1. The petitioners filed an application under S. 78(1)A(e) of the Bombay Industrial Relations Act against respondent 1, the Ahmedabad . (Calico Mills), Ahmedabad, to the second labour court, Ahmedabad, being Application No. 2005 of 1962 praying for a declaration that the respondent-company had committed an illegal change by contravening the terms of an award of the industrial court. The second labour court, Ahmedabad, dismissed the application on the ground that the petitioners could not be said to be employees of the respondent-company as defined by S. 3(13) of the Bombay Industrial Relations Act, 1946. The petitioners, thereupon, filed an appeal to the industrial court, Ahmedabad from the order of the second labour court, being Appeal (I.C.) No. 123 of 1963. This appeal was heard by respondent 2 who dismissed the appeal by his order dated 5 February, 1964. As their appeal was dismissed by the industrial court, the petitioners have preferred the present petition whereby they challenge the validity of the findings of the labour court and the industrial court that they could not be considered 'employees' of the respondent-company within the meaning of S. 3(13) of the Bombay Industrial Relations Act.
2. The word 'industry' has been defined in S. 2(j) of the Industrial Disputes Act, 1947, as under :
''industry' means any business, trade, undertaking manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.'
3. The same word has been defined in the Bombay Industrial Relations Act by S. 2(19) which reads as under :
''industry' means -
(a) any business, trade, manufacture or undertaking or calling of employers;
(b) any calling, service, employment, handicraft, or industrial occupation or avocation of employees;
and includes -
(i) agriculture and agricultural operations;
(ii) any branch of an industry or group of industries which the State Government may by notification in the official gazette declare to be an industry for the purpose of this Act.'
4. The Industrial Disputes Act defines 'workman' in S. 2(s) as under :
''workman' means any person (including apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to any industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connexion with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934;
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.'
5. The Bombay Industrial Relations Act, 1946, defines 'employees' in S. 3(13) and the word 'employer' in S. 3(14) as under :
S. 3(13) : 'employee' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and includes -
(a) a person employed in the execution of any work in respect of which the owner of an undertaking is an employer within the meaning of Sub-clause (e) of Clause (14);
(b) a person who has been dismissed or discharged from employment on account of any dispute relating to a change in respect of which a notice is given or an application made under S. 42 whether before or after his dismissal or discharge;
but does not include -
(i) a person who is employed in the police service or as an officer or other employee of a prison;
(ii) a person who being employed primarily in a managerial, administrative or supervisory capacity draws basic pay (excluding allowances) exceeding five hundred rupees per month, and
(iii) irrespective of the pay drawn any other person or class of person employed in any capacity specified in Clause (ii) or in a technical capacity, which the State Government may, by notification in the official gazette, specify in this behalf.
6. S. 3(14) 'employer' includes -
(a) an association or a group of employees;
(b) any agent of an employer;
(c) where an industry is conducted or carried on by a department of the State Government, the authority prescribed in that behalf, and where no such authority has been prescribed, the head of the department;
(d) where an industry is conducted or carried on by or on behalf of a local authority, the chief executive officer of the authority;
(e) where the owner of any undertaking in the course of or for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking.'
7. Section 122 of the Bombay Industrial Relations Act repeals the Bombay Industrial Disputes Act, 1938, and provides for the continuance of all orders, notifications, etc., issued under the provisions of the 1938 Act in so far as they are not inconsistent with the provisions of the Bombay Industrial Relations Act, 1946, and provides that they shall be deemed to have been made or issued under the provisions of the latter Act. In exercise of the powers conferred by Sub-section (3) of S. 2 of the Bombay Industrial Disputes Act, 1938, a notification dated 30 May, 1939 was issued by the Government of Bombay whereby it was provided that the provisions of the Bombay Industrial Relations Act shall apply to the cotton textile industry as specified in the said notification. A copy of that notification was produced before us with the consent of both the parties and that notification runs as under :
'Bombay Castle, 30 May, 1939 Bombay Industrial Disputes Act, 1938
No. 2847/34-A. - In exercise of the powers conferred by Sub-section (3) of S. 2 of the Bombay Industrial Disputes Act, 1938 (25 of 1938), and in supersession of Government Notification in the Political and Services Department, No. 2847/34-2, dated 14 March, 1938, the Government of Bombay is pleases 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 of and forming integral part of) the concerns falling under Clause (a) or (b).
(d) All the offices, whether situated within or outside the precincts of the concerns falling under Clause (a) or (b).'
8. From the notification quoted above, it would appear that the Government of Bombay applied the Bombay Industrial Relations Act to the cotton textile industry in respect of all concerns using power and employing a particular number of workers who were engaged in cotton-spinning and cotton-weaving and such other manufacture as was set out in the notification.
