Bharti Bhawan (P and D) Vs. State of Bihar and ors. - Court Judgment

Excerpt:
- chandramauli kr. prasad, j.1. this application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated june 18, 2002 passed by the certifying officer appointed under the industrial employment (standing orders) act, 1946 whereby the plea of the petitioner that it does not come within the definition of industrial establishment as defined under section 2(e) of the aforesaid act, has been rejected. 2. petitioner is an establishment registered under the bihar shops and establishments act, 1953 bearing registration no. pt 11119 (563-5) having its office at thakurbari road in the town of patna. according to the petitioner it is engaged as publisher and distributor of books and for that purpose the manuscript given by the author after editing, filming etc. on computer is, sent to the press where the books are printed and sent to it after binding by independent binders. according to the petitioner, it only deals with the intellectual contents of the book and material for producing the book i.e. paper glue, cover printed material etc. are not handled by it. the petitioner has averred that as per the advice of the then deputy labour commissioner it submitted a draft order for certification under the industrial employment (standing orders) act by letter dated may 7, 1985. however, according to it when the matter was being re-examined closely it came to the conclusion that the petitioner does not come within the definition of the industrial establishment as defined under section 2(e) of the industrial employment (standing orders) act. the petitioner made known its plea to the certifying officer by its letter dated december 2, 1985 but did not receive any communication for nearly three years in this regard. later on, by letter dated may 2, 1988 respondent no. 2 i.e. the certifying officer informed to the petitioner that it is covered by the definition of industrial establishment and in the aforesaid premises he directed the petitioner to submit draft standing order for certification. petitioner yielded to the said request and submitted the draft standing order for certification. however, no final decision was taken in this regard and i do not know under whose influence the matter was kept pending. it is after a lapse of six years the certifying officer had issued letter dated july 5, 1994 again requesting the petitioner submit draft standing order for certification and this time the petitioner joined the issue and by letter dated july 7, 1994 informed the certifying officer that the establishment having been registered under the bihar shops and establishments act, it is not required to keep the certified standing order under the industrial employment (standing orders) act. further by letter dated july 12, 1994 petitioner informed to the authority that it did not come within the definition of industrial establishment as defined under section 2(e) of the industrial employment (standing orders) act. after the aforesaid reply the matter was again put in cold storage and after a gap of four years the certifying officer by its letter dated july 25, 1998 sought for the following information: '1. name and address of the factory. 2. number of persons employed in the calendar year. 3. in the event of the standing orders having been certified, copy of the same to be furnished.' 3. it is the plea of the petitioner that it submitted a xerox copy of the same through over sight. the certifying officer considered the plea of the petitioner and came to the conclusion that its plea that it does not come within the definition of industrial establishment as defined under the industrial employment (standing orders) act is untenable and accordingly rejected the same. 4. it is relevant here to state that while ejecting the plea of the petitioner the certifying officer has referred to the inquiry report of the assistant commissioner in which it has been stated that 192 persons have been engaged by the petitioner who worked as sales representatives, proof readers, typists, office assistants, accounts assistants (administration), manager production, despatch assistants, computer operators, artist, salesman, executive production cashier, store incharge etc. in the said report the assistant labour commissioner has stated that the petitioner is engaged in the business of publication and distribution but the work of printing is done from out side. the assistant labour commissioner in its report has further ; stated that although 192 persons have been engaged by the petitioner but the same being not an industrial establishment, the provisions of the industrial employment (standing orders) act shall not apply to it. however, the i certifying officer found that the petitioner is engaged in production of the books and as such comes within the definition of the industrial establishment in view of the inclusive definition of the industrial establishment under section 12(e) of the aforesaid act, as the petitioner is covered within the definition of industrial establishment as defined under section 2(e) of the payment of wages act. 5. i have heard mr. jai krishna, senior advocate as also mr. ranjit kumar das for the petitioner. j.c. to s.c. vi has appeared on behalf of respondent nos. 1 and 2. although a vakalatnama has been filed on behalf of respondent no. 3 i.e. the general secretary, bharti bhawan karmachari sangh but when the matter was taken up nobody has appeared on its behalf. 