1. This petition under Article 226 of the Constitution questions the validity of an award, dated 24th March, 1969, rendered by the Labour Court, Allahabad.
2. The petitioner company carries on manufacture and sale of vegetable oil products in its factory at Kanpur. The petitioner has provided residential bungalows to its officers, Such officers are also given the facility of domestic servants at the cost of the company. Ram Het, respondent No. 2, was engaged by the petitioner company and was directed to work as a bungalow servant at the house of the Chief Engineer of the company. He used to do the various domestic duties on all the days of the week. With effect from 1st January, 1968, Ram Het, however, absented himself on all Sundays, till 3rd March, 1968, which was also a Sunday. The petitioner company's case is that he also started neglecting his duties and became a slipshod and indisciplined servant. He was charge-sheeted on 4th March, 1968. After a domestic enquiry held by the manager he was found guilty and was dismissed from service with effect from 6th March, 1968.
3. In due course, the State Government referred the following dispute for adjudication to the Labour Court:
Whether the employers have terminated the service of the workman Sri Ram Het, son of Sri Videshi, Mazdoor, Engineering Department/with effect from 6th March, 1968, legally and, or justifiably? If not, to what relief, if any, is the workman concerned entitled?
The Labour Court held that the workman was charged under three counts. Two of the charges were vague and valueless. It was found that the workman concerned was not given an adequate opportunity of meeting the charges. The domestic enquiry was invalid. The Labour Court then went into the merits of the charges. It held that charges Nos. 2 and 3 were vague. The employers did not care to furnish the details even after the finding of the Labour Court on the validity of the domestic enquiry. The Labour Court also relied on the admission of the Chief Engineer that he simply warned Ram Het for his negligence and did not make any complaint, and held that,
"after the warning if there were any laches on the part of the workman concerned in the performance of the duties in the months of January and February they had been condoned and laches or neglect could not form part of the fresh charge-sheet."
4. In relation to charge No. 1 it was held that, as Ram Het was not working in the factory, he was not covered by the provisions of the Factories Act. He was working as a bungalow servant at the residence of the Chief Engineer; he was an ""employee"" as defined in the U.P. Shops and Commercial Establishments Act, 1962. Under that Act every "employee" was entitled to one day holiday in a week. The petitioner company did not give him the weekly holiday. If Ram Het absented himself from duty on Sundays, he was entitled to do so and his deliberate absence from duty on Sundays does not amount to any misconduct. On these findings the Labour Court directed that the services of Ram Het had been illegally terminated and that he was entitled to be reinstated with continuity of service and full back wages.
5. Learned Counsel for the petitioner has urged that the view of the Labour Court that the company did not furnish the details of charges 2 and 3 before the Labour Court, was based upon a misapprehension of facts. In paragraph 18 of the writ petition it has been stated that specific details of charges were furnished to the Labour Court by an application and a copy of the same was given to the union, vide letter dated 2nd January 1969. Annexure 'E' is a copy thereof. It gives detailed particulars of the two charges. The respondents, have not controverted this statement in their counter-affidavit. It is thus clear that the management had furnished the requisite details and particulars of the charges before the Labour Court. The Labour Court was under a misapprehension in finding that this has not been done. The charges could not be found unproved for lack of particulars or on the ground that they are vague. The Labour Court ought to have given a finding on the merit of these charges, in the light of evidence on record.
6. The principal question for consideration, however, is whether Ram Het was an '"employee"' within the meaning of the Shops and Commercial Establishments Act.
7. The Labour Court held that before it it was not contended that Ram Het's case was covered by the main definition of the term '"employee"' in the U.P. Shops and Commercial Establishments Act but that it was covered by Clause (b) of Sub-section (6) of Section 2. It accepted the submission. It was held that the standing orders of the factory were applicable to Ram Het so he should be treated as one of the staff of the factory though he was not governed by the provisions of the Factories Act. Sub-section (6) of Section 2 of this Act defines an '"employee"'. It says:--
'"employee"' means a person wholly or mainly employed on wages by an employer in, or in connection with, any trade, business or manufacture carried on in a shop or commercial establishment, and includes--
(a) caretaker, mali or a member of the watch and ward staff;
(b) any clerical or other staff of a factory or industrial establishment, which is not covered by the provisions of the Factories Act, 1948; and
(c) any apprentice or a contract or piece-rate worker;.
Clause (b) of Sub-section (6) of Section 2 includes within the definition of an '"employee"' clerical or other staff of a factory or industrial establishment, which is not governed by the Factories Act, 1948. Clause (b) is an integral part of the entire definition. It does not provide for an independent class of workers to be included within the definition of an '"employee"'. Clause (b) has to be read in the light of the main provisions of Sub-section (6).
