# 860 SUPREME COURT REPORtS [1964] vot. M/s. BHIKUSE YAMASA KSHATRIYA (P) LTD., & ANR v. UNION OF INDIA AND ANOTHER

- **Citation:** [1964] 1 S.C.R. 860
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/860-supreme-court-reports-1964-vot-m-s-bhikuse-yamasa-kshatriya-p-ltd-anr-v-2819
- **Pages:** 26

## Headnote

1963
860 SUPREME COURT REPORtS [1964] vot.
M/s. BHIKUSE YAMASA KSHATRIYA
(P) LTD., & ANR.
v.
UNION OF INDIA AND ANOTHER
(P. B.
GAJENDRAGADKAR, K. N. WANCHOO,
M. HmAYATULLAH, K. C. DAS GUPTA and
]. C. SHAH, jj.)
Bidi Rolur-Deemtil worker by Government NotificationNotification, if
invalid
and
discriminatory-If infringu
fundamenlal right-Fa<Joriu Acl, 1948, u. 2 (1), 2 (m), 79,
85-Constitulion of India, Art.. 14, 19 (1) (9).
Bidi rollers were formerly given the benefit of weekly
holidays and wage• in lieu of holidays.
But as a result of the
decision of this Court, the owners of bidi making establishments
in the State of Maharashtra refused to give them tho.c benefits.
There was great unrest and
consequently
the State of
Maharashtra issued a notification under '· 85 of the FactoriC!
Act which made bidi rollers in places set out in the Schedule
"deemed workers" and on that account entitled to the benefits
provided to workers under the Factories Act.
The petitioners challenged before this Court the validity
of s. 85 of the Factories Act and the notific .. tion ismed in
exercise of the authority conferred thereby on the ground that
the provisions of s.
8.'"1 and the notification issued thereunder
infringed the fundamental rights of the petitioner•
°\der Arts.
14 and 19 (I) (g) of the Constitution.
Held, thats. 85 which authorises tho State Government
to issue a notification applying all or any of the provisions of
the Factories Act to any place in which a manufacturing process
is carried on and which involves the consequence that the place
is deemed a factory and the persons working therein are deemed
workers, is not by itself discriminatory so as to infringe Art.
14 of the Constitution. The provision also does not amount to
authorising the imposition of unreasonable re9trictions upon
the fundamental right of the owner of the factory to carry on
hi• business. The impugned notification is not open to attack
on the ground that the State issued the notification by selecting
for application of the provisions of the Act some out qf the
1 S.C.R.
SUPREME COURT REPORTS
861
many places in which Bidi-manufacturing processes are being
carried on. In so far as the notification seeks to apply the
provisions of the Act imposing upon the owner or an occupier
of the factory obligation to grant annual leave with" wages, it
does not impose any unreasonable restriction.
Section 85 was enacted with the object of conferring
authoiity on the State Government to extend in appropriate
cases the provisions of the Factories Act to establishments which
are otherwise not factories within the meaning of the Act and
to ensure to persons working in factories even if not workers
within the meaning of the Act, the benefits provided thereby.
The section o.uthorises the State Government to make all or
some of the provisions of the Act applicable to any place wherein a manufacturing process is carried on with or without the
aid of power, notwithstanding that
the number of persons
employed therein is less than the number >pecified in the
definition of •factory' or where the persons working therein are
not employed by the owner but are working with the permission
of, or under agreement with, such owner.
Ifs. 79 is made applicable as a result of a notifi ·at ion
issued under s. 85, it would apply to those workers only who
work in the factory for the full period prescri'>ed 11nder
ss. 61, 66 (I) and 71 of. the Factories Act by the employer.
A 'deen1ed worker' who is paid only for w0rk done hy him and
who is ug,der no obligation to attend at anv fixe<l tiine may be
entitled to the benefit of annual leave with wages only if he
fulfil• the working conditions applicable to workers as defined
in s. 2 (I) of the factories Act
The privilege of working
for a period less than the period prescribed
for regular
workers in a factory wHl not, if he works for
less than
the prescribed hours, co1ne to the aid of a
"deemed worker"
so as to enable him to claim the benefits of s. 79.
H iweve

## Text

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1963
860 SUPREME COURT REPORtS [1964] vot.
M/s. BHIKUSE YAMASA KSHATRIYA
(P) LTD., & ANR.
v.
UNION OF INDIA AND ANOTHER
(P. B.
GAJENDRAGADKAR, K. N. WANCHOO,
M. HmAYATULLAH, K. C. DAS GUPTA and
]. C. SHAH, jj.)
Bidi Rolur-Deemtil worker by Government NotificationNotification, if
invalid
and
discriminatory-If infringu
fundamenlal right-Fa<Joriu Acl, 1948, u. 2 (1), 2 (m), 79,
85-Constitulion of India, Art.. 14, 19 (1) (9).
Bidi rollers were formerly given the benefit of weekly
holidays and wage• in lieu of holidays.
But as a result of the
decision of this Court, the owners of bidi making establishments
in the State of Maharashtra refused to give them tho.c benefits.
