Supreme Court of India
PEPSICO INDIA HOLDING P. LTD.versusGROCERY MARKET & SHOPS BOARD & ORS.
- Citation
- 2016 INSC 161
- Decided
- 12 February 2016
- Disposal
- Dismissed
- Bench
- KURIAN JOSEPH
Holding
The 1970 Scheme is intra vires the 1969 Act, the residuary clause covers petro‑chemical manufacturing, and the State Government’s order under Section 5 is valid.
Summary
The Supreme Court examined whether the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 and the Grocery Markets or Shops Unprotected Workers Scheme, 1970 could be applied to Pepsico India Holding Ltd., which manufactures petro‑chemical products, soft drinks and bottled water. The State Government, under Section 5 of the 1969 Act, had held that the residuary clause (Item 5) of the Schedule covered the appellant’s factories and that the 1970 Scheme was intra vires. The appellants argued that the Scheme was ultra vires, that ‘grocery’ did not include their products, and that the 1970 Scheme conflicted with the Contract Labour Act, 1970. The Court held that petro‑chemical products are a species of chemical products, that Item 5 is a residuary entry encompassing such manufacturing, and that the Scheme’s provisions are within the scope of the 1969 Act. It also rejected the contention that the Scheme was ultra vires because of its title and affirmed the State Government’s decision as final under Section 5. Consequently, both civil appeals were dismissed.
Issues considered
- The applicability of the 1969 Act and the 1970 Scheme to factories manufacturing petro‑chemical products and soft drinks.
- Whether clause 2(1)(t) of the 1970 Scheme is ultra vires the 1969 Act.
- The interpretation of the term ‘grocery’ in the context of the Scheme.
- Whether the Contract Labour (Regulation and Abolition) Act, 1970 repugns the 1969 Act.
- The finality of the State Government’s decision under Section 5 of the 1969 Act.
Legislation cited
- Bombay General Clauses Act, 1904s. 24
- Contract Labour (Regulation and Abolition) Act, 1970s. 30(1)
- Grocery Markets or Shops Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1970s. clause 2(1)(t)
- Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969s. 1(4A), s. 2(4), s. 3, s. 4, s. 5
Subjects
Maharashtra Mathadi Actunprotected workersscheme applicabilitypetro‑chemical manufacturinggrocery definitionwelfare legislationSection 5 finalityultra virescontract labourrepugnancy
Judgment
[2016] 2 S.C.R. 305
PEPSICO !NOIA HOLDING P. LTD. A
v.
GROCERY MARKET & SHOPS BOARD & ORS.
I
(Civil Appeal No. 9999 of2010 etc.)
FEBRUARY 12, 2016 B
[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
c
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 D
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
E
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
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 G
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. H
305
306 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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]
B
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
c 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) [322-
E-G)
D 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
E 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
F 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]
G 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
H 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 A
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
B
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 c
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 D
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 E
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. F
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
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 H
308 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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
B
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
c 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.
D 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
E 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]
F 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]
G 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
H
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. B
Case Law Reference
2009 (16) SCR 618 relied on. Para4
1962 (3) SCR 146 relied on. Para 27
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
D
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, E
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 F
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, G
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
H
310 SUPREME COURT REPORTS (2016] 2 S.C.R.
A 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:
a. Company is manufacturing Polystyrene.
c 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
D 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
E
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
F 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
G 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
H
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 311
SHOPS BOARD [R. F. NAR!MAN, J.]
compensation from the company. Company says that these A
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
B
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 c
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:-
D
"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 E
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 F
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 G
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" H
312 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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.
B
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
c 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
D 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."
E 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
F 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
G 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
H are outside Section 1( 4A), and the 1970 Scheme insofar as it purports to
PEPSICO INDTA HOLDING P. LTD. v. GROCERY MARKET & 313
SHOPS BOARD [R. F. NARIMAN, J.]
include within it under clause 2( 1)(t) "chemical products", is therefore A
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.
B
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 c
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
D
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 E
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. F
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 G
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 H
314 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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
B
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
c 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
D
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.