6. learned counsel for the petitioner contends that the petitioner is not engaged in work in which articles are produced and as such it does not come within the expression 'industrial establishment' as defined under section 2(e) of the industrial employment (standing orders) act. section 2(e) of the aforesaid act defines industrial establishment which reads as follows: '2. interpretation.-in this act, unless there is anything repugnant in the subject or context, - - xx xx xx. (e) 'industrial establishment'- (i) an industrial establishment as defined in clause (ii) of section 2 of the payment of wages act, 1936 (4 of 1936), or (ii) a factory as defined in clause (m) of section 2 of the factories act 1948 (63 of 1948), or (iii) a railway as defined in clause (4) of section 2 of the indian railway act, 1890 (9 of 1890), or (iv) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen;' 7. the aforesaid definition of the industrial establishment under the industrial employment (standing orders) act is an inclusive definition which includes an industrial establishment as defined in section 2(ii) of the payment of wages act. section 2(ii)(f) of the payment of wages act which is relevant for the purpose as follows: 2. definition - in this act, unless there is anything repugnant in the subject or context. - (ii) ' industrial or other establishment means any- xx xx xx (f) workshop or other establishment in which articles, are produced, adapted or manufactured, with a view to their use, transport or sale; 8. from a plain reading of section 2(ii)(f) of the payment of wages act it is evident that an establishment in which articles are produced comes within the definition of industrial establishment. here in the present case, according to the petitioner itself the manuscript given by the author is edited by it, filmed, on computer and thereafter sent to the press not belonging to it and after it is so printed sent to the petitioner after binding by the independent buyers. in my opinion, the act of editing and filming and thereafter getting it printed and bound, may be by other printers and binders shall bring the petitioner within the expression 'industrial establishment' in which books are produced. thus in my opinion the certifying officer did not err in rejecting the petitioner's plea that it does not come within the meaning of industrial employment (standing orders) act. 9. learned counsel for the petitioner then contends that conditions of service is provided under the bihar shops and establishments act and the petitioner is registered under the said act and the provisions of the industrial employment (standing orders) act being repugnant to the provision of the bihar shops and establishments act, the former would prevail and as such the petitioner cannot be compelled to get the standing order certified under the industrial employment (standing orders) act. i do not find any substance in the submission of the learned counsel for the petitioner. 10. it is common ground that the bihar shops and establishments act is a law made by the legislature of the state in respect of matters enumerated in the concurrent list and has received the assent of the president. in view of the provision of article 254(2) of the constitution of india in case of repugnancy between the law made by the parliament or the legislature of the state in matters enumerated in the concurrent list and assent of the president is received in respect of the law made by the legislature of the state, latter will prevail. as stated earlier, the bihar shops and establishments act has received the assent of the president and hence in case of repugnancy with the provision of industrial employment (standing orders) act the former will prevail. but the question is as to whether any provision of the industrial employment (standing orders) act is repugnant to the provision of bihar shops and establishments act. the object of the industrial employment (standing orders) act is to require employers in industrial establishment formally to define conditions of employment under them with sufficient precision and to make the conditions known to workmen employed by them. it contemplates of submission of draft standing orders and its certification. so far as the provisions of bihar shops and establishments act are considered, it provides for the conditions of service but does not require its certification and hence it cannot be said that the provisions of both acts operate in the same field. in my opinion, there is no repugnancy in the two acts and they operate in different fields. 11. in the result i do not find any merit in the application and it is dismissed accordingly. as respondent no. 3 has not chosen to appear, i am not inclined to award any cost.