There was great unrest and
consequently
the State of
Maharashtra issued a notification under '· 85 of the FactoriC!
Act which made bidi rollers in places set out in the Schedule
"deemed workers" and on that account entitled to the benefits
provided to workers under the Factories Act.
The petitioners challenged before this Court the validity
of s. 85 of the Factories Act and the notific .. tion ismed in
exercise of the authority conferred thereby on the ground that
the provisions of s.
8.'"1 and the notification issued thereunder
infringed the fundamental rights of the petitioner•
°\der Arts.
14 and 19 (I) (g) of the Constitution.
Held, thats. 85 which authorises tho State Government
to issue a notification applying all or any of the provisions of
the Factories Act to any place in which a manufacturing process
is carried on and which involves the consequence that the place
is deemed a factory and the persons working therein are deemed
workers, is not by itself discriminatory so as to infringe Art.
14 of the Constitution. The provision also does not amount to
authorising the imposition of unreasonable re9trictions upon
the fundamental right of the owner of the factory to carry on
hi• business. The impugned notification is not open to attack
on the ground that the State issued the notification by selecting
for application of the provisions of the Act some out qf the
1 S.C.R.
SUPREME COURT REPORTS
861
many places in which Bidi-manufacturing processes are being
carried on. In so far as the notification seeks to apply the
provisions of the Act imposing upon the owner or an occupier
of the factory obligation to grant annual leave with" wages, it
does not impose any unreasonable restriction.
Section 85 was enacted with the object of conferring
authoiity on the State Government to extend in appropriate
cases the provisions of the Factories Act to establishments which
are otherwise not factories within the meaning of the Act and
to ensure to persons working in factories even if not workers
within the meaning of the Act, the benefits provided thereby.
The section o.uthorises the State Government to make all or
some of the provisions of the Act applicable to any place wherein a manufacturing process is carried on with or without the
aid of power, notwithstanding that
the number of persons
employed therein is less than the number >pecified in the
definition of •factory' or where the persons working therein are
not employed by the owner but are working with the permission
of, or under agreement with, such owner.
Ifs. 79 is made applicable as a result of a notifi ·at ion
issued under s. 85, it would apply to those workers only who
work in the factory for the full period prescri'>ed 11nder
ss. 61, 66 (I) and 71 of. the Factories Act by the employer.
A 'deen1ed worker' who is paid only for w0rk done hy him and
who is ug,der no obligation to attend at anv fixe<l tiine may be
entitled to the benefit of annual leave with wages only if he
fulfil• the working conditions applicable to workers as defined
in s. 2 (I) of the factories Act
The privilege of working
for a period less than the period prescribed
for regular
workers in a factory wHl not, if he works for
less than
the prescribed hours, co1ne to the aid of a
"deemed worker"
so as to enable him to claim the benefits of s. 79.
H iwever,
that privilege will not deprive him of the benefit of s. 79 if he
fulfils the conditions relating to the duration of wo,k.
The
fact that a "deemed worker'' in a fartory co which s. 79 is
extended by notification, by virtue of his co:1tract or other\vise,
is not bound to attend at times fixed by the owner of the
factory, does not mean that he can never fulfil the cunditions
relating to attendance for
earning leave with wages.
If a
"deemed worker'' attends the factory for the full duration
fixed as factory hours and works for 240 days or more during a
calendar yeai, he would be entitled to the benefits of ss. 75 and
80 of the Act.
The Factories Act is an Act to consolidate and amend
the law regulating labour in factories
The Act has bren
M/s. Bhikuu Yamasa
Ksh11tTiya (P) Ltd.
v.
Union of India
1963
M /J. Bh:k14>t r amasa
l\shGl,i)a (P) Ltd.
v.
Uni()J1 of /Mia
Sh4h, J.
862 SUPREME COURT REPORTS [1964) VOL.
enacted primarily with the object of protecting work<rs
employed in factories against
industrial and
occupational
hazards.
For that purpose, it seek, tu itnpo!e upon the owner
or the occupier certain ol>\lgation:s to protect the workers
unv..·ary as well as negligent and to secure for thc1n employment
in conditions conducive to their health and safety.
Stat< v. Ali"aheb K·ashim Tam~oli, 1.L.R. 1955 Born. 642,
Shankar Bolaji Woji v. State of .lfaharrJ.!htra, [1962] Supp.
1 S.C.R. 249, Ram Chandra v. State
(1956)
l.L.R. 35
Pat. 877, Ms. f{hikusa
}'a11iasa
KtJhatriya v.
i9angamner
A kola 'l'aluka Bidi Kamlar Union, [ 1963] Supp. 1 S.C.R. 524.
and Bridhichand Sharma v. The Fi"t Civil Judge, Nagpur,
(1961] 3 S.C.R. 161, referred to.
ORIO!::\° AL Jc-RISDlCTIO::\" : Writ Petition N'o. 145
of 1962.
Petition under Art.
32 of the Constitution of
India for enforcement of Fundamental rights.
G. S. Path<1k, J. B. Dadachanji, 0. C. Mathur
for the petitionrrs.
