P.B. Majmudar, J.
1. By filing this petition, the petitioner has challenged the order passed by the Board by which the Government Labour Officer and Secretary, Metal and Paper Markets and Shops Mathadi Labour Board directed the petitioner to remit to the Board an amount of Rs.28,10,109.40 being the amount of wages and levy due for the period April, 2005 to October, 2007 in respect of claim of Tolli No. M112. The said order is passed under Section 13 of the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969 read with the provisions of the Metal (Excluding Iron and Steel) and Paper Unprotected Workers ( Regulation of Employment and Welfare) Scheme, 1973.
2. The petitioner is the manufacturer of steel furniture such as safes, cabinets, lockers, safe vaults, etc. The manufacturing activity was initially carried on at the factory of the petitioner situate at Mazgaon, Mumbai. The loading of goods from the factory and delivery of the above goods to various customers was done by Tolli No. M112 consisting of 16 registered workers of the Metal and Mathadi Labour Board. It is the case of the department that the registered workers were delivering these goods in Mumbai, Thane and Raigad Districts, which are the areas falling under the jurisdiction of the Board. The establishment was registered with the Board bearing registration No. MS/100 dated 20th December, 1976. The wage rates and other terms and conditions of Tolli No. M112 were fixed under the periodical agreements between the establishment and the Tolli represented by Maharashtra General Kamgar Union. The said agreements specified the rates for various mathadi operations. Tolli No. M112 was carrying out all the mathadi operations pertaining to the finished goods of the establishment and the establishment was regularly remitting the amount of monthly wages payable to the Tolli and levy thereon every month. As per the say of the Board, in or about April, 2005, it was brought to the notice of the Board that the establishment has decided to discontinue/stop manufacturing activities at their factory at Mazgaon, Mumbai and the manufacturing activity is carried out at their unit at Halol in the State of Gujarat. On behalf of Tolli No. M112 it was reported that the business of the company regarding selling the finished goods to their customers and delivering these goods in Mumbai, Thane and Raigad Districts is still continuing. Previously, the company used to do the same work of handling activity of delivering their goods to their customers on its own but now they have appointed logistic agencies to carry out the said work. The demand of the tolli was that they should have been engaged for doing this work. In this behalf, the Board sent a letter on 18th March, 2005 asking the establishment to engage Tolli No. M112 for loading, unloading and delivery of their goods carried out through their agencies in Mumbai, Thane and Raigad Districts. However, there was no response to the said letter. A joint meeting was organized but nobody on behalf of the establishment remained present in the said meeting. It is the case of the Union that though manufacturing activity of Mazgaon establishment is stopped, the business of the company in Mumbai is very much in existence and in fact the business must have increased. It is also the case of the Union that the material is being stored at Bhiwandi and from there it is delivered to customers. It is the say of the Union that as per the Mathadi Act and scheme, this work in question has to be done by registered workers of the Board. As against that, the work has been taken from the unregistered workers which is illegal. It seems that the establishment sent their letter on 16th June, 2005, informing the Board that the management has discontinued its manufacturing activities at Mazgaon and no work of loading and unloading is now carried on. The Board thereafter, after considering the provisions of the Act and the Scheme and after considering the material on record, came to the conclusion that the establishment is persistently a voiding to address the issue by not remaining present at the hearing fixed even though ample opportunity was given to them. The Board has also considered average amount of wages and levy for the period between April, 2003 and March, 2004 and came to the conclusion that the monthly average of wages for the two years comes to Rs. 1,68,387.87. The Board has also considered the details of wages and levy received by Tolli between the period 20052006 and 20062007.
The Board has also found that the loading and unloading activities going on in the State of Maharashtra which is in the jurisdiction of the Board. The Board found that the Company is the principal employer and, therefore, it is under the legal obligation to engage the registered workers for mathadi operations concerning their finished goods. The company has failed and neglected to engage the allotted registered workers (Tolli No. M112) for mathadi operations despite several intimations and reminders from the Board. Ultimately, therefore, the Board gave appropriate direction in the impugned order asking the petitioner to remit to the Board an amount of Rs. 28,10,109/being the amount of wages and levy due for the period between April, 2005 and October, 2007 in connection with the claim of Tolli No. M112. It is the aforesaid order which is impugned at the instance of the petitioner.