Judgment:

Chandramauli Kr. Prasad, J.

1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated June 18, 2002 passed by the certifying officer appointed under the Industrial Employment (Standing Orders) Act, 1946 whereby the plea of the petitioner that it does not come within the definition of industrial establishment as defined under Section 2(e) of the aforesaid Act, has been rejected.

2. Petitioner is an establishment registered under the Bihar Shops and Establishments Act, 1953 bearing Registration No. PT 11119 (563-5) having its office at Thakurbari Road in the town of Patna. According to the petitioner it is engaged as publisher and distributor of books and for that purpose the manuscript given by the author after editing, filming etc. on computer is, sent to the press where the books are printed and sent to it after binding by independent binders. According to the petitioner, it only deals with the intellectual contents of the book and material for producing the book i.e. paper glue, cover printed material etc. are not handled by it. The petitioner has averred that as per the advice of the then Deputy Labour Commissioner it submitted a draft order for certification under the Industrial Employment (Standing Orders) Act by letter dated May 7, 1985. However, according to it when the matter was being re-examined closely it came to the conclusion that the petitioner does not come within the definition of the industrial establishment as defined under Section 2(e) of the Industrial Employment (Standing Orders) Act. The petitioner made known its plea to the Certifying Officer by its letter dated December 2, 1985 but did not receive any communication for nearly three years in this regard. Later on, by letter dated May 2, 1988 respondent No. 2 i.e. the Certifying Officer informed to the petitioner that it is covered by the definition of industrial establishment and in the aforesaid premises he directed the petitioner to submit draft standing order for certification. Petitioner yielded to the said request and submitted the draft standing order for certification. However, no final decision was taken in this regard and I do not know under whose influence the matter was kept pending. It is after a lapse of six years the Certifying Officer had issued letter dated July 5, 1994 again requesting the petitioner submit draft standing order for certification and this time the petitioner joined the issue and by letter dated July 7, 1994 informed the Certifying Officer that the establishment having been registered under the Bihar Shops and Establishments Act, it is not required to keep the certified standing order under the Industrial Employment (Standing Orders) Act. Further by letter dated July 12, 1994 petitioner informed to the authority that it did not come within the definition of industrial establishment as defined under Section 2(e) of the Industrial Employment (Standing Orders) Act. After the aforesaid reply the matter was again put in cold storage and after a gap of four years the Certifying Officer by its letter dated July 25, 1998 sought for the following information:

'1. Name and address of the factory.

2. Number of persons employed in the calendar year.

3. In the event of the standing orders having been certified, copy of the same to be furnished.'

3. It is the plea of the petitioner that it submitted a Xerox copy of the same through over sight. The Certifying Officer considered the plea of the petitioner and came to the conclusion that its plea that it does not come within the definition of industrial establishment as defined under the Industrial Employment (Standing Orders) Act is untenable and accordingly rejected the same.

4. It is relevant here to state that while ejecting the plea of the petitioner the Certifying Officer has referred to the inquiry report of the Assistant Commissioner in which it has been stated that 192 persons have been engaged by the petitioner who worked as Sales Representatives, Proof Readers, Typists, Office Assistants, Accounts Assistants (Administration), Manager Production, Despatch Assistants, Computer Operators, Artist, Salesman, Executive Production Cashier, Store Incharge etc. In the said report the Assistant Labour Commissioner has stated that the petitioner is engaged in the business of publication and distribution but the work of printing is done from out side. The Assistant Labour Commissioner in its report has further ; stated that although 192 persons have been engaged by the petitioner but the same being not an industrial establishment, the provisions of the Industrial Employment (Standing Orders) Act shall not apply to it. However, the I Certifying Officer found that the petitioner is engaged in production of the books and as such comes within the definition of the industrial establishment in view of the inclusive definition of the industrial establishment under Section 12(e) of the aforesaid Act, as the petitioner is covered within the definition of industrial establishment as defined under Section 2(e) of the Payment of Wages Act.

5. I have heard Mr. Jai Krishna, senior Advocate as also Mr. Ranjit Kumar Das for the petitioner. J.C. to S.C. VI has appeared on behalf of respondent Nos. 1 and 2. Although a Vakalatnama has been filed on behalf of respondent No. 3 i.e. the General Secretary, Bharti Bhawan Karmachari Sangh but when the matter was taken up nobody has appeared on its behalf.