9. It was contended by Sri Patel, learned advocate appearing on behalf of respondent 1, that the application of the notification must be strictly confined to those activities which were concerned only with the textile industry and should not be extended to activities which had nothing to do with the manufacture of textile fabric. It was contended by Sri Patel that a wider meaning could not possibly be given by extending the notification to such activities which were not directly concerned with textile manufacture. It was further contended by Sri Patel that the garden activity had no concern with the manufacture of textile fabric and, therefore, could not be included within the purview of cotton textile industry. It was contended by Sri Patel that the scope and application of the Bombay Industrial Relations Act was thus limited on account of the limited application of the notification to the textile industry. It was urged by Sri Patel that the scope of application of the Industrial Disputes Act could possibly be considered to be wider where the word 'industry' would include within its ambit any sort of business. We are unable to accept this contention of Sri Patel and to give such a narrow meaning and construction as has been contended by him. The notification in clear terms applies to the cotton textile industry and to all concerns using power and employing a particular number of workers. A cotton textile concern, therefore, using power and employing the prescribed number of workers would fall within the purview of the notification and any activity which can reasonably be called an activity carried on by such a concern would fall within the purview of the Act. Moreover, there is no justification to hold, as was contended by Sri Patel, that the Bombay Industrial Relations Act intended to adopt and give a restricted meaning to the word 'industry.' The industrial legislation has been made to meet the requirements of a rapid industrial progress and to bring about an adjustment of relations between workers who are employed and work in varied fields necessary for the efficient working of an industry. The concept of what an 'industry' means cannot be limited strictly to the field of manufacture of article of industry, but will include all activities that could reasonably be attributable to that industry as a whole. The construction that we are giving to the definition of the word 'employee' and to the notification referred to above is consistent with the words used in the section itself and in the notification and there does not appear to us to be any justification for giving a narrower meaning and construction as has been suggested by Sri Patel.
10. It was contended by Sri Patel that the restricted nature of the application of the definition of the word 'employee' (in the Bombay Industrial Relations Act) is further indicated by the definition of the word 'employer' in S. 3(14) of the Bombay Industrial Relations Act and in particular Clause 3(14)(e) to which reference has been made in S. 3(13)(a). Clause (e) of Sub-section (14) of S. 3 will bear repetition of being quoted again for the sake of easy reference and it is as under :
'Where the owner of any undertaking in the course of or for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking.'
11. Emphasis was laid on the use of the words 'in the course of or for the purpose of conducting the undertaking' and 'any work which is ordinarily a part of the undertaking.' While giving effect to this sub-clause; we must bear in mind the purpose for which the clause was included in the section. The clause was meant to include a workman who, though not directly employed, was employed, by an agency to whom a part of the work of the undertaking was entrusted as being an 'employee' of the undertaking of the employer. The scope of the application of the Act was thus sought to be amplified and not intended to be restricted. The words 'ordinarily a part of the undertaking' cannot be restricted to apply only to the actual and immediate function of an industry as for example, to the manufacture of textile fabrics, but these words would apply to all departments and activities which could be thought of to be reasonably necessary for and incidental to the efficient working of the industry as a whole. Similarly, the words 'in the course of or for the purpose of conducting the undertaking' must be given their natural meaning and these words would include activities done in the course of the conduct of the undertaking, i.e., while the undertaking was being conducted.
12. In support of his argument, Sri Patel has relied on the case of Godavari Sugar Mills, Ltd. v. D. K. Worlikar [1960 - II L.L.J. 247] but in that case the notification was applied not to sugar industry but to the manufacturing of sugar and its byproducts. This appears from the following observations at p. 249 of the report :
'It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its byproducts. If the expression 'sugar industry' had been used, it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word 'industry' prescribed in S. 2(19) of the Act; but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its byproducts ...'
