1. The first petitioner is a private limited Company incorporated under theIndian Companies Act, 1913 and the second petitioner is a Director of theCompany. The Company maintains 23 establishments for manufacturing bidis in theDistrict of Nasik, Poona and Ahmednagar in the State of Maharashtra. A largemajority of these establishments are borne on the registar of factoriesmaintained by the Chief Inspector of Factories under the Factories Act, 63 of1948. Craftsmen called rollers, attend these establishments and prepare bidis,using materials supplied by the Company. The establishments remain open during specifiedhours but the rollers are not bound to attend for any fixed period; a rollermay come to and leave the establishment according as is convenient to him, andhe is paid for the bidis turned out by him according to a fixed tariff. Itappears that this is the accepted modus of work in bidi establishments in theMaharashtra region. These establishments were, it was held by the Bombay HighCourt, 'factories' and the rollers working therein were 'workers' within themeaning of the Factories Act 63 of 1948 : The State v. Alisaheb Kashim Tamboli : (1955)IILLJ182Bom . In that case the High Court held that the expression'employed' in s. 2(1) of the Factories Act, 1948 does not necessarily involvethe relationship of master and servant, and therefore owners of bidiestablishments had to conform to the requirements of the Factories Act and toafford to the workers the benefits provided under that Act, even though theworkers did not maintain uniform hours of attendance, and were paid only forbidis turned out by them. But this Court in Shankar Balaji Waje v. The State ofMaharashtra (1962) Su. 1 S.C.R. 249. - (Subba Rao, J. dissenting) - held indealing with the case of workers in an establishment for manufacturing bidiswhose attendance was characterised by the features hereinafter set out, thatthey were not employed within the meaning of s. 2(1), and could not claim theprivileges accorded to workers by Sections 79 and 80 of that Act. The featuresnoticed by the Court were, that there was no agreement or contract of servicebetween the owner of the establishment and the bidi roller; the bidi roller wasnot bound to attend the factory for any fixed hours or to work for any fixedperiod; he was free to go to the factory at any time he liked and was equallyfree to leave the factory whenever he liked; the bidi roller could be absentfrom work on any day and if his absence was expected to be of a duration longerthan ten days he informed the owner not because he had to obtain permission orleave, but for assuring the owner that he did not intend to give up work at thefactory; there was no actual supervision of work which the bidi roller did inthe factory, and he was paid at fixed rates on the quantity of bidis turned outthere being no stipulation for turning out any minimum quantity of bidis in aday; bidi leaves were supplied to the rollers for being taken home and cut andtobacco was supplied at the factory, but they were not bound to roll bidis atthe factory - they could take the materials outside after obtaining permissionof the owner; at the close of the day the bidis used to be delivered to theowner and bidis not up to the standard were rejected; and the bidi worker'sattendance was not noted though the days he worked could be ascertained fromthe work register. The Court held on these facts that the bidi roller could nobe said to be 'employed' by the owner and was not therefore a worker, therebeing no contract of employment, under which the bidi roller agreed to servethe employer subject to his control and supervision.
2. Since this judgment was pronounced, owners of bidi-making establishmentsin the State of Maharashtra commenced denying to the bidi rollers benefit ofweekly holidays and wages in lieu of holidays previously accorded to them andeven denied access to the Inspectors appointed under the Factories Act to theirestablishments. There are in the State of Maharashtra more than 35000 bidirollers borne on the pay rolls of bidi-making establishments on the registermaintained by the Chief Inspector of Factories. There are also many otherbidi-making establishments which are not so borne on the register of the ChiefInspector. There was grave unrest among the bidi rollers resulting form thedenial of benefits previously enjoyed by them. With a view to protect the bidirollers against exploitation by the owners of bidi making establishments andagainst deprivation of the benefits enjoyed by them, the Government ofMaharashtra issued the following Notification in exercise of the powers vestedunder s. 85 of the Factories Act :-
'In exercise of the powersconferred by section 85 of the Factories Act, 1948 (LXIII of 1948), theGovernment of Maharashtra hereby declares that all the provisions of the saidAct shall apply to the places specified in column 2 of the Schedule appendedhereto wherein a manufacturing process is carried on with or without the aid ofpower or is so ordinarily carried on the establishments specified against themin column 3 of the said Schedule notwithstanding that the persons workingtherein are not employed by the owner of such places but are working with thepermission of or under agreement with such owner :
Provided that the manufacturingprocess is not being carried on by the owner only with the aid of hisfamily.'
