TaxTMI 
TaxTMI 
2006 (12) TMI 513
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.... High Court of Uttaranchal in Writ Petition No. 1376 of 2001. The said writ petition was filed by the respondent-workmen against the award dated 24.12.1997 of the Labour Court, Dehradun in litigation case No. 117 of 2006 (with 29 other cases). DATES AND EVENTS: 3. The U.P. Forest Corporation had engaged daily wages workers for the purpose of measurement of wood, protection of timber at the logging site and depots of the Corporation. The said engagement of workers was as per requirement. The U.P. Forest Corporation was the predecessor of the appellant Corporation. 12.07.1994 A writ petition No. 21 of 1993 (Van Nigam Karmachari Kalyan Sangh vs. State of U.P and others) was decided by the High Court of judicature at Allahabad vide judgment and order dated 12th July, 1994 wherein the High Court, inter alia, held as under:- "... (iii) In case of reduction of work or short fall in the work the Authorities of the Forest Corporation would make an endeavour to adjust them in alternative work available in the particular region in which they are working or in any other region where work is available before giving them seasonal leave terminating their services.....
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....ate Government by framing the Rules known as the Industrial Disputes (Uttar Pradesh) Rules, 1976 have made Section 25N applicable in relation to Industrial establishment in the State of U.P. 10. In view of the above the question which was raised was whether the Forest Corporation is an Industrial establishment within the definition of Section 25L or not. FINDINGS: 11. The High Court held that the Forest Corporation carries the activity of cutting, removal, disposal and sale of trees over the area allotted to the Corporation and, therefore, the area of the land over which such activities are carried on is "premises". Thus, the first requirement of the definition of factory is satisfied. 12. The High Court held that cutting of trees by axe and shaping the cut trees into logs is a manufacturing process under the definition of Section 2(k) of the Factories Act and therefore it is an industrial establishment within the meaning of Section 25-L of the Industrial Disputes Act. 13. The High Court held that since the retrenchment was made without complying with the provisions of Section 25N of the Industrial Disputes Act, the retrenchment order was void and accordingly the sai....
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....a raw material. (4) that the entire activity of appellant of cutting trees and converting into logs does not make any change so far as article is concerned. The article is neither treated nor adapted but on the contrary, the article is sold to customers in the same form in which it was received in the depots of the Corporation. The expression adapting means something to be done to the article so as to make it different from what it was before. Therefore, the words making, altering, packing, oiling etc, in the definition of manufacturing process should be read jointly with 'otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal. 16. For the above-said proposition, Mr. Rao sought indulgence of this Court to rely upon the following judgments: 1. Col. Sardar C.S. Angre v. The State and Anr., AIR (1965) Rajasthan 65. The question involved was as to whether the grading of the potatoes for storing in the cold storage or the process of drying of the potatoes amount to a manufacturing process or not. The said question was considered in the light of the expression "otherwise treating or adapting any ....
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....he main question for determination in this appeal is whether the Salt Works come within the definition of the word "factory" under clause (m) of Section 2 of the Act. The Salt Works extend over an area of about 250 acres. The only buildings on this land consist of temporary shelters constructed for the resident labour and for an office. At a few places, pucca platforms exist for fixing the water pump when required to pump water from the sea. The entire area of the Salt Works is open. On the seaside, it has bunds in order to prevent sea water flooding the salt pans. It was contended before this Court that the expression "premises" in the definition of the word "factory" means "buildings" and that "mere open land" is not covered by the word "premises" and as there are no buildings except temporary sheds on the Salt Works, the Salt Works cannot be said to be a "factory". This Court held: "That the salt works was a factory within the definition given in the Act and that the appellant was rightly convicted for working it without a license. The word "premises" is a generic term meaning open land or land with buildings or buildings alone; the salt works came within the e....
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....ss contained in S.2(k) of that Act would show that pumping of oil is one of the manufacturing process. Whether selling of petrol or diesel at a petrol pump can be called a process of pumping of oil would again be a question to be looked into. A perusal of the definition shows that the process of pumping oil, water, sewage or any other substance has also been defined to be a manufacturing process but to my mind this would not include dealership of petrol or diesel. It is true that some pumping process is involved because petrol and diesel is stored by the petrol dealers in huge tanks but the underlying object of the definition seems to be the pumping of oil from refineries or water from underground the earth and so on. Essentially, the business carried on by a petrol pump dealer is to sell petrol or diesel as the case may be and not pumping the oil. I am, therefore, of the firm view that selling of petrol or diesel by a petrol dealer will not be a 'manufacturing process'." It is submitted that the Corporation is not a factory within the definition of Factories Act as the forest corporation does not work in any premises or place surrounded by a boundary and that the Corporat....
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....er substance, or ; (iii) generating, transforming or transmitting power, or (iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; or (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels ; or (vi) preserving or storing any article in cold storage. Thus, the different processes set out in Sub-clause (i) of Clause (k) of Section 2 must be with a view to the use, sale, transport, delivery or disposal of the article or substances manufactured." 7. Kores India Ltd., Chennai v. Commissioner of Central Excise, Chennai, [2005] 1 SCC 385 This Court held in para 12 as under: 12. 'Manufacture' is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commo....