13. We are unable to agree with the contention of Sri Patel that in order to fall within the definition of the word 'employee' the workers should be directly engaged in a spinning or weaving department or working as a mechanic in the textile mills. The term 'employee' as defined in S. 3(13) means any person employed to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward in any industry and the term 'industry' as defined in S. 3(19) means any business, trade, manufacture or undertaking or calling of employers and any calling, service, employment, handicraft, or industrial occupation or avocation of employees and also includes any branch of an industry or group of industries which the State Government may by notification in the official gazette declare to be an industry for the purposes of the Act. The definition of the term 'industry' is thus wide enough to include a workman employed in any calling, service, employment, handicraft, or industrial occupation or avocation of employees and it would not be correct to assume that simply because a workman happened to be engaged as a gardener, he would not fall within the definition of the term 'employee' as given in the Bombay Industrial Relations Act. A garden when attached to a mill is an amenity that is provided to the workers employed in the mill and it is not necessary that an amenity should arise from a statutory requirement or obligation and it hardly makes any difference if the garden was provided for voluntarily or under a statutory obligation. The activities in an undertaking such as a textile mill are not confined purely to factory work of manufacturing textile fabric within the mill premises, but various other incidental and connected institutions such as a hospital, a canteen, a playground and a garden might be maintained by the mill to provide amenities to its workers and these activities could be considered as the activities made in relation to and in the usual course of conducting the affairs of the mill. Not merely within the turning of the wheels of the machine which no doubt, is directly responsible for the production of the article for which the plant of the particular industry was installed and not merely in utilizing the power to move the machine to action, the field of activities of the undertaking is restricted and exhausted, but there are many more varied though allied and complementary activities which are being carried on by the management and which help, though in an indirect manner, in creating a healthy atmosphere of well-being and co-operation amongst the workers by providing essential facilities such as means for treatment of their ailments, for general entertainment and care not only of the workers but of the children who are left unattended while their parents are engaged in their work in the factory. While, therefore, construing the words 'in the course of' and 'ordinarily a part of the undertaking,' we must give them a meaning which is natural consistent with the working of a factory as it exists in the present times and while doing so, our approach should not be theoretical and academic but pragmatic and practical. The activities that are usually conducted as a part of an undertaking by which not only workers participate in the actual running of the machinery but also activities which conduce to the smooth working of the plant as a whole must be considered to fall within the ambit of the definition. We are, therefore, unable to agree with the contention of Sri Patel that the application of the Act must be restricted to only those workers who are directly engaged in the manufacture of textile fabric.
14. Sri Daru had drawn our attention to the list of occupations for the cotton textile industry which includes malis or gardeners, as could be seen from item 17 in group J of the list prepared under S. 11 of the Bombay Industrial Relations Act. Sri Patel's argument in reply was that by issuing such a notification, the Registrar could not make the Act applicable to an activity which did not strictly fall within the ambit of the definition of the word 'employee.' We need not pause to consider the effect of this argument as our conclusion is mainly based on a general construction of the definition of 'employer' and 'employee' given in S. 3 of the Act.
15. We may refer with advantage to some of the observations made by the Supreme Court in the case of J.K. Cotton Spinning and Weaving Mills Company, Ltd. v. Labour Appellate Tribunal of India [1963 - II L.L.J. 436]. The observations of the Supreme Court in that case, though made in the context of the Uttar Pradesh Industrial Disputes Act and in connexion with the expression 'employed in any industry' used in S. 2(s) of that Act, they would provide some guidance in the construction of similar provisions made in industrial legislations. The relevant observations are at p. 440-441 of the report as under :
'Sri Pathak contends that the crucial words used in the definition prescribed by S. 2(s) are 'employed in any industry.' He argues that before any person can claim to be a workman under S. 2(s), it must be shown that he has been employed in the industry of the employer. The industry of the appellant is spinning and weaving operations and, says Sri Pathak, the malis have obviously nothing to do either with the spinning or weaving operations of the appellant; since they are not employed in the industry of the appellant, the fact that they have been employed by the appellant would not make them workmen within the meaning of the Act. Thus presented, the argument is no doubt prima facie attractive; but as soon as we begin to examine it more carefully, it breaks down. If the construction for which Sri Pathak contends is accepted without any modification, clerks employed in the factory would not be workmen, because on the test suggested by Sri Pathak, they are not employed in the spinning or weaving operation carried on by the appellant and yet, there is no doubt that clerks employed by the appellant to do clerical work are workmen under S. 2(s)and so, the literal construction of the clause 'employed in any industry' cannot be accepted and that means that 'employed in any industry' must take in employees who are employed in connexion with operations incidental to the main industry, and once we are compelled to introduce this concept of incidental connexion with main industry, the literal construction for which the appellant contends has to be rejected.'
'It is, of course, not very easy to decide, what is the field of employment included by the principle of incidental relationship, and what would be the limitations of the said principle. If sweepers are employed by the appellant to clean the premises of the mills, that clearly would be work incidental to the main industry itself, because though the work of the sweepers has no direct relation either with the spinning or weaving, it is so manifestly necessary for the efficient functioning of the industry itself that it would be irrational to exclude sweepers from the purview of S. 2(s). If buses are owned by the industry for transporting the workmen, would the drivers of such buses be workmen or not It would be noticed that the incidental connexion in the present illustration is one degree removed from the main industry; the workmen who work in the industry are intended to be brought to the factory by the buses and it is these buses that the drivers run. Even so, it would not be easy to exclude drivers of buses engaged by the factory solely for the purpose of transporting its employees to the mills from their respective homes and back, on the basis that they are not workmen under S. 2(s). Sri Pathak was unable to resist the extension of the definition to such cases; but, nevertheless he attempted to argue that though sweepers who sweep the premises of the factory may be called workmen, sweepers who sweep the area around the factory may not be included under S. 2(s). Sweeping the area outside the factory, it is argued, may be incidentally connected with the main industry, but the incidental connexion is indirect and remote, and so, this class of employees must be excluded from the definition. We are not prepared to accept this argument. In our opinion, an employee who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be a workman provided the other requirements of S. 2(s) are satisfied.