3. To the notification was appended a Schedule (including many of theestablishments of the Company) setting out the particulars of Districts, theplaces where the establishments were situate and the names of theestablishments. The effect of the Notification was to make bidi rollers inplaces set out in the Schedule 'deemed workers', and on that account entitledto the benefits provided to workers under the Factories Act.
4. The petitioners then challenged by this petition the validity of s. 85 ofthe Factories Act and the Notification issued in exercise of the authorityconferred thereby, on the plea that the provisions of the section and theNotification issued thereunder infringe the fundamental rights of thepetitioners under Arts. 14 and 19(1)(g) of the Constitution.
5. 'Factory' is defined in s. 2(m) of the Act as meaning 'any premisesincluding the precincts thereof :-
(i) Whereon ten or more workersare working, or were working on any day of the preceding twelve months, and inany part of which a manufacturing process is being carried on with the aid ofpower, or is ordinarily so carried on, or
(ii) Whereon twenty or moreworkers are working, or were working on any day of the preceding twelve months,and in any part of which a manufacturing process is being carried on withoutthe aid of power, or is ordinarily so carried on, -
but does not include a minesubject to the operation of the Mines Act, 1952, or a railway runningshed;' 'Worker' is defined in s. 2(1) of the Act as meaning 'a personemployed, directly or through any agency, whether for wages or not, in anymanufacturing process, or in cleaning any part of the machinery or premisesused for a manufacturing process, or in any other king of work incidental to,or connected with, the manufacturing process, or the subject of themanufacturing process;'
6. Premises in which a manufacturing process is carried on where the numberof workers is less than the minimum prescribed do not fall within thedefinition of 'factory'. Again a person to be a 'worker' must be employed in amanufacturing process or in cleansing machinery used for the process, or in anywork incidental to or connected with the manufacturing process. To attract theprovisions of the Factories Act which confer certain benefits and privilegesupon workers and impose obligations upon owners of factories qua those workers,there must, therefore, be a manufacturing process carried on in any premises,the number of persons working in the manufacturing process or cleansingmachinery used for the process or in work incidental to or connected therewithbe not less than the number specified in the definition in s. 2(m) and that thepersons so working must be employed (under a contract of service) for wages ornot and directly or indirectly. A person working in a factory, but not under acontract of service cannot be regarded as a worker within the meaning of thatexpression in s. 2(1) of the Act.
7. Section 85 of the Factories Act which occurs in Ch. IX provides :
'(i) The State Governmentmay, by notification in the Official Gazette, declare that all or any of theprovisions of this Act shall apply to any place wherein a manufacturing processis carried on with or without the aid of power or is so ordinarily carried on,notwithstanding that -
(i) the number of personsemployed therein is less than ten, if working with the aid of power and lessthen twenty if working without the aid of power, or
(ii) the persons workingtherein are not employed by the owner thereof but are 'working with thepermission of, or under agreement with, such owner :
Provided that the manufacturingprocess is not being carried on by the owner only with the aid of his family.
(2) After a place is so declared,it shall be deemed to be a factory for the purposes of this Act, and the ownershall be deemed to be the occupier, and any person working therein, aworker.'
8. The section is enacted with the object of conferring authority to extendin appropriate cases the provisions of the Act to establishments which areotherwise not factories within the meaning of the Act, and to ensure to personsworking in factories even if not workers within the meaning of the Act, thebenefits provided thereby. The section authorises the State Government to makeall or some of the provisions of the Act applicable to any place wherein amanufacturing process is carried on with or without the aid of power,notwithstanding that the number of persons employed therein is less than thenumbers specified in the definition of 'factory', or where the persons workingtherein are not employed by the owner but are working with the permission of,or under agreement with, such owner. On the issue of a Notification by theState Government the place designated will be deemed a factory, the owner ofthe place will be deemed an occupier and persons working herein will be deemedworkers.
