# PEPSICO !NOIA HOLDING P. LTD v. GROCERY MARKET & SHOPS BOARD & ORS

- **Citation:** [2016] 2 S.C.R. 305
- **Court:** Supreme Court of India
- **Decided:** 2016-02-12
- **Case number:** Civil Appeal No. 9999 of2010
- **Bench:** Kurian Joseph, ROHINTON FALi NARIMAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pepsico-noia-holding-p-ltd-v-grocery-market-shops-board-ors-31001
- **Pages:** 29

## Headnote

Maharashtra Mathadi, Hamal and Other Manual Workers
(Regulation of Employment and Welfare) Act, 1969 - Grocery
Markets or Shops Unprotected Workers (Regulation of Employment
and Welfare) Scheme, 1970 -Applicability of the Act and the Scheme
to the unprotected workers in petro-chemical factory and to the
company manufacturing drinking water and soft-drinks - State
Government rejecting the applications uls. 5 of the 1969 Act held
that Jhe 1969 Act and the 1970 Scheme were applicable to the
factories in question - Writ petitions against the orders of State
Government dismissed - On appeal, plea that 1970 scheme was
ultra vires the 1969 Act; and that the Act and the Scheme did not
apply to the factories in question - Held: No part of 1970 scheme is
ultra vires the 1969 Act - the State rightly decided that 1969 Act and
1970 Scheme were applicable to the factories in question - High
Court rightly did not interfere with the decision of the State.
Words and Phrases:
'Establishment' - Meaning of. in the context of Maharashtra
Mathadi, Hamal and Other Manual Workers (Regulation of
A
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Employment and Welfare) Act, 1969.
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'Grocer)!' -:- Meaninf{ of.
Dismissin2 the appeals, the Court
HELD: CIVIL APPEAL NO. 10000 OF 2010: 1. Clause 5
of the Schedule to the Maharashtra Mathadi, Hamal and Other
Manual Workers (Regulation of Employment and Welfare) Act,
1969 is a residuary clause which would rope in employment in
factories in connection with loading, unloading, etc. carried on by
workers not covered by any other entries in the Schedule.
Admittedly, manufacture of petro-chemicals in factories is not
covered by any other entry including entry 4 to the Schedule.
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SUPREME COURT REPORTS
[2016] 2 S.C.R.
For this reason, the 1;rovisions of the Grocery Markets or Shops
Unprotected Workers (Regulation of Employment and Welfare)
Scheme, 1970 dealing with manufacture of petro-chemicals in
factories would be within the coverage of the residuary entry i.e.
Item 5 of the Schedule to the 1969 Act. This being so, no part of
the 1970 Scheme is ultra vires the 1969 Act. [Para 7] [322-C-E]
2. Clause 2(1)(1) of the 1970 Scheme is intra vires Section
1( 4A) table column 4 Item 5 of the 1969 Act. It is clear that the
expression "products including fertilizers" is wider than the
expression "chemical products including fertilizers". The 1969
Act's terminology being wider than the terminology of the
impugned 1970 Scheme, obviously the 1970 Scheme when it
speaks of "chemical products" manufactured in factories and
covered by entry 5 in the schedule to the 1969 Act would be intra
vires the expression "products including fertilizers". [Para 8) [322E-G)
3. "Petro chemical products" would be a species of the
genus "chemical products". In fact, the appellant has admitted
that it manufactures polystyrene (granules). Polystyrene in turn
has been described as an inexpensive and hard plastic which is a
vinyl polymer. A perusal of the report of the working group on
chemic:lls and petro chemicals in the 11" Five Year Plan from
2007-2008 to 2011-2012 made by the Department of Chemicals
and Petro Chemicals, it is evident that not only are petrochemicals
derived from various chemical compounds, but also that petro
chemical manufacturing involves among other things the
production of plastics. From the report made by the Inquiry Officer
appointed nuder Section 13 of the Act, it is clear that the conclusion
reached by the Government in its order dated 24.6.2008 that
petro-chemical products are a species of chemical products and
that the appellant manufactures chemical products, cannot be said
to be perverse. [Paras 9, 10 and 11) [322-H; 323-A, F; 324-B]
4. Sections 3 and 4 of the 1969 Act refer to a scheme which
provides for registration of unprotected workers "in any
scheduled employment or employments" (as per Section 3(1) of
the 1969 Act). Further, Section 4(1) of the 1969 Act also makes
it clear that the State Government may make one or more Schem

## Text

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[2016] 2 S.C.R. 305
PEPSICO !NOIA HOLDING P. LTD.
v.
GROCERY MARKET & SHOPS BOARD & ORS.
I
(Civil Appeal No. 9999 of2010 etc.)
FEBRUARY 12, 2016
[KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.]