C. K. Daphrory,
Solicitor.General of India,
N. S. Bindra and R. H. Dhebar, for the respondents.
1963. February 8.
The .Judgment of the Court
was delivered by
SHAil, J.-The first
petitioner is a private
limited Company incorporated under the Indian
Companies Act, I !ll:l and the second petitioner is a
Director of the Company.
·1 he Company maintains
23 establishments for manufacturing bidis in the
District of Nasik, Poona and Ahmcdnagar in the
State of ;'\faharashtra.
A large majority of these
establishments are borne on the registar of factories
maintained by the Chief Inspector of Factories under
the Factories Act, u:l of I 948.
Crafrsmen called
rollers, attend these est<!blishments and prepare bidis,
•·
l S.C.R.
SUPREME COURT REPORTS
8~3
using materials supplied by the Company. The esta·
blishments remain open during specified hours but the
rollers are not bound to attend for any fixed period ;
a roller may come to and leave the establishment
according as is convenient to him, and he is paid for
the bidis turned out by him according to a fixed
tariff. It appears that this is the accepted modus of
work in bidi
establishments in the Maharashtra
region. These establishments were, it was held by the
Bombay High Court, 'factories' and the rollers work·
ing therein were 'workers' within the meaning of the
Factories Act 63 of 1948: 'l'he State v. Alisaheb
Kashim Tamboli (1). In that case the High Court
held that the expression 'employed' in s. 2 (I) of the
Factories Act, 1948 does not necessarily involve the
relationship of master and servant, and therefore
owners of bidi establishments had to conform to the
requirements of the Factories Act and to afford to the
workers the benefits provided under that Act, even
though the workers did not maintain uniform hours
of attendance, and were paid only for bidis turned
out by them. But this Court in Sh·infor B"laji
Waje v. 'l'hg Sfote of Mahnmshtra (2) - (Sul:ba Rao,
J. dissenting)- held in dealing with the case of
workers in an establishment for manufacturing bidis
whose at!endance was characterised by the features
hereinafter set out, that they were not employed with·
in the meaning of s. 2 ( 1 ), and could not claim the
privileges accorded to workers by ss. 79 and 80 of
that Act.
The features noticed by the Court were,
that there was no agreement or con tract of service
between the owner of the establishment and the bidi
roller; the bidi roller was not bound to attend the
factory for any fixed hours or to work for any fixed
period; he was free to go to the factory at any time
he liked and was equally free to leave the factory
whenever he liked; the bidi roller could be absent
from work on any day, and if his absence was expect·
ed to be of a duration longer than ten days he
informed the owner not because he had to obtain
(Ii I.L.R. 1955 Born. 624.
(2) [1962] Supp. I S.C.R. 240.
1963
M/s, Bhikuse Yarna.ra
.K.shot,jya (P) ltd.
v.
Uni.,n of India
SMti, J.
1963
M/1. Bllikwt Yamafa
KJhatriya (/>) Ltd.
v.
· Unim of I ndill
Shah, J.
864 SUPREME COURT REPORTS (1964] VOL.
permission or leave, but for assuring the owner that
he did not intend to give up work at the factory;
there was no actual supervision of work which the
bidi roller did in the factory, and he wa~ paid at
fixed rates on the quantity of bidis turned out there
being no stipulation for turning out any minimum
quantity of bidis in a day; bidi leaves were supplied
to the rollers for being taken home and cut and
tobacco was supplied at the factory, but they were
not bound to roll bidis at the factory - they could
take the mattrials outside after obtaining permission
of the owner; at the close of the day the bid is used to
be delivered to the owner and bidis not up to the
standard were rejected; and the bidi worker's attendance was not noted though the days he worked could
be ascertained from the work register.
The Court
held on these facts that the bidi roller could not be
said to be 'employed' by the owner and was not
therefore a worker,
there
being no contract of
employment, under which the bidi roller agreed to
serve the employer subject to his control and supervision.
Since this judgment was pronounced, owners of
bidi making
establishmeuts
in
the
State
of
Maharashtra commenced denying to the bidi rollers
benefit of weekly holidays and wages in lieu of holidays previously accordtd to them and even denied
access to the Inspectors appointrd under the Factories
Act to their establishments. There arc in the State of
Maharashtra more than :l5000 birli rollers borne on
the pay rolls of bidi-making establishments on the
register maintained
by
the Chief Impector of
Factories. There arc also many other bidi making
establishments which are not so borne on the register
of the Chief Inspector.
There was grave
unrest
among the bidi rollers resulting from the denial of
benefits previously enjoyed by them.
With a view
to protect the bidi rollers against exploitation by the
owners of bidi making establishments and against
1 S.C.R.
SUPREME COURT REPORTS
865
deprivation of the benefit~ enjoyed by them, the
Government of Maharashtra issued the following
Notification in exercise of the powers vested under
s. 85 of the Factories Act : -
"In exercise of the powers
conferred -by
section 85 of the Factories Act, 1948 (LXIII of
1948), the Government of Maharashtra hereby
declares that all the provisions of the said Act
shall apply to the places specified in column 2
of the Schedule appended hereto wherein a
manufacturing process is carried on with or
without the aid of power or is so ordinarily
carried on the establishments specified against
thrm in column 3 of the said Schedule notwithstanding that the persons working therein are
not employed by the owner of such places but
are working with the permission of or unrler
agreement with such owner :
Provided that the manufacturing process
is not being carried on by the owner only with
the aid of his family."