9. Section 85, it is contended, is invalid on the grounds that it imposesunreasonable restrictions upon the fundamental right of the owner to carry onhis business, and it enables the State Government by a Notification arbitrarilyto discriminate between owners of establishments who are similarly situate,inasmuch as the Act confers an unguided and uncontrolled power to select placesto be deemed factories by a Notification under s. 85 of the Act and to imposethereby obligations laid by the Factories Act upon the owners of those places.Before dealing with the impact of s. 85 of the Factories Act and the impugnedNotification upon the fundamental rights of the petitioners, it would be usefulto make a brief retrospect of factory legislation in India, with specialreference to bidi-making establishments.
10. The Indian Legislature enacted Act 15 of 1881 as the first Act whichdealt with factories. The Act was limited in scope : it was followed by Act 11of 1891 which in turn was followed by Act by Act 12 of 1911. Diverse amendmentswere made to that Act from time to time. In 1929 a Royal Commission of Labourin India was appointed to make a detailed investigation into labour problems.The Commission investigated the conditions in various industries including thebidi-making industry and submitted its report in June 1931 containing diverse recommendationsfor amendment of the Indian Factories Act, 1911. The Commission stressed theneed for exercise of power of extend the provisions of the Act to industriesnot covered by the definition of the term 'factory', and considered thebidi-making industry in that context in particular. In describing theconditions prevailing in bidi manufactories, the Commission observed :
'Every type of building is used, but smallworkshops preponderate and it is here that the graver problems mainly arise.Many of these places are small airless boxes, often without any windows, wherethe workers are crowded so thickly on the ground that there is barely room tosqueeze between them. Others are dark semi-basements with damp mud floorsunsuitable for manufacturing processes, particularly in an industry whereworkers sit or squat on the floor throughout the working day. Sanitaryconveniences and adequate arrangements for removal of refuse are generallyabsent. Payment is almost universally made by piece-rate, the hours arefrequently unregulated by the employer and many smaller workshops are open dayand night. Regular intervals for meals and weekly holidays are generallynon-existent. In the case of adults these matters are automatically regulatedby individual circumstances, the worker coming and going as he pleases andoften, indeed, working in more than one place in the course of the week.Nevertheless in the case of full-time workers, i.e., those not usingbidi-making as a supplementary source of income, the hours are too frequentlyunduly long, the length of the working day being determined by the worker's ownpoverty and the comparatively low yield of the piece-rates paid.'
11. The Commission recommended the enactment of a separate Act applicable inthe first instance to all places without power machinery, employing fifty ormore persons during any part of the year and suggested that the ProvincialGovernments may be authorised to extend any provision of the Act to factoriesemploying less than the prescribed number when in their opinion conditionsjustify such action. But the Indian Legislature enacted a comprehensive measure- Act 25 of 1934 - amending and consolidating the provisions of factorylegislation in India. The object of the Act was to reduce hours of work, improveworking conditions in the factories, provide for adequate inspection and strictobservance of the Act : but places where the manufacturing process was carriedon without the aid of power were not covered by the definition of 'factory' ins. 2(j). The Legislature by Act 16 of 1941 amended s. 5 and authorised theProvincial Government by Notification in the Official Gazette to declare all orany of the provisions applicable to factories to any place whereinmanufacturing process was being carried on or was so ordinarily carried on withor without the aid of power where ten or more persons were working therein.
12. A Labour Investigation Committee was appointed by the Government ofIndia in February, 1944 to investigate conditions of employment in respect ofvarious industries. This Committee enquired into the conditions of workmen inthe bidi, cigar and cigarette industry, and observed that the picture drawn bythe Royal Commission on the working conditions in the bidi industry remainedlargely true. They observed :
'The prominent features ofthe bidi and cigar industries are long hours and insanitary conditions of workand employment of child labour. Women are also employed in large numbers inthis industry. X X X X
X X X X X The bidi and cigarlabour, however, satisfies many of the criteria of sweated labour, such assub-contract system, long hours, insanitary working conditions, home work (inbidis), employment of women and children, irregularity of employment, lowwages, and lack of bargaining power.'