Under the main part of Sub-section (6) only such persons are "employee"s who are employed in or in connection with any trade, business or manufacture carried on in a shop or commercial establishment. The clerical or other staff of a factory referred to in Clause (b) must be one who is mainly or wholly employed in or in connection with any trade, business or manufacture carried on by the employer.
8. The question, therefore, is whether a person who has been wholly employed for working as a domestic servant at the residential house of the officers of the factory can be deemed to have been employed in or in connection with the trade, business or manufacture carried on by the employer. In the present case, the company carries on the manufacture and sale of vegetable oil products. It is clear that the employment of a person as a domestic servant at the residential house of an officer of the company cannot be said to be an employment in the trade, business or manufacture. The question would' be, is it an employment 'in connection with' the trade, business or manufacture.
9. In this connection the learned Counsel for the respondents relied upon the Supreme Court decision in State of Uttar Pradesh v. M.P. Singh [1959] 17 F.J.R. 395. In that case the sugar factory had a farm of its own where it cultivated sugar-cane for use in its factory. It had employed certain field workers, i.e., supervisors and kamdars, to guide, supervise and control the growth and supply of sugarcane in the farm. The Supreme Court held that such workers were "employee"s within the meaning of the U.P. Shops and Commercial Establishments Act, 1947. The High Court has held that such workers would be governed by the Factories Act and, therefore, they were outside the purview of the Shops and Commercial Establishments Act. This view was overruled on the ground that the Factories Act applies only to such workers who worked in the factories. Since these workers were employed in the farm which was outside the factory premises, it was held that they were not governed by the Factories Act. They were "employee"s within the meaning of the Shops and Commercial Establishments Act. The correctness of the finding of the High Court that these workers were connected with the subject of manufacturing process of the factory was not discussed. In this situation, it is clear that they would be covered by the main part of the definition of an '"employee"'. This case is, therefore, not helpful in resolving the controversy.
10. Reliance was also placed on Abdul Latif v. Karamal Ali 1962--II L.L.J. 335. In this case a single Judge of this Court held that the munim employed in a ghee shop was a 'worker' as defined by the Factories Act, because the definition of 'worker' in that Act not only includes a person employed in the manufacturing process but also a person employed in any other kind of work incidental to the manufacturing process. Keeping of accounts of a factory is a work incidental to the manufacturing process. The case is clearly distinguishable on its facts.
11. Learned Counsel invited my attention to J.K. Cotton Spinning & Weaving Mills Co., Ltd. v. Labour Appellate Tribunal of India [1963] 25 F.J.R. 93. The question there was whether malis engaged to look after the gardens of the bungalows provided by the company to its officers would be covered by the expression 'employed in any industry' occurring in Section 2(s) of the Industrial Disputes Act, 1947. It was found that the names of the malis were borne on a register maintained by a clerk of the company. This clerk supervised the work of the malis. The company supervised and controlled the day-to-day work. The officers who were allotted the bungalows had no control over the malis, and exercised no jurisdiction over them. Malis were paid by the company, though the officers made a small contribution towards their salaries, but their contribution was credited to the revenue accounts of the company. The Supreme Court held that the term 'employed in any industry' must take in "employee"s in connection with operations incidental to the main industry. The Court considered the scope of the principle of incidental relationship and its limitations. It gave certain illustrations. It was observed that, if sweepers were employed to clean the premises of the mills, that clearly would be work incidental to the main industry itself, because, though the work of the sweepers had no direct relation either with the spinning or weaving, it was so manifestly necessary for the efficient functioning of the industry itself that it would be irrational to exclude sweepers from the purview of Section 2(s) of the Industrial Disputes Act. If buses are owned by the industry for transporting the workmen would the drivers of such buses be workmen or not? It was observed that in this illustration incidental connection is one degree removed from the main industry. It was held that an "employee" who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be included. Wherever it is shown that the industry has employed an "employee" to assist one or the other operation incidental to the main industrial operation he would be within the significance of the term.
12. The Court cautioned that in such matters is not easy to draw a line and that the question of incidental relationship with the main industrial operation cannot include operations or activities whose relation with the main industrial activity may be remote, indirect and farfetched. In the light of these principles the Court pronounced that where the terms and conditions of service require that the officers should be given bungalows and gardens attached to such bungalows, it is difficult to see why in the case of malis who are employed by the company, and are paid by it and work subject to its control and supervision and discharge the function of looking after the property of the company, it should be said that the work done by them has no relation with the industry carried on by the company. The employment is by the company, the conditions of service are determined by the company, the payment is substantially made by the company and their continuance depends upon the pleasure of the company, subject, of course, to the standing orders prescribed in that behalf, and the work assigned to the malis is the work of looking after the, properties-which have been allotted to the officers of the company. It was also observed that like the transport amenity provided by a factory to its "employee"s, bungalows and gardens are also a kind of amenity supplied by the employer to its officers and the drivers who look after the buses and the malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected; with the main industry carried on by the employer.