Maharashtra Mathadi, Hamal and Other Manual Workers
(Regulation of Employment and Welfare) Act, 1969 - Grocery
Markets or Shops Unprotected Workers (Regulation of Employment
and Welfare) Scheme, 1970 -Applicability of the Act and the Scheme
to the unprotected workers in petro-chemical factory and to the
company manufacturing drinking water and soft-drinks - State
Government rejecting the applications uls. 5 of the 1969 Act held
that Jhe 1969 Act and the 1970 Scheme were applicable to the
factories in question - Writ petitions against the orders of State
Government dismissed - On appeal, plea that 1970 scheme was
ultra vires the 1969 Act; and that the Act and the Scheme did not
apply to the factories in question - Held: No part of 1970 scheme is
ultra vires the 1969 Act - the State rightly decided that 1969 Act and
1970 Scheme were applicable to the factories in question - High
Court rightly did not interfere with the decision of the State.
Words and Phrases:
'Establishment' - Meaning of. in the context of Maharashtra
Mathadi, Hamal and Other Manual Workers (Regulation of
A
B
c
D
E
Employment and Welfare) Act, 1969.
F
'Grocer)!' -:- Meaninf{ of.
Dismissin2 the appeals, the Court
HELD: CIVIL APPEAL NO. 10000 OF 2010: 1. Clause 5
of the Schedule to the Maharashtra Mathadi, Hamal and Other
Manual Workers (Regulation of Employment and Welfare) Act,
1969 is a residuary clause which would rope in employment in
factories in connection with loading, unloading, etc. carried on by
workers not covered by any other entries in the Schedule.
Admittedly, manufacture of petro-chemicals in factories is not
covered by any other entry including entry 4 to the Schedule.
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SUPREME COURT REPORTS
[2016] 2 S.C.R.
For this reason, the 1;rovisions of the Grocery Markets or Shops
Unprotected Workers (Regulation of Employment and Welfare)
Scheme, 1970 dealing with manufacture of petro-chemicals in
factories would be within the coverage of the residuary entry i.e.
Item 5 of the Schedule to the 1969 Act. This being so, no part of
the 1970 Scheme is ultra vires the 1969 Act. [Para 7] [322-C-E]
2. Clause 2(1)(1) of the 1970 Scheme is intra vires Section
1( 4A) table column 4 Item 5 of the 1969 Act. It is clear that the
expression "products including fertilizers" is wider than the
expression "chemical products including fertilizers". The 1969
Act's terminology being wider than the terminology of the
impugned 1970 Scheme, obviously the 1970 Scheme when it
speaks of "chemical products" manufactured in factories and
covered by entry 5 in the schedule to the 1969 Act would be intra
vires the expression "products including fertilizers". [Para 8) [322E-G)
3. "Petro chemical products" would be a species of the
genus "chemical products". In fact, the appellant has admitted
that it manufactures polystyrene (granules). Polystyrene in turn
has been described as an inexpensive and hard plastic which is a
vinyl polymer. A perusal of the report of the working group on
chemic:lls and petro chemicals in the 11" Five Year Plan from
2007-2008 to 2011-2012 made by the Department of Chemicals
and Petro Chemicals, it is evident that not only are petrochemicals
derived from various chemical compounds, but also that petro
chemical manufacturing involves among other things the
production of plastics. From the report made by the Inquiry Officer
appointed nuder Section 13 of the Act, it is clear that the conclusion
reached by the Government in its order dated 24.6.2008 that
petro-chemical products are a species of chemical products and
that the appellant manufactures chemical products, cannot be said
to be perverse. [Paras 9, 10 and 11) [322-H; 323-A, F; 324-B]
4. Sections 3 and 4 of the 1969 Act refer to a scheme which
provides for registration of unprotected workers "in any
scheduled employment or employments" (as per Section 3(1) of
the 1969 Act). Further, Section 4(1) of the 1969 Act also makes
it clear that the State Government may make one or more Schemes
for any scheduled employment or group of scheduled
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 307
SHOPS BOARD
employments. On a reading of these provisions, it becomes clear
that there can be a composite scheme which takes within its ken
various employments which may be contained iu more than one
entry of the Schedule to the 1969 Act. This being so, it is clear
that merely naming a particular composite scheme as a grocery
market or shop scheme does not carry the matter further. It is
clear that the present scheme specifically takes within its ken
factories manufacturing chemical products covered by entry 5 in
the Schedule to the 1969 Act, and would therefore he a scheme
which provides for registration of unprotected workers iu different
scheduled employments and/or a group of scheduled
employments. This being the case, it is clear that the attack
based on nomenclature of the 1970 Scheme as a grocery market
or shops scheme must Jail. [Para 12] [324-F-H; 325-A]
5. Section 2(4) of the 1969 Act, which defines
"establishment", would not only include any place or premises
in which manufacture of petro chemicals is being carried on, but
would also include the precincts thereof, which would include
transportation made beyond the factory gate but within the
precincts of the factory. This being the case, it is common ground
that workers are necessary and are being used by the appellant
to load the appellant's products on to the vehicles provided by
the appellant's purchasers. Therefore, it cannot be said that the
factories' manufacturing activities are mechanized and that there
is no need for manual labour. [Para 13] [325-B-C]
Bhuwa/ka Steel Industries Limited v. Bombay Iron &
Steel Labour Board 2009 (16) SCR 618 : (2010) 2
sec 273 - relied on.
