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Kohinoor Saw Mill Co. Vs. State of Madras by Secretary, Dept. of Industries, Labour and Co-operation - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1957)2MLJ87
AppellantKohinoor Saw Mill Co.
RespondentState of Madras by Secretary, Dept. of Industries, Labour and Co-operation
Excerpt:
- - but we would like to refer to the significance of the period, with reference to which the right of an employer to the statutory exemption provided for by section 25-a (1)(a) has to be determined. if that claim is satisfied by the employer no further question could arise of the employer pleading that he is not liable to pay any compensation. if the conditions are satisfied, the statutory exemption comes into play. industrial establishment is of a seasonal character or if the work is performed in the industrial establishment only intermittently, section 25-a (2) excludes the operation of section 25-c such a claim to the statutory exemption would be a question within the meaning of section 25-a(2). we should like to guard ourselves against being understood to imply that the question.....rajagopalan, j.1. the petitioner firm operates a timber saw mill at baliapatam in malabar district. by its letter, dated 29th november, 1954 the petitioner firm requested the governmentwe request you to kindly give your earnest and sympathetic consideration to our appeal and kindly treat our mill as intermittently working and exempt us from the provisions of the act (the industrial disputes act) regarding payment of compensation to workmen for lay-off and retrenchment.the provisions exemption from which the petitioner sought were those in chapter v-a of the industrial disputes act, 1947, which dealt both with lay-off and retrenchment in industrial establishments. apparently what the petitioner sought was really exemption from section 25-c to section 25-e of the industrial disputes act,.....
Judgment:

Rajagopalan, J.

1. The petitioner firm operates a timber saw mill at Baliapatam in Malabar District. By its letter, dated 29th November, 1954 the petitioner firm requested the Government

We request you to kindly give your earnest and sympathetic consideration to our appeal and kindly treat our mill as intermittently working and exempt us from the provisions of the Act (the Industrial Disputes Act) regarding payment of compensation to workmen for lay-off and retrenchment.

The provisions exemption from which the petitioner sought were those in Chapter V-A of the Industrial Disputes Act, 1947, which dealt both with lay-off and retrenchment in Industrial Establishments. Apparently what the petitioner sought was really exemption from Section 25-C to Section 25-E of the Industrial Disputes Act, because in its letter, dated 29th November, 1954, the petitioner firm drew the attention of the Government to Section 25-A(2).

2. The Government's reply to that request was the order, dated 16th April, 1955:

The management of the Kohinoor Saw Mill Co., Ltd., Baliapatam are informed that since their Mill is reported to have worked for 301 days during the twelve months preceding their date of application for exemption, their request to declare their mill as seasonal under Section 25-A (2) of the Industrial Disputes Act, 1947, cannot he complied with.

3. On receipt of this order the petitioner firm pointed out to the Government that the assumption, that the petitioner firm had worked for 301 days during the period of twelve months that preceded the date of their application, was erroneous and that the mill had worked only for 284 days during that period The petitioner asked for reconsideration of the orders passed by the Government on 16th April, 1955.

4. The order the Government passed on 23rd May, 1955, on the further representation of the petitioner ran:

The Government see no reason to revise the orders issued in memorandum...dated 16th April, 1955, as the mill had worked for over 240 days during the twelve months preceding the date of their application for exemption.

5. The petitioner applied under Article 226 of the Constitution for the issue of a writ of certiorari or any other appropriate writ to quash the order of the Government, dated 23rd May, 1955. The further relief asked for was the issue of a writ of mandamus or any other appropriate writ to direct the Government of Madras to forbear from enforcing Sections 25-C to 25-E of the Industrial Disputes Act as against the petitioner.

6. Chapter V-A of the Industrial Disputes Act was enacted by the Amending Act XLIII of 1953. Sections 25-A runs:

(1) Sections 25-C to 25-E inclusive shall not apply-

(a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or

(b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.

(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government, thereon shall be final. Explanation.-In Sections 25-A, 25-C, 35-D and 25-E ' Industrial Establishment' means a factory as defined in Clause (m) of Section 2 of the Factories Act, 1948 (LXIII of 1948)....