13. Dealing especially with the conditions prevailing in the Province ofBombay they observed :
'In Bombay these workshops are situated immediatelybehind panshops. X X X X The conditions of these workshops, so far assanitation, light and ventilation are concerned, beggar description. They aredark, dingy places with very few, if any, windows and the approaches are veryinsanitary. Workers are huddled together, men, women and in some caseschildren, and there is hardly any space to move. One can see bags of tobaccoheaped in one corner and manufactured bidis in another. Most of the workshopshave no lavatories and where they are, they are in a most deplorable condition.Some of the workshops have low wooden ceiling above which some workers sit andcarry on their work. These are not usually reached by staircases and theworkers have to go up with great difficulty.'
14. The Committee recorded its conclusions as follows :-
'matters requiring immediate attention in the bidiand cigar industries are the unhealthy working conditions, long hours of work,employment of women and children, deductions from wages and the sub-contractsystem of organisation. It is desirable to abolish the out-work system and toencourage establishment of big factories in the bidi and cigar industries, ifprotective labour legislation is to be enforced with any degree ofsuccess.'
15. Application of factory legislation to protect the legitimate interestsof bidi rollers was therefore a crying necessity. The Factories Act, 1948extended the definition of factory. The bidi making industry was spread insmall units over extensive areas, and the working conditions in the unitsvaried considerably, and presumably on that account no legislation applicableexclusively to establishments manufacturing bidis was undertaken, butestablishments in which the number of persons working exceeded the numberspecified in clause (m) of s. 2 were registered under the Factories Act. It istrue that even then a number of establishments were not brought within theoperation of the Factories Act, but with the enactment of the Minimum Wages Actand fixation of minimum wages by the diverse States there was some improvementin the condition of bidi rollers. Under s. 85 of the Factories Act of 1948power was reserved to make the Act applicable to any place in which manufactureof bidis was carried on could be exercised but it does not appear to have beenexercised for the reason that the larger establishments in which bidi-makingwas carried on were regarded as covered by the Factories Act, it being assumedthat the expression 'employed' in s. 2(1) of the Factories Act included mereengagement or occupation in a manufacturing process without any contract givingrise to a relation of master and servant : State v. Alisaheb Kashim TamboliI.L.R. 1955 Bom. 642. and Ram Chandra Prasad v. The State of Bihar I.L.R. (1956) Pat 877..
16. The Factories Act, as the preamble recites is an Act to consolidate andamend the law regulating labour in factories. The Act is enacted primarily withthe object of protecting workers employed in factories against industrial andoccupational hazards. For that purpose it seeks to impose upon the owners orthe occupiers certain obligations to protect workers unwary as well asnegligent and to secure for them employment in conditions conducive to theirhealth and safety. The Act requires that the workers should work in healthy andsanitary conditions and for that purpose it provides that precautions should betaken for the safety of workers and prevention of accidents. Incidentalprovisions are made for securing information necessary to ensure that theobjects are carried out and the State Governments are empowered to appointInspectors, to call for reports and to inspect the prescribed registers with aview to maintain effective supervision. The duty of the employer is to securethe health and safety of workers and extends to providing adequate plant,machinery and appliances, supervision over workers, healthy and safe premises,proper system of working and extends to giving reasonable instructions.Detailed provisions are therefore made in diverse chapters of the Act imposingobligations upon the owners of the factories to maintain inspecting staff andfor maintenance of health, cleanliness, prevention of overcrowding andprovision for amenities such as lighting, drinking water, etc. etc. Provisionsare also made for safety of workers and their welfare, such as restrictions onworking hours and on the employment of young persons and females and grant ofannual leave with wages. Employment in a manufacturing process was at one timeregarded as a matter of contract between the employer and the employee and theState was not concerned to impose any duties upon the employer. It is howevernow recognised that the State has a vital concern in preventing exploitation oflabour and in insisting upon proper safeguards for the health and safety of theworkers. The Factories Act undoubtedly imposes numerous restrictions upon theemployers to secure to the workers adequate safeguards for their health andphysical well-being. But imposition of such restrictions is not and cannot beregarded, in the context of the modern outlook on industrial relations, asunreasonable. Extension of the benefits of the Factories Act to premises andworkers not falling strictly within the purview of the Act, is intended toserve the same purpose. By authorising imposition of restrictions for thebenefit of workers who in the view of the State stand in need of some or allthe protections afforded by the Factories Act, but who are not governed by theAct, the Legislature is merely seeking to effectuate the object of the Act i.e.it authorises extension of the benefit of the Act to persons to whom the Act,to fully effectuate the object, should have been, but has on account ofadministrative or other difficulties not been extended. Provisions made for thebenefit of 'deemed workers' cannot therefore be regarded as not reasonablewithin the meaning of Art. 19(1)(g) of the Constitution.