6. Taking a cue from the Objects and Reasons of the Act
which is a social legislation and from the well known doctrine of
construing such legisJation in an expansive manner to further
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the object of welfare Legislation, it is held that the High Court
cannot be faulted in its reasoning. It must also not be forgotten· G
that the object of the 1970 Scheme is not only to provide work to
both employer and employee but also to provide amenities and
benefits to registered w<!rkers. Thest amenities and benefits
are to be provided by the Board to employees by charging the
employer with a levy which cannot exceed 50% of the total wage
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SUPREME COURT REPORTS
[2016] 2 S.C.R.
bill of the employer without the prior approval of the State
Government. In the present case the levy amount is 41 %, which
is utilized not only to look after the health of the workers, but
also to give them terminal benefits such as provident fund and
gratuity provided for by clause 43 of the 1970 Scheme. [Para 16
(327-B-DJJ
7. There is no factual foundation for the plea that it is the
appellant's purchasers and not the appellant company itself that
is the principal employer under the Act. In the facts of the case
the State Government's finding in its order dated 24.6.2008 cannot
be characterized as incorrect, let alone perverse. The State
Government specifically arrived at a finding that Mathadi work
was carried out in the company by two cooperative societies who
had the work done by employing workers and got compensated
by the appellant company. [Para 19] [328-E-F]
8. Even if it is held that the Central Parliamentary Act i.e.
Contract Labour (Regulation and Abolition) Act, 1970 would
impliedly repeal the 1969 State Act, yet Section 30(1) of the 1970
Act provides that despite the provisions of the 1970 Act being
allegedly inconsistent with the 1969 State Act, yet if contract
labour employed in an establishment are entitled to benefits which
are more favourable to them than those to which they would be
entitled under the 1970 Act, the contract labour shall continue to
be entitled to more favourable benefits, notwithstanding that they
also receive benefits in respect of other matters under the Central
Parliamentary Act. [Para 20] [329-A-B]
CIVIL APPEAL NO. 9999 OF 2010:
9. The High Court was absolutely correct in not interfering
with the State Government order dated 18.8.2008 and in
dismissing the writ petition filed by the appellant company. [Para
28] [333-D]
10. The plea that the Court should find the meaning of the
expression "grocery" ori the date on which the Act was extended
(i.e. 1983), to the area in which the appellant company's factory
was situate, is fallacious in law. The expression "grocery" in 2005,
when the Act was sought to be applied to the appellant company,
would include soft drinks manufactured by the appellant company
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 309
SHOPS BOARD
and bottled water as daily household goods among the middle
A
class and rich sections of society.
[Para 27) [332-D-E]
The Senior Electric Inspector and others v. Laxmi
Narayan Chopra and others 1962 (3) SCR 146 - relied
on.
Collins English Dictionary, Third Edition - referred to.
Case Law Reference
2009 (16) SCR 618
1962 (3) SCR 146
relied on.
relied on.
Para4
Para 27
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9999
C
OF 2010
From the Judgment and Order dated 12.02.2009 in WP No. 193 Ii
2009 of the High Court of Bombay
WITH
C.A. No. 10000of2010
J.P. Cama, V. Giri, Sr. Advs., Ms. Kirti Chandra, Amit Dhingra,
Amandeep Bawa, Divyam Agarwal, Kuna! Mimani, Dheeraj Nair, Mis.
Dua Associates, Advs. for the Appellants.
R. Basant, Dhruv Mehta, Sr. Advs., Sushi! Karanjkar, K.N. Rai,
Mrs. Jayashree Wad, Ashish Wad, Jayant B. Shaligram, Ms. Paromita
Majumdar, Ms. Jaya Khanna, (For Mis. J. S. Wad & Co.), J itendra Kumar,
Sunil M. Chinchwadkar, Nitin S. Tambwekar, B.S. Sai, K. Rajeev, Nishant
Ramakantrao Katneshwarkar, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. I. These appeals involve an interpretation
of the provisions of the Maharashtra Mathadi, Hamal and Other Manual
Workers (Regulation ofEmployment_and Welfare) Act, 1969, (hereinafter
referred to as "the 1969 Act'") read with the Grocery Markets or Shops
Unprotected Workers (Regulation of Employment and Welfare) Scheme,
1970 (hereinafter referred to as "the 1970 Scheme"). The brief facts
necessary for a decision in Civil Appeal No. I 0000 Of 20 I 0 (Supreme
Petro-Chem Limited v. State of Maharashtra and others) are that under
Section 5 of the said 1969 Act, if any question arises whether any scheme
applies to any class of unprotected workers, the matter shall oe referred
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to the State Government and the decision of the State Government which
shall be taken after consulting the Advisory Committee constituted under
Section 14. shall be final. By an order dated 24.6.2008, the State
Government after referring to submissions from the appellants as well
as submissions from the Board, held:-
B
"4. Govt has analyzed overall situation, documents application of
the organization dated 01.03.2003 and information about the
product and its raw material. Govt has come to the following
conclusion:
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a. Company is manufacturing Polystyrene.