Section 25-C creates a statutory right for compensation where a workman, other than a badli workman or a casual workman, in an industrial establishment, with a continuous service of one year is laid off by his employer. It may not be necessary to examine now the details of that right or the statutory restrictions embodied in Section 25-C. Section 25-B defines, only for the purposes of Section 25-C and 25-F, the term 'one year of continuous service'. Section 25-D directs that even in the case of workmen who have been laid off, the employer shall maintain a muster roll for them. Section 25-E provides for a futher set of statutory restrictions on the right to compensation conferred on workmen by Section 25-C. Section 25-F, Section 25-G and Section 25-H deal with retrenchment of workmen in an industrial establishment. As no question of retrenchment arises for consideration in these proceedings, no further reference need be made to these provisions. Section 25-I regulates the procedure for the recovery of any money due to a workman under any of the provisions in Chapter V-A. Section 25-J runs:

(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (including standing orders made under the industrial Employment (Standing Orders) Act, 1946 (XX of 1946):

Provided that nothing contained in this Act shall have effect to derogate from any right which a workman has under any award for the time being in operation or any contract with the employer.

(a) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter.

7. The summary of the provisions of Chapter V-A of the Indusrial Disputes Act which we have set out above, should suffice to show that the application the petitioner preferred to the Government on 29th November, 1954, in the form in which that application was made, did not really lie, and the reliefs, in the form in which they were asked for by the petitioner, did not fall within the scope of Section 25-A(2). If that be the case, the order of the Government, dated 23rd May, 1955, the validity of which the petitioner attacked did not strictly fall within the scope of Section 25-A(2) of the Industrial Disputes Act. It could not be taken as the decision of a statutory authority in the exercise of the statutory power vested in it under Section 25-A (2).

8. Section 25-C and Section 25-E created a special statutory right under which the workmen in an industrial establishment laid off by their employer were entitled to compensation, subject to the restrictions imposed by Section 25-C and Section 25-E. Section 25-J(1), it should be remembered, directed that the provisions of Chapter V-A which included Section 25-C and Section 25-E, should prevail notwithstsanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act (XX of 1946). It was thus a special statutory light that was created by Sections 25-C and 25-E, with a corresponding liability and with obligation on the part of the employer to maintain a muster roll even for the workmen who had been laid off. Had these provisions stood by themselves, they would have applied to all factories, but Section 25-A provided for statutory exemptions from the rights and liabilities created under Sections 25-C, 25-D and 25-E of the Act.

9. One class of industrial establishments exempted from the operation of Sections 25-C, 25-D and 25-E was that in which less than 50 workmen on an average per working day were employed in the establishment in the preceding calender month. We are not concerned in these proceedings with this class of industrial establishments. But we would like to refer to the significance of the period, with reference to which the right of an employer to the statutory exemption provided for by Section 25-A (1)(a) has to be determined. Section 25-A(1)(a) makes it the preceding calendar month. What should the calendar month precede Obviously it can have reference only to a claim arising under Section 25-C, a claim for compensation by a workman for having been laid-off by this employer. If that claim is satisfied by the employer no further question could arise of the employer pleading that he is not liable to pay any compensation. If the claim of the workmen is resisted on the ground specified in Section 25-A(1)(a),that the industrial establishment is one in which less than 50 workmen were employed on an average per working day, the period with reference to which that test has to be applied is the calendar month that preceded that point of time, the point of time when the statutory right conferred by Section 25-C arose. We have referred to this at some length, though no question of the application of Section 25-A(1)(a) arises in this particular case--the petitioner's claim was not under Section 25-A(1)(a)--only to discuss the scope of the test, a different one imposed by Section 25-A (2), to which we shall presently advert.

10. Section 25-A makes it clear that whether the claim of an employer is based on Section 25-A (1)(a) or 25-A (1)(b), the exemption is a statutory one; if the conditions are satisfied, the statutory exemption comes into play. It is not for the Goverment or for any other agency to grant exemption from any of the provisions in Chapter V-A of the Industrial Disputes Act. Sections 25-C to 25-E will cease to operate in the case of an industrial establishment which statisfies the requirements imposed by the provisions of Section 25-A(1)(a) and 25-A(1)(b). That was what we had in view when we pointed out earlier that the relief asked for by the petitioner was not one which the Government had the jurisdiction to grant. Nor had the Government any jurisdction to decide that the petitioner was not entitled to exemption from the operation of Section 25-G to 25-E. The only jurisdiction conferred upon the Government by Section 25-A(2) was to decide, if the question arose, whether an industrial establishment was of a seasonal character or whether the work was performed therein only intermittently.