17. The Factories Act primarily applies to establishments in which ten ormore persons are working where power is used and twenty or more persons whereno power is used, thereby excluding from its operation small establishments.Presumably, the Legislature felt that uniform application of the Factories Actto all establishments in which a manufacturing process is carried on requiringeven small establishments to comply with the elaborate requirements of theFactories Act may impose great administrative strain upon governmentalmachinery, and involve hardship ordinarily not commensurate with the benefitsecured thereby. But the Legislature with a view to prevent circumvention ofthe provisions of the Factories Act, and to secure to the persons working in establishmentswhere manufacturing process is carried on, adequate safeguards where necessityis felt has authorised the State Government by Notification to declare anyplace which does not fall within the definition of 'factory' to be afactory and to make all or any of the provisions of the Act applicable thereto.Similarly the Act is primarily intended to govern relations of persons standingas master and servant in connection with manufacturing processes in factories,and liberty of contract otherwise was not sought to be affected by theprincipal provisions of the Act. But here again the Legislature has authorisedthe State Government to issue Notifications applying the provisions of the Acteven to those establishments in which persons are working with the permissionor under agreement with, but not as employees of the owners. Exclusion fromrestrictions inherent in the definitions of 'factory' and'worker' has its source not in any desire to afford specialprivileges to any class of owners. The policy underlying s. 85 authorising theState Government to extend the benefit of the Act is apparent on its face. Thesection aims at making provision for securing the health and safety of personsengaged in hazardous employments, and for that purpose the Legislature hasentrusted to the State Governments, in the case of establishments not fallingexpressly within the regulatory provisions of the Act, authority to extendthose provisions, where the necessity to regulate, having regard to thecircumstances, is felt. The power to extend the regulatory provisions of theAct is therefore not intended to confer an arbitrary power to pick and choosebetween establishments similarly situate : it is granted with a view to securethe protection of persons engaged in industrial occupations in the light ofspecial circumstances of a particular industry, a locality or an establishment,where circumstances justifying the extension of the protection exist. Theconditions of small establishments in different parts of the country may and dowidely vary. Control in respect of some industries or establishments notgoverned by the Factories Act may not be necessary, whereas necessity in thatbehalf may be acutely felt in others. It is to carry out effectively the objectunderlying the Act that power has been given to the State Government to decidewith reference to local conditions whether it is desirable that the provisionsof the Act or any of them should be made applicable to any establishment whichis not covered by the definition of 'factory' or to workers in afactory who are not entitled to the benefits of the Act, because of thedefinition of 'employment.'