E 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:-
F "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
0
G 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
H employments to prevent avoidable unemployment; for these and
PEPSICO INDIA HOLDING1'. LTD. v. GROCERY MARKET & 315
SHOPS BOARD [R. F. NARIMAN, J.]
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:
"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 c
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. D
S. No. Areas Date Name of the employment
I 2 3 4
I (a) Thane 26'" day of (I) Employment in Grocery
and Kalyan Dec. 1979. Market or Shops, in connection
Talukas of 1he
Thane District;
- with loading, unloading,
stacking, canying, weighing, E
and Panvel measming (filling, stitching
Taluka of 1he l"dayof 9Jrting, cleaning) or such either
Kulaba (now August work including work preparatory
Raigad) 1983. orincidenlal to such operations.
Pistrict)
(b) The whole (2) Employment in markets and F
of the Thane other establishments, in
al\d Raigad connection with loading,
Districts mloading, stacking, canying,
excluding 1he weighing, measming (filling,
Thane and stitching, 9Jrting, cleaning) of
Kalyan Talukas 9Jda ash, coal-tar, lime, colour G
of the Thane chemicals, chemical products
District and including fertilizers, gunny bags,
Panvel Taluka coir ropes, ropes, mats, hessian
·. of 1he Raigad cloth, hessian yam, oil cake,
District. - . ill sk chuni and chhal- or such
H
316 SUPREME COURT REPORTS [2016] 2 S.C.R.
A
other work including work
preparatoty or incidental to such
operations.
(3) Employment in onion an::I potato
wholesale markets in connection
B with loading, unloading, stacking
carrying, weighing, measuring
(filling, stitching, sorting, cleaning)
of such other work iucluding work
preparatoty or incideital to such
operations.
c
(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,
D
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.
E (5) Employment in fac1ories and
mills manufacturing colour
chemicals, products including
fertilizers, if such employment is in
connection with loading, unloading,
stacking, cariying, weighing,
F 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.
G
2. Definitions.
(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
H
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;
c
(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 D
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. E
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 F
terms and conditions of employment af such work;ers the State
Govemment may by means of a scheme provide for the registration
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
G.
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
H
318 SL:l'Rf-,\'1E COL RT REPORTS [2016] 2 S.CR.
A 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
B 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
D 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'
E section (I) as they apply to the exercise of a Power given by a'
Maharashtra Aet 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.
SCHEDULE
G 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,
fl in connection with loading, unloading, stacking, weighing, measuring,
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 319
SHOPS BOARD [R. F. NARIMAN, J.]
ti Iing, stitching, so11ing. cleaning or such other \York including \York A
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: B
"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 c
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 D
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 E
·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 F
preparatory or incidental to such operations:
(b) Markets and other establishments in connection with
loading. unloading. stacking. can) ing. \veighing. 1neasuring
1
(filling, stitching, sorting, cleaning] of soda ash, coaltar, lime,
colour chemicals. chemical products including fertilizers, gunny
G
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 H
320 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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.
B (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
c 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
D 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
E 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
F 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
G
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,
H
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 B
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 c
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 D
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:- E
(\) 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 F
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. G
(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.
H
322 SUPREME COURT REPORTS (2016] 2 S.C.R.
A (2) The Board shall frame rules for payment of gratuity to
registered workers.
(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.
B (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
c 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,
D 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.
E
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
F 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".
G 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).
H
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 323
SHOPS BOARD [R. F. NARIMAN, J.]
Polystyrene in turn has been described as an inexpensive and hard plastic A
which is a vinyl polymer. In the report of the working group on chemicals
and petrochemicals in the J J<h Five Year Plan from 2007-2008 to 2011-
2012 made by the Department of Chemicals and Petro Chemicals, it is
stated:'
."J. Petrochemicals are derived from various chemical compounds, B
. mainly hydrocarbons. These hydrocarbons are derived from crude
oil and natural gas. Among the various fractions produced by
distillation of crude oi 1, petroleum gases, naphtha, kerosene and
gas oil are the main feedstocks for the petrochemical industry.