13. In the present case the petitioner company employed the domestic servants. It allotted the servants to its various officers. But, thereafter, its control or jurisdiction over them ceased. It is not the workmen's case that in the discharge of their duties the supervision and control was exercised by the factory. They do domestic duties at the residential houses of the officers. The officers control and supervise their work.
14. Under the circumstances, could it be said that these domestic servants assist one or the other operation incidental to the main industrial operation ? The relationship between the main operation of manufacture and sale of vegetable oil products with the operation of cooking the food of the officers, or removing the webs from the walls of their rooms, or making their beds, is remote, indirect and farfetched. These servants did not work with a view to preserving or looking after the property of the company, namely, the bungalows, but used to do the personal and domestic work of the individual officers. Their work has no reasonable connection or effect upon the main operation of the company. In my opinion, such domestic servants cannot be said to have been employed in connection with any trade, business or manufacture carried on by the petitioner and so they would be outside the purview of
"employee"
as defined by Sub-section (6).
15. Sub-section (6) defines an ""employee"" with reference to a person employed in connection with any trade, business or manufacture carried on in a shop or commercial establishment. If the residential bungalows of the officers were treated to be shops or commercial establishments, then Section 5 of this Act would apply to such premises. Under that section no shop or commercial establishment shall, on any day open earlier, or close later than such hour as may be prescribed in this behalf. If this were to apply, the anomalous result would be that the bungalows would have to remain closed except during the prescribed hours. Section 5 does not apply to shops or commercial establishments mentioned in Schedule II. That Schedule prescribes thirteen categories of shops and commercial establishments, but, residential bungalows of officers of a factory are not mentioned there. This would indicate that the legislative intent was not to include such residential houses within the purview of the Act.
16. Ram Het was not an "employee" within the meaning of Section 9 of the Shops and Commercial Establishments Act, whereunder every "employee" is to be allowed by the employer holiday of one whole day in each week. His deliberate absence on Sundays was clearly without any valid basis and hence did amount to a misconduct.
17. The Labour Court has observed that under Section 9 every "employee" is to be allowed by the employer holiday of a whole day in each week. The petitioner did not grant any such holiday and, therefore, Ram Het was entitled to take this holiday on each Sunday. I am unable to agree with the latter part of the finding. If an employer did not allow the holiday in accordance with Section 9, the result might be that the employer would be violating the provisions of Section 9 of the Act and the workmen may be entitled to their remedy as provided by law to rectify it; but, surely, the workmen are not entitled to take the law into their own hands. No part of the Act authorises the workmen to choose the day on which the holiday would be allowed. The employer alone has been given the right to make the choice. The act of Ram Het in deliberately absenting himself from duty on Sundays was unauthorised.
18. In relation to charges 1 and 2, the Labour Court held that, after the warning if there were any laches on the part of the workmen concerned in the performance of the duties in the months of January and February, they had been condoned and the laches or neglect could not form part of the charge-sheet. Giving a warning instead of filing a complaint would mean conditional condonation. The initial laches stood condoned if it is not committed again. But if the warning is violated by repeating the offence, the previous act would be available for disciplinary action. In my opinion, the administration of warning did not mean that no charge could be framed in relation to those acts even if the workmen repeated the same misconduct subsequent to the warning.
19. The petitioner dismissed Ram Het on findings of misconduct on three charges. The finding in relation to one charge has been upheld. On the merits of the other two charges the Labour Court has given no findings. The case has, therefore, to go back to the Labour Court.
20. In this connection I may notice that it has been held that while considering the question of payment of full back wages the Court should consider what efforts the workman has made in order to minimise the loss during the period he was out of employment with the company. See Rakeshwar Dayal v. Labour Court 1962--I L.L.J. 5, Malik Dairy Farms v. Their Workers' Union [1968] 37 F.J.R. 412 and Civil Misc. Writ No. 80 of 1968 (U.P. Oil Food Products Co. v. State), decided by me on 12th March, 1969.
21. The petition succeeds and is allowed, the impugned award dated 24th March, 1968, is set aside. The case is sent back to the Labour Court for decision of the reference afresh in the light of the findings and observations made above. The parties will, however, bear their own costs.