11. In our opinion the 'question' never arose in the case of the industrial establishment belonging to the petitioner at any time prior to 23rd May, 1955, when the Government passed the order the validity of which the petitioner challenged in these proceedings. At this stage we can ignore the form of the representations made by the petitioner to the Government and also that of the relief the petitioner asked for. When does a 'question' arise within the-meaning of Section 25-A(2) is the point for consideration. Obviously, unless the question arises the Government can claim no jurisdiction to decide that question.

12. When we find that Chapter V-A is included in the Industrial Disputes Act, the object of which, as set out in the preamble, is to make provision for the investigation and settlement of industrial disputes and for certain other purposes appearing in the Act, it seems reasonable to hold that the ''question' referred to in Section 25-A (2) could arise as incidental to the determination of a possible industrial dispute. Section 25-J emphasises that position. Section 25-J(1) declares in effect that the rights created by the provisions of Chapter V-A shall prevail notwith-standing anything to the contrary in any other law. Section 25-J (2) directs in effect that in the settlement of any industrial dispute where rights founded on Section 25-C are claimed the rights and liabilities of employers and workmen should be determined only in accordance with the provisions of Chapter V-A.

13. If a workman or a set of workmen in an industrial establishment is laid-off by their employer, prima facie, those workmen would be entitled to claim compensation, the right to which is conferred by Section 25-C, subject to the restrictions imposed by Sections 25-C and 25-E. If the workmen do not claim that right, there can be no occasion for an industrial dispute. Similarly if a workman claimed compensation and the compensation is paid by the employer, then again there can be no industrial dispute. We should not be understood to imply that a claim of a single workman under Section 25-C resisted by an employer, with nothing more, would bring into existence an industrial dispute : but it is possible that where such a claim is resisted it can be an industrial dispute. If it is an industrial dispute as defined by Section 2(k) of the Industrial Disputes Act, then the provisions of the Industrial Disputes Act for the determination of such an industrial dispute will apply. One of the questions that could arise in the determination of such an industrial dispute occasioned by an employer in an industrial establishment resisting a claim of a workman or set of workmen founded upon Section 25-E of the Act could be whether the employer is entitled to claim the statutory exemption for which provision has been made in Section 25-A(2). If the. Industrial establishment is of a seasonal character or if the work is performed in the industrial establishment only intermittently, Section 25-A (2) excludes the operation of Section 25-C Such a claim to the statutory exemption would be a question within the meaning of Section 25-A(2). We should like to guard ourselves against being understood to imply that the question referred to in Section 25-A (2) could arise only as incidental to an industrial dispute. There may be occasions where a claim asserted under Section 25-C and resisted by the employer is an enforceable claim, though by itself it may not amount to an industrial dispute. What we should like to emphasise is that unless a claim founded on Section 25-C is resisted by an employer on the ground for example, that the industrial establishment is one of a seasonal character, no question could arise for determination within the meaning of Section 25-A(2). If the question arises as incidental to an industrial dispute, the effect of Section 25-A(2) is that it is not the Industrial Tribunal to which the industrial dispute is referred that will have jurisdiction to determine the question whether the factory is of a seasonal character; the jurisdiction to determine that question is vested in the appropriate Government by Section 25-A (2). Normally the occasion for determining that question should arise even before the reference to the industrial Tribunal, for instance, under Section 10(1)(c) of the Industrial Disputes Act. But there is nothing in Section 25-A(2) to bar an investigation and a final decision of the question, whether a factory is of a seasonal character, even after a reference has been made for the adjudication of an industrial dispute. But if a question arose at that stage, it is not for the Industrial Tribunal to decide that question, the jurisdiction is that of the Government.

14. As we said, the 'question' within the meaning of Section 25-A(2) could arise, only if there is a disputed claim of right or a disputed liability. It need not necessarily be an industrial dispute, as defined by Section 2(k) of the Industrial Disputes Act, but nonetheless it has to be a depute. A dispute would really imply two contending parties, one claiming a right and the other resisting that claim and disowning the liability correlated to that right. The expression 'question' in Section 25-A(2) would itself imply that the question is at issue between the two contending parties. The determination of that question is obviously a quasi-judicial function. The jurisdiction is that of the Government to determine the question, should it arise, under Section 25-A(2). It will then be a quasi-judicial function that the Government exercises, because a decision has to be given, a decision in a dispute between two parties. Such a decision could be given normally only after giving an opportunity to both the parties to make their representations to the statutory authority which has to render a decision.

