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PETITIONER: AHMEDABAD MFG. & CALICO PTG.  CO.  LTD.

       Vs.

RESPONDENT: RAM TAHEL RAMNAND & ORS.

DATE OF JUDGMENT14/04/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. VAIDYIALINGAM, C.A.

CITATION:  1972 AIR 1598            1973 SCR  (1) 185  1972 SCC  (1) 898  CITATOR INFO :  F          1973 SC2297  (9)  RF         1976 SC1207  (72)  RF         1986 SC1272  (97,99,100,102)

ACT: Bombay  Industrial  Relations Act 11 of 1947, s.  3(13)  and (14)Malis  employed under a contractor to look after  garden adjacent  to  a  factory  whether  ’employees’  of  factory- Maintenance  of  garden  whether  work  ordinarily  Part  of undertaking considerations of social justice, relevancy  of- Conistitution of India, Art. 227-Jurisdiction of High  Court under   Art.  133(1)(c)-Certificate-High  Court  must   give reason,

HEADNOTE: The  respondents  were malis who under a  contractor  looked after  the maintenance of a garden adjacent to  but  outside the  Premises  of  the  appellant  company  which   produced textiles.   In  an application before the Labour  Court  the respondents claimed that they were employees of the  company within  the  meaning of s. 3(13) of  the  Bombay  Industrial Relations Act 11 of 1947 and therefore entitled to  dearness allowance.   The  Labour  Court rejected the  claim  on  the ground  that the respondents worked under a contractor.   On appeal the Industrial Court held that the company was  under no legal obligation to maintain the garden and therefore the respondents did not fall within the definition of  employee. The  High  Court  in  a  petition  under  Art.  227  of  the Constitution   held  that  statutory  obligation   was   not necessary  condition of an activity being considercd a  part of  the ordinary work of an undertaking but what had  to  be seen was whether the activity was reasonably attributable to the  undertaking  in its usual and ordinary  course  in  the conduct of the business or undertaking.  Since the appellant company  contended before the High Court for the first  time that the garden area in question did not pertain only to the appellant  but  to several other employers  the  High  Court remanded  the  matter to the Industrial Court  for  a  fresh decision  in  the light of the observations of  High  Court. The  appellant  company in appeal by  certificate  contended that the High Court had exceeded its jurisdiction under Art. 227  of  the  Constitution,  that  a  employed  through   an

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independent  contractor  could not be an employee  and  that maintenance  of a garden could not be considered to be  work which  was ordinarily Li part of the undertaking within  the meaning  of s. 3(14) of the Act.  The respondents  raised  a preliminary  objection that the order of the High Court  was not a. ’final order’ and, therefore, the certificate granted by the High Court under Art. 133 was incompetent. HELD  : (i) in this case Art. 227 appears to have been  used as a substitute for Art. 226 for quashing the orders of  the subordinate  tribunals.  If, therefore, while  disposing  of the  petition under Art. 227 theHigh Court  finally  settles some  points then to that extent the impugned order  may  be considered  to,  operate as a final order just as  an  order under Art. 226 would. [194F] (ii) The  mere grant of a certificate would  not  preclude this  Court  from determining whether  the  conditions  pre- requisite  for  the grant are satisfied. it  is,  therefore, always  desirable and expedient for the High Court  to  give its reasons for granting the certificate.  That would assist this  Court  better in appreciating if such  conditions  are satisfied. [192H] LI208SupCII72 186 Waryam Singh v. Amar Nath, [1954] S.C.R. 566, Tarapur &  Co. v. Mls.  Y/O Tractors Export, [1969] 2 S.C.R. 699,  Asbestos Cement  Ltd.  v. Savarkar, A.I.R. 1971 S.C. 100,  Ramesh  v. Ganda  Lal, A.I.R. 1966 S.C. 1445 at 1449 and Surinder  Nath v. Stiphen (P) Ltd., [1966] 3 S.C.R. 458, referred to. (iii)     As held by this Court in J.K. Cotton Spg. and Wvg. Mills an employee engaged in any work or operation which  is incidentally  connected with main industry is a  workman  if other requirements of s. 2(s) of the Industrial Disputes Act 14  of  1947, are satisfied.  The bunglows and’  gardens  on which  the malis in that ease worked were a kind of  amenity supplied  by the mills to its officers and on this reasoning the   malls   were  heldp  to  be  engaged   in   operations incidentally connected with the main industry carried on  by the  employer.   The  High  Court  rightly  relied  on  that decision  in arriving at its conclusion in the present  case that  the workers in order to come within the definition  of ’employee’  need not necessarily be directly connected  with the  manufacture of textile fabrics.  The problem has to  be looked  at from the considerations of social  justice  which has become an integral part of our industrial law. [198F] J.   K.  Cotton  Spg.  &  Wvg.  Mills  Co.  Ltd.  v.  Labour Appellate Tribunal of India, [1964] 3 S.C.R. 724, applied. Thyagaraja Chettiar v. Employees State Insurance Corporation [1963]  It  L.L.J.  207; Kesar Lal Narsing  Bhai  V.  Calico Printing  Ltd., 1955 Industrial Court Reporter, 1105,  Hakim Singh v. J.C.Mills Ltd., 1963 M.P.L.J. 714, Messrs  Godavari Sugar  Mills  Ltd. v. D. K. Worlikar. [1960] 3  S.C.R.  350, Begibhai  M. , Chokshi v. Ahmedabad Manufacturing  &  Calico Printing Co. Ltd., [1958] 11 L.L.J. 126, New India Tannis v. Aurora  Singh  Moibi, A.I.R. 1947 Cal. 613, S. M.  Ghose  v. National Sheet & Metal Works Lid., A.I.R. 1950 Cal. 548  and Basti  Sugar Mills Ltd. v . Ramjagar, [1964] 2  S.C.R.  838, referred to. (iv) The High Court had remanded the case to the  industrial Court  because  the appellant’s contention that  the  garden pertained  to several ,other offices and buildings  in  the area and not to the appellant’s factory alone, had not began considered  by  the industrial Court.  There was  no  cogent ground  why this matter should be decided by this Court  and not  by the Industrial Court.  The order of the  High  Court was  legally correct and it was within its  authority  under Art. 227 to quash the decisions of the Labour Court and  the

