ORDER
F.I. Rebello, J.
1. Rule.
2. Learned Counsel for respondents waive service. By consent, made returnable and taken up for final hearing forthwith.
3. The petitioner has approached this Court to impugn the order dated 19th November, 1996 passed by the Industrial Court at Bombay in Complaint (U.L.P.) No. 1543 of 1991. The petitioner is the original respondent No. 2. The present respondent No. 3 had filed an application on behalf of the Canteen workers working in the Canteen of the petitioner herein but admittedly their services were employed through the Agency of respondent No. 4 who was respondent No. 1 in the original complaint and who is running the Canteen. The petitioner Union in their complaint alleged that the Canteen is a part of a factory and as such the members of the petitioner's Union working in the Canteen would be the employees of the petitioner as the petitioner Company is under a statutory obligation to provide facility of Canteen for its workmen employed in its factory. It was further contended that the Canteen in question is being run by the petitioner in pursuance of the statutory requirement of section 46 of the Factories Act and that the Canteen is an integral part of the factory and that the workers are engaged in work in connection with and/or for the purpose of industry run by the petitioner company. Based on these averments, it was the contention of the complainant union that the petitioner had committed unfair labour practices under Item 5 of Schedule IV by showing favouritism to the other employees of respondent No. 2. The complainant union in the complaint had also contended that the petitioners were engaged in unfair labour practices as set out under Item 9, Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short 'MRTU & PULP Act'). Reference was also made to some other unfair labour practices listed under Schedule II. An application for interim relief was alsoprayed to which the petitioner had filed a detailed affidavit dated 18th November 1991. Though the reply is styled as reply to interim application, a perusal of the reply would show that it has traversed and dealt with the averments in the complaint. The Industrial Court initially granted ad-interim relief on 28th November 1991. The same was varied by order dated 2nd January, 1992 and thereafter by order dated 13th January, 1992 the employees whose names were mentioned in Annexure 'C' to the main complaint were directed to be kept in services of the new Contractor till the final decision of the matter.
4. During the pendency of the complaint, the complainant union moved an application dated 9th June, 1995 and therein contended that subsequent to the filing of the complaint, the Apex Court in the case of Parimal Chandra Raha & others v. Life Insurance Corporation of India and others, reported in (1995) 2 C.L.R. 194 and in the case of Bharat Petroleum Limited v. Lal Bawta Hotel and Bakery Mazdoor Union, unreported judgment dated 4th April 1995 in Civil Appeal No. 1445 of 1993 had held that the workmen of statutory canteen are to be treated as workmen of the principal employer with retrospective effect from the date of joining and as such prayed that the petitioner be directed to treat the canteen workers represented by the complainant union as permanent regular workmen with retrospective effect from the date of joining and to give them all the wages, benefit and privileges of the permanent and regular skilled employee with retrospective effect from the date of joining. The Industrial Court by order dated 19th November, 1996 allowed the complaint and directed the respondent to abolish the contract system to run the canteen by respondent No. 1 and declared that the employees mentioned at Exhibit 'C' to the complaint are employees of the principal employer i.e. petitioner from their date of joining. The petitioner were further directed to pay the minimum scale as paid to Class IV employees.
5. Shri Kuldeep Singh, learned Counsel appearing on behalf of the petitioner has made two fold submissions which are :---
(1) that there was no notification issued by the State Government as required under section 46 of the Factories Act, 1948 and consequently the petitioners in law were not bound to maintain the statutory canteen and consequently as the members of the petitioner union were not employees of a statutory canteen the order of the Industrial Court is liable to be set aside.
(2) At any rate, the finding of the Industrial Court that the petitioner had committed an Unfair Labour Practices covered by Item 9 of Schedule IV of the MRTP & PULP Act was without jurisdiction in as much as there was no material on record to show that the petitioner had committed a breach of a settlement, award or agreement.
6. Counsel relied on the judgment of the Single Judge of this Court in the case of Arun T. Wankhede & others v. Executive Engineer, Chief Gate Erection & others, reported in 1992 (1) C.L.R. 263. Shri Singh also relied on the judgment of the Apex Court in the. case of General Labour Union (Red Flag) Bombay v. Ahmedabad Manufacturing & Calico Printing Company Limited and others, reported in 1975 S.C.C.372 to point out that the directions given by the Industrial Court to abolish the contract system is without authority of law as it is only the appropriate Government who could have abolished the contract labour system and the Industrial Court had no power to do so. It may also be mentioned that learned Counsel for the petitioner had contended that no opportunity was given in so far contesting theaverments in the main complaint or leading of evidence in the matter and as such the petitioner had been denied the opportunity of a fair trial.