15. If that is the true scope of the jurisdiction vested in the Government by Section 25-A(2) of the Act, it seems to us clear that no 'question' arose witin the meaning of Section 25-A(2), when the petitioner addressed the Government by its letter dated 29th November, 1954. There was nothing to indicate then, or in the proceedings before us, that there had been a lay-off, or, that there had been a claim founded on Section 25-G, or that such a claim had been resisted by the petitioner. Even if in effect what the petitioner asked for was a declaration that its saw rnill was a factory of seasonal character, a declaration to be operative in future, it was not within the jurisdiction conferred upon the Government by Section 25-A(2) to grant such a declaration unless 'the question' arose for its determination within the meaning of Section 25-A (2).

16. The expression 'question' as used in Section 25-A(2) connotes, in our opinion, something in the nature of a lis, the determination of which, as we pointed out above will at least be quasi-judicial in its scope. Let us take some examples to illustrate our point. There is a lay-off in an industrial establishment. The workmen so laid-off do not claim any compensation, that is to say, they do not seek an enforcement of any right claimed on the basis of Section 25-C. Both parties accept the position that the industrial establishment is of a seasonal character and that the statutory exemption conferred by Section 25-A(1)(b) comes into play. Obviously under such circumstances there can be no occasion for a question, within the meaning of Section 25-A(2), to arise for the determination of the statutory authority, the appropriate Government. Let us next take the case of an industrial establishment where there has been no lay-off at all. There could obviously be no assertion of a right founded on Section 25-C, and no occasion for an employer to invoke the statutory exemption under Section 25-A(1)(b). It may be that that industrial establishment is really of a seasonal character, but nonetheless in a particular year there is no lay-off of the employees. Under these circumstances again, a question within the meaning of Section 25-A(2) can never arise for determination. A third example may be of an industrial establishment, where the employer has laid-off his employees and has resisted a subsequent claim by the employees to compensation under Section 25-C on the ground, that his industrial establishment is entitled to the statutory exemption granted by Section 125-A(1)(a). In such cases obviously a question would arise within the meaning of Section 25-A(2), whether the industrial establishment is of a seasonal character. As we pointed out, such a contingency never arose in the case of the petitioner.

17. In our opinion, no 'question', whether the petitioner's industrial establishment was of a seasonal character, within the meaning of Section 25-A, (2) ever arose for determination. It was a non-existent jurisdiction that the Government exercised, when it in effect declared by its order, dated 23rd May, 1955, that the petitioner's industrial establishment was not of a seasonal character. Normally, of course, where a petitioner asks the statutory authority to determine something which it had no jurisdiction to determine, the petitioner should not be granted the discretionary relief of a writ of certiorari to set aside what purported to be a determination by that statutory authority. In the circumstances of this case, however, where both the petitioner and the Government appear to have been under a real misapprehension of the scope of the jurisdiction vested in the Government under Section 25-A(2), we do not think we should decline to quash the order of the Government on the sole ground that the petitioner had himself to thank for invoking a non-existent jurisdiction.

18. What we have set out above should be, sufficient to make the rule nisi absolute in this case, without examining the correctness of the decision of the Government embodied in its order, dated 23rd May, 1955. The contention of the learned Counsel for the petitioner was that the decision of the Government was based on wholly irrelevant considerations. The correctness of that claim, the learned Advocate-General appearing for the State, did not really challenge. As the question, what could be taken into account by a statutory authority in deciding whether a given industrial establishment is of seasonal character within the meaning of Section 25-A(2), was argued before us at length, we shall now deal with those contentions.