16. In this connexion, it is hardly necessary to emphasize that in the modern world, industrial operations have become complex and complicated and for the efficient and successful functioning of any industry several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole. Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry. Reverting to the illustration of the buses owned by the factory for the purposes of transporting its workmen, if the bus-drivers can legitimately be held to assist an operation incidental to the main work of the industry, we do not see why a mali should not claim that he is also engaged in an operation which is incidental to the main industry.
17. While we are dealing with this point, it is necessary to bear in mind that the bungalows are owned by the applicant and they are allotted to the officers as required by the terms and conditions of the officers' employment. Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take care of the gardens attached to them. If the terms and conditions of service require that the officers should be given bungalows and gardens are attached to such bungalows, it is difficult to see why in the case of malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellant's property, it should be said that the work done by them has no relation with the industry carried on by the appellant. The employment is by the appellant, the conditions of service are determined by the appellant, the payment is substantially made by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the standing orders prescribed in that behalf, and the work assigned to the malis is the work of looking after the properties which have been allotted to the officers of the appellant. Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer. It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and far-fetched. We are not prepared to hold that the relation of the work carried on by the malis in the present case can be characterized as remote, indirect or far-fetched. That is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that malis are workmen under the Act.'
18. For the reasons aforesaid, we are unable to agree with the reasoning of the industrial court that the work of maintaining gardens was not a part of an ordinary work of a cotton textile mill. We are, therefore, unable to agree with the reasoning of the industrial court that because the work which was being performed by the petitioners was not a part of the ordinary work of the undertaking and because there was nothing to show that the cotton textile mill was under a statutory obligation to maintain a garden, the gardeners could not be included within the definition of the word 'employee' as given in S. 3(13) of the Bombay Industrial Relations Act. As we have already indicated, it is not necessary that the workman, in order to fall within the definition of 'employee,' should be connected only with the work of manufacture of textile fabric. In Para. 7 of the order of the industrial court, it has been observed that :
'It is true that maintenance of gardens may be a matter concerning health or welfare of the employees, but there is no legal obligation to maintain such gardens. Had any such obligation been created under any provision of law, the position might have been as urged by Sri Jyotikar, but as the facts stand at present, it is not mandatory on a management of a cotton textile undertaking to maintain any garden and hence the work of maintenance of a garden cannot be said to be a work which is a part of the ordinary work of a cotton textile mill.'
19. As we have already held, an activity is undertaken as a part of the undertaking and in the course of the conduct of that undertaking may have been undertaken voluntarily or on account of a statutory duty or obligation, but what is necessary is that the activity must reasonably be attributable to the undertaking in its usual and ordinary course in the conduct of the business or the undertaking and if that is so, such an activity could be considered as the activity of a worker who would fall within the definition of 'employee' within the meaning of S. 3(13) of the Bombay Industrial Relations Act. We are, therefore, unable to agree with the above observations of the industrial court on the basis of which the order of the industrial court is mainly founded. On the face of it, the industrial court was in error in deciding the issue before it on the basis of the observations referred to above and we must, therefore, quash and set aside the order of the industrial court based on the aforesaid reasonings.
20. It was urged by Sri Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns, a Government post office and museum which were open to public and some quarters for workers as well as assistants and officers of a hospital. It was also urged by Sri Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim. It appears that this contention made on behalf of the mills was not considered by the industrial court as it appears from Para. 7 of the order of the industrial court, because, according to the industrial court, looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor, they could not be covered within the scope of S. 3(13) of the Bombay Industrial Relations Act. Since this contention has not been considered by the industrial court, we do not wish to express any opinion as regards the merits of this contention and it would be open to respondent 1 to raise the contention before the industrial court which will decide on the merits of the contention if raised.
21. Subject to this, the order of the second labour court, Ahmedabad, dated 9 August, 1963, passed in Application No. 2005 of 1962 and the order of the industrial court, Ahmedabad, dated 5 February, 1964, passed in Appeal (I.C.) No. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the industrial court in the light of the observations made above. The rule granted on the special civil application is made absolute and we make no order as to costs.