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Industrial  Court which were based on misconception  of  the legal position. [200A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1044 of 1968. Appeal from the judgment and order dated October 3, 1967  of the Gujarat High Court in Special Civil Application No.  380 of 1965. S.   T.  Desai,  V.  B.  Patel and I.  N.  Shroff,  for  the appellant. S.   S Shukla, for respondents Nos.  1 to 9. The Judgment of the Court was delivered by Dua, J.-This appeal has been presented to this Court by  the Ahmedabad   Manufacturing  &  Calico  Printing  Co.,   Ltd., pursuant  to  the certificate granted by  the  Gujarat  High Court under Art. 187 133(1)(c) of the Constitution.  The Gujarat High Court  had, on being approached by the respondents under Art. 227 of the Constitution,  quashed  and  set  aside  the  order  of  the Industrial  Court, Gujarat dated February 5, 1964 which  had affirmed  the  order of the Second Labour  Court,  Ahmedabad dated August 9, 1963, and after setting aside that order had directed  the Industrial, Court to decide the matter  afresh in  the light of the observations made by the High Court  in the impugned order. The  respondents  in this Court had applied  to  the  Labour Court  under s. 79 of the Bombay Industrial  Relations  Act, No.  XI  of 1947 (hereinafter called the Act)  in  December, 1962  complaining that the appellant company was  liable  to pay to the respondents (applicants before the Labour  Court) dearness  allowance  every month according to  the  Dearness Allowance  Award made by the Industrial Court but  the  same had not been paid for the month of September, 1962 which was distributed  in  October, 1962.  It was  alleged  that  from October, 1962 the Company had been committing breach of  the Dearness  Allowance Award of the Industrial Court.  In  that application the present respondents had based their claim on the following averments in para 3:               "..the  applicants  are being paid Rs.  68  as               basic pay by the opponent.  The maintenance of               the garden is the legal responsibility of  the               opponent   and   for  the   health,   welfare,               recreation  of  the employees working  in  the               several departments and for the decency of the               adjacent offices the opponents are maintaining               it.  The applicants are doing the entire  work               in respect thereof." In  the  written  statement  the  appellant  company  raised several pleas in opposing that application.  The pleas which were  pressed  in  the  Second  Labour  Court  and  in   the Industrial Court and which are now strongly pressed before us  are  contained  in paras 3. 8 and 10  which  so  far  as relevant may be reproduced:               3.    That  the  applicants not being  in  the               employment of the opponent they have no  locus               standi  to  make an approach or to  file  this               application.               8.    That the opponent is not the employer of               the applicants and the applicants are not  its               employees  within the meanings of those  words               in  the  Act and as such  the  application  is               misconceived and not legally tenable.