7. Shri Gonsalves appearing on behalf of the respondent Union, on the other hand contended that the petitioner's all throughout were fully aware of the contentions raised by the petitioner and has filed a detailed reply to the complaint filed by the complainant Union. He further contends that the application dated 9th June, 1995 was moved subsequent to the declaration of law by the Apex Court and as such the question of want of opportunity would not arise as the petitioners were fully aware of the law laid down by the Apex Court in so far as a statutory canteen is concerned and once the Apex Court laid down the law the question of any further opportunity did not arise, as all that the Industrial Court had to do was to apply the law. He further contended that the petitioner was merely the new 'occupier' and in fact a notification had been issued by the State Government as far back as 28th December, 1965 in respect of the factory which was then known as 'Carbide Chemicals Company, division of Union Carbide India Limited'. He points out that petitioners are carrying out the same manufacturing process as was carried on by their predecessor and not only that the workmen engaged are also the same. He further points out that the agreement between the petitioner and the predecessor has not come on the record. Nonetheless, the condition of services were maintained which included the maintenance of the canteen and as such the petitioner as successors in interest of Union Carbide India Limited were bound to maintain the canteen. He contends that though the Industrial Court has directed to abolish the contract system to run the canteen by the present respondent No. 4, nonetheless, there is a further direction by the Industrial Court whereby the employees at Annexure 'C' to the complaint are declared as employees of principal employer. He contends that this could have been done based on the judgment of the Apex Court in the case of Parimal Chandra Raha & others (supra). Learned Counsel relied on the judgment of the Division Bench of this Court in the case of Dattatraya Shankararao Kharde & others v. Executive Engineer, Chief Gate Erection Unit No.2 Nagpur & another, reported in 1994 (1) C.L.R. 1022 to point out that the Division Bench has given a wide definition to the term 'Agreement' as set out under Item No. 9 of Schedule IV of the MRTP & PULP Act. Reliance has also been placed on the judgment of the Apex Court in the case of S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Limited and another, reported : (1986)ILLJ490SC to contend that it is an implied condition of every agreement including a settlement that the parties thereto will act in conformity with law and in the instant case once the petitioner were bound to maintain the statutory canteen and in terms of the law laid down the employees became employees of the principal, the employer was bound to comply with the terms and conditions which were applicable to similarly situated other employees and to this extent the term 'agreement' as contained in Item 9, Schedule IV would be attracted. He also contended that the points now contended on behalf of the petitioner were not raised before the Industrial Court and the petitioner should be precluded from raising the points herein.
8. With this factual back ground behind us, the question raised on behalf of the petitioner will have to be dealt with. The objection by the respondent No. 3 that the petitioner should not be allowed to raise the pleas as they had not raised before the Industrial Court is rejected. The pleas are pure questions of law based on the record as it stands.
9. The first contention which was raised on behalf of the petitioner is that there is no notification as contemplated under section 46 of the Factories Act. Section 46(1) of the Factories Act reads as under :---
'The Stale Government may make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers.'
Sub-section (2) of section 46 provides for making rules in respect of the canteen to be maintained. However, what is sought to be pointed out is that if there are rules framed then a notification is a must if the canteen is to be construed as a statutory canteen under the Act. My attention is invited to Rules 79 to 86 of the Maharashtra Factories Rules, 1963. Rule 79 provides that the occupier of every factory wherein more than 250 workers are ordinarily employed and which is specified by the State Government by a notification in this behalf shall provide in or near the factory an adequate canteen according to the standards prescribed in the Rules. The canteen; shall be available for the use of the workers, within six months from the date of such notification. Learned Counsel contends that no such notification has been issued in so far as the petitioner are concerned. It is true, he argued that there was a notification in so far as their predecessor is concerned, but the mere fact that the State Government had issued a notification in respect of its predecessor ipso facto would not result in the notification becoming applicable to the petitioner. The question, therefore, is if a factory passes hand from one person to another, if share holders change hands from one share holder to another, if there is a change of name from one to another would that result in requirement of a new notification as long as the place where the factory is run is the same, the machinery is the same, the process is the same, the personnel are the same or to some extent the same .