b. For manufacturing styrene and Polybutadin are used as raw
material. Polybutadin comes in rubber form and it is not natural
rubber.
c. Polystyrene is a hard plastic.
d. Polystyrene is not a petrochemical product but a chemical
product.
e. Even Polystyrene manufacturing is considered as
petrochemical production it is finally a chemical production only.
The material used to manufacture the product is also chemical.
f. There is no written reference in the Mathadi Act that
petrochemical should be kept out of the act but chemical itself
includes everything.
g. Mathadi Act and scheme is for the betterment of workers
and purpose of the scheme is to make applicable to the chemical
manufacturing companies. It is not mentioned in the scheme
that petrochemical products should be excluded and as
petrochemical is not mentioned in the scheme so the scheme
is not applicable to the said organization is not acceptable.
5. In the situation Samitte and Govt. has come to the conclusion
that Grocery market and shops unprotected workers (Regulation
of Employment and Welfare) Act I 970 is applicable to Supreme
Petrochem Ltd.
6. In the company loading unloading work of chemical product
and its raw material is carried out. And with respectto this Mathadi
kind of work is carried out in the company. As said by the company
this work is carried out by two Cooperative societies. These
societies do the work by employing the workers and get
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 311
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compensation from the company. Company says that these
employees get the facilities like Provident fund and others. But in
the report filed by the mandal on 20.09.2006 this statement has
not been proved. As per the decision given by Hon. High Court in
2006 (3) CLR PG 999, there is no meaning to what company is
saying. Instead of that it proves that in the said company Mathadi
kind of work carries out.
8. In this situation Maharashtra Mathadi Hamal and other Manual
Workers (Regulation of Employment and Welfare) Act 1969,
Grocery Markets or Shops Unprotected Workers (Regulation of
employment and welfare) Scheme \ 970 is applicable to the said
organization. Therefore, application given under section 5 of
Mathadi Act is rejected by the Government."
2. The said order was challenged before the Bombay High Court
by filing a writ petition. The writ petition was dismissed by the impugned
judgme.nt dated I 0.2.2009 after holding:-
"4. It is rather difficult to digest the arguments of the learned
counsel. Basically, what we find is that the petitioners are
manufacturing polysterene and polysterene is a combination of
styrene and polybutadin. Polybutadin comes in rubber form and
is not a petrochemical though it is not a natural rubber. Styrene is
one of the by-product of the petrochemical which is used by the
petitioner for manufacturing polysterene. Therefore, the petitioners
are not manufacturing any petrochemicals, but one of the byproduct of the petrochemical is used by the petitioners to
manufacture polysterene and polysterene is hard plastic.
5. All these aspects have been considered by the Government
authorities and thereafter the authorities concluded that the
petitioners are ndt dealing with petrochemicals as they have
submitted: We agree with the findings of the authority. Assuming
for a mome1i'r that the petitioners are dealing in petrochemicals,
yet the Act will be applicable to them because the words used in
this application clause referred to above is the product including
the manures and thereby, every type of production has been
covered. What is important to note is that the manures which are
like urea etc. are also derivatives of the petrochemicals and thereby
by inclusive clause the manures which could have been saved
probably have been included there. llJerefore, the word "product"
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has been used by the Legislature in its wisdom with all its cognate
variations and it cannot be interpreted to have a limited meaning.
What we find is that the petrochemical is a part of the chemical.
Chemical is the genesis while petrochemical is species of the said
genesis and thereby ifthe chemical industry is covered it is rather
difficult to hold that the petrochemical industries are not covered.
6. What is important to be looked into is whether in this industry
the work which the mathadis are carrying out is available or not.
If, in that industry, the work of mathadis is available then only
because the industry is dealing in some different aspect, that work
cannot be given to some other unorganized workers. The basic
test, after having ascertained that the industry is covered by law,
is to find out that the work of mathadis is available and if it is
available, the Act and the Scheme will apply to the industry. It is
not disputed that the mathadi work is not available. The only
distinction which was tried to be made out was with regard to
petrochemicals and that, therefore, the Act is not applicable, which
submission we have already rejected for the reasons stated above.
We find that the Government has rightly decided the matter under
Section 5 and no interference is called for at the hands of this
court."