To the notification was appended a Schedule (including many of the establishments of the Company)
setting out the particulars of Districts, the places where
the establishments were situate and the names of the
establishments. The effect of the Notification was
to make bidi rollers in places set out in the Schedule
'deemed workers", and on that account entitled to
the benefits provided to workers under the Factories
Act.
The petitioners then challenged by this petition
the validity of s. 85 of the Factories Act and the
Notification issued in exercise of the authority
conferred thereby, on the plea that the provisions
of the section and the Notification issued thereunder
infringe the fundamental rights of the petitioners
under Arts. 14 and 19 ( l) (g) of the Constitution.
IHI
M/s. Bhikus1 fam'1.t
Kshalriy• (P1 Lit.
...
Union of InJi'tA
Shah, _j.
•
866 SUPREME COURT REPORTS [1964) VOL.
1963
Af/r 8hiku11 ramasa
KJ.Wri.ra (/') ltd.
'Factory' is defined
meaning
"a~y premises
thereof:-
in s. 2 (m) or the Act cs
including the
precincts
v.
Union ~f Indio
S•ah J.
(i) Whereon ten 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, or
Iii) Whereon
twenty 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 without the aid of power,
or is ordinarily.so carried on,-
but does not include a mine subject to the operation
of the Mines Act, l 9:i2, or a railway running shed;"
'Worker' is defined ins. 2 (1) of the Act as meaning
"a person employed, directly or through any agency,
whether for wages or not, in
anv manufacturing
process, or in cleaning any part of the machinery or
premises used for a manufacturing process, or in any
other kind of work incidental to, or connected with,
the manufacturing process, or the subject of the
manufacturing process;"
Premises in which a manufacturing process
is carried on where the number of workers is less than
the minimum prescribed do not fall within the definition of 'factory'.
Again a person to be a 'worker'
must be employed in a manufacturing process or in
cleansing machinery used for the process, or in any
work incidental to or connected with the manufacturing process. To attract the provisions of the
Factories Act which confer certain benefits and
privileges upon w?rkers and impose obligations upon
owners of factories qua those workers, there must,
-
l S.C.R.
SUPREME COURT REPORTS
867
therefore, be a manufacturing process carried on in
any premises, the number of persons working in the
manufacturing process or cleansing machinery used
for the process or in work incidental to or connected
therewith be not less than the number specified in
the definition in s. 2 (m) and that the persons so
. working must be· employed (under a contract of
service) for wages or not and directly or indirectly.
A person working in a factory,
but not under a
contract of service
cannot
be
regarded as a
worker within the meaning of that expression in
s. 2 (1) of the Act.
Section 85 of the Factories Act which occurs
in Ch. IX provides :
"(i) The State Government may, by notification
in the Official Gazette, declare that all or any
of the provisions of this Act shall apply to
any place wherein a manufacturing process is
carried on with or without the aid of power or
is so ordinarily carried on, notwithstanding
that-
(i)
the number
of persons
employed
therein is
!es~ than ten, if working
with the aid of power and less than
twenty if working without the aid of
power, or
(ii) the persons working therein are not
employed by the owner thereof but
are "working with the permission of,
er
under
agreement
with,
such
owner:
Provided that the manufacturing process
is not being carried on by the owner only with
the aid of his family.
( 2) After a place is so dei:lared, it shall
be deemed to be a factory for the purposes of
'
1963
M/s. Bhikus1 Yamas•
J('sh•lriy• (P) Ltd.
..
Union ef lnii•
~hllh, J.
1963
M/1. Bhil:ut1 Ya...,.
Ksllatr ,a (P) Lid.
••
CJ,.;.,. of lndi4
.;Jiali, J.
868 SUPREME COURT REPORTS (1964] VOL.
this Act, and the owner shall be deemed to be
the occupier, and any person working therein,
a worker."
The section is enacted with the object of conferring
authority to extend in appropriate cases the provisions
of the Act to establishments which are otherwise not
factories within the meaning of the Act, and to ensure
to persons working in factories even if not workers
within "the meaning of the Act, the benefits provided
thereby. The section authorises the State Government
to make all or some of the provisions of the Act
applicable to any place wherein a manufacturing
process is carried on with or without the aid of
power, notwithstanding that the number of persons
employed therein is kss than 1 he numbers specified
in the definition of 'factory', or where the persons
working therein are not employed bv the owner but
are working with the pem1ission of, or under agreement with, such owner.
011 the issue of a Notification by the State Government the place designated
will be deemed a factory, the owner of the place will
be deemed an occupier and pcr;om working therein
will be deemed workers.