19. It should be remembered that in form the relief asked for by the petitioner by its letter, dated 29th November, 1954, was that its mill should be treated as intermittently working. What the Government decided was that the mill in question was not seasonal within the maning of Section 25-A(2). Apparently both the petitioner and the Government treated seasonal and intermittent as those expressions have been used in Section 25-A(2) of the Act, as synonymous. Before discussing what facts may be taken into account in deciding whether an industrial establishment is seasonal within the meaning of Section 25-A(2) we have to point out that seasonal and intermittent have not been used by rhe Legislature as synonymous expressions in Section 25-A(2). The very fact that the Legislature has used the two expressions ' seasonal ' and 'intermittent' obviously as alternative, should be sufficient to indicate that the Legislature did not intend the expressions to be interpreted as synonymous terms. A seasonal industrial establishment, that is, an industrial establishment which normally works only during defined periods or seasons of the year, will obviously be an industrial establishment which works intermittently, the expression 'intermittent' beng used here in relation to a given period, annual or otherwise. But seasonal conditions may not be the only grounds on which a given industrial establishment is compelled to work intermittently. In the context of Section 25-A(2), the expressions 'seasonal' or 'intermittent' would appear to us to indicate that it should be seasonal or intermittent under normal conditions. 'Normally seasonal' or 'normally intermittent' would appear to be the true scope of the two expressions 'seasonal' and 'intermittent' in Section 25-A(2). In our opinion the expression 'intermittent' as distinct from 'seasonal' would also eppear to imply seasonal or otherwise intermittent. We do not propose to embark upon a consideration of the factors that would make an industrial esablishment one where the work is performed only intermittently within the meaning of Section 25-A(2). The claim made by the petitioner before us was that its taw mill was of a seasonal character within the meaning of Section 25-A (2).

20. Neither the expression 'intermittent' nor the expression 'seasonal,' as it occurs in rection 25-A(2) has been defined in the Industrial Disputes Act itself. We shall confine ourselves to a consideration of what is or what may be an industrial establishment of a seasonal character within the meaning of Section 25-A(2).

21. Though a statutory expression in one enactment may not be construed with reference to a definition of an identical expression in another enactment it should be of interest to note how seasonal factories were defined in other Acts. Section 4 of the Factories Act XXV of 1934, as it stood before it was repealed, provided,

For the purpose of this Act, a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, the decortication of groundnuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea, or any manufacturing process which is incidental to or connected with any of the aforesaid processes, is a seasonal factory.

That statutory provision was deleted when the Factories Act (LIII of 1948) was enacted, replacing the Factories Act of 1934. A similar definition of 'seasonal factory' occurs in Section 2(12) of the Employees States Insurance Act, 1948, which is in force now.

22. Apart from the fact, that the definitions in other enactments, repealed or still in force, cannot always furnish a safe basis of interpreting a statutory expression in a given Act, there is another difficulty in applying the concepts of two enactments, we have referred to above in determining what is a seasonal factory within the meaning of Section 25-A(2) of the Industrial Disputes Act. The definition in the Factories Act of 1934 and in the Employees State Insurance Act XXXIV of 1948 were with reference to the industries specified in the definitions. Section 25-A(2) of the Industrial Disputes Act makes no reference to an industry being seasonal. The Government were therefore right when they pointed out that what they had to decide was whether a given industrial establishment was seasonal.

23. It may not be difficult to visualise an industrial establishment engaged in an industry, predominantly seasonal even in a given region, working normally all through the year. The industry will be seasonal, but nonetheless the industrial establishment will not be seasonal within the meaning of Section 25-A(2). A sugar mill in a given area, where most of the sugar mills work or are compelled by circumstances to work only during given seasons, may work all through the year. Such a mill would be a seasonal factory within the meaning of Section 2(12) of the Employees State Insurance Act, 1948, but it would not be an industrial establishment of a seasonal character within the meaning of Section 25-A(2) of the Industrial Disputes Act. Section 2(12) of the Employees State Insurance Act would make the nature of the industry conclusive in deciding whether the factory engaged in any of the industries enumerated in that section is a seasonal factory. It could at best be but a relevant factor in deciding whether an industrial establishment is of a seasonal character, within the meaning of Section 25-A(2) of the Industrial Disputes Act. The predominant nature of the industry will certainly be not a conclusive factor for determining the 'question', should it arise under Section 25-A(2) of the Act.