Ethane and natural gas liquids obtained from natural gas are the
other important feedstocks used in the petrochemical industry.
c
Olefins (Ethylene, Propylene & Butadiene) and Aromatics
(Benzene, Toluene & Xylenes) arethe major building blocks from
which most petrochemicals are produced.
· 2. Petrochemical manufacturing in.valves manufacture ofbuilding
... ·blocks by cracking or refor~ing operation; conversion of building D
·blocks into intermediates such as fibre interniediates (Acrylonitrile,
Caprolactum,Dimethyl Terephthalate/Purified Terephthalic Acid,
Mono Ethylene Glycol); precursors (Styrene, Ethylene Dichloride,
Vinyl Chloride Monomer etc.) and other chemical intermediates:
production of synthetic fibers, plastics, elastomers, other chemicals E
. and processing of plastics to produce consumer and industrial
products.
I 0. A perusal of the aforesaid report shows that not only are petro
chemicals derived from various chemical compounds, but also that petro
chemical manufacturing involves among other things the production of F
plastics. In fact, in a report made by the Inquiry Officer appointed
under Section 13 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 G
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 H
324 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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 petro-chemical products
B 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
controversy before the Government but would only go to perversity -
that no reasonable person invested with the same power could possibly
c arrive at the conclusion arrived at by the Government. Even otherwise,
we must not forget that we are dealing with a welfare legislation whose
primary object is to provide adequate employment for and better terms
and conditions for the employment of daily wagers, and to provide for
their general welfare, which includes health and the safety measures,
D and to provide them with various other facilities including provident fund
·and gratuity. Arguments indulging in unnecessary hairsplitting have
therefore necessarily to be dismissed out of hand.
12. Another submission made by learned senior counsel appearing
on behalf of the appellant is that the 1970 Scheme deals with grocery
E markets or shops as its title suggests and cannot therefore include within
it's scope petrochemicals manufactured in factories without following
the drill of Section 4(1 )(b) of the 1969 Act. This argument again has to
be rejected for the reason that both Sections 3 and 4 of the 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
F 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 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 in
G 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 be a scheme which provides for
H registration ofunprotected workers in different scheduled employments
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 325
SHOPS BOARD [R. F. NARIMAN, J.]
and/or a group of scheduled employments. This being the case, it is A
clear that the attack based on nomenclature of the 1970 Scheme as a
grocery market or shops scheme must fail.
13. We also agree with learned counsel for the respondent that
Section 2( 4) of the 1969 Act, which defines "establishment", would not
only include any place or pre.mises in which manufii.c.ture of petro B
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 tile case, any argument that the
c
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 ofthe Bombay
High Court, has in the Bhuwalka Steel case interpreted the expression D
"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 fol lowing terms: E
"The Statement of Objects and Reasons mentions that report was
made by the Committee to the Government on 17.11.1967. In that
report, it was mentioned that the persons engaged in vocatfons
like mathadi, hamals, casual workers employed in docks, lokhandi
jatha workers, salt pan workers and other manual workers mostly F
work outside fixed premises in the open and are mostly engaged
on piece-rate system in a number of cases. They are not employed
directly, but are either engaged through Mukadum orToliwalas or
gangs as and when there is work and they also work for different
employers on one and the same day. The'volume of work is not
always constant. In view of the peculiar nature of work, its variety, G
the precarious means of employment and the system of payment
and the particular vulnerability to exploitation ofthis class oflabour,
the Committee had come to the conclusion that the application of
the various .labour laws to such workers was impracticable and
regulation of their working and other conditions by introducing H
326 SUPREME COURT REPORTS [2016] 2 S.C.R.
A amendments to the existing labour laws was not possible.
Therefore, the Committee recommended that the working and
the employment conditions of such unprotected workers should
be regulated by a special enactment.