3. Shri J.P. Cama, learned senior advocate appearing on behalf
of the appellants has argued that the 1969 Act only applies to
employments that are specified in the Schedule. Inasmuch as grocery
markets or shops are mentioned in Item 4 of the Schedule, according to
learned counsel, employment in factories which occurs only in Item 5 of
the said Schedule could not possibly be attracted as Item 5 only speaks
of establishments which are not covered by any other entries in the
Schedule. Inasmuch as the 1970 Scheme in the present case is a scheme
dealing with employment in grocery markets or shops, Item 5 of the
Schedule is not attracted, and the 1970 Scheme is ultra vires the 1969
Act insofar as it provides for employment in factories which manufacture
chemical products and are covered by entry 5 of the Schedule to the
said I 969 Act. He also referred to Section 1 ( 4A) of the 1969 Act to
state that insofar as employment in factories in district Raigad are
concerned, item 5 in column 4 of the table appended to Section 1(4A)
speaks of"colour chemicals" and "products including fertilizers", and
not "chemical products". This being so, chemical products in any case
are outside Section 1 ( 4A), and the 1970 Scheme insofar as it purports to
PEPSICO INDTA HOLDING P. LTD. v. GROCERY MARKET & 313
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include within it under clause 2( 1 )(t) "chemical products", is therefore
ultra vires Section 1 ( 4A). Further, according to learned counsel, what is
allegedly manufactured in the appellant's factory are petrochemicals
and not chemicals. He has referred to a number of documents which
include various licences and letters from authorities clearly stating that
what is manufactured in the appellant's factory are only petrochemicals.
For that reason also, petrochemicals not being chemicals would not be
within the coverage of the 1969 Act or the 1970 Scheme. He further
argued, referring to Section 4( 1 )(b) of the 1969 Act that if the 1970
Scheme is to be made applicable to petro chemicals manufactured in
factories, the only method of doing so is if a demand or request is made
by a majority of the employers or workers that the provisions of the
grocery markets or shops scheme should be applied to another scheduled
employment-that is, manufacturing petrochemicals in factories, and it
is only after consultation with the employers and workers that the State
Government may apply the provisions of the 1970 Scheme to the
appellant's factory manufacturing petrochemicals. This not having been
done, the 1970 Scheme cannot apply to the appellant. Learned counsel
further argued that in point of fact there is no work of transportation
undertaken by the employer from the employer's factory to the
purchaser's premises. He argued that the factory was by and large
mechanised and that the petro chemical products manufactured at the
factory were picked up by purchasers by employing contract labour that
was arranged by the purchasers themselves. This being so, the 1969
Act and the 1970 Scheme would have no application to the appellant's.
factory.
4. Shri S. Chinchwadkar, learned advocate appearing on behalf of
the respondent-Board has countered each of the arguments of Mr. Cama.
According to Shri Chinchwadkar Entry 5 appearing in the Schedule to
the 1969 Act is a residuary entry which takes in all employments not
otherwise covered by any scheme under any of the other items of the ·
Schedule, and as petro chemicals manufactured in factories were
admittedly not covered by any of the other items, they would fall within
the residuary entry. Further, according to learned counsel, the
nomenclature of the scheme is irrelevant so long as the provisions of the
1970 Scheme actually cover the appellant's activities carried out in
factories. He further argued referring to Sections 3 and 4 of the 1969
Act that there can be a composite scheme in which several scheduled
employments or groups of employments can be bunched together, which
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has been done in the present case. He also argued with reference to
Section I (4A) that item 5 in column 4 when it referred to "products
including fertilizers" would include all products including chemical
products, and that therefore the 1970 Scheme is intra vires the 1969
Act. He also referred to the State Government order, which was
impugned before the High Court and upheld, in order to show that the
State Government had applied its mind under Section 5 of the 1969 Act,
and that such order should not be interfered with in the exercise of
judicial review under Article 226 of the Constitution. He also referred us
to the definition of"establishment" contained in section 2(4) which would
mean "any place or premises including the precincts thereof in which
any scheduled employment is being carried on". According to him,
inasmuch as lifting of the appellant's product was being carried on from
the precincts of the factory, the appellant would be covered by the 1969
Act and the 1970 Scheme. He also referred in some detail to Bhuwalka
Steel Industries Limited v. Bombay Iron & Steel Labour Board,
(2010) 2 SCC 273 to buttress his proposition that this Court, following
the Full Bench of the Bombay High Court, has construed the 1969 Act
as a welfare legislation, and having regard to its object has expressly
stated that employers should realise their social obligations qua this
segment of workers who are non-protected workers, as defined by the
said Act.