10. The Factories Act is a beneficial legislation providing benefits to the employees. The Act must be so read as to advance the object of the Act and not to defeat it on technicalities. Factory is defined under the Factories Act under section 2(m). A factory includes any premises including the precincts thereof wherein 10 or more workers 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 with the aid of power, or is ordinarily so carried on and in case of a place where a manufacturing process is carried on without the aid of power wherein 20 or more workers are working. Therefore, in so far as the factory is concerned, there has to be manufacturing process being carried on in the place with or without the aid of power and with the minimum number of workmen as prescribed under the definition. The other important definition is the definition of occupier which is defined under section 2(n) of the Act. Occupier of factory means the person who has ultimate control over the affairs of the factory. Further light is thrown by section 7 of the Act. Sub-section (2) of section 7 sets out that in respect of establishments which come within the scope of the Act for the first time the occupier shall send a written notice to the Chief Inspector containing the particulars specified in sub-section (1) within 30 days from the date of the commencement of the factory. In other words, a person who is an occupier when for the first time the provisions of the Act become applicable has to furnish requirement as set out in sub-section (1) of section 7. In other words, what it indicates is that once that information is conveyed, there is no requirement that every time the management changes or the occupier changes that the information as required under sub-section (1) has to be repeated all over again. True, on a perusal of the other provision of the Act such information will have to be updated as and when the changes takes place in the establishment. However, this indicate a clear line on the part of the Legislature that when a factory is established the provisions of the Act will continue to applyirrespective of who the occupier is. Mere change of the occupier would not result in requiring the establishment to furnish all the details denovo as required under section 7(1). In other words, once a factory has been established irrespective of the change of the occupier, the provision of the Act will apply. In the instant case, based on the information submitted by the initial occupier under section 7(1) which also requires to give information about the number of workers likely to be employed in the factory, a Notification was issued by the State Government as far back as on 28th December 1965 directing or making applicable Rules 79 to 85 of the Maharashtra Factories Rules. Once this Notification is issued the question of re-issuing the Notification once again does not arise merely because the ocupier changes or the share holding changes. To hold otherwise would result in denying to the workers a facility which they are entitled to in terms of the Factories Act and the rules thereunder. Therefore, a mere change of management or share holding will not result in the State Government having to issue a fresh Notification in respect of the same establishment. In the present case, it is an admitted position as set out in the petition itself that the factory was licenced earlier in the name of Carbide Chemical Company a division of Union Carbide Limited and that the petitioner in the year 1989 purchased the plant, machineries and others assets of the company before starting the manufacturing process. It is also not disputed that the petitioner Company employs about 765 workers. In other words, it was an existing establishment taken over by the petitioner. It has presently 765 workers which is more than 250 workers which are required in the case of maintaining a statutory canteen and as such for the aforesaid reason the first contention raised on behalf of the petitioner must be rejected.
11. That takes us to second contention that there is no breach of award, settlement or agreement. Principally, reliance is placed for that purpose on a judgment of the Single Judge of this Court in the case of Arun T. Wankhede & others (supra). In that case a learned Single Judge has held that non-compliance with the provisions of law by itself does not assume the characteristic of an unfair labour practice and violation of any provision of law cannot be covered under Item 9 of Schedule IV of the Act. The learned Single Judge held that 'the term agreement as engaged in entry has definite reference to these agreements arrived at between the parties, in relation to a change or Industrial dispute under the Act of 46 and 47. These agreements are binding on the parties viz. employer and employee. Failure to implement such agreement would therefore be an unfair labour practice under the Entry.'