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             10.   With  respect  to  the  allegations  and               averments  made  in  paras  1  to  4  of   the               application  it is denied that the  applicants               are  the employees of the opponent within  the               meaning of that term of the Act as alleged  or               that               188               they  are  entitled  to the  benefits  of  the               dearness  allowance as alleged  or  otherwise.               The  true fact is that the applicants are  not               employed  in  any work which is  ordinarily  a               part  of the undertaking and as such they  are               not  the  employees within the  definition  of               that  word  in the Act.   The  applicants  are               employed as coolies by a gardening  contractor               Messrs  Dbiraj Painters and they are  paid  by               the  said contractor.  The said  garden  lands               include a large area of offices of some  other               concerns,  a  Government  Post  Office  and  a               Museum  which  are open to  the  public,  some               quarters for workers as well as assistants and               officers a hospital.  It is for the garden  of               the  area which comprises these buildings  and               the  area round caustic plant factory as  well               as the field in Dani Limda that this agreement               was  entered  into  with  the  contractor  for               keeping  the trees and plants in proper  trim.               Hence  the work which they are performing  has               been  held to be not ordinarily a part of  the               undertaking  and  as such the  application  is               wholly  misconceived and not  legally  tenable               and is clearly barred by res judicata." The  Second Labour Court dismissed the  respondent’s  appli- cations.   In that Court’s view the real question  in  issue was  whether the appellants did any work which  is  ordinary part of the undertaking.  The plea of res judicata based  on the  decision  of the Labour Appellate  Tribunal  of  India, Bombay (Appeal No. 135 of 1954 reported in 1955 I.C.R. 1105) was  negatived but it was observed that the  principle  laid down  in the earlier case would govern the present  case  as well.  After quoting the following passage from the  earlier case               "Now  the  Industrial  Court  was  correct  in               holding that the agreement applied to the area               which was outside the factory proper.  But  to               our  mind the principle question  involved  is               whether  the maintenance of trees  and  plants               can  be  said to be work which  is  ordinarily               part  of  the undertaking.  In  another  case,               this  Tribunal had decided that a ration  shop               was  a part of the work which is ordinarily  a               part of the, undertaking, but the  maintenance               of   these  trees  and  plants  stands  on   a               different  footing and can hardly be  regarged               as  part  of  the  work  of  this   particular               undertaking  which in fact is  concerned  with               the  production  of  cloth.   We  can  see  no               intrinsic  connection between the  maintenance               of the trees and plants and the work which  is               ordinary part of the undertaking." the Labour Court observed that the "applicants’ gardeners or malis who are contractor’s employees cannot thus invoke  the statutory definition of the employer". 189 On appeal by the aggrieved malis the Industrial Court in the

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course  of its judgment observed that there was  no  dispute that  the  appellants  in that court  had  been  working  as gardeners or garden mazdoors and had been employed through a contractor and not directly by the mill.  After referring to the decision of this Court in J.K. Cotton Spg. & Wvg.  Mills Co.  Ltd., v. Labour Appellate Tribunal of India (1) and  to the decision of the Madras High Court in Thyagaraja Chettiar v.   Employees   State   Insurance   Corporation(’-’)   the, Industrial, Court observed :               "Shri  Jyotikar had urged that the term  ’mill               premises’  as interpreted by the courts  would               include even Places around the factory and  so               the  question  whether  the  appellants   were               working in one compound or the other would not               be  material.   But  it is  not  necessary  to               consider  this contention because  looking  to               the nature of the work done by the  appellants               and  to the fact that they were .not  directly               employed   by  the  employer  but  through   a               contractor, it has been held that they  cannot               be covered within the scope of section  3(13).               Shri  Jyotikar had also argued that under  the               Standing Orders, the term ’operative’has  been               defined  to include persons  employed  through               contractor;  but  the  Standing  Orders  would               apply to a particular person only if he is  an               employee   as   defined   under   the   Bombay               Industrial  Relations  Act.   The   definition               under  the Standing Orders cannot;  therefore.               be of any help in considering whether a person               is  covered  within the scope  of  the  Bombay               Industrial   Relations  Act  or   not.    Shri               Jyotikar  had then urged that in view  of  the               fact  that matters concerning  health,  safety               and  welfare of the employees are included  in               Item 3 of Schedule III, maintenance of gardens               would  be an ordinary part of the work of  the               undertaking.   It is true that maintenance  of               gardens  may be a matter concerning health  or               welfare  of  the employees, but there  is  no,               legal  obligation  to maintain  such  gardens.               Had any such obligation been created under any               provision of law, the position might have been               as  urged by Shri Jyotikar; but, as the  facts               stand  at  present, it is not mandatory  on  a               management of a cotton textile undertaking  to               maintain  any  garden and hence  the  work  of               maintenance of a garden cannot be said to be a               work which is a part of the ordinary work of a               cotton textile mill. It  is  clear from the above that the appellants  cannot  be held to be employees as, defined under the Bombay Industrial Relations  Act  and  so  the  Labour  Court  was  right   in dismissing the a plication." (1) [1964] 3 S.Ck.-24.                         (2) [1963] II L.L.J. 207. 190  The High Court, on being approached by the aggreived  malis tinder Art. 227 of the Constitution, went into the matter at considerable,  length and after copiously quoting  from  the decision in the case of J. K. Cotton Spg. & Wvg.  Mills case (supra) the High Court found it difficult to agree with  the reasoning   of  the  Industrial  Court  that  the  work   of maintaining  the garden was not a part of the ordinary  work of  a  cotton textile mtill.  Earlier in the course  of  its