The Statement of Objects and Reasons further mentions that after
B holding series of meetings with the representatives of the interests
affected by the proposed legislation and after considering all these
suggestions and examining the recommendations of the Committee,
Government had decided to bring the Bill which seeks lo regulate
the employment of mathadis, hamals and other manual
ivorkers en1p!oyed in certain e111ploy1nents, to n1ake better
c provision for their terms and conditions of employment, to
provide for their welfare, for health and safety measures,
1vhere such e1np!oy111ents require those n1easures, to 111ake
provision fbr ensuring an adequate supply to, and fu/1 and
proper utilization of such workers in such employments, (o
D prevent avoidable unemployment and for such purpose.~ lo
provide for the establishment of Boards in respect of these
employments and (where necessar}1 in the different areas of
the State and to provide for purposes connected with the
matters aforesaid. (emphasis supplied)" (at Paras 9 and I 0)
E 15. After construing Section 2(1 J) of the 1969 Act to cover all
"unprotected workers", i.e. all manual labour engaged in any scheduled
employment irrespective of protection under other Labour Legislation,
this Court went on to hold:-
"Before parting with the judgment, we must refer to the fact that
F 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
G 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.
H In these days when Noble Laureate Professor Mohd. Yunus of
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 327
SHOPS BOARD [R. F. NARIMAN, J.]
Bangladesh is advocating the theory of social business as against A
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 al I
contemplated to be the inflicted workers in the Act." (at Para 83)
16. Taking a cue from the Objects and Reasons for this piece of B
social legislation and from the well known doctrine of construing such
legislation in an expansive manner to further the object of welfare
Legislation of the kind mentioned hereinabove, and not to stultify such
object, we hold that the Bombay High Court cannot be faulted in its
reasoning. It must also not be forgotten that the object of the 1970
Scheme is not only to provide work to both employer and employee but
c
also to provide amenities _and benefits to registered workers. These
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 bill of the employer without the prior approval of the. State
Government. We are told that in the present case the levy amount is D
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.
17. It was further submitted by Shri Cama that on a conjoint reading
of the definitions of "employer", "principal employer" and "worker" E
contained in Sections 2(3), (7), ( 12), as the two societies are contractors
employing contract labour for and on behalfofthe appellant company's
purchasers, the appellant company cannot be said to be the "principal
employer" who is liable to be registered under the 1969 Act. We are
afraid that this contention does not lie in the mouth of the appellant
company. By an application made for registration under the 1969 Act F
dated 11.10.1996, in column No.7 which reads as follows:-
"?. Are you employing workers through contractors? If so, state
the name of the contractors"
the Company has specifically mentioned two cooperative societies
G
and one other contractor thereby admitting that it actually employed
about 30 workers itself through contractors.
18. By a letter dated 1.3.2003, i.e. almost 7 years after the appellant
company had been registered as an employer under the 1969 Act, the
appellant company applied to remove its name from the register contained
H
328 SUPREME COURT REPORTS [2016) 2 S.C.R.
A in the 1969 Act. This was follow~d up by a representation dated I 0.5.2004
in which the appellant company stated:-
"The company, although did not engage any mathadi workmen, in
view of the prosecution, registered itselfon I Ill 011996, and was
issued Registration No.4516. After registration, the Company
B 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/
200 I, 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 Soc.ieties for loading work.
c 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
D 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
E registered itself. This being the state of facts before us, we cannot
characterize the State Government's finding in its order dated 24.6.2008
as even incorrect, let alone perverse. As pointed out above, in paragraph
6 of its order, 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
F compensated by the appellant company. This being the case, there is no
factual foundation for Shri Cama's argument that it is the appellant's
purchasers and not the appellant company itself that is the principal
employer under the Act.
20. One other contention ofShri Cama needs to be noticed. Shri
G Cama argued before us that the 1969 Act being inconsistent with the
Contract Labour(Regulation andAbolition)Act, 1970 would be repugnant
to the said Act and therefore invalid under Article 254 of the Constitution.
