TaxTMI 
TaxTMI 
2016 (2) TMI 1228
X X X X Extracts X X X X
X X X X Extracts X X X X
....t and Welfare) Scheme, 1970 (hereinafter referred to as "the 1970 Scheme"). The brief facts necessary for a decision in Civil Appeal No. 10000 of 2010 (Supreme Petro-Chem Limited v. State of Maharashtra and Ors. 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 be referred 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: 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: 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 ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ene 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 by-product 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 not dealing with petrochemicals as they have submitted. We agree with the findings of the authority. Assuming for a moment 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. Therefore, the word "....
X X X X Extracts X X X X
X X X X Extracts X X X X
....our 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 include within it under Clause 2(1)(f) "chemical products", is therefore ultra vires Section 1(4A). Further, according to learned Counsel, what is allegedly manufactured in the Appellant's factory are petro chemicals 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 petro chemicals. For that reason also, petro chemicals 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 petro chemicals in factories, and it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cluding 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 and 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: An Act for regulating the employment of unprotected manual workers employed in certain employment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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; (10) "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 person 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 employer or a contractor, but working with the permission of, or under agreement with the employer or contractor; but does not include the members of an employer's family. 3. Schemes for ensuring regular employment of unprotected workers.- (1) For the purpose of ensuring an adequate supply and full and proper utilization of unprotected workers in scheduled employments, and generally for making better provision for the terms and conditions of employment of such workers the State Government may by means of a scheme provide for the registration of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al to such operations. 5. Employment in markets, and factories and other establishments, in connection with loading, unloading, stacking, weighing, measuring, filing, stitching, sorting, cleaning or such other work including work 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 hereinbelow and read as follows: No. UWA-1469.(GR)_160783/LAB-IV: In exercise of the powers conferred by Sub-section (1) 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 for employment in grocery markets and shops in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations in the areas specified in the Schedule appended to this Scheme, the same having been prev....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ied 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- (1) The cost of operating 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 (1) the Board may fix different rate of levy for different categories of work, or registered workers, provided that the levy shall be so fixed that the same rate of levy 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 approv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctory 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 of petro 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(1) (f) 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Act, the authorized officer came to the conclusion: Under these circumstances, my opinion is that polystyrene production is not a petroleum product but it is a chemical or chemical product. For a moment if it is accepted that company is a petrochemical company and producing petrochemical, even though petrochemical is also one of the chemical and therefore no reason is seen for not accepting a chemical production and Mathadi Act and Scheme are not applicable. After all petrochemicals are chemicals. It is not mentioned anywhere that petrochemicals should be omitted while implementing Mathadi Act and Scheme. Under the circumstances, I am giving my ruling that company's above point is not valid and hence Mathadi Act and Scheme is applicable to the company. 11. From the above, it is clear that the conclusion reached by the Government in its order dated 24.6.2008 that petrochemical products are a species of chemical products and that the Appellant manufactures chemical products, cannot be said to be perverse. We must not forget that the High Court in dismissing the writ petition was exercising the power of judicial review which would not go to the merits of the co....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. This being the case, any argument that the factories' manufacturing activities are mechanized and that there is no need for manual labour would have no material bearing to the case at hand. 14. This Court, while approving a Full Bench decision of the Bombay High Court, has in the Bhuwalka Steel case interpreted the expression "unprotected worker" occurring in Section 2(11) of the 1969 Act as meaning every manual worker who is engaged or to be engaged in any scheduled employment, irrespective of whether or not he is protected by other labour legislations. This Court referred to the Objects and Reasons for the 1969 Act in the following terms: The Statement of Objects and Reasons mentions that report was made by the Committee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gislation, this Court went on to hold: Before parting with the judgment, we must refer to the fact that this legislation, which came way back in 1969, has in its view, those poor workmen, who were neither organized to be in a position to bargain with the employers nor did they have the compelling bargaining power. They were mostly dependent upon the Toliwalas and the Mukadams. They were not certain that they would get the work everyday. They were also not certain that they would work only for one employer in a day. Everyday was a challenge to these poor workmen. It was with this idea that the Board was created Under Section 6 of the Mathadi Act. Deep thoughts have gone into, creating the framework of the Boards, of the schemes etc. With these lofty ideas that the Act was brought into existence. In these days when Noble Laureate Professor Mohd. Yunus of Bangladesh is advocating the theory of social business as against the business to earn maximum profits, it would be better if the employers could realize their social obligations, more particularly, to the have-nots of the society, the workers who are all contemplated to be the inflicted workers in the Act. (at Para 83) 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tration No. 4516. After registration, the Company with a view to close the matter pleaded guilty in the proceedings filed by the Board before the Labour Court. The Company submits that no Toli was allotted to it in spite of being registered till 21/3/2001, as the Board was well aware that the Company itself did not engage any persons for loading trucks and that the truckers/customers engaged persons from the Societies for loading work. The Company conducted and continued its business as usual and sold its products on ex-work basis whereby the customer as earlier sent Truckers along with persons who were from the Societies for loading. 19. Similarly in the writ petition filed before the High Court, the Appellant company's own pleading in paragraph 8 is that the Appellant registered itself with the Respondent No. 2 Board under pressure of the Board believing that the Act and the scheme were applicable. It was granted registration No. 4516. Further, in proceedings under the Act against the company it admitted that it pleaded guilty for not having registered itself. This being the state of facts before us, we cannot characterize the State Government's finding in its order da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y, dismissed. Civil Appeal No. 9999 of 2010 22. In this appeal, the fact situation is that the Appellant company is manufacturing soft drinks being aerated water and bottled water. A State Government order dated 18.8.2008 made Under Section 5 of the Act rendered the following finding: 5. The Government has perused all the case papers and considered the above circumstances. After examining all the aspects of the case the Government has arrived at the following findings: (a) The company products drinking water and drinks of various kinds such as Pepsi, Mirinda and Seven-up. (b) In the said products the Company uses as raw material such as Sugar, Caustic Soda, Carbonic Acid; Ascorbic Acid; Coffin, Sequesters Agents, Buffering; Carmel Water, Emulsifying and Stabilizing. (c) "Drink" is one of the substances of food products; (d) "Drink" is a grocery product; (e) The raw material from which they are produced are also primarily consumable food products. (f) The raw material required for the manufacture of the product as also the product manufactured are both consumable food products (liquid and solid). (g) Matha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ictionary "Grocery" means items of food in a grocery shop or a super-market. Now-a-days, all the Soft Drinks are available in the grocery shops and the super-markets. They are the items of food and, therefore, they are all grocery items. Apart from this, it is not disputed by the learned Counsel that in all the manufacturing process, loading and unloading activities are carried out, which are the activities of the Mathadi Kamgara. We do not find any substance in the contentions raised. The writ petition is rejected. 24. Shri Giri, in addition to the submissions raised by Shri Cama, on his special facts submitted that it was fallacious to take into account raw materials that ultimately went into the manufacturing of the finished products and to state that the said raw materials being groceries would therefore make the final product also a "grocery". He further argued that the expression "grocery" would only comprise articles which are required as daily necessities such as oil, grain, etc. in households, and this not being the case, soft drinks manufactured and bottled water would be outside the expression "grocery". He also argued that when the Act was extended to the Appellant c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... may be summarized thus: The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the rev....