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PETITIONER: M/s.  BHIKUSE YAMASA KSHATRIYA (P) LTD.,& ANR.

       Vs.

RESPONDENT: UNION OF INDIA, AND ANOTHER

DATE OF JUDGMENT: 08/02/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS

CITATION:  1963 AIR 1591            1964 SCR  (1) 860  CITATOR INFO :  R          1964 SC1260  (6)  R          1966 SC 370  (11)  RF         1974 SC1832  (62,66,68)  R          1974 SC2349  (10)

ACT: Bidi   Roller-Deemed  worker  by  Government   Notification- Notification,  if  invalid and  discriminatory-If  infringes fundamental right-Factories Act, 1948, ss. 2 (1), 2 (m), 79, 85-Constitution of India, Arts. 14,19 (1) (g).

HEADNOTE: Bidi  rollers  were  formerly given the  benefit  of  weekly holidays and wages in lieu of holidays.  But as a result  of the  decision  of  this Court, the  owners  of  bidi  making establishments  in the State of Maharashtra refused to  give them those benefits. there was great unrest and consequently the  State of Maharashtra issued a notification under s.  85 of  the Factories Act which made bidi rollers in places  set out  in  the Schedule "deemed workers" and on  that  account entitled  to  the  benefits provided to  workers  under  the Factories Act. The petitioners challenged before this Court the validity of s.  85 of the Factories Act and the notification  issued  in exercise  of the authority conferred thereby on  the  ground that  the  provisions of s. 85 and the  notification  issued thereunder   infringed   the  fundamental  rights   of   the petitioner   under   Arts.  14  and  19  (1)  (g)   of   the Constitution. Held,  that s. 85 which authorises the State  Government  to issue  a notification applying all or any of the  provisions of  the Factories Act to any place in which a  manufacturing process  is  carried on and which involves  the  consequence that  the place is deemed a factory and the persons  working therein are deemed workers, is not by itself  discriminatory so  as  to  infringe  Art.  14  of  the  Constitution.   The provision also does not amount to authorising the imposition of  unreasonable restrictions upon the fundamental right  of the  owner  of the factory to carry on  his  business.   The

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impugned  notification is not open to attack on  the  ground that  the  State issued the notification  by  selecting  for application of the provisions of the Act some out of the  861 many places in which Bidi-manufacturing processes are  being carried  on.  In so far as the notification seeks  to  apply the.’  provisions of the Act imposing upon the owner  or  an occupier  of  the factory obligation to grant  annual  leave with wages, it does not impose any unreasonable restriction. Section  85  was  enacted  with  the  object  of  conferring authority  on the State Government to extend in  appropriate cases the provisions of the Factories Act to  establishments which are otherwise not factories within the meaning of  the Act  and to ensure to persons working in factories  even  if not  workers  within the meaning of the  Act,  the  benefits provided   thereby.   The  section  authorises   the   State Government to make all or some of the provisions of the  Act applicable  to any place wherein a manufacturing process  is carried on with or without the aid of power, notwithstanding that the number of persons employed therein is less than the number specified in the definition of "factory"or where  the persons  working therein are not employed by the  owner  but are working with the permission of, or under agreement with, such owner. If  s. 79 is made applicable as a result of  a  notification issued under s. 85, it would apply to those workers only who work  in the factory for the full period  prescribed  tinder ss. 61, 66 (1) and .71 of the Factories Act by the employer. A  deemed worker’ who is paid only for work done by him  and who  is under no obligation to attend at any fixed time  may be  entitled to the benefit of annual leave with wages  only if  he fulfils the working conditions applicable to  workers as defined in s. 2 (1)of   the   Factories   Act.     The privilege  of  working  for a period less  than  the  period prescribed for regular workers in afactory will not, if he works for less than the prescribedhours,  come to  the aid  of a "deemed worker" so as to enable him to  claim  the benefits of s. 79.  However, that privilege will not deprive him  of  the benefit of s. 79 if he fulfils  the  conditions relating  to the duration of work.  The fact that a  "deemed worker"  in  a  factory  to  which  s.  79  is  extended  by notification, by virtue of his contract or otherwise, is not bound to attend at times fixed by the owner of the  factory, does  not  mean  that he can never  fulfill  the  conditions relating  to attendance for earning leave with wages.  If  a ’,deemed  worker" attends the factory for the full  duration fixed as factory hours and works for 240 days or more during a calendar year, he would be entitled to the benefits of ss. 75 and 80 of the Act. The Factories Act is an Act to consolidate and amend the law regulating labour in factories The Act has been 862 enacted  primarily  with the object  of  protecting  workers employed  in factories against industrial  and  occupational hazards.   For  that purpose, it seeks to  impose  upon  the owner  or the , occupier certain obligations to protect  the workers  unwary as well as negligent and to secure for  them employment  in  conditions  conducive to  their  health  and safety. State  v.  Alisaheb Kashim Tamboli, I.L.R.  1955  Bom.  642, Shankar Balaji Waji v. State of Maharashtra, [1962] Supp.  1 S.C.R. 249, Ram Chandra v. State (1956) I.L.R. 35 Pat.  877, M/s.   Bhikusa  Yamasa Kshatriya v. Sangamner  Akola  Taluka Bidi   Kamgar  Union’  [1963]  Supp.  1  S.C.R.   524.   and Bridhichand Sharma v. The First Civil Judge, Nagpur,  [1961]