5. We have heard learned counsel for the parties. Before entering
into the merits of the controversy before us, we would like to set out the
relevant provisions of the 1969 Act and the 1970 Scheme made
thereunder. The long title of the 1969 Act is important in that it sets out
the object for which the 1969 Act was enacted, and is as follows:-
0
"An Act for regulating the employment of unprotected manual
workers employed in certain employments in the State of
Maharashtra to make provision for their adequate supply and proper
and full utilization in such employments, and for matters connected
therewith. WHEREAS, it is expedient to regulate the employment
of unprotected manual workers such as, Mathad1, Hamal etc.,
engaged in certain employments, to make better provision for their
terms and conditions of employments, to provide for their welfare,
and for health and safety measures 'where such employments
require these measures; to make provision for ensuring an adequate
supply to, and full and proper utilization of, such workers in such
employments to prevent avoidable unemployment; for these and
PEPSICO INDIA HOLDING1'. LTD. v. GROCERY MARKET & 315
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similar purposes, to provide for the establishment of Boards in
A
respect of these employments and (where necessary) in the
different areas of the State; and to provide for purpose connected
with the matters aforesaid; It is hereby enacted in the Twentieth
Year of the Republic oflndia as follows: -
The Sections of the Act relevant for deciding these appeals are
B
set out hereinbelow and read as follows:
S. No.
I
I
"I. Short title, extent, application and commencement. -
(3) It applies to the employments specified in the Schedule hereto.
(4A)Notwithstanding anything contained in sub-section (4), and
in Government Notification, h1dustries and Labour Department,
No. UMA. 1272/Lab-IV, dated the 28th March 1972, this Act
shall be deemed to have come into force in the areas specified in
column 2 of the Table below on the dates and in respect of the
employments specified in columns specified in columns 3 and 4
against each sue~ areas in the said Table, respectively.
Areas
2
(a)
Thane
and
Kalyan
Talukas of 1he
Thane District;
and
Panvel
Taluka of 1he
Kulaba
(now
Raigad)
Pistrict)
(b) The whole
of the
Thane
al\d
Raigad
Districts
excluding
1he
Thane
and
Kalyan Talukas
of the
Thane
District
and
Panvel
Taluka
·. of 1he Raigad
District.
- .
Date
3
26'" day of
Dec. 1979.
-
l"dayof
August
1983.
Name of the employment
4
(I)
Employment in Grocery
Market or Shops, in connection
with
loading,
unloading,
stacking,
canying,
weighing,
measming
(filling,
stitching
9Jrting, cleaning) or such either
work including work preparatory
orincidenlal to such operations.
(2) Employment in markets and
other
establishments,
in
connection
with
loading,
mloading,
stacking,
canying,
weighing,
measming
(filling,
stitching, 9Jrting, cleaning) of
9Jda ash, coal-tar, lime, colour
chemicals,
chemical products
including fertilizers, gunny bags,
coir ropes, ropes, mats, hessian
cloth, hessian yam, oil cake,
ill sk chuni and chhal- or such
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2. Definitions.
other
work
including
work
preparatoty or incidental to such
operations.
(3) Employment in onion an::I potato
wholesale markets in
connection
with loading, unloading, stacking
carrying,
weighing,
measuring
(filling, stitching, sorting, cleaning)
of such other work iucluding work
preparatoty or incideital to such
operations.
(4) Employment in factories and
mills
marufacturing
grocety
products if such employment is
connected with loading, unloading,
stacking,
ca trying,
weighing,
meastring (filling, stitching, sorting,
cleaning)
or
such
other
work
including
work
preparat01y
or
incidental 1o such operations carried
on by workers covered by entty 5 in
the Schedule to tl1is Act.
(5) Employment in fac1ories and
mills
manufacturing
colour
chemicals,
products
including
fertilizers, if such employment is in
connection with loading, unloading,
stacking,
cariying,
weighing,
meastring (filling stitching, soiting,
cleaning)
or such other work
including
work
preparatoty
or
incidental 1o such operations carried
on by workers covered by entry 5 in
the Schedule 1o this Act.
(3) "employer", in relation to any unprotected workers engaged
by or through contractor, means the principal employer and in
relation to any other unprotected worker, the person who l1as
ultimate control over the affairs of the establishment, and includes
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 317
SHOPS BOARD [R. F. NARIMAN, J.)
any other person to whom the affairs of such_, establishment are
A
entrusted, whether such person is called an agent, manager or is
called by any other name prevailing in the scheduled employment;
( 4) "establishment", means any place or premises, including the
precincts thereof, in which or in any part of which any scheduled
employment is being or is-ordinarily carried on;
8
(7) "principal employer" means an employer who engages
unprotected workers by or through a.contractor in any scheduled
employment;
(9) "scheduled employment" means any employment specified
in the Schedule hereto or any process or branch of work forming
part of such employment;
(IO) "scheme" means a scheme made under this Act;
(11) ''unprotected worker" means a manual worker who is
engaged or to be engaged in any scheduled employment;
( 12) "worker" means a perspn who is engaged or to be engaged
directly or through any agency, whether for wages or not, to do
manual work in any scheduled employment and, includes any ·
person not employed by any employey.or a contractor, but working
with the permission of, or under agreement with the employer or
contractor; but does not include the members 6f an employer's,
family.