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judgment the High Court, after referring to the  definitions of  the  term  "employee"  in  s.  3(13)  and  of  the  word "industry" in s.   3(19) of the Act had observed :               ".  . . The definition of the term  ’industry’               is  thus  wide  enough to  include  a  workman               employed in any calling, service,  employment,               handicraft,   or  industrial   occupation   or               avocation  of  employees and it would  not  be               correct  to  assume  that  simply  because   a               workman happened to be engaged as a  gardener,               he would not fall within the definition of the               term   ’employee’  as  given  in  the   Bombay               Industrial  Relations  Act.   A  garden   when               attached  to  a  mill is an  amenity  that  is               provided  to the workers employed in the  mill               and it is not necessary that an amenity should               arise   from   a  statutory   requirement   or               obligation and it hardly makes any  difference               if the garden was provided for voluntarily  or               under a statutory obligation.  The  activities               in  an undertaking suck as a textile mill  are               not   confined  purely  to  factory  work   of               manufacturing  textile fabric within the  mill               premises,  but  various other  incidental  and               connected  institutions  such as  hospital,  a               canteen,  a playground and a garden  might  be               maintained by the mill to provide amenities to               its  workers  and these  activities  could  be               considered as the activities made in  relation               to  and in the usual course of conducting  the               affairs  of the mill.  Not merely  within  the               turning of the wheels of the machine which, no               doubt,   is  directly  responsible   for   the               production of the article for which the  plant               of  the particular industry was installed  and               not merely in utilising the power to move  the               machine to action, the field of activities  of               the  undertaking is restricted and  exhausted,               but  there  are  many  more  varieties  though               allied and complementary activities which  are               being  carried on by the management and  which               help, though in an indirect manner, in  creat-               ing  a  healthy atmosphere of well  being  and               cooperation  amongst the workers by  providing               essential   facilities  such  as   means   for               treating   of  their  ailments,  for   general               entertainment and care not only of the workers               but  of the children who are  left  unattended               while their parents are engaged in their  work               in the factory.  While, there-               191               fore, construing the words ’in the course  of’               and ’ordinarily a part of the undertaking’  we               must give them a meaning which is natural  and               consistent with the working of a factory as it               exists  in the present times and  while  doing               so, our approach should not be theoretical and               academic  but  pragmatic and  practical.   The               activities  that  are usually conducted  as  a               part  of  an  undertaking by  which  not  only               workers  participate in the actual running  of               the   machinery  but  also  activities   which               conduce to the smooth working of the plant  as               a whole must be considered to fall within  the

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             ambit  of the definition.  We are,  therefore,               unable  to  agree with the contention  of  Mr.               Patel that the application of the Act must  be               restricted  to  only  those  workers  who  are                             directly engaged in the manufacture of   textile               fabric." While commenting on the order of the Industrial Court  where it is stated that the maintenance of gardens though a matter concerning  health  or  welfare of  the  employees  was  not mandatory  on  the  management  of  a  cotton  textile  mill undertaking  and hence the work of maintenance of  a  garden could  not be said to be part of the ordinary work  of  such mill, the High Court observed that               "   an  activity undertaken as a part  of  the               undertaking  and in the course of its  conduct               may  be undertaken voluntarily or as a  result               of a statutory duty or obligation but what  is               necessary is that the activity must reasonably               be  attributable  to the undertaking  in  its,               usual  and ordinary course in the  conduct  of               the business or undertaking, and if that be so               then  such an activity could be considered  as               the  activity  of  a, worker  who  would  fall               within  the definition of employee  within  s.               3(13) of the Act." It  was, however, contended in the High Court on  behalf  of the  present appellant that the garden in which the  present respondents  had been working as gardeners was not  situated within  the  premises of the mill and that the  garden  area included  office of some other concerns, a  Government  post office  and a museum which was open to the public and,  some quarters  for workers as well as assistance and officers  of the  hospital.  The garden area, according to Mr. Patel  who reprented the present appellants in the High Court comprised of  the  buildings  just mentioned and the  area  round  the caustic plant factory as well as the field at Dami Limda  in respect of which an agreement had been entered into with the contractor for keeping the trees and plants in proper  trim. This contention having not been considered by the 192 Industrial  Court the High Court, as already observed,  sent the  case back to the Industrial Court for a fresh  decision in the light of the observations of the High Court. In  this Court Shri Desai on behalf of appellants  contended that the High Court, while exercising its jurisdiction under Art.  227 of the Constitution, was not =powered  to  reverse the  findings of the Industrial Court and the  Labour  Court because  under  that  Article  it  could  not  perform   the functions  of  an appellate or a revisional court.   On  the merits  also he contended that having regard to S.  2(3)  of the  Act read with the notification dated May 30, 1939,  the Act  only  applied  to cotton spinning  and  cotton  weaving department,  mechanics  shops,  dyeing  and  bleaching   and printing departments and offices of the appellant, and to no other  activities  of the appellant  company.   The  counsel further  contended that cis. (13) and 14(e) of s. 3  of  the Act have to be road together and when so read they could not take  within their fold a person employed by an  independent contractor  because  such  a person could  by  no  means  be considered  as an employee of the appellant  company  unless the work done by him can be described as "ordinarily part of the  textile undertaking".  While developing this point  the learned counsel said that the word "ordinarily" occurring in the  context  "work  which  is  ordinarily  a  part  of  the