He candidly admitted that no such ground had been raised or argued
before the High Court, but asked that the Supreme Court allow him to
ra·ise this plea as it is a pure question of law. We are afraid that this is
H
PEPSICO INDIA HOLDING 'P. LTD. v. GROCERY MARKET & 329
SHOPS BOARD [R. F. NARIMAN, J.]
not possible for the reason that even if Shri Cama were to be correct in. A
his submission thatthe Central Parliamentary Act of 1970 would impliedly
repeal the 1969 State Act, yet Section 30( 1) of the said 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
B
which they would be entitled under the 1970 Act, the contract labour
shall continueto be entitled to more favourable benefits, notwithstanding
· that they also. receive benefits in respect of other matters under the
Central Parliamentary Act. This being the case, it was incumbent upon
the writ petitioner not 01Jly to take up the plea ofrep4gnancy and implied
repeal but also to state as a fact that what the workmen would be entitled c
to under the 1969 State Act would not be as beneficial as what they
would be entitled to under tbe 1970 Central enactment. This would then
give the respondent Board, in turn, an opportunity of either admitting or
denying this factual averment. There being no pleading to this effect in
the writ petition before the High Court, it is clear that it is not possible
D
for us to accede to Shri Cama's request to go into the argument on
repugnancy and implied repeal.
21. This appeal is, accordingly, dismissed.
Civil Appeal No.9999 of 2010
22. In this appeal, the fact situation is that the appellant company E
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 F
aspects of the case the Government has arrived at the following
findings:c
(a) The company products drinking_water and drinks of various
kinds such as Pepsi, Mirinda and Seven-up.
G
(b) In the said products the Company uses as raw material
such l!S'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;
H
330 SUPREME COURT REPORTS (2016] 2 S.C.R.
A (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
B food products (liquid and solid).
(g) Mathadi Act and the Scheme famed thereunder being
beneficent and benevolent welfare Schemes and the object is
to make the same applicable to the companies manufacturing
grocery market products as provided in the Grocery Markets
c & Shops Unprotected Workers (Regulation of Employment
and Welfare) Scheme, 1970.
6. In the above circumstances, the State has come to the finding
that the Scheme of the Grocery Bazar and Shops Workers Board
is applicable to the Company.·
D
7. The company is engaged in products of drinks and drinking
water and consequently in carrying on works in the nature of
Mathadi such also loading, unloading, stacking, canying setting
up of raw material. The said works was carried out by 49 workers
of contractor Mis M .M. Patil under the supervision the Grocery
E Board Supervisor. The said workers, excepting their wages, were
deprived of P.F. contribution, paid holidays, house rent, workmen's
compensation, bonus and other medical benefits. In these
circumstances, the provisions of the Maharashtra Mathadi, Hamal
and other Manual Workers (Regulation of Employment and
Welfare) Act, 1969 and the Grocery Markets or Shops Unprotected
F
Workers (Regulation of Employment and Welfare) Scheme, 1970
are applicable to your establishment. Therefore, the application
made by you to the Government under the provisions of section 5
of the Mathadi Act is rejected."
23. A writ petition filed against the said order before the Bombay
G
High Court failed. The High Court dismissed the petition as follows:-
"The second submission is that the petitioners are manufacturing
Soft Drinks like Pepsi, Mirinda, Seven-up etc. and it is not a groce1y
items. ft is not disputed before th is court that in the manufacturing
process of these soft drinks, the petitioners arc using suga·r,
H
PEPSICO INDIA HOLDING P. LTD. v. GROCERY MARKET & 331
SHOPS BOARD [R. F. NARIMAN, J.]
carbonic acid, ascorbic acid, coffin, sequestrates agents. The A
petitioners are using caustic soda for cleaning bottles. But we
find that these soft drinks arc provided to refresh persons and to
provide energy to them when they are exhausted. The items, like
sugar or carbonic hydride provide energy. It is also not disputed
that all these items used in the manufacturing process are the
B
grocery items and accordingly the State Government has also
made observations that these are the grocery items. Apart from
that the Oxford Dictionary has given tl1e)llcaning of"grocery".