6. Learned counsel for the petitioner contends that the petitioner is not engaged in work in which articles are produced and as such it does not come within the expression 'industrial establishment' as defined under Section 2(e) of the Industrial Employment (Standing Orders) Act. Section 2(e) of the aforesaid Act defines industrial establishment which reads as follows:

'2. Interpretation.-In this Act, unless there is anything repugnant in the subject or context, -

- xx xx xx.

(e) 'industrial establishment'-

(i) an industrial establishment as defined in Clause (ii) of Section 2 of the Payment of Wages Act, 1936 (4 of 1936), or

(ii) a factory as defined in Clause (m) of Section 2 of the Factories Act 1948 (63 of 1948), or

(iii) a railway as defined in Clause (4) of Section 2 of the Indian Railway Act, 1890 (9 of 1890), or

(iv) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen;'

7. The aforesaid definition of the industrial establishment under the Industrial Employment (Standing Orders) Act is an inclusive definition which includes an industrial establishment as defined in Section 2(ii) of the Payment of Wages Act. Section 2(ii)(f) of the Payment of Wages Act which is relevant for the purpose as follows:

2. Definition - In this Act, unless there is anything repugnant in the subject or context. -

(ii) ' industrial or other establishment means any-

xx xx xx

(f) Workshop or other establishment in which articles, are produced, adapted or manufactured, with a view to their use, transport or sale;

8. From a plain reading of Section 2(ii)(f) of the Payment of Wages Act it is evident that an establishment in which articles are produced comes within the definition of industrial establishment. Here in the present case, according to the petitioner itself the manuscript given by the author is edited by it, filmed, on computer and thereafter sent to the press not belonging to it and after it is so printed sent to the petitioner after binding by the independent buyers. In my opinion, the act of editing and filming and thereafter getting it printed and bound, may be by other printers and binders shall bring the petitioner within the expression 'industrial establishment' in which books are produced. Thus in my opinion the Certifying Officer did not err in rejecting the petitioner's plea that it does not come within the meaning of Industrial Employment (Standing Orders) Act.

9. Learned counsel for the petitioner then contends that conditions of service is provided under the Bihar Shops and Establishments Act and the petitioner is registered under the said Act and the provisions of the Industrial Employment (Standing Orders) Act being repugnant to the provision of the Bihar Shops and Establishments Act, the former would prevail and as such the petitioner cannot be compelled to get the standing order certified under the Industrial Employment (Standing Orders) Act. I do not find any substance in the submission of the learned counsel for the petitioner.

10. It is common ground that the Bihar Shops and Establishments Act is a law made by the Legislature of the State in respect of matters enumerated in the concurrent list and has received the assent of the President. In view of the provision of Article 254(2) of the Constitution of India in case of repugnancy between the law made by the Parliament or the Legislature of the State in matters enumerated in the concurrent list and assent of the President is received in respect of the Law made by the Legislature of the State, latter will prevail. As stated earlier, the Bihar Shops and Establishments Act has received the assent of the President and hence in case of repugnancy with the provision of Industrial Employment (Standing Orders) Act the former will prevail. But the question is as to whether any provision of the Industrial Employment (Standing Orders) Act is repugnant to the provision of Bihar Shops and Establishments Act. The object of the Industrial Employment (Standing Orders) Act is to require employers in industrial establishment formally to define conditions of employment under them with sufficient precision and to make the conditions known to workmen employed by them. It contemplates of submission of draft standing orders and its certification. So far as the provisions of Bihar Shops and Establishments Act are considered, it provides for the conditions of service but does not require its certification and hence it cannot be said that the provisions of both Acts operate in the same field. In my opinion, there is no repugnancy in the two Acts and they operate in different fields.

11. In the result I do not find any merit in the application and it is dismissed accordingly. As respondent No. 3 has not chosen to appear, I am not inclined to award any cost.