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undertaking" in s. 3 (14) (e) conveys the idea that the work should  be in the line or in the regular or norm* course  of the textile undertaking or any part of it.  The work ’it was explained,  should  be  such as, in the  regular  or  normal course,  is part and parcel of the textile  undertaking  and not  merely having some sort of incidental  connection  with the same.  The work of gardening, added the counsel,  cannot be  considered  to have done in "execution"  of  any  "work" which is "ordinarily" part of the textile undertaking. Before considering these points it would not be out of place to  mention that in the certificate of fitness  granted  by the  High  Court there is no indication  about  the  precise point or points which induced the High Court to certify  the case to be fit for appeal under cl.(c) of Art. 133(1).  This clause though couched in general terms is intended to  apply to  special  cases in which the question raised is  of  such great public or private importance as deserves appropriately to be authoritatively settled by this Court.  This clause of course  does not in terms say so but it has always  been  so construed.   The question whether or not to certify a  given case to be fit for appeal under this clause is a matter  for the  judicial  discretion  of  the  High  Court.   The  word "certify"  used in this clause suggests that the High  Court is expected to apply its mind before certifying the case  to be  fit for appeal.  The mere grant of a certificate  would, however,  not preclude this Court from  determining  whether the conditions pre-requisite for the grant are 193 satisfied.  It is, therefore, always desirable and expedient for  the  High Court to give its reasons  for  granting  the certificate.   That  would  assist  this  Court  better   in appreciating if the conditions pre-requisite are  satisfied. In  the  application for certificate in the present  case  a number  of  grounds  were stated for securing  it.   We  are unable  to find from the certificate as to which ground  was considered  by  the  High Court to be  important  enough  to justify the certificate. Now, in this case the respondents in fact questioned  before us the competence of the High Court to grant the certificate of fitness but the objection raised by Shri Shukla was based only on the Submission that Art 133 is inapplicable  because the  impugned order is not a final order, We may first  deal with this preliminary objection. Article 227 of the Constitution no doubt does not confer  on the High Court power similar to that of an ordinary court of appeal.   The  material part of this  Article  substantially reproduces  the  provisions of s. 107 of the  Government  of India Act, 1915 except that the power of superintendence has been extended by this Article to Tribunals as well.  Section 107  according to preponderance of judicial opinion  clothed the  High  Courts with a power of  judicial  superintendence apart from and independently of the provisions of the  other laws  conferring on them revisional jurisdiction  The  power under  Art. 227 of the Constitution is intended to  be  used sparingly and only in appropriate cases, for the purpose  of keeping  the  subordinate courts and  tribunals  within  the bounds  of  their  authority and, not  for  correcting  mere errors:  see Naryan Singh v. A mar Nath (1).  At this  stage we  consider  it  proper to refer to some  of  the  judicial pronouncements  by  this Court with regard to the  right  of appeal under Art. 133 from interlocutary orders.  In Tarapur &  Co. v. M/s.  V/O Tractors Export(2) it was observed  that an order of the High Court in appeal which does not dispose of  the  suit  but  merely  refuses  to  grant  an   interim injunction  is not a final order within the meaning of  Art.