12. A Division Bench of this Court, thereafter in the case of Dattatraya Shankararao Kharde & others (supra) had occasion to consider the expression 'Agreement'. The Division Bench noted that the word 'Agreement' in Item No. 9 of Schedule IV of the Act is not viewed strictly in the sense in which it is understood in the law of contract, although under the said law also, as held by the Supreme Court in its judgment in S. G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals Dyes Trading Ltd. & another, reported in 1986 (1) C.L.R. 360 and some of the provisions of law creating rights, obligations and duties can be held to be 'implied terms' of the contract. The Division Bench thereafter further noted that, 'it is pertinent to see that strict concept of an 'Agreement' viz. that there should be identity of mind between the employee and the employer with regard to the conditions of service applicable to the employee is absent in such collective bargaining agreements arrived at between the Trade Union representing its members, or if it is a representative Union having authority under the above Acts to represent all the employees'. It thereafter proceeds to observe 'It is thus quite clear that certain terms and conditions of service which are regulated bythe provisions of the statutes can form implied terms of individual contract of employment particularly keeping in view the development of industrial law. The object of the Act which is a piece of Social Legislation is to prevent the mischief of the employers in not carrying out the obligations upon them under the agreements, settlements and awards and therefore the word 'Agreement' used in Item No. 9 of Schedule IV of the Act cannot be construed in narrow sense as otherwise it would defeat its very object'. In the instant case, the status of workers employed in a statutory canteen has been finally laid to rest by the judgment of the Apex Court in the case of Parimal Chandra Raha & others (supra). True, questions are still being raised and are being debated and discussed by way of various petitions as to the kind or categories of employees that would be entitled to protection. But suffice it to say one aspect of the matter covered viz. that if there is a statutory canteen required to be maintained by the principal employer then in that event the employees working in the canteen will become direct employee of the principal employer is no longer open. Once that is the law declared, can it be thereafter said that if the employer does not pay such employee minimum wages which are paid to workers similarly situated, that there is no breach of an agreement so as to contend that Item 9 of Schedule IV is not attracted. As noted by the Division Bench of this Court, the word 'Agreement' cannot be considered in a narrow sense. In the instant case, even this is not required as once it is held that such canteen workers are the employees of the principal employer, then it is the requirement of law that such employer pay the minimum wages to these employees and that too in consonance with the minimum wages paid to the similar employees in the same establishment. Thus the non payment of minimum wages to employees working in the canteen must be held to be an act of unfair labour practice covered by Item 9 of Schedule IV of the MRTU & PULP Act.
13. That takes us to the incidental Issues raised by the Counsel for the petitioner. It is contended that the Industrial Court exceeded its jurisdiction in issuing direction at No. 1 which reads as under :
'The respondents are directed to abolish the contract system to run thecanteen by respondent No. 1.'
True, what the Industrial Court by this direction means to say is that the canteen can no longer be given on contract, basis. However, if this direction is termed and construed to mean that it. amounts to abolishing of contract labour as is contended on behalf of the petitioner then the submission of the learned Counsel is right, as, after the judgment of the Apex Court in the case of Air India Statutory Corporation v. United Labour Union, passed on 6th December, 1996 in Civil Appeal No. 15535 of 1996 the law is now settled by the Apex Court that it is only the appropriate Government that can abolish the contract labour system under section 10 of the Contract Labour (Regulation & Abolition) Act and no other authority is vested with that power. Be that as it may the direction No. 3 issued by the Industrial Court would suffice in as much as the Industrial Court has held the employees whose names are included at Exhibit 'C' are employee of principal employer. Such a declaration follows from the judgment in the case of Parimal Chandra Raha & others (supra). That however, will not in any manner vitiate the order totally as direction No. 2 can always be held to be without jurisdiction if construed in the manner it is sought to be construed.
14. Nothing further needs to be said except the last contention that was sought to be raised viz. that in so far as the cutoff date is concerned and/or the date from which the employees are to be taken as employee of the principal employer, nothing has been observed in the case of Parimal Chandra Raha and others (supra). Once theApex Court has declared the law that if a statutory canteen has to be maintained then the employee of such statutory canteen are the employees of the principal employer, the question of cutoff date would not arise.
15. Learned Counsel relied on the judgment in the case of Managing Director, E.C.I.L Hyderbad v. B. Karunakar, reported in (1993) 2 C.L.R. 1129 to contend that the judgment in Parimal Raha's case should be prospective. The facts of that case were that the Apex Court in the case of Managing Director, E.C.I.L while interpreting Article 311 of the Constitution held that giving a copy of the Inquiry Report where the Disciplinary Authority was different from the Inquiry Officer was essential. However the question remained from what date the said judgment would apply. The Apex Court observed that subsequent to the amendment to Article 311 of the Constitution of India and the requirement of giving a copy of the Inquiry report which was vital material as was laid down in Mohammed Ramzan case there should be a cutoff date for applying the law. The facts in the case of Parimal Chandra Raha and the cut off date laid down in the case of Managing Director, E.C.I.L (supra) based on the decision of Mohammed Ramzan are different. In the case of Mohammed Ramzan the Apex Court was considering the law after the amendment of the Constitution, whereas in the case of Parimal Chandra Raha (supra) the Apex Court has declared the law contained in the Factories Act.
16. For the aforesaid reasons, there is no substance in this petition which is accordingly dismissed. Rule discharged. In the circumstances of the case, there shall be no order as to costs.
17. Petition dismissed.