24. It is therefore without any further reference to the repealed definition of seasonal factory in the Factories Act of 1934 and to the existing definition of seasonal factory in Section 2(12) of the Employees State Insurance Act, 1948, that we have to consider what an industrial establishment of a seasonal character means, as that expression has been used in Section 25-A(2) of the Industrial Disputes Act. Though the expression 'seasonal' has not been defined by the Industrial Disputes Act itself, the use of the expression 'industrial establishment of a seasonal character' would appear to be based on well reccgnised concepts of what constitutes 'seasonal character.'

25. In the report of the Whitley Commission (Royal Commission on Labour in India) published in 1931, the nature of seasonal industries,and seasonal factories was discussed. At page G, the Commission pointed out that the available statistics classified factories in groups accordr.g to their products, and while large groups of factories were entirely perennial and others entirely or predominantly seasonal, there were groups which included both seasonal and perennial factories. They pointed out at page 12, with reference to the conditions that prevailed prior to 1931-that in India migration from the ruralareas to the factories Was not in the main a permanent exodus. A facory might be perennial, but some of the workmen at least employed therein might make their work purely seasonal; they were predominantly agricultural in their outlook, and only when agricultural work was not available, they migrated temporarily to factories in search of work. Whether a given worker or a set of workers of their own choice work only during defined seasons in an industrial establishment may not determine the nature of the industrial establishment itself whether it is normally seasonal in its working. Chapter VI of the Report of the Whitley Commission dealt with seasonal industries. The classification of these industries was at page 75: predominantly seasonal, partially seasonal and perennial. Saw Mills in Malabar were not included in any of the categories enumerated in that list. As the learned Advocate-General pointed out what constitutes predominantly seasonal or partially seasonal industry could be gathered from the Report of the Whitley Commission.

26. In the Oxford New English Dictorionary 'seasonal' is interpreted as : ' Seasonal : Of certain trades : Dependency on the seasons; Of workers, servants, employed or engaged only during a particular season '.

27. In the Webster's New International Dictionary, seasonal is explaind:

Seasonal : Of, pertaining to or occurring at a particular season or seasons; as seasonal rates, demand, diseases, storms or opportunities. Characterised by having or being affected by seasons; not continuously active, open etc., as seasonal industries, labourers or employment.

28. The learned Advocate-General refered to some of the factors that could fee taken into account in deciding whether an industrial establishment is of a seasonal character within the meaning of Section 25-A(2) of the Industrial Disputes Act. We have already pointed out that where a given worker or set of workers in a given industrial establii hment chose to work only during the seasons that suited him or during the seasons when he was compelled to find work in an industrial establishment that may not be a relevant factor in deciding whether the industrial establishment itself is of a seasonal character. We have also pointed out that the expression seasonal should be construed to mean normally seasonal.

29. Seasonal would certainly appear to imply dependence on nature, over which obviously neither the employer nor the employees in a given industrial establishment has any control. With refernce to the petitioner's mill, the petitioner explained in his affidavit that the availability of the raw material, timber, depended upon seasonal conditions. During the monsoon period it may not be possible to float down the flooded river logs of wood which is the normal means of transport for getting the material. The petitioner also explained that the situation of the petitioner's establishment, as well as other esablishments, on the low-lying banks of the river made it impossible to work even portions of the machinery in the mill, because portions of the buildings were flooded during the monsoon seasons. If this be true, it would certainly be a relevant factor for consideration, because the conditions under which the petitioner's mill as an industrial establishment worked, were dependent wholly on seasons, normal seasons, and were beyond the control of the employer. That Was what apparently the learned Advocate-General meant when he said that one of the tests could well be dependence on nature.

30. Another factor would be the period of working in a normal year in a given industrial establishment. Whether that period of working is controlled by seasonal conditions, to which we have already referred, would be a factor for consideration. Yet another factor which the learned Advocate-General pointed out as relevant was the pattern of employment of labour in a given industrial establishment. Even where practically no work could be carried on in an industrial stablishment when seasonal conditions necessitated virtual stoppage of work, a skeleton establishment will necessarily have to be kept on, and that by itself may not disentitle the employer from claiming the exemption for which Section 25-A(2) provides. Section 25-C of the Act itself excludes badli workmen and casual workmen, whether or not they could claim one year of continuous service as defined by Section 25-B. But even independent of Section 25-C, the pattern of employment, permanent workers, casual workers and badli workers-this classification is recognised by the model set of Standing Orders framed under Act of 1946-will certainly appear to be a relevant factor in deciding whether a given industrial establishment is of seasonal character.