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133  even  though as a result thereof the  pending  suit  as framed  may  become infructuous requiring amendment  of  the plant.   On  the  other hand, an  order  dismissing  a  writ petition challenging industrial award which disposes of only one  of  the items of a charter of demands by  the  workmen, leaving  the  rest  of  the items to  be  adjudicated  by  a subsequent  award  was  held  in  Asbestos  Cement  Ltd.  v. Savarkar(3)  to be a final order in a civil proceeding  and, therefore, appealable under Art. 133.  Under Art. 226 of the Constitution  it may in this connection be pointed  out  the High  Court  does not bear an appeal or a  revision  :  that court is moved to interfere after (2)  [1969] 2 S.C.R. 699. (1)  [1954] S.C.R. 565. (3) A.I.R. 1971 S.C. 100. 194 bringing  before itself the, record of a case decided by  or pending  before a court, a tribunal or an authority,  within its  jurisdiction.   A  decision in  the  exercise  of  this extraordinary  jurisdiction  which finally disposes  of  the proceedings is a final order, in an original proceeding.  An appeal  or  a  revision  on the  other  hand  is  generally. considered  to  be a continuation of the  original  suit  or proceeding and in a case, where the High Court deals with an appeal  or a revision, finality for the purpose of Art.  133 must  attach  to the whole of the matter so that  after  the decision  of the High Court the matter is not a  live  one., (see Ramesh v. Ganda Lal(1)  The  impugned order before us was made by the Gujarat  High Court on an application under Art. 227 of the  Constitution, the  prayer in that application being, to remove the  record of the case of the High Court "and after examining the same" (a)  to quash the order and judgment of respondent no. 2  at Annexure ’B’ and (b), to direct respondent no. 2 to  dispose of  the appeal of the petitioner according to law." Now,  in some,  High Courts Art. 227 is utilised for the  purpose  of securing relief by way of writs or directions in the  nature of  writs  more accurately contemplated by Art. 226  of  the Constitution  :  (Ramesh v. Ganda Lal(1) and  in  some  this Article  is invoked for getting orders of tribunals  revised just as s. 115, C.P.C. is utilised for revision of orders of subordinate  courts  : (Surinder Nath v. Stiphen ( 2  )  (P) Ltd.  As such power under Art. 227 may also be exercised suo motu.   In the present case Art. 227 appears to us  to  have been used in effect as a substitute for Art. 226 for seeking a  direction in nature of a writ for quashing the orders  of the  subordinate  tribunals.  At least it appears  that  the proceeding  before  the  High Court was so  treated  by  all concerned.  We should, however, not be understood to express our  approval of the use of Art. 227 for seeking  relief  by way of writs or directions in the nature of writs for  which purpose  Art.  226  is expressly  and  in  precise  language designed.   From  that point of view if otherwise  the  High Court, while disposing of a petition under Art. 227, finally settles some points affecting the rights of the parties then to  that  extent  the impunged order may  be  considered  to operate  as a final order just as an order made  under  Art. 226 would.  As to whether the High Court has jurisdiction to make  the  impugned order while exercising its  power  under Art. 227 will depend on our conclusion when considering  the merits of the case. Coming  to  the merits of the case we should like  first  to reproduce  the  notification  dated May  30,  1939  and  the definitions of the word "employee" and "employer" so far  as relevant  for  our  purpose as contained in  the  Act.   The

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notification reads : (1) A.T.R. 1966 S.C. 1445 at 1449. (1) [1966] 3 S.C. R. 458. 195 "BOMBAY CASTEL, 30th May, 1939 BOMBAY INDUSTRIAL DISPUTES ACT, 1939 No.  2847/34-A.-In exercise of the powers conferred by  sub- section  (3) of Section 2 of the Bombay Industrial  Disputes Act,  1938  (Bom.   XXV of 1938),  and  in  supersession  of Government   Notification  in  the  Political  and   Service Department  No.  2847/34-2 dated the 14th March,  1939,  the Government   of  Bombay  is  pleased  to  direct  that   the provisions  of  the  Act which have  been  extended  to  the Province  of  Bombay under Government  Notification  in  the Political  and Services Department No. 2847/34-1, dated  the 14th March, 1939, shall apply to the cotton Textile Industry as specified below:--               (a)   All  concerns using power and  employing               twenty  or more workers which are  engaged  in               cotton spinning;               (b)   all  concerns using power and  employing               twenty  or more workers which are  engaged  in               cotton weaving with or without an admixture of               silk, rayon, artificial silk or one or more of               these;               (c)   all mechanics shops attached to and (all               dyeing  bleaching  and  printing  departments,               whether   situated  within  or   outside   the               precincts,  of and forming integral  part  of)               the concerns falling under clause (a) or (b).               (d)   All the offices, whether situated within               or  outside  the  precincts  of  the  concerns               falling under clause               (a) or (b)."               "Employee"  and "employer" so far as  relevant               for our purpose ,ire defined as               "3.  In  this  Act unless  there  is  anything               repugnant in the subject or context-               (13)  ’employee’ means any person employed  to               do  any skilled or unskilled work for hire  or               reward in any industry, and includes-               (a)   a person employed by a contractor to  do               any  work  for  him  in  the  execution  of  a               contract  with an employer within the  meaning               of sub-clause               (e)   of clause (14);               (14)  ’employer’ includes-               (e) where the owner of any undertaking in  the               course               of  or  for  the  purpose  of  conducting  the               undertaking               196               contracts with any person for the execution by               or  under the contractor of the whole  or  any               part  of any work which is ordinarily part  of               the    undertaking,   the   owner    of    the               undertaking." Shri  Desai  on behalf of the appellant submitted  that  the respondents  in this Court who were gardeners employed by  a contractor  cannot  fall within the definition of  the  word employee  as contained in s. 14(e) of the Act.   He  further contended  that  the  notification  issued  under  the   Act extending its applicability to the textile undertaking  does not  take  within  its  fold the  respondents  who  are  not directly connected with any part of the activity with  which