According to said dictionary "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 c
arc the items of food and, therefore, they arc 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
D
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 E
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 ma_nufactured and bottled water would
·be outside the expression "grocery". He also argued that when the Act
was extended to the appellant company's factory, in the year 1983, F
whatever may be the position today, the position in 1983 was clear and
obviously the items manufactured by the appel Iant company would not
have fallen within the expression "grocery" as understood in 1983.
25. Learned counsel appearing on behalfo.fthe Board has repelled
all these arguments stating that the expression "grocery" was wide G
enough to include all items of food an<l drink which would necessarily
take in the appellant company's products. He reiterated his argument
on construing a beneficial enactment such as the 1969 Act to achieve
· the object set out and that assuming that the term "grocery" has a
narrower 1neaning, obviously the broader meaning should be taken into
H
332 SUPREME COURT REPORTS [2016] 2 S.C.R.
A account. Further, he also stated that whatever the position was in 1983,
at the stage of the show cause notice in 2005 and by the date of the
State Government order in 2008 both soft drinks manufactured as well
as bottled water manufactured by the appellant company were certainly
household items among the middle class and rich sections of society.
B 26. The definition of"grocery" contained in the Oxford Advanced
Learner's Dictionary of Current English, 9'" Edition, is as follows:-
"grocery- (grocery store) a shop/store that sells food and other
things used in the home. In American English 'grocery store' is
often used to mean supermarket. 2. Groceries - food and other
c goods sold by a grocer or at a s.upermarket."
We also find a useful deflnjtion contained in Collins English
Dictionary, Third Edition-
"groceries - merchandise, esp. Foocfstutfs, sold by a grocer".
27. That the expression "grocery" in 2005, when the Act was
D
sought to be applied to the appellant company, would include soft drinks
manufactured by the appellant company and bottled water as daily
household goods among the middle class and rich sections of society,
was not seriously contested by Shri Giri. The argument that we should
find the meaning of the expression "grocery'' on the date on which the
E Act was extended to the area in which the appellant company's factory
was situate is fallacious in law. This Court in The Senior Electric
Inspector and others v. Laxmi Narayan Chopra and others, 1962
(3) S.C.R. 146, when confronted with a similar argument to that made
by Shri Giri, repelled the said argument in the following terms:
F "The legal position may be summarized thus: The maxim
contemporanea expositio as laid down by Coke was applied to
t(lnstruing ancient statutes but not to interpretingActs which are
comparatively modern. There is a good reason for this change in
the mode ofinterpre!!ltion. The fundamental rule of construction
is the same whether the Court is asked to construe a provision of
G
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
H the phraseology used. It is more reasonable to confine its intention
PEPSICO !NOIA HOLDING P. LTD. v. GROCERY MARKET &
SHOPS BOARD [R. F. NARIMAN. J.]
only to the circumstances obtaining at the time the law was made. A
But in a 111odcrn progressive society it \Votild be unreasonnble to
confine the intention ofa Legislature to the 1ncaning attributable
to the word used at the time the law was made. for a modern
Legislature 111aking la,vs to govern a society \vhich is fast 1noving
1nust be presu1ned to be a\vare of an enlarged 1neaning the sa1ne
B
concept might attract with the march of time and with the
revolutionary changes brought about in' social. economic. political
and scientific and other fields of human activity, Indeed, unless a
contrary intention appears, an interpretation should be given to
the \\nrds used to take in new facts and situations. if the words
arc ca pa hie of comprehending them. We cannot. therefore. agree c
with the learned Judges of the High Court that the maxim
co11/i.!11111ora11ea e.\]Josilio could be invoked in construing ihe \Vord
.. telegraph line•· in the Act:· (at 156. 157)
28. We thus find that the High Court was absolutely correct in not
interfering with the State Government order dated 18.8.2008 and in D
dismissing the writ petition filed by the appellant company. For the same
reasons given in Civil Appeal No. I 0000 of20 I 0. we therefore reject this
appeal as well. The appeal is. accordingly. dismissed. with no order as
to costs.
Kalpana K. Trip:Uhy Appc:ils di~111isscd. E~
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