18. In M/s. Bhikusa Yamasa Kshatriya v. Sangamner Akola Taluka Bidi KamgarUnion (1963) Su. 1 S.C.R. 524., in dealing with the validity of certainprovisions of the Minimum Wages Act, it was observed by this Court :
'The object and policy of the Legislature appear onthe face of the Act. The object of the Act is to prevent exploitation of theworkers, and for that purpose it aims at fixation of minimum wages which theemployers must pay. The Legislature undoubtedly intended to apply the Act tothose industries or localities in which by reason of causes such as unorganizedlabour or absence of machinery for regulation of wages, the wages paid toworkers were, in the light of the general level of wages, and subsistencelevel, inadequate. X X X X X X X It is to carry out effectively the purpose ofthis enactment that power has been given to the appropriate Government todecide with reference to local conditions, whether it is desirable that minimumwages should be fixed in regard to any scheduled trade or industry, in anylocality, and if it is deemed expedient to do so, the rates at which the wagesshould be fixed in respect of that industry in the locality. By entrustingauthority to the appropriate Government to determine the minimum wages for anyindustry in any locality or generally, the Legislature has not divested itselfof its authority, nor has it conferred uncontrolled power upon the StateGovernment. X X X X X X X X X X Selective application of a law according to theexigencies, where it is sanctioned, ordinarily results in permissibleclassification. Article 14 forbids class legislation but not reasonableclassification for the purpose of legislation. If the basis of classificationis indicated expressly or by implication, by delegating the functions ofworking out the details of a scheme, according to the objects of the statuteand principles inherent therein, to a body which has the means to do so at itscommand, the legislation will not be exposed to the attack ofunconstitutionality. In other words, even if the statute itself does not make aclassification for the purpose of applying its provisions, and leaves it to aresponsible body to select and classify persons, objects, transactions,localities or things for special treatment, and sets out the policy ofprinciples for its guidance in the exercise of its authority in the matter ofselection, the statute will not be struck down as infringing Art. 14 of theConstitution.'
19. The principle of that case will apply in considering the plea ofdiscrimination raised by the petitioners. Section 85 of the Factories Actpermits selective application of the beneficent provisions of the Act toworkers not covered thereby. The power is conferred to carry out effectivelythe purpose of the Act, and to an authority which has the means at its commandfor making the requisite enquiries for ascertaining whether extention of thebenefits is, in the interest of the workers and the public generally, demanded.Such a provision cannot be regarded as discriminatory.
20. It is true that even if a statute which permits executive action to betaken is not ultra vires, but the executive action taken under the statute inthe matter of selection may be ultra vires if it infringes any fundamentalright. In the present case, however, the affidavit of Mr. V. N. Pimenta, UnderSecretary to Government of Maharashtra in the Industries and, Labour Department,discloses clearly the basis on which the factories mentioned in the Schedulewere selected by the Notification under s. 85(1). In paragraph 7 of hisaffidavit it is stated :
'On careful consideration of the facts of this(Shankar Balaji Waje's) case the Government of Maharashtra was of the view thatfor the purpose of protecting the bidi rollers against any arbitrary treatmentby the bidi manufacturers, and to maintain the protection given to them underthe Factories Act which they had hitherto obtained prior to the decision ofthis Hon'ble Court in the case of Shankar Balaji Waje a Notification under s.85 of the Factories Act, 1948 should be issued. Accordingly, the Government ofMaharashtra issued the impugned Notification including therein those factorieswhich were on the register of Factories maintained by the Chief Inspector ofFactories.'