3. Schemes for ensuring regular employment of unprotected
workers. -
(I) For the purpose of ensuring an adequate supply and full and
proper utilization of unprotectedworkers in scheduled
employments, 'and-generally for making better provision for the
terms and conditions of employment af such work;ers the State
Govemment may by means of a scheme provide for the registration
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of employers and unprotected workers in any scheduled
employment or employments, and provide for the terms and "-=''
·conditions of work of registered unprotected· workers, and make
provision for tl)e general welfare in such employments.
4. Making, variation and revocation of scheme. -
(I) The State Govemment may, after consultation with the Advisory
Committee, by notification in the Officia-1 Gazette and subject to
the condition of previous publication, make one or more schemes
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for any scheduled employment or group of scheduled employments,
in one or more areas specified in the notification; and in like manner
add to, amend, vary or substitute another scheme for, any scheme
made by it:
Provided that, no such notification shall come into force, unless a
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period of one month has expired from the date of publication in
the Offlcial Gazette:
Provided fwther that, the State Government may-
(a) if it considers necessary, or
C ,
(b) if a demand or request is made by a majority of the employers
or workers in any other scheduled employment, that the provisions
of any scheme so made for any scheduled employment or any
. part thereof should be applied to such other scheduled employment,
after consulting the employers and workers in such scheduled
employment by notification in the Official Gazette, apply the
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provisions of such scheme or part thereof to such scheduled
employment, with such modifications, if any, as may be specified
in the notification.
(2) The provisions of section 24 of the Bombay General Clauses
Act, 1904, shall apply to the exercise of the power given by sub'
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section (I) as they apply to the exercise of a Power given by a'
Maharashtra A et to make rules subject to the condition of previous
publication.
5. Disputes regarding application of scheme. - If any question
arises whether any scheme applies to any class of unprotected
F
workers or employers, the matter shall be referred to the State
Government and the decision of the State Government on the
question, which shall be taken after consulting the Advisory
Committee constituted under section 14, shall be final.
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SCHEDULE
4. Employment in Grocery Markets or shops, in connection with
loading, unloading, stacking, carrying, weighing, measuring, filing,
stitching, sorting, cleaning or such other work including work
preparatory or incidental to such operations.
5. Employment in markets, and factories and other establishments,
in connection with loading, unloading, stacking, weighing, measuring,
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 319
SHOPS BOARD [R. F. NARIMAN, J.]
ti I ing, stitching, so11ing. cleaning or such other \York including \York
preparatory or incidental to such operations carried on by workers
not covered by any other entries in this Schedule.
6. The provisions of the 1970 Scheme, insofar as they are relevant
for decision in the present appeals. are set out herein below and read as
follows:
"No. UWA-1469.(GR)_l 60783/LAB-IV :- In exercise of the
powers conferred by sub-section (I) of section 4 of the
Maharashtra Mathadi, Hamal and Other Manual Workers
(Regulation of Employment and Welfare) Act. 1969 (Mah. XXX
of 1969) and of all other powers enabling it in that behalf the
Government of Maharashtra after consultation with the Advisory
Committee, hereby makes the following scheme forernployment
in grocery markets and shops in connection with loading. unloading.
stacking, carrying. \veighing, 1neasuring or such other \Vork
including work preparatory or incidental to such operations in the
areas specified in the Schedule appended to this Scheme, the same
having been previously published as required by sub-section( I) of
the said section 4, namely:-
2. Objects and Application:-
( I) Objects:- The objects of the scheme are to ensure an adequate
·supply and full and proper utilization of unprotected workers
employed in-
( a) Grocery Markets or Shops in connection with loading .
.. unloading. stacking. carrying, weighing. measuring [filling.
stitching. sorting. cleaning] or such other work including work
preparatory or incidental to such operations:
(b)
Markets and other establishments in connection with
loading. unloading. stacking. can)
1ing. \veighing. 1neasuring
(filling, stitching, sorting, cleaning] of soda ash, coaltar, lime,
colour chemicals. chemical products including fertilizers, gunny
bags, coir ropes, ropes, 111ats. hessian, cloth. hessian yarn, oil,
cakes, husk. chuni, chhala, or such other work including work
preparatory or incidental to such operation carried on by workers
not covered by any other entries in the schedule for efficient
performance of work and generally for making better provisions
for the terms and conditions of employment of such workers
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and make provision for their general welfare.
( c) onion and potato wholesale markets in connection with
loading, unloading, stacking, canying, weighing measuring [filling,
stitching, sorting, cleaning], or such other work, including work
preparatory or incidental to such operations.