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the  appellant textile industry is directly  concerned.   In support  of his contention he relied on some decided  cases. The  first  decision  to which our attention  was  drawn  is reported as Kesar Lal Narsing Bhai v. Mls.  Calico  Printing Ltd.(1). This is a decision by the Labour Appellate Tribunal of India, Bombay and the present appellant was a  respondent in that case.  There, the gardeners who used to work outside the  gate  of the factory and had been  employed  through  a contractor  had applied under s. 78(1 ) (A) (c) of  the  Act for  a  declaration  from the first Labour  Court  that  the mill’s  failure  to  pay wages  and  Dearness  Allowance  in -accordance  with the Standardisation Award amounted  to  an illegal   change.   The  Labour  Court  had  granted   their application but the Industrial Court on appeal had  reversed that  decision.   The employees took the matter  on  further appeal  to the Appellate Tribunal but without  success.   In that  case  the  employees had  wrongly  asserted  in  their applications that they were direct employees of the mills in question and the relief claimed was based on this  erroneous assertion.   The Standardisation Award by which the  company was  bound, it is pertinent to point out, was given only  in respect of those persons who had been employed directly  for the  purpose  of looking after the garden  of,  the  factory proper.  it would thus be obvious that the employees’  claim there was liable to fail on the short ground that they  were not direct employees as wrongly claimed by them and that the relief  under  the award was confined  to  direct  employees only.  But this apart, it is further clear from the decision of the Appellate Tribunal that under the agreement with  the contractor  there  the  latter had  been  employed  for  the purpose  of looking after the garden not within the  factory compound  proper  but beyond it.  Indeed,  the  contractor’s obligation to look after the garden extended further  beyond even  that area.  It is in this context and background  that the  Appellate Tribunal observed in the concluding  part  of its  order that "statutory definition of an employee in  our opinion  cannot  be  invoked  by a  gardener  who  has  been employed  through  a contractor for the work  as  undertaken here." (emphasis supplied).  This decision, (1)  1955 Industrial Court Reporter 1105.                             197 therefore,  does  not  assist us  on  the  precise  question raised.   The  next  decision relied upon by  Mr.  Desai  is reported as Hakim Singh v. J. C. Mills Ltd.(1). In that case the  mills  had  employed a  contractor  to  supply  packing material.  The contractor because of the nature, of his work was  given  a  room in the mills premises  for  preparing  a particular packing material.  An employee of the  contractor applied  to the Industrial Court for relief under  the  pro- visions of the Act.  It was held that he could not be deemed to  be an employee of the mills because the work  which  was carried on by the employer of the petitioner was not a  part of  the  industrial undertaking.  While  commenting  on  the scope of s. 3 (13) (a) and s. 14(e) of the Act which  define the  words "employee" and " employer", it was said that  for the purpose of these provisions, there must be an industrial undertaking owned by somebody’ some work, which is  ordinary part  of  the undertaking must have been  entrusted  by  the owner to the contractor: that contractor must be employed an employee’  that employee can then by the combined  operation of these provisions insist upon being treated as employee of the owner himself, the obvious idea behind this scheme being that  the owner of an industrial undertaking should  not  be allowed  to  evade responsibilities  towards  his  employees which  are imposed by the labour laws, by entrusting a  part