21. He further stated that probably there were other bidi manufacturingestablishments to which the provisions of the Factories Act were applicable,but these factories were not within the purview of the impugned Notificationbecause they were not on the register of factories maintained under theFactories Act and on the basis of which the impugned Notification was issued.But such establishments were not included in that register because of thefailure of the owners to register them. Mr. Pimenta said that the Governmentwas making enquiries about such other factories and that they would or wouldnot be brought under the purview of the Act, as circumstances demanded, byamendment of the impugned notification under s. 85 of the Factories Act whenthe enquiries were over. He further stated that the impugned Notification wasissued to maintain industrial peace and harmony. There is nothing on the recordto discredit these statements. Before the impugned Notification was issued, theBombay and other High Courts had held that bidi workers who though not servantsof the owners of the bidi factories in which they were working, were stillemployed in a manufacturing process to whom the benefits of the Factories Actwere admissible. As a result of the clarification of the legal position by thedecision of this Court in Shankar Balaji Waje's case (1962) Su. 1 S.C.R.249., there was grave unrest among bidi rollers and the State Government feltobliged to intervene for the protection of bidi rollers against deprivation ofbenefits previously accorded to them for an appreciable length of time, andwith that object in view in the first instance applied the provisions of the FactoriesAct by Notification issued under s. 85(1) to all such establishments as wereincluded in the list maintained by the Chief Inspector of Factories andcommenced an enquiry for including others which were not included in that list.In the situation which arose inclusion of bidi manufactories registered asfactories with the Chief Inspector of Factories in which bidis were rolled byworkers must be deemed to be a rational basis for classification. The fact thatto other factories carrying on the same business but not included in the listof the Chief Inspector of Factories, the provisions of the Act were notextended immediately does not expose the Notification to a charge of absence ofrational classification. Selective application of a law by an authority such asa State based on an objective test such as entry in the list maintained by theChief Inspector of Factories in the exercise of statutory authority, would inthe light of the emergency, be deemed to be a rational basis forclassification. It also appears from the affidavit of Mr. Pimenta that theGovernment of Maharashtra is holding enquiries about other factories which mayproperly be, but are not, included, because of absence of adequate information.The exclusion of owners of bidi establishments, not on the list of the ChiefInspector of Factories, is ex facie not due to any differentiation made with'an evil eye or uneven hand' but on account of the felt necessity ofa situation which caused great hardship to a large number of workers, and rectificationof which in the interest of maintaining industrial peace brooked no delay.
22. It was urged, however, that the application of all the provisions of theFactories Act without considering the appropriateness of extending theindividual provisions, infringed Art. 19 of the Constitution. It was submittedthat provisions like Sections 79 and 80 which only apply to factories employingpersons who work under contracts of service with the owner would be whollyinapplicable to persons who work under contracts not of service with the ownerof the factory and who are under no obligation to attend the factory for anyfixed duration during working hours or for any fixed number of days during theyear, and providing benefits for such persons by extending those provisionsamounts to imposing unreasonable restrictions upon the right of the owner ofthe factory. Section 79(1) provides for grant of annual leave with wages forthe number of days calculated at certain rates to every worker who has workedfor a period of 240 days or more in a factory during a calendar year. Section80 is consequential upon s. 79 : it provides that a worker shall be paid forthe leave allowed to him at the rate equal to the daily average wage of histotal full time earnings for the days on which he worked during the monthimmediately preceding his leave exclusive of any over-time and bonus butinclusive of dearness allowance and cash equivalent of the advantage accruingthrough the concessional sale to the worker of foodgrains and other articles.Section 79 clearly applies to workers who work for the full period ofemployment during factory hours and for the prescribed number of days and itmay appear at first sight somewhat inappropriate that the benefit of annualleave with wages should be extended by Notification under s. 85(1) to personswho do not work for the hours fixed for the establishment. But it is in ourjudgment clear that s. 79 if it is made applicable by notification under s. 85would apply to those workers only who work in the factory for the full periodprescribed under Sections 61, 71 and 66(1) of the Factories Act by the employer fornot less than the number of qualifying days. A 'deemed worker' who ispaid only for work done by him and who is under no obligation to attend at anyfixed time may be entitled to benefit of annual leave with wages only if hefulfils the working conditions applicable to workers as defined in s. 2(1) ofthe Act. The privilege of working for a period less than the period prescribedfor regular workers in a factory will not, if he works for less than theprescribed hours, come to the aid of a deemed worker so as to enable him toclaim the benefits of s. 79; but that privilege will not deprive him, if hefulfils 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 aNotification, by virtue of his contract or otherwise is not bound to attend attimes fixed by the owner of the factory does not mean that he can never fulfilthe conditions relating to attendance for earning leave with wages. If a deemedworker attends the factory for the full duration fixed as factory hours andworks for 240 days or more during a calendar year, he would be entitled to thebenefits of Sections 79 and 80 of the Act.