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3 S.C.R. 161, referred to.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 145 of 1962. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental rights. G.S.  Pathak,  J.  B. Dadachanji, O. C.  Mathur  for  the petitioners. C. K. Daphtary,Solicitor-General of India, N.     S. Bindra and R. H. Dhebar, for the respondents. 1963.   February 8. The judgment of the Court was  delivered by SHAH,  J.-The first petitioner is a private limited  Company incorporated  under the Indian Companies Act, 1913  and  the second petitioner is a Director of the Company.  The Company maintains  23 establishments for manufacturing bidis in  the District  of  Nasik, Poona and Ahmednagar in  the  State  of Maharashtra.   A large majority of these establishments  are borne  on the registar of factories maintained by the  Chief Inspector of Factories under the Factories Act, 63 of  1948. Craftsmen  called rollers, attend these  establishments  and prepare bidis,  863 using materials supplied by the Company.  The establishments remain  open during specified hours but the rollers are  not bound to attend for any fixed period ; a roller may come  to and  leave the establishment according as is  convenient  to him,  and  he  is  paid for the  bidis  turned  out  by  him according  to a fixed tariff.  It appears that this  is  the accepted  modus  of  work  in  bidi  establishments  in  the Maharashtra region.  These establishments were, it was  held by the Bombay High Court, ’factories’ and the rollers  work- ing  therein  were  "workers’  within  the  meaning  of  the Factories  Act  63 of 1948 : The State  v.  Alisaheb  Kashim Tamboli  (1).   In that case the High Court  held  that  the expression "employed’ in s. 2 (1) of the Factories Act, 1948 does not necessarily involve the relationship of master  and servant, and therefore owners of bidi establishments had  to conform  to  the requirements of the Factories  Act  and  to afford to the workers the benefits provided under that  Act, even  though the workers did not maintain uniform  hours  of attendance, and were paid only for bidis turned out by them. But  this  Court  in Shankar Balaji Waje  v.  The  State  of Maharashtra  (2)  --  (Subba Rao, J.  dissenting)-  held  in dealing  with  the case of workers in an  establishment  for manufacturing  bidis whose attendance was  characterised  by the  features  hereinafter  set  out,  that  they  were  not employed within the meaning of s. 2 (1), and could not claim the privileges accorded to workers by ss. 79 and 80 of  that Act.  The features noticed by the Court were, that there was no agreement or contract of service between the owner of the establishment  and the bidi roller; the bidi roller was  not bound  to attend the factory for any fixed hours or to  work for  any fixed period; he was free to go to the  factory  at any time he liked and was equally free to leave the  factory whenever he liked; the bidi roller could be absent from work on  any  day,  and if his absence was expected to  be  of  a duration  longer  than ten days he informed  the  owner  not because he had to obtain (1) T.L.R. 1955 Bom. 624. (2) [1962] Supp.  1 S.C.R. 249. 864 permission or leave, but for assuring the owner that he  did

