railway Administration for the construction of certain staff quarters and building and a new marshalling yard at Ratlam. Sometime in January 1956 the Labour Inspector of the Central Government found during the course of inspection that the accused persons did not maintain the required registerg under Section 18 of the Act. He, therefore, filed separate complaints against each of them on 13-7-1956 in respect of offences under Section 22(2) of the Act.
3. In support of the recommendation made by the learned Sessions Judge, Mr. Chaphekar, learned counsel appearing for the accused persons, argued that the constructional work which the accused persons were executing was no doubt a 'scheduled employment' but it was not one carried on by or under the authority of the Central Government. It was said that the expression 'scheduled employment carried on by or under the authority of the Central Government' in Section 2(b)(i) of the Act meant an employment which was being carried on by the Government itself either through a department or by some authority created by it, that in the present case the constructional work was being carried on by the accused persons themselves in performance of the agreements entered into by them with the President of India acting through the Western Railway Administration; and that the employers were the accused persons themselves and not the President or India or the Government of India and the labourers employed by the accused persons in the execution of the work undertaken by them were their own employees and not the employees of the Central Government or of any authority created by the Central Government. Learned counsel proceeded to say that, under Section 2(b) the appropriate Government in relation to the constructional work being executed by the accused persons would not be the Central Government but the State Government, and that therefore, consequently under Sections 19 and 22 of the Act the Inspector appointed by the State Government alone was competent to make a complaint against the accused persons. Learned counsel placed reliance on Carlsbad Mineral Water Mfg. Co. Ltd. v. P.K. Sarkar AIR 1952 Cal 6, Bharat Glass Works (Private) Ltd. v. State of West Bengal AIR 1957 Cal 347; and the decisions of the Supreme Court in Dharangadhra Chemical Works Ltd. v. State of Saurashtra (S) AIR 1957 SC 264; and Chintaman Rao v State of Madhya Pradesh, AIR 1958 SC 388.
4. I am unable to accede to the contention put forward by the learned counsel appearing on behalf of the accused persons. To my mind, in determining the question as to which is the appropriate Government in relation to any scheduled employment, it is not the action of employing or the contract of employment between the employer and the employed that is material. The expression 'scheduled employment' as used in Section 2(b) means the business or undertaking itself and not the action of employing. This is clear from the use of the words' carried on' occurring in Section 2(b)(i) immediately after the expression 'scheduled employment' and the reference to mines, oilfields, major ports or corporations as entities or undertakings engaging labourers or workers.
What has, therefore, to be seen for purpose of Section 2(b)(i) is whether the industry undertaking, project or business in question is one 'carried on by or under the authority of the Central Government'. Now the plain meaning of the expression 'carried on by or under the authority of the Central Government' is 'carried on directly by the Government through its own agency or by somebody or person on behalf of the Government'. The words 'under the authority' obviously do not mean any statutory authority or corporation created by the Central Government.
For Section 2(b)(i) itself expressly provides that in relation to any corporation established by a Central Act, the Central Government shall be the appropriate Government. In the case of construction of building required by the Central Government, if the project is executed by the Public Works Department of the Central Government, then the scheduled employment would be one carried on by the Government. If, however, the work is entrusted to a contractor for execution, then the contractor does the work under the authority of the Government and on its behalf and for the benefit of the Government.
In either case, whether the work is executed by the Government agency itself or by a contractor on behalf of the Government, it is for the benefit of the Government. A contractor, as has been pointed out by the Supreme Court in AIR 1958 SC 388 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 of the details of the work. When the contractor works for somebody else, he no doubt does it as a business earning profit or loss as the case may be. But the work he undertakes to do and completes is for the benefit of the other party.
When, therefore, the accused persons entered into an agreement with the President of India acting through the Western Railway Administration for the execution and completion of certain buildings and when they began constructional work in pursuance of that contract the building operations were one being carried on by them under the authority derived from the Central Government under the contract. The fact that the labourers engaged in executing the work were employed by the accused persons themselves and not by the Government is wholly immaterial. What is material is whether the building operations as such, which is a scheduled employment are being carried on by the accused persons under the authority of the Central Government and for the benefit of the Central Government. I have no doubt that they are being so carried on by the accused persons.
5. Of the cases cited by the learned counsel for the accused persons, it is only necessary to refer to the decisions of the Calcutta High Court in AIR 1952 Cal 6 and in AIR 1957 Cal 347. In the former case, the applicant was a company manufacturing aerated water who had, under a contract with the Central Government, acquired the sole right to sell aerated water on railway stations in a certain region. The question arose whether the business carried on by the contractor was one carried on by or under the authority of the Central Government within the meaning of Section 2(a)(i) of the Industrial Disputes Act 1947. It was held that the company was not conducting an industry under or by authority of Government and that it was conducting its own business of manufacturing and selling aerated waters for its own benefit and further that it was a licensee of Government under a contract and was carrying on its own business and not that of Government or of the railway. Harries C.J. observed-
'The argument for the appellants is that as the appellants have entered into a contract with the Central Government to provide amenities for railway passengers which the railway would normally be called upon to provide, they are carrying on an industry by the authority of the Government.
It seems to me that what is referred to in Section 2(a)(i) and Section 2(g)(i) is any industry owned by Government which is being carried on by Government itself either through a department or by some authority created by Government to carry on that industry. An industry carried on by or under the authority of Government is a Government industry which as I have said may be carried on directly by Government or by somebody or person nominated by Government for that purpose. No business owned and carried on by a private company can be a business carried on by or under the authority of Government.
It seems to me that the words 'under the authority' mean much the same as 'on behalf oh'. I: is to be noticed that in Section 2(g)(ii) 'employer' means in relation to an industry carried on by or on behalf of local authority, the Chief Executive Officer of that authority.. With regard to such an industry even if . somebody has been authorised by the local authority to carry on the work nevertheless the Chief Executive Officer is in all cases to be regarded as the employer.'
It will be seen from these observations and the facts of the case wherein they were made that it was because the contractor in that case was doing business, namely of selling aerated waters, for his own benefit and not for the benefit of the Government or on its behalf it was held that the Carlsbad Mineral Water . was not conducting an industry under or by authority of Government. The essential element of carrying on an industry on behalf of and for the benefit of the Government was, therefore, lacking in that case. The instant case is not of a contractor or a lessee who has acquired a monopoly to sell certain things for his own benefit. The work that the accused persons have undertaken is being executed on behalf of the Government and for its benefit.
The observations of Harries C.J. reproduced above only support the construction I have put on Section 2(b)(i) of the Act. The decision in AIR 1957 Cal 347, in which the decision in AIR 1952 Cal 6 was followed is also distinguishable on similar grounds. There also the industry concerned was one doing business of manufacturing and selling glass and ceramics for its own benefits and profits. The Glass and Ceramics industry was made subject to certain controls by theCentral Government under the Industries (Development and Regulation) Act 1951.
This control was for the development & regulation of certain industries specified in the schedule to the Act. The con'rol exercised by the Central Government did not in any way make it an undertaking of the Government or an industry carried on under the authority of the Central Government. The industry continued to be one carried on by the Bharat Glass Works (Private) Ltd. for its own benefit and profit.
6. If, as I think, in relation to the building operations carried on by the accused persons the Central Government is the appropriate Government as defined in Section 2(b), then it is clear enough that it is only the Inspector appointed by the Central Government under Section 19 of the Act who was competent to make the complaints against the accused persons under Section 22(2) of the Act. I am, therefore, of the opinion that the trial Magistrate was right in negativing the objection raised by the accused persons.
7. For these reasons, the reference is rejected.