Section 8:i, it is contended, is invalid on the
grounds that it imposes
unreasonable restrictions
upon the fundamental right of the owner to carry
on his business, and ii enables the S1a1e Gwernment
by a Notification arbitrarily to discriminate between
owners of establishments who are similarly situate,
inasmuch as the Act confers an unguided and
uncontrolled power to select places to be deemed
factories by a Notification under s. 85 of the Act
and to impose thereby obligations laid by 1he
Factories Act upon the owners of thme places. Before
dealing with the impact of s. 85 of the Factories Act
and th~ impu.gned l\'r>tification 11pr,n the fundamental
rights of the petitioners, it w'.luld be useful to make
a brief retrospect of factory lcgisla1ion in India,
l S.C.R.
SUPRE!hE COURT REPOR'fS
869
with special reference to bidi-making establishments.
The Indian Legislature enacted Act 15 of 1881
as the first Act which dealt with factories. The
Act was limikd in scope : it was followed by Act
ll of 1891 which in turn was followed by Act 12 of
191 l. Diverse amendments were made to that Act
from time to time. In 1929 a Royal Commission
of Labour in India was appointed to make a
detailed· investigation into labour problems. The
Commission investigated the conditions in various
industries including the bidi ·making industry and
submitted its report in June 1931 containing diverse
re::ommendations for amendment of the Indi::.n
Factories Act,
1911. The Commission
stressed
the need for exercise of power to extend the pro·
visions of the Act to industries not covered by the
definition of the term 'factory', and considered the
bidi-making industry in that context in particular.
In describing the conditions prevailing in bidi
manufactories, the Commission observed :
"Every type of building is used, bJt small
workshops preponderate and it is here that
the graver problems mainly arise. Many of
these places are small airless boxes,
often
without any windows, where the workers are
crowded so thickly on the ground that there
is barely room to squeeze between them.
Others are dark semi-basements with damp
mud floors unsuitable for manufacturing pro·
cesses,
p~rticularly in an, industry where
workers sit or squat ·on the floor throughout
the working day. Sanitary conveniences and
adequate arrangements for removal of refuse
are generally
absent. Payment is almost
universally made by piece-rate, the hours are
frequently unregulated by the employer and
many smaller workshops are open day and
1963
M/s. /)·likust Tamasa
Ks/II/tr 1, (P) Ltio
v.
Union of India
Shah, J.
, '
•.c-.--~-;-,,',,,-..-:• '~ •,\
\"
'\. .' - ,_
,_ \
\ ,1963
; '.
J..f/1: Bh.ikus• Tama.'a
K•futriJ• (P) Lti.
v.
Unio,. Df lndUY
ib.h, J.
'
·. '"".'." -
~- ':. ·_.___ --
r
-- ----'
870
SUPRE.ME COURT REPORTS [l!l64) VOL.
·--·-- -·- ~--- --· -
night .. Regular intenals for meals and weekly
holidays . are \generally non-existent. In the
case of adults these matters. are automatically
regulated--by· individual circumstances,
the
worker coming and". going as he pleases and
often, indeed, working in niore than one place
in the course of the . week. Nevertheless in
the case of full-time ·\yorkers, . i. e., those not
;usi!1g. bidi-making as,~ a . supplementary source
i of mcome, the hours are too. frequently unduly
'long, the . length <:>f · the· working ; day being
determined by the, worker's own poverty and
.
. ·the comparatively low yield of the piece-rates
' ' .
"d"
.
.
. ..
'
. .
·
pal • I
.
. . ··
·
,
. ·
.
.
.
• .•
- ,. • •
'
\
•
, -
L'; ,
•
The ·commission · reco~ni~ml~cl - the ·enacuh~nt of a
separate Act . applicable
i_n · the· first instance to all ·
places without.: power . machinery, employing fifty or
more persons during any part of the year and suggest· .
ed that the Provincial Governments may be authoris·
·ed to extend any provision .of the Act ·to factories
employing less than the prescribed number when in
their opinion. conditions _justify such action. But
the Indian .Legislature· enacted· a . comprehen·
_sive measure_..:.Act· 25 of 1934:.:.:.amending and consolidating the . ·provisions of factory legislation in
-India. ..The 'object ·or the Act' was to reduce hours
.'of work, improve.· working conditions in the factories,
·provide for adequate· inspection and strict observance
of the Act:· but places ·where the· manufacturing·
process was.'carried on :~without the aid of· power
were not covered'· by·• the definition of 'factory' in
s; 2 Ul· .;·The
Legislature by- Act 16 of 1941
amended s;•·5
and authorised ·the· .. Provincial
Government by ·Notification· in the Official Gazette
to declare all· or·rany ·of the provisions applicable to
factories to· any. place" wherein· manufacturing pro·
cess was being'carried on or. was so ordinarily carried
· on with or without the aid 6Lpower where 1ten · or
more·.persons were working therein.'
1 S.C.R.
SUPREME COURT REPORTS
871
A Labour Investigation
Committee
was
appointed by the Government of India in February,
1944 to investigate conditions of employment in
respect .of various industries.
This Committee
enquired into the conditions of workmen in
the
bidi, cigar and cigarette industry, and observed
that the picture drawn by the Royal Commission on
the working conditions in the bidi industry remained largely true.