31. We should not be understood to have laid down or even to have attempted to lay down an exhaustive list of the relevant factors that the statutory authority should or could take into account, if it is called upon to exercise the jurisdiction vested in it by Section 25-A(2) of the Industrial Disputes Act. We have only given some illustrative examples, and that too because apart from none of these factors having been considered by the Government, the only ground on which they based their decision was really irrelevant.

32. The sole test on which the Government decided that the petitioner's saw mill was not an industrial establishment of a seasonal character was that it had worked for over 240 days during the 12 months that preceded 29th November, 1954, on which date the petitioners applied to the Government for exemption. The learned Advocate-General did not support: the adoption of that standard, though the Government claimed it was a standard based upon objective criteria, capable of easy application. The adoption of the 240 days test as the only relevant factor, was apparently based upon a reference to the 240 days in the definition of one year of continuous service in Section 25-B of the Industrial Disputes Act. Apparently the Government overlooked the fact, that the definition of continuous service in Section 25-B is only for the purpose of Section 25-C and Section 25-F. Section 25-C confers a personal right on a workman. One of the conditions for the exercise of that right is one year of continuous service. That one year of continuous service must be antecedent to the claim of right founded on Section 25-C. Whether one or more workmen of a given industrial establishment had one year of continuous service, as defined by Section 25-B, before a given point of time, may or may not be material in deciding whether the industrial establishment in question is of a seasonal character within the meaning of Section 25-A(2). It certainly cannot be a conclusive factor. As we said what the Government would have to decide, if the question arose under Section 25-A(2) is, whether an industrial establishment is of a seasonal character, that is, whether the industrial establishment is normally of a seasonal character. It may be that a given industrial establishment is not normally of seasonal character, though the industry itself might be' of seasonal character in that region. Again it may be that a given industrial establishment is normally of a seasonal character, though during a given period of twelve months it worked for more than 240 days, worked at its normal strength during the 240 days. That would not disentitle the employer from claiming the statutory exemption afforded by Section 25-A(2). Section 25-A(2), in our opinion, does not justify the selection of an ad hoc period, dependent not on the provisions of the Act, but on the volition of the employer in this case in choosing a date antecedent to which the Government computed the year. Let us take an example, a reverse case. Suppose an industrial establishment, which is not normally of a seasonal character, was able to work for less than 240 days in a given period of twelve months, and the employer takes advantage of that fact and claims exemption under Section 25-A(2) and claims the determination of the question whether his industrial establishment is of a seasonal character. That work had been carried on intermittently during that period may not even, in some cases, be due to conditions beyond the control of the employer. We have already pointed out that 'intermittent' as used in Section 25-A(2) should also be construed as 'normally intermittent'. But the adoption of the objective standard, claimed by the Government as something infallible, would result in an industrial establishment being treated as seasonal, merely because work had not been carried on for more than 240 days in a period of one year obviously selected by the employer for computation. We have mentioned this only to show that the test applied by the Government was really irrelevant.

33. The learned Counsel for the petitioner drew our attention to the report by a Court of Enquiry appointed in 1947.. In its report it stated that the saw mills were to a certain extent seasonal, and that it was not generally possible to provide work in the mills throughout the year. That, of course, may not be conclusive in determining whether the petitioner's mill was an industrial establishment of a seasonal character. We have pointed out that the nature of the industry, while it may not be conclusive would certainly be a relevant factor.

34. Had the Government had jurisdiction to decide whether the petitioner's industrial establishment was of a seasonal character within the meaning of Section 25-A (2) and had exercised that jurisdiction, we should have to hold that the Government did not take the relevant factors into consideration, and that they determined the issue on what was really an irrelevant consideration. Such an exercise of jurisdiction would have been vitiated. But, as we have pointed out above, the Government had no jurisdiction at all, in that no 'question' arose for their determination within the meaning of Section 25-A(2) despite the application preferred to them by the petitioner on 29th November, 1954.

35. A writ of certiorari will issue to quash the orders of the Government, dated 16th April, 1955 and 23rd May, 1955; to that extent the rule nisi will be made absolute. The writ of mandamus asked for by the petitioner cannot issue; it is not the duty of the Government to grant an exemption either under the Industrial Disputes Act or independent of it.

36. There will be no order as to costs.


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