3. Mr. Rele, learned senior counsel appearing for the petitioner, has submitted that since the factory has already been closed at Mazgaon and since no manufacturing activity is going on, as the same is shifted to Halol in the State of Gujarat, no such direction could have been given by the Board. Mr. Rele further submitted that in view of the closure of the factory, it cannot be said that there is any establishment which is in existence in the area in question i.e. Mazgaon. The so called place of godown at Bhiwandi is not registered with the Board and, therefore, the direction given by the Board is without jurisdiction. Mr. Rele further submitted that when the Act itself is not applicable to the petitioner in view of the fact that now manufacturing activity has been stopped, the direction given by the Board is without jurisdiction. Mr. Rele also further submitted that even the Board has also not made any calculation in a scientific manner before asking the petitioner to remit the amount to the Board.
4 Mr. Dharap, the learned counsel appearing for respondent No.1 submits that since the loading and unloading activities are going on at Mazgaon and other places, and the godown is also situated in the State of Maharashtra and the goods are distributed in the State of Maharashtra, that the provisions of the act is applicable. Learned counsel further submitted that looking to the definition of scheduled employment, loading and unloading is going on in the State of Maharashtra i.e. at Mazgaon and, therefore, the provisions of the Act are applicable. The Board has rightly given the direction in the impugned order. The learned counsel also further submitted that the Board has passed the order after consideration of the documents produced by the parties before it. It is further submitted that even though statutorily the petitioner is bound to take the work of loading and unloading only through the registered workers, the petitioner has taken services of unregistered workers and the petitioner being the principal employer is in any case responsible for payment of wages. The learned counsel has further submitted that looking to the scheme of the Act as well as looking to the object of the Act, the petitioner cannot escape from its liability on the ground that it has stopped its manufacturing activity in the State of Maharashtra.
5. We have also heard the learned counsel appearing for the Union Mr. Ganguli. He submitted that no interference of this Court is called for in its extraordinary jurisdiction under Article 227 of the Constitution of India against the impugned decision of the Board. He has taken out Chamber Summons being Chamber Summons No. 103 of 2008 for intervention in the main matter on behalf of the Union i.e. Maharashtra General Kamgar Union. We accordingly permit the said Union to be impleaded as party Respondent No. 3 in the array of parties.
6. We have heard the learned counsel for the parties at length. We have gone through the petition and documents annexed with the petition and also the impugned order passed by the Board. The principal question which requires consideration is whether by virtue of closure of the factory at Mazgaon, the operation of the Act can still be said to be applicable to the petitioner. It is no doubt true, as argued by Mr. Rele, that the factory has now been closed and manufacturing activity is also closed from the State of Maharashtra. The manufacturing activities are at present carried on at Halol, in the State of Gujarat. This fact is not in dispute. In order to appreciate the controversy raised in the petition, reference is required to be made to certain provisions in the Act. Subsection (4) of Section 2 defines the term ?establishment? to mean 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. Subsection (7) of Section 2 defines ?principal employer? which means an employer who engages unprotected worker by or through a contractor in any scheduled employment. The term ?scheduled employment? has been defined in subsection (9) of Section 2 to mean any employment specified in the schedule thereto or any process or branch of work forming part of such employment. ?Unprotected worker? has been defined in subsection (11) of Section 2 that a manual worker who is engaged or to be engaged in any scheduled employment. ?Worker? is defined in subsection (12) of Section 2 to mean 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.
7. So far as the scheduled employment is concerned, any employment specified in Schedule is to be treated as scheduled employment. As per the schedule, clause (1) thereof defines employment in Iron and Steel Market or shops in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations. On going through the said schedule, it is abundantly clear that such operations are to be considered as scheduled employment. Any work, therefore, which is in connection with loading and unloading in connection with the business of the petitioner, the same is covered in the scheduled employment. There is no requirement in the law that unless the manufacturing activity itself is going that in those circumstances only the act in question is applicable. Even if something is manufactured outside the State but if the loading and unloading operations are carried out in connection with the business of the Company as per the schedule, such operation of loading and unloading certainly be covered under the provisions of the Act. It is not in dispute that manufactured articles are brought within the State and loading and unloading operations have been carried out in the State of Maharashtra itself.