They observed :
"The prominent features of the bidi and cigar
industries are
long hours and insanitary conditions of work and employment of child
labour.
Women are also employed in large
numbers in this industry.
x
x
x
x
x -
x
x
x
x
The bidi and
cigar labour, however, satisfies many of the
criteria of sweated labour, such as sub-contract
system, long hours, insanitary wm king conditions, home work (in bidis), employment of
women and children, irregularity of employ·
ment,
low wages, and lack of bargaining
power."
Dealing especially with the conditions prevailing in
the Province of Bombay they observed :
"In Bombay these workshops are situated
immediately behind panshops.
x
x
x
x
The conditions of these workshops, so far as
sanitation, light and ventilation are concerned,
beggar description.
They are dark, dingy
places with very few, if any, windows and
the approaches are very insanicary. Workers
are huddled together, men, women and in
some cases children, and there is hardly any
space to move.
One can see bags of tobacco
1963
M /1, Rhikuse Tomasa
A"shatriya (t) Ltd.
v.
Union of India
~hah, J.
1963
M /1. •!ti1ou1 y..,.,.
Amlltiμ (P) Lr4 •
••
U•/MI ef IMI•
~,..,,, /.
872 SUPREME COURT REPORTS[I964] VOL.
heaped in one corner and manufactured bidis
in another. Most of the workshops have no
lavatories and where they arc, they are in a
most deplorable condition. Some of
the
workshops have low wooden ceiling above
which some workers sit and carry on their
work. These are not usually reached by
staircases and the workers have to go up with
great difficulty."
The Committee recorded its conclusions as ·follows :-
"matters requiring immediate attention in the
bidi and cigar industries are the unhealthy
working
conditions, long hours of work,
employment of women and childrrn, deductions from wages and the sub-contract system
of organisation.
It is desirable to abolish the
out-work system and to encourage estabttshment of bi~ factories in the bidi and cigar
industries, if protective labour legislation is to
be enforced with any degree of success."
Application of factory legislation to protect the
legitimate interests of bidi rollers was therefore a
crying necessity.
The Factories Act, 1948 extended
the definition of factory.
The bidi making industry
was spread in small units over extensive areas, and
the working conditions in the units varied considerably, and presumably on that account no legislation
applicable
exclusively to establishments manufacturing bidis was undertaken, but establishments in
which the number of persons working exceeded the
number specified in cl. (m) of s. 2 were registered
under the Factories Act. It is true that even then a
number of establishments were not brought within
the operation of the Factories Act, but with the
enactment of the Minimum Wages Act and fixation
of minimum wages by the diverse States there waa
some improvement in the condition ofbidi rollcn.
1 S.C.R. SUPREME COURT REPORTS
873
Under s. 85 of the Factories Act of 1948 power was
reserved to make the Act applicable to any place in
which manufacture of bidis was carried on could be
exercised _but it does not appear to have been
exercised for the reason that the larger establishments
in which bidi-making was carried on were regarded
as covered by the Factories Act, it being assumed
that the expression 'employed' in s. 2 ( 1) of the
Factories Act included mere engagement or occupation in a manufacturing process without any contract
giving rise to a relation of master and servant : State
v. Alisaheb Kashim Tamboli (1) and Ram Chandra
Prasad v. The State of Bihar (').
The Factories Act, as the preamble recites ia
an Act to consolidate and amend the la:w regulating
labour in factories.
The Act is enacted primarily
with the object of protecting workers employed in
factories against industrial and occupational hazards.
For that purpose it seeks to impose upon the owners
or the occupiers certain obligations to protect workers
unwary as well as negligent and to secure for them
employment in conditions conducive to their health
and safety.
The Act n;quires that the workers
should work in healthy and sanitary conditions and
for that purpose it provides that precautions should
be taken for the safety of workers and prevention of
accidents.
Incidental provisions are made for
securing information necessary to ensure that the
objects are carried out and the State Governments
are empowered to appoint Inspectors, to call for
reports and to inspect the prescribed registers with a
view to maintain effective supervisjon. The duty of
the employer is to secure the health and safety of
workers and extends to providing adequate plant,
machinery and appliances, supervision over workers,
healthy and safe premises, proper system of working
and·· extends to giving reasonable
instructions.
Detailed provisions are therefore made in diverse
chapters of tbe Act imposing obligations upon the
(1) I.L.R. 1955 Dem. 042.
(2) (1956) I.L.R. 35, Patna 877.
1963
M/1. Bhikuse Tamasa
Kshatriya (P) Ltd.
v.
Uni1n of India
Shah, J.
/Yf,J
J\.l/s- lJJiiA1.n, 1wn11sa
A-sliati 1_1a { .~) Ltd.
v.
Union of lr1dia
Shoh, J.
8i4 SUPREME COURT REPORTS [HIM] VOL
owners of the factories to maintain in~pecting staff and
for maintenance of health, cleanliness, prevention of
overcrowding and provision for
amenities such
a~
lighting, drinking water. etc. etc. Prc;visions arc also
made for safety of workers and their welfare, such as
restrictions on working hours and on the employment
of young persons and females and grant of annual
leave with wages.