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or  whole  of the undertaking to a contractor.   The  actual decision  of this case is on different facts and is  clearly not  of  much  help though the  observations  regarding  the purpose  of  the provisions of the definitions admit  of  no controversy.   Reliance was further placed by Shri Desai  on the  decision of this Court in Messrs Godavari  Sugar  Mills Ltd. v. D. K. Worlikar(2) where a notification applicable to the manufacture of sugar and its by-products was held not to cover  the head-office of the sugar mills at Bombay and  the employees engaged there, when the head-office was  Separated from the factories by, hundreds of miles.  The  notification was held not to cover sugar industry as such Shri Desai also sought  support  from  Begibhai  M.  Chokshi  v.   Ahmedabad Manufacturing & Calico Printing Co. Ltd. (3 ) (a decision of the Industrial Court, Bombay) which dealt with running of  a retail shop; New India Tannis v. Aurora Singh Moibi ( 4 )  a case  of doing repairs to the machinery of the  factory  and from S. M. Ghose v. National Street & Metal Works Ltd.(5)  a case  of  an employee of a contractor engaged to  paint  the premises.   Both  the  Calcutta.  decisions  are  under  the Workmen’s Compensation Act. (1)  [1963] M.P.L.J.714. (2) [1960] 3 S.C.R. 350. (3) (1958) 11 L.L.J. 126- (4) A.I.R. 1947 Cal. 613. (5)  A.t.R. 1950 Cal. 548- 198 The respondents’ learned counsel, apart from urging that the High Court has sent the case back for deciding the nature of work done by the malis in this case and that, there are, tie appellant  cannot appropriately ask this Court to  determine these   questions  which  are  awaiting  decision   by   the Industrial  Court, also relied on Basti Sugar Mills Ltd.  v. Ramjagar(1) and on J. K. Colton Spg. & W. v. Mills  (supra). In  the  former  case the respondents there  employed  by  a contractor  to remove press and from the sugar factory  were held to be workmen employed by the factory because  removing press.  mud  was considered ordinarily to be a part  of  the sugar  industry.   The latter case is an authority  for  the proposition  that  an  employee  engaged  in  any  work   or operation  which  is incidentally connected  with  the  main industry  is a workman if other requirements of s.  2(s)  of the  Industrial Disputes Act, 14 of 1947 ,are satisfied  and that the malis in that case were workers within the  meaning of  s. 2 of U.P. Industrial Disputes Act, 28 of  1947.   The bungalows and gardens on which the malis in that case worked were a kind of amenity supplied by the mills to its officers and on this, reasoning the malis were held to be engaged  in operations  incidentally  connectd with  the  main  industry carried on by the employer.  It was by relying on the  ratio of  this  decision that the High Court in the  present  case came  to  the conclusion that the workers in order  to  come within the definition of "employee" need not necessarily  be directly connected with the manufacture of textile  fabrics. This  decision. is binding on us and indeed Shri Desai  also fairly accepted its ratio.  He only contended that the malis employed by a contractor unless, directly connected with the textile operations cannot get the benefit of this decision. In our view on the conclusions of the High Court which  have not been shown to be erroneous justifying interference it is not  possible  to reverse its decision on the basis  of  the abstract submission advanced by Shri Desai.  As observed  in J. K. Cotton Spg. & Wvg.  Mills case (supra) the problem has to  be looked at from the considerations of  social  justice which  has  become an integral part of our  industrial  law. This concept of social justice has a comprehensive sweep and it  is  neither pedantic nor one-sided but,  is  founded  on

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socioeconomic   equality.   It  demands  a   realistic   and pragmatic  approach  for resolving the  controversy  between capital and labour by weighing it on an even scale with  the consciousness that industrial operations in modem times have become  complex  and complicated and for the  efficient  and successful functioning of an industry various amenities  for those  working in it are deemed as essential for a  peaceful and  healthy atmosphere.  The High Court has left  open  for the decision by the Industrial Court the question as to  the nature of the work done by the (1)  [1964]2 S.C.R. 838.                             199 respondents  for determining whether or not, in view of  the fact  that  they are employed through a contractor  and  not directly,  their case falls within s. 3(13).  This  is  what the High Court has said "It  was  urged by Mr. Patel that the garden  in  which  the petitioners  were  working  as gardeners  was  not  situated within  the  premises of the mill and that the  garden  area included  a large area of offices of some other concerns,  a Government Post Office and Museum which were open to  public and  some  quarters for workers as well  as  assistants  and officers of a hospital.  It was also urged by Mr. Patel that the  garden  area comprised of the above buildings  and  the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with  the  contractor for keeping the trees  and  plants  in proper trim.  It appears that this contention made on behalf of  the mills was not considered by the Industrial Court  as it appears from para 7 of the order of the Industrial  Court because  according to the Industrial Court, looking  to  the nature of the, work done by the petitioners and to the  fact that  they  were not directly employed by the  employer  but through  a contractor, they could not be covered within  the scope  of section 3 (13) of the Bombay Industrial  Relations Act.   Since this contention has not been considered by  the Industrial  Court, we do not wish to express any opinion  as regards  the merits of this contention-and it would be  open to  Respondent  No.  1 to raise the  contention  before  the Industrial  Court  which will decide on the  merits  of  the contention if raised. Subject  to  this,  the order of  the  Second  Labour  Court Ahmedabad  dated 9th August, 1963 passed in Application  No. 2005  of  1962  and  the  order  of  the  Industrial  Court, Ahmedabad  dated 5th February, 1964 passed in  Appeal  (I.C) No. 123 of 1963 must be quashed and set aside and we  direct that  the  matter should now be decided  by  the  Industrial Court in the light of the observations made above 200 There is no cogent ground why this matter should be, decided by this Court and not by the Industrial Court in the  normal course  as  directed by the High Court, In our  opinion  the order  of  the High Court is legally correct and  is  also eminently.  just  and fair.  We are unable,  therefore,  to. agree   with  Mr.  Desai  that  this  order   requires   any intereference.  The principle followed by the High Court  is the  one which was laid down by this Court in J.  K.  Cotton Spg.  &  Wvg.   Mills case (supra).  The  decisions  of  the Labour  Court  and  the  Industrial  Court  were  based   on misconception  of the legal position and the High Court  was within  its  authority to interfere under Art.  227  of  the Constitution to quash them. The appeal accordingly fails and is dismissed with costs. G.C.                                                  Appeal dismissed.

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