( d) factories and mills manufacturing grocery products if such
employment is connected with loading, unloading, stacking,
carrying, weighing, measuring, [filling, stitching, sorting,
cleaning] or such other work including work preparatory or
Incidental to such operations carried on by workers covered
by entry 5 in the schedule to the Act;
( e) railway yards and goods sheds in connection with loading,
unloading, stacking, carrying, weighing, measuring [filling,
stitching, sorting, cleaning] of grocery articles or such other
work preparatory or incidental to such operations by workers
who are not employed by Railway Authorities and
(f) factories and mills manufacturing colour chemicals,
chemicals products including fertilizers, in connection with the
loading, unloading, stacking, carrying, weighing, measuring
[filling, stitching, sorting, cleaning] or such other work including
work preparatory or incidental to such operation carried on by
workers covered by entry 5 in the Schedule to the said Act;
42. Cost of operating the scheme and provision for amenities and
benefits to registered workers -
(I) The cost ofoperating this scheme and for providing different
benefits, facilities and amenities to registered workers as provided
in the Act and under this scheme shall be defrayed by payments
made by the registered employers to the Board. Every registered.
employer shall pay to the Board such amount by way of levy in
respect of registered workers allotted to and engaged by him as
the Board may, from time to time specify by public notice or written
order to the registered employer and in such manner and at such
. time as the Board may direct.
(2) In determining what payments are to be made by the registered
employers under sub-Clause (I) the Board may fix different rate
of levy for different categories of work, or registered workers,
PEPSICO INDIA MOLDING P. LTD. v. GROCERY MARKET & 321
SHOPS BOARD [R. F. NARIMAN, J.]
provided that the levy shall be so fixed that the same rate of levy
A
will apply to all registered employers who are in like circumstances.
(3) The Board shall not sanction any levy exceeding fifty percent
of the total wage bill without the prior approval of the State
Government:
(4) A registered employer shall on demand make a payment to
the Board by way of deposit or provide such, other security for
the due payment of the amount referred to in sub-clause (I), as
the Board may consider necessary.
(5) The Secretary shall furnish from time to time, to tlie Board
such statistics and other infonnation as may reasonably be required
in connection with the operation and financing of the scheme.
(6) If a registered employer fails to make the payment due from
him under sub-clause (I) within the time specified by the Board
the Secretary shall serve a notice on the registered employer to
the effect that unless he pays his dues within three days from the
date ofreceipt of the notice, the supply ofregistered workers to
him shall be suspended. On the expiry of the notice period the
Secretary shall suspend the supply of registered workers to
defaulting registered employer until he pays his dues.
43. Provident Fund and Gratuity:-
(\) The Board shall frame and operate rules providing for
contributory Provident Fund for registered workers. The rules
shall provide for the rate of contribution, the manner and method
of payment and such other matters as may be considered necessary
so however that the rate of contribution is not less than 6 Yi per
cent of the wages of a registered worker and is riot more than 8
per cent of such wages.
Provided that pending the framing of the rules it shall be lawful
for the Board to fix the rate of contrihution and the manner and
method of payment thereof.
(la) In framing rules for the contributory Provident Fund the Board
shall take into consideration, the provisions of the Employees'
Provident Funds Act 1952 as amended from time to time and the
schemes made thereunder for any establishment.
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(2) The Board shall frame rules for payment of gratuity to
registered workers.
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(2a) In framing rules for the payment of gratuity to registered
workers, the Board shall take into consideration the provisions of
the Payment of Gratuity Act, 1972 as amended from time to time.
(3) The rules of the provident fund and Gratuity framed by the
Board shall be subject to the previous approval of the State
Government."
7. The first contention ofShri Cama, that the 1970 Scheme, insofar
as it provides for employment in a factory manufacturing chemical
products, is ultra vires the Schedule to the 1969 Act, has to be rejected.
We agree with learned counsel for the respondent that clause 5 of the
Schedule to the Act is a residuary clause which would rope in employment
in factories in connection with loading, unloading, etc. carried on by
workers not covered by any other entries in the Schedule. Admittedly,
manufacture ofpetro chemicals in factories is not covered by any other
entry including entry 4 to the Schedule. For this reason, we are of the
view that the provisions of the 1970 Scheme dealing with manufacture
of petro chemicals in factories would be within the coverage of the
residuary entry i.e. Item 5 of the Schedule to the 1969 Act. This being
so, no part of the 1970 Scheme is ultra vires the 1969 Act.
8. The second submission of learned counsel for the appellant
has also to be rejected for the reason that clause 2( I )(t) of the 1970
Scheme is intra vires Section 1(4A) table column 4 item 5 of the 1969
Act. It is clear that the expression "products including fertilizers" is
wider than "chemical products including fertilizers". The 1969 Act's
terminology being wider than the terminology of the impugned 1970
Scheme, obviously the 1970 Scheme when it speaks of "chemical
products" manufactured in factories and covered by entry 5 in the
schedule to the 1969 Act would be intra vires the expression "products
including fertilizers".
9. The further submission of Shri Cama, learned senior counsel,
that the appellant allegedly manufactures petrochemical products and
not chemical products has been correctly repelled by the Division Bench
of the Bombay High Court by stating that "petro chemical products"
would be a species of the genus "chemical products". In fact, the
appellant has admitted that it manufactures polystyrene (granules).
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET &
SHOPS BOARD [R. F.