Employment in a manufacturing
process was at one time regarded as a matter of
contract between the employer and the employee and
the ~tate was not concerned to impose any duties
upon the employer.
It is however now recognised
that the State has a vital concern in preventing
exploitation of labour and in insisting upon proper
safeguards for the health anrl safety of the workers.
The Factories Act undoubtedly imposes numerous
restrictions upon the employers to secure to
the
workers adeq uatc safeguards for their health and
physical well-being.
But imposition of such restrictions is not and cannot be regarded, in the context
of the mctiern outlook on· industrial relations, as
unreasonable.
Extension of the benefits of the
Factories Act to premises and workers not falling
strictly within the purview of the Ac1, is intended
to serve the same purpose. By authorising imposition
of restrictions for the benefit of workers who in the
view of the State stand in need of some or all the
protections afforded by the Factories Act, but who
are not governed by the Act, the
Legislature is
merely seeking to effectuate the object of the Act
i. e. it authorises extension of the benefit of the Act
to persons to whom the Act, to fully effectuate the
object, should have been, but has on account of
administrative or other difficulties not been extended.
Provisions made for the benefit of 'deemed workers'
cannot therefore be regarded as not reasonable within
the meaning of Art. l!J (1) (g) of the Constitution.
The Factories Act primarily applies to establi4t.
shments in which ten or more persons are w~rking
l S.C.R.
SUPREME COUR'I REPORTS
875
where power
is used and twenty or m10re persons
whrre no power is used, thereby exciuding from its
operation small
establishments. l'rcsumably, the
Legislature felt that uniform application of the
Factories Act to all establishments in which a manufacturing proce~s is carried on requiring even small
establishments to comply with the elaborate requirements of the Factories Act may impose great administrative strain upon governmental machinery, and
involve hardship ordinarily not commensurate with
the benefit secured thereby. But the Legislature
with a view to prevent circumvention of the provisions of the Factories Ace, and to secure to the
persons working in . establishments where manufacturing process is carried on, adequate- safeguards
where necessity is felt has authorised the State
Government by Notification to declare any place
which docs not fall within the definition of •'factory"
to be a factory and to make all or any of the provisions
of the Act applicable thereto. Similarly the Act is
primarily intended to govern relations of persons
standing as master and servant in connection with
manufacturing processes in factories, and liberty of
contract' otherwise was not sought to be affected by
the principal provisions of the Act. But here again
the Legislature has authorised the State Government
to issue Notifications applying the provisions of the
Act even to those establishments in which perons are
working with the permission or under agreement
with, but not as employees of the owners. Exclusion from restrictions inherent in the definitions of
"factory" and "worker" has its source not in any
desire to afford special privileges to any class of
owners. The policy umlerlying s. 85 authorising the
State Government to extend the benefit of the Act
is apparent on its face. The section aims at making
provision for securing
the heal th and safety of
persons engaged in hazardous employments, and for
that purpos,e the Legislature has entrusted to the
State Governments, in the case- of establishments
1963
M/s. B'hik'ISC ramusa
Kshatriya \P) Ltd.
v.
(jnwn of India
Shah, J.
1963
M/s. Bhil:us• ramo.r•
KJMlri:Ja (I') Lid •
••
u,,; .. of India
S"41r, J.
876
SUPREME COURT REPORTS [1964] VOL.
not falling expressly within the regulatory provisions
of the Act, authority to extend those provisions,
where the necessity to regulate, having regard to the
circumstances, is
felt.
The power to extend the
regulatory provisions of the Act is therefore not
intended to confer an arbitrary power to pick and
choose between establishments similarly situate :
it is granted with a view to secure the protestion of
persons engaged in industrial
occupations in the
light of special circumstances of a particular industry,
a locality or an establishment, where circumstances
justifying the extention of the protection exist. The
conditions of small establishments in different parts
of the country may and do widely vary. Control
in respect of some industries or cstabiishments not
governed by the Factories Act may not b~ necessary,
whereas necessity in that behalf may be acutely
felt in
others. It is to carry out effectively the
object underlying the Act that power has been given
to the State Government to decide with reference to
local conditions whether it is desirable that the
provisions of the Act or any of them should be made
applicable to any establishment which is not covered
by the definition of "factory" or to workers in a
factory who are not entitled to the benefits of the
Act, because of the definition of "employment."
In llf/S. Rhikus11 Yamasa Ksbtriya v. Sartgamner A.kola
Taluka Bidi
K11m'.1ar Union (1), in
dealing with the validity of certain provisions of
the Minimum \.V ages Act, it was observed by this
Court :
"The object and policy of the
Legislature
appear on the face of the Act. The object of
the Act is to prevent exploitation of the workers,
and for that purpose it aims at fixation of
minimum wages which
the employers must
pay. The Legislature undoubtedly intended
to apply the Act to those industries or localities
(I) [1963] Supp. I S.0.R. 524,
l S.C.R.