8. In this connection, reference is required to be made to the Metal (Excluding Iron and Steel) and Paper Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1973. The object of the scheme is to ensure an adequate supply and full and proper utilisation of unprotected workers employed in metal (excluding Iron and Steel) including those employments in steel furniture, markets or shops and paper markets or other shops an establishments in the trades in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations for efficient performance of work and generally for making better provision for the terms and conditions of employment of such workers and make provision for their general welfare. In exercise of powers conferred by subsection (2) of Section 4 of the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969, the Government of Maharashtra, after consultation with the Advisory Committee, has formulated a scheme for employment in metal (excluding iron and steel) including employment in steel furniture, markets or shops and paper markets or shops and other establishments in the trades in connection with loading, unloading, stacking, carrying, weighing , measuring or such other work including work preparatory or incidental to such operations in the area of Greater Bombay. Considering the provisions of the Act and the Scheme, in our view, simply because the factory is closed itself cannot be a ground for coming to the conclusion that the Act and the Scheme is not applicable.
9. Loading and unloading is an important part of activity and 16 workmen have already been registered with the Board in this behalf. Under these circumstances, simply because the said work has been assigned to a different agency cannot be a ground by which the petitioner can escape its liability as a principal employer as defined in the Act. It is unfortunate that the work of loading and unloading has been carried out by other agency ignoring the claim of protected workers. If the contention of the petitioner is accepted, then it may defeat the objects of the Act and in a given case one can bypass the said provisions. The provisions of the Act are required to be interpreted accordingly by keeping in mind the object for which the Act has been enacted. The Board has found that the Act and the Scheme is applicable irrespective of the fact that the factory of the petitioner is closed or stopped manufacturing activity in Mazgaon area. Regarding the argument of Mr. Rele that the amount is not calculated properly, it is to be seen that the Board had given ample opportunity to the petitioner but the petitioner has remained absent for the hearings fixed by the Board, even though ample opportunity was given to the petitioner in this behalf. Document produced in the petition is not reflecting a to whether such calculation is for 8 or 16 workers who have registered with the Board. The learned counsel for the Respondent Board has submitted that appropriate breakup has also been given in this behalf and the calculation arrived at by the Board on the basis of 16 workmen is absolutely correct. Mr. Ganguli, Learned Counsel appearing for the Union has also supported the aforesaid argument of the learned counsel for respondent no.1.
10. Learned counsel for the petitioner is not in a position to substantiate the said argument by giving probable data in this behalf. The petitioner has been given ample opportunities which the petitioner has not availed. Considering the said aspect, this Court, in a petition under Article 227 of the Constitution of India, cannot be called upon to decide such disputed aspect as the said finding is clearly the finding of fact given by the Board. A reference is also required to be made to a decision of the Supreme Court in the case of Maharashtra Rajya Mathadi Transport and Central Kamgar Union vs. State of Maharashtra and others, 1995 II CLR 217. In paragraph 7 of the said judgment, the Supreme Court after considering the definition of ?employer? in the Act has observed as under:
?According to the
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above definition of ?employer? he may be (i) an employer of an unprotected worker engaged by or through a contractor, that is, the principal employer, (ii) an employer of any other unprotected worker, that is, a person who has the ultimate control over the affairs of the establishment or the person to whom the affairs of such establishment are entrusted whether such person is called an agent, manager or by any other name prevailing in the scheduled appointment. 8. When Section 2 (7) defines 'principal employer' as meaning an employer who engages unprotected workers by or through a contractor in any scheduled employment, principal employer can be classified or described as 'employer' when he engages unprotected workers by or through contractor of the scheduled employment?. 11. Considering the aforesaid aspect of the matter, in our view, it was not open for the Petitioner to take the work in question from other employees or from other agency bypassing the claim of registered workers and as such the registered workers can be said to be in scheduled employment. It is not in dispute that loading and unloading activities are still going on at the concerned place, though through different agencies. Considering the aforesaid aspect of the matter, we do not find any error either of law or of jurisdiction in the impugned order of the Board. No interference of this Court is called for. The petition is accordingly rejected. There shall, however, be no order as to costs. 12. At the oral request of the learned counsel for the petitioner, interim order granted earlier by this Court on 6th August, 2008 to continue upto 30th September, 2008. 13. Chamber Summons No. 103 of 2008 is also disposed of.