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not intend to give up work at the factory;   there  was   no actual supervision of work which the    bidi  roller did  in the factory, and he was paid at fixed rates on the  quantity of  bidis turned out there being no stipulation for  turning out any minimum quantity of bidis in a day; bidi leaves were supplied  to  the rollers for being taken home and  cut  and tobacco was supplied at the factory, but they were not bound to roll bidis at the factory - they could take the materials outside  after  obtaining permission of the  owner;  at  the close of the day the bidis used to be delivered to the owner and bidis not up to the standard were rejected; and the bidi worker’s attendance was not noted though the days he  worked could be ascertained from the work register.  The Court held on these facts that the bidi roller could not be said to  be ’employed’  by  the owner and was not  therefore  a  worker, there being no contract of employment, under which the  bidi roller  agreed to serve the employer subject to his  control and supervision. Since  this Judgment was pronounced, owners  of  bidi-making Establishments in the State of Maharashtra commenced denying to the bidi rollers benefit of weekly holidays and wages  in lieu of holidays previously accorded to them and even denied access  to the Inspectors appointed under the Factories  Act to  their  establishments.   There  are  in  the  State   of Maharashtra  more than 35000 bidi rollers borne on  the  pay rolls   of  bidi-making  establishments  on   the   register maintained  by the Chief Inspector of Factories.  There  are also many other bidi making establishments which are not  so borne  on  the register of the Chief Inspector.   There  was grave  unrest  among  the bidi rollers  resulting  from  the denial of benefits previously enjoyed by them.  With a  view to  protect  the bidi rollers against  exploitation  by  the owners of bidi making establishments and against  865 deprivation of the benefits enjoyed by them, the  Government of Maharashtra issued the following Notification in exercise of the powers vested under s.   85 of the Factories Act ; -               "In  exercise  of  the  powers  conferred   by               section  85 of the Factories Act, 1948  (LXIII               of 1948), the Government of Maharashtra hereby               declares  that all the provisions of the  said               Act  shall  apply to the places  specified  in               column  2  of  the  Schedule  appended  hereto               wherein a manufacturing process is carried  on               with  or  without the aid of power  or  is  so               ordinarily   carried  on  the   establishments               specified against them in column 3 of the said               Schedule  notwithstanding  that  the   persons               working therein are not employed by the  owner               of  such  places  but  are  working  with  the               permission  of  or under agreement  with  such               owner :               Provided that the manufacturing process is not               being  carried on by the owner only  with  the               aid of his family." To the notification was appended a Schedule (including  many of  the  establishments  of the  Company)  setting  out  the particulars    of   Districts,   the   places   where    the establishments   were   situate  and  the   names   of   the establishments.  The effect of the Notification was to  make bidi  rollers  in  places set out in  the  Schedule  ’deemed workers",  and  oil that account entitled  to  the  benefits provided to workers under the Factories Act. The  petitioners  then  challenged  by  this  petition   the