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....ve areas, to attend to installation and other incidental matters when a new connection has been given to a consumer. They have to attend to daily complaints from 'the consumers, keep regular reports and attend to the defects in the consumers' premises. They have to go out for field work and they have to sit in office for maintenance and preparation of the relevant records. It cannot be said that any manufacturing process either takes place in the sub-stations or in the zonal stations and they do not satisfy the definition of "factory" under Section 2(m) of the Factories Act. If these places are not factories. Clause (a) of Regulation No. 17 will not apply to the concerned workmen who are employed therein." 10. Lal Mohammad and Ors. v. Indian Railway Construction Co. Ltd. and Ors., [1999] 1 SCC 596 The respondent, in this case, Indian Railway Construction Company Limited was carrying on various construction projects. It was, at the relevant time, executing a construction of a project of construction of railway line of 54 kms. It served retrenchment notices on the appellant-workers. The notices stated that since most of the work in the project was over and no o....
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....ould not be covered by Section 25-N Sub-section (1). Xxxx xxxx xxx In the light of the aforesaid definition, in order that the project in question can be treated to be a 'factory', the following requirements of the definition have to be fulfilled: (i) In the premises, including the precincts thereof, ten or more workmen must be working where manufacturing process is carried out with the aid of power, or (ii) where twenty or more workmen must be working at the relevant time and in any part of such premises manufacturing process is being carried on without the aid of power; or (iii) In any case manufacturing process must be carried on in any part of the premises; So far as the first and the second requirements are concerned, it cannot be disputed that at the relevant time when the impugned notices of 1993 were served on the appellants more than hundred workmen were working in the premises. Consequently, the question whether the construction of railway line was being done with the aid of power or without the aid of power pales into insignificance. Therefore, the remaining requirement (iii) for applicability of the definiti....
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....eaning "open land or land with buildings or buildings alone". Relying on the aforesaid judgments, it was contended by Shri Dave, learned senior counsel for the Respondent that on the facts of the present case, Rihand Nagar Project which was concerned with construction and laying down of railway lines spread over 54 KMs, can not be said to constitute a 'factory' as it had no fixed site. 17. It is true that the word "premises" occurring in the definition of "factory" in Section 2(m) of the Factories Act, 1948, implies a fixed site but that word not only covers building out even open land can also be a part of the premises. For laying down a railway line, a number of workmen, supervisors and other clerical staff will have to attend the site where the railway line is to be laid. That site on which the railway line is to be laid will necessarily have space for storage of loose rails, sleepers, bolts etc. All these articles will have to be laid and fixed on a given site before any part of the railway track becomes ready. Consequently, construction of a railway line would necessarily imply fixed sites on which such construction activity gets carried on in a phased manner. Thus, e....
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....d the writ petitions filed by the retrenched employees directly in the High Court was not maintainable in view of the settled position in law that alternative remedy under the Industrial Disputes Act must be initially availed. In this batch of 38 cases, 22 cases have not gone to Tribunal and they approached directly to the High Court by filing the writ petitions. The termination order was passed in the year 1995. The writ petitions were filed in the year 2005 and the High Court mechanically decided all these cases in the light of Jabar Singh's case. The details of cases which have not gone before the Tribunal and were decided in the writ petitions filed by the respondents-herein in the light of the Jabar Singh's case are as follows:- S.No. W.P. Nos. Particulars 1. 1730/2001 SLP(C) No. 3399/2004 2. 1529/2001 SLP(C) No. 8552/2004 3. 1729/2001 SLP(C) No. 8553/2004 4. 141/2004 SLP(C) No. 10712/2004 5. 150/2004 SLP(C) No. 13425/2004 6. 450/2004 SLP(C) No. 13446/2004 7. 142/2004 SLP(C) No. 13813/2004 8. 151/2004 SLP(C) No. 14327/2004 9. 6926/2004 SLP(C) ....
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....isposal of these disputes. As against this, the courts and tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make and re-make the contracts, settlement, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a civil court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the courts in interpreting these enactments and the disputes arising under them". 23. In Basan....
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.... of Acceptance Sub silentio. The Respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10.8.1988. 20. It is true that the Respondent had filed a writ petition within a period of three years but indisputably the same was filed only after the other workmen obtained same relief from the Labour Court in a reference made in that behalf by the State. Evidently in the writ petition she was not in a position to establish her legal right so as to obtain a writ of or in the nature of mandamus directing the Appellant herein to reinstate her in service. She was advised to withdraw the writ petition presumably because she would not have obtained any relief in the said proceeding. Even the High Court could have dismissed the writ petition on the ground of delay or could have otherwise refused to exercise its discretionary jurisdiction. The conduct of the Respondent in approaching the Labour Court after more than seven years had, therefore, been considered to be a relevant factor by the Labour Court for refusing to grant any relief to her....