23. The observations made in Shankar Balaji Waje's case (1962) Supp. 1 S.C.R. 249., that Pandurang was not bound to work for the period of workdisplayed in the factory and therefore 'his days of work for the purposeof s. 79 could not be calculated' is not inconsistent with the viewexpressed by us. In Shankar Balaji Waje's case (1962) Su. 1 S.C.R. 249., noNotification under s. 85 was issued by the State Government, and the Court wasconsidering, whether having regard to the conditions governing his attendance,he could be regarded as a worker. The observation relied upon does not mean andcould not have intended to mean that if a Notification under s. 85 had beenissued and the workers concerned had worked for the full period of workdisplayed in the factory for more than 240 days in the preceding year, he wouldstill not have been entitled to annual leave with wages. In our judgment theright to leave with wages arises in favour of a worker or deemed worker unders. 79 only if he has worked during the full period of factory employment forthe prescribed number of days in the previous year because by the use of theexpression 'days' in s. 79, working for the full period of work displayed inthe factory under the appropriate section of the Factories Act is contemplated.Work for a period less than the period displayed will not, in computing thenumber of days, be taken into account as a day within the meaning of s. 79.
24. We may also observe that in Bridhichand Sharma v. First Civil Judge,Nagpur : (1961)IILLJ86SC , this Court in dealing with the question whetherrollers in a bidi factory who were obliged to work within the factory hours,but not for the entire period were entitled to the benefit of s. 79, held on aconsideration of all the circumstances, that the bidi rollers being employed inthe factory were workers within the meaning of s. 2(1) of the Factories Act,and entitled to that benefit. It was also observed that the leave providedunder s. 79 arises as a matter of right when the worker has attended for theminimum number of working days and he is entitled to it, and absence of theworker from attendance for a longer period than that provided by s. 79 had nobearing on his right to leave under that section. That was again a case notcovered by a Notification under s. 85. On the facts proved the Court held thatthe workers in the factory were 'employed' and would if they fulfilled therequirements of s. 79 - viz, the total number of days of work - be entitled tothe benefit of leave with pay. The attendance to qualify for leave in that casehad obviously to be for the appropriate full period fixed by the owner of thefactory.
25. As we have already observed the Act primarily applies to workersstrictly so called who are employed in any manufacturing process in a factory,but it is open to the State Government by a Notification to apply all or any ofthe provisions of the Act to any place wherein any manufacturing process iscarried on and if such a Notification is issued the place so declared is to bedeemed a factory under the Act, the owner to be deemed an occupier and theperson working therein a worker notwithstanding the fact that the number ofpersons working therein are not employed by the owner thereof but are workingwith the permission of or under agreement with such owner. If by imposingliability to afford to workers strictly so-called under the Act, there is noinfringement of the fundamental right of the owner of the factory to carry onhis business, a similar obligation in favour of deemed workers, who satisfy therequirements of s. 79, cannot, having regard to the object of the statute, beregarded as infringing that fundamental right. Therefore by imposing liabilityto afford to 'deemed worker' annual leave with wages under s. 79 ands. 80 in the same manner and to the same extent as is afforded to workersstrictly so-called under s. 2(1) of the Factories Act, no unreasonablerestriction has been imposed upon the occupier or the owner of the factory.
26. To conclude : in our judgment s. 85 which authorises the StateGovernment to issue a Notification applying all or any of the provisions of theAct to any place in which a manufacturing process is carried on, and whichinvolves the consequence that the place is deemed a factory and the personsworking therein are deemed workers is not by itself discriminatory so as toinfringe Art. 14 of the Constitution; nor does the provision amount toauthorising imposition of unreasonable restriction upon the fundamental rightof the owner of the factory to carry on his business. The impugned Notificationissued under s. 85(1) is also not open to attack on the ground that the Statehas issued the Notification by selecting for application of the provisions ofthe Act, some out of the places in which bidi manufacturing processes arecarried on. Nor does the Notification in so far as it seeks to apply theprovisions of the Act imposing upon the owner or an occupier of the factoryobligation to grant annual leave with wages impose any unreasonable restriction.
27. On that view the petition must fail and is dismissed with costs, twosets, one hearing fee.
28. Petition Dismissed.