SUPREME COURT REPORTS
877
in which by reason of causes such as unorga·
nized labour or absence of machinery for regulation of wages, the wages paid to workers were,
in the light of the general level of wages, and
subsistence level, inadequate.
x
x
x
x
x
x
x
It is to carry out effecti ·
vely the purpose of this enactment that power
has been given to the appropriate Government
to decide with refereuce to local conditions,
whctther it is desirable that minimum wages
should be fixed in regard to any scheduled
trade or industry, in any locality, and if it is
deemed expedient to do so, the rates at which
the wages should be fixed in respect of that
industry in the locality. By entrusting authority to the appropriate Government to determine the minimum wages for any industry in
any locality or generally, the Legislature has
not divested itself of its authority, nor has it
conferred uncontrolled power upon the State
Government.
x
x
x
x
x
x
x
x
x
x
x
Selective
application of a law according to the exigencies, where it is sanctioned, ordinarily results in
permissible classification. Article 14 forbids
class legislation but not reasonable classification
for che purpose of legislation. If the basis of
classification is indicated expressly or by implication, by delegating the functions of working
out the details of a scheme, according to the
objects of the statute and principles inherent
therein, to a body which has the means to do
so at its command, the legislation will not be
exposed to the attack of unconstitutionality.
In other words, even if the statute itself does
not make a cla5.sification for
the purpose of
appiying its provisions, and leaves it to a responsible body to select and classify persons,
objects, transactions, localities or things for
special
treatment, and sets out the policy of
1963
M/r
Bhik~1e YamaJa
lfshairi.,a (P1 Ltd.
v.
l 'nion of India
Shah, J.
1963
M/1. Bltibut Yamosa
KJilolri;• (P) l1d .
••
Urtizm of Trtdio
Sltah, J.
878 SUPREME COURT REPORTS [1964] VOL.
principles for its . guidance in the exercise of its
authority in the matter of selection, the statute
will not be struck down as infr:ngi.-1g Art. 14
of the Constitution."
The principle of that case will apply in considering the pica of discrimination raised by the
petitioners. Section 85 of the Factories Act permits
Jelective application of the beneficent provisions of
the Act to workers not covered thereby. The power
is conferred to carry out effectively the purpose of
the Act, and to an authoritv which has the means at
its command for making ihe requisite enquiries for
ascertaining whether extention of the benefits is, in
the interest of the workers and the public generally,
demanded. Such a provision cannot be regarded
as discriminatory.
It is true that even if a statute which permits
ex!·cutive action to be taken is not ultra virea, but the
executive action taken uuder the statute in the matter
of selection may be ultrn !·ires 1! it infringes a~;
fundamental right.
in the present c~sc, however, the
affidavit of Mr. V. N. 0 ;;,u·nta, Under Secretary to
Government oi .\faharashtra in the Indusiries and
Labour Department, discloses clearly the basis on
which the factories mentioned in the Schedule were
selected by the Notification under s. 85( I).
In paragraph 7 of his affidavit it is stated :
"On careful consideration of the facts of this
(Shrmkar Bcih<ji ll"aje's) case the Government
of Maharashtra was of the view that for the
purpose of protecting the bidi rollers against
any arbitrary treatment by the bidi manufacturers, and to maintain the protection given to
them under th<' Factories Act which they had
hitherto obtained prior to the decision of this
Hon'hlc Court in the case or 8/umkar /J11laji
IVaje a Notification under s. 85 of the Factories
•
I S.C.R.
SUPREME COURT REPORTS
879
Act, 1948 should be issued. Accordingly, the
Government of Maharashtra issued the impugn·
ed Notification including therein those factories
which were on the register of Factories main·
tained by the Chief Inspector of Factories."
He further stated that probably. there were other
bidi manufacturing establishments to which the provisions of the Factories Act were applicable,
b~
these factories were not within the purview of the
impugned Notification because they were not on the
register of factories maintained under the Factories
•
Act and on the basis of which the impugned Notification was issued.
But such establishments were
not included in that register because of the failure of
the owners to register them.
Mr. Pimenta said that
the Government was making enquiries about such
other factories and that they would or would not be
brought under the purview of the Act, as circumstances demanded, by amendment of the impugned
notification under s. 85 of the Factories Act when the
enqumes were over.
He further stated that the
impugned Notification was issued to maintain industrial peace and harmony.
There is nothing on the
record to discredit these statements.
Before the
impugned Notification was issued, the Bombay and
other High Courts had held that bidi workers who
though not servants of the owners of the bidi factories
in which they were working, wqe still employed in
a manufacturing process to whom the benefits of the
Factories Act were
admi~sible. As a result of the
clarification of the le,'.(al position by the decision of
this Court in Shankar Balaji Waje's case (1), there
was grave unrest among bidi rollers and the State
Government felt obliged to intervene for the protection of b.idi rollers against deprivation of benefits
previously\ accorded to them for an appreciable
length of time, and with that object in view in the
first instance applied the provisions of· the Factories
Act by Notification issued under s. 85( I) to all such
(1) (1962] SupJ. I S.C.R. 219.
/963
M/s. Bhik~1se Yama.ra
Eshatr(>a (P) ltd.
v.
llnirm of !Mill
5h•h J.
M/s.