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..... He cited the decision reported in Lal Mohammed's case (supra) which held that the retrenchment order without following the condition precedent under Section 25-N is to be treated as void and of no legal effect. 22. Insofar as the filing of writ petitions directly in the High Court and by way of reply to the argument of Mr. Rao, Mr. Mehta submitted that availability of alternative remedy is only a Rule of prudence and in a case like the present one where there were no disputed questions of fact and the High Court had already decided the matter in Jabar Singh's case, the High Court, was justified in entertaining the writ petition. 23. Mr. Bharat Sangal, learned counsel appearing for the respondent Nos. 1-12 in SLP (C) No. 24584 of 2003 submitted as under:- That the Award of the Labour Court which held that the retrenchment orders were in full compliance of the provisions of Section 6-N of the U.P. Act and there was sufficient reason for the Corporation to retain the juniors in service. However, on the question of compliance with requirements of Section 25-N of the Industrial Disputes Act, the Labour Court took the view that firstly the present case is cover....
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....alone. 25. Mr. Bharat Sangal, learned counsel submitted that manufacturing process as defined in the Factories Act in Section 2(k) can be divided into three parts, namely: (i) The process - "making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting" (ii) The object - "any article or substance" (iii) The purpose - "with a view to its use, sale, transport, delivery or disposal." 26. In the present case, it is admitted on both sides that the work of the respondents consisted of "cutting of trees by axe and changing the shape of the timber into logs by using hand driven saw". In our view, the process of cutting by axe and changing the shape by saw both squarely fall within the definition of the first part of the manufacturing process as cutting would be included in the processes of "making" and "breaking up" included in the said definition. Further, the changing of shape by saw would be included in the processes of "altering" and "adapting" of the trees. Admittedly, trees and logs both fall within the meaning of "any article or substance", the second part of the d....
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....poration was done contrary to the provisions of clause (1) of Section 25-N and is illegal. Clause 7 of Section 25-N statutorily provides that "where no application for permission under sub-section (1) is made or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him". The submission made in this behalf by learned counsel for the respondents merit acceptance. Thus, the retrenchment notices mentioned above being illegal from the date of the said notices and the workmen being entitled to all the benefits, in the present case, all the concerned workmen are entitled to be reinstated with full back-wages and continuity of service. 30. Mr. Dhruv Mehta also submitted that the retrenchment orders passed by the Corporation are invalid in law for non-compliance with the statutory provisions of Section 25-N of the Industrial Disputes Act, 1947. Section 25-N which falls in Chapter-V-B was inserted by Act No. 32 of 1976 w.e.f. ....
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.... definition of the 'factory' as defined under section 2(m) inasmuch as the area over which the respondent workmen carry on their activity would fall within the term 'premises' as understood and explained by a Constitution Bench of this Court in the decision reported in the case of Ardeshir H. Bhiwandiwala v. State of Bombay, [1961] 3 SCR 592. 33. The Constitution Bench clearly held in the aforementioned decision that 'premises' can consist of open area and need not be confined in its meaning to buildings alone. 34. Mr. Mehta also made submission on the definition of 'manufacturing process' under Section 2(k) of the Factories Act, 1948. The appellant has urged that in order to satisfy the definition of 'factory' under Section 2(m) of the Factories Act, there must be a 'manufacturing process' and the activity which was carried on by the workmen does not fall within the definition of 'manufacturing process' as defined in Section 2(k) of the Factories Act, 1948. The above submission, in our opinion, is untenable in law and cannot be sustained for more than one reason. However, before dealing with the definition of 'manufacturing process' as defined in section 2(k), it is necessar....
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....re immovable property by axe and shaping them into logs by use of saws by workmen into logs, which become articles or moveable substance and is sold by Forest Corporation..." 36. It was submitted that the aforesaid activity would fully comply with definition of 'manufacturing process' as defined under section 2(k) of the Factories Act, 1948. It was submitted that the activity in question in the present case could easily be said to be making or altering an Article with a view to its use, sale, transport, delivery or disposal. The word 'alter' in Black's law dictionary (6th Edition at pg.77) is defined as under:- "Alter. To make a change in; to modify; to vary in some degree; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected. To change partially. To change in one or more respects, but without destruction of existence or identity of the thing changed; to increase or diminish. See Alteration; Amend; Change." 37. It was submitted that the test laid down by this Court in Ardeshir's case is whether what is made shall be a different thing from that out of which it is made. I....
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....de in the year 1995 and the writ petitions were admittedly filed in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches. We have already referred to the decision of this Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr, (supra). This Court speaking through Arijit Pasyat, J. has held in categorical terms that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act unless exceptional circumstances are made out. 40. In the instant case, the workmen have not made out any exceptional circumstances to knock the door of the High Court straightaway without availing the effective alternative remedy available under the Industrial Disputes Act. But the dispute relates to enforcement of a right or obligation under the statute and a specific remedy is, therefore, provided under the statute the High Court should not deviate from the general view and interfere under Art....