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validity of s. 85 of the Factories Act and the  Notification issued  in exercise of the authority conferred thereby,  oil the  plea  that  the  provisions  of  the  section  and  the Notification  issued  thereunder  infringe  the  fundamental rights  of the petitioners under Arts. 14 and 19 (1) (g)  of the Constitution. 866 ’Factory’ is defined in s. 2 (in) of the Act as meaning "any premises including the precincts thereof :-               (1)   Whereon tenor more,workers are  working,               or  were working on any day of  the  preceding               twelve  months,  and in any part  of  which  a               manufacturing process is being carried on with               the  aid  oft-  power,  or  is  ordinarily  so               carried on, or               (ii)Whereon   twenty  or  more   workers   are               working,  or  were working on any day  of  the               preceding  twelve months, and in any  part  of               which a manufacturing process is being carried               on  without the aid of power or is  ordinarily               so carried on,- but does not include a mine subject to the operation of  the Mines  Act,  1952, or a railway running shed;"  ’Worker’  is defined  in  s.  2  (1) of the  Act  as  meaning  "a  person employed, directly or through any agency, whether for  wages or  not,  in any manufacturing process, or in  cleaning  any part  of the machinery or premises used for a  manufacturing process,  or  in any other kind of work  incidental  to,  or connected with the manufacturing process, or the subject  of the manufacturing process;’    Premises  in which a manufacturing process is carried  on where the number of workers is less than the minimumprescribed do  not  fall within the definition of  ’factory.   Again  a person to be a ’worker’ must be employed in            a manufacturing process. or in cleansing machinery used for the process, or in any  work incidental to or connected with the  manufacturing process.To attract the provisions of  the Factories Act which confer    certain   benefits    and privileges  upon workers and impose obligations upon  owners of factories qua those workers, there must,   867 therefore,  be  a manufacturing process carried  on  in  any premises, the number of persons working in the manufacturing process  or cleansing machinery used for the process  or  in work  incidental to or connected therewith be not less  than the number specified in the definition in s. 2 (in) and that the persons so working must be employed (under a contract of service  for  wages or not and directly  or  indirectly.   A person  working  in a factory, but not under a  contract  of service cannot be regarded as a worker within the meaning of that expression in s.    2 (1) of the Act.      Section 85 of the Factories Act which occurs in Ch.  IX provides :               "(i) The State Government may, by notification               in  the Official Gazette, declare that all  or               any of the provisions of this Act shall  apply               to  any place wherein a manufacturing  process               is carried on with or without the aid of power               or    is    so    ordinarily    carried    on,               notwithstanding that-               (i)   the  number of persons employed  therein               is  less than ten, if working with the aid  of               power and less than twenty if working  without                             the aid of power, or               (ii)the   persons  working  therein  are   not

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             employed by the owner thereof but are "working               with  the  permission of, or  under  agreement               with,           such owner :               Provided that the manufacturing process is not               being  carried on by the owner only  with  the               aid of his family.               (2)After  a place is so declared, it  shall               be deemed to be a factory for the purposes of               868               this Act, and the owner shall be deemed to  be               the occupier, and any person working therein,a               worker." The  section  is  enacted  with  the  object  of  conferring authority  to extend in appropriate cases the provisions  of the Act to establishments which are otherwise not  factories within  the  meaning of the Act, and to  ensure  to  persons working in factories even if not workers within the  meaning of  the  Act., the benefits provided thereby.   The  section authorises  the State Government to make all or some of  the provisions  of  the Act applicable to any  place  wherein  a manufacturing process is carried on with or without the  aid of  power,  notwithstanding  that  the  number  of   persons employed  therein is less than the numbers specified in  the definition  of  ’factory.,  or  where  the  persons  working therein  are not employed by the owner but are working  with the permission of, or under agreement with, such owner.   On the  issue  of a Notification by the  State  Government  the place designated will be deemed a factory, the owner of  the place will be deemed an occupier and persons working therein will be deemed workers.             Section  85, it is contended, is invalid on  the grounds  that it imposes unreasonable restrictions upon  the fundamental right of the owner to carry on his business, and it   enables   the  State  Government  by   a   Notification arbitrarily to discriminate between owners of establishments who  are similarly situate, inasmuch as the Act  confers  an unguided  and  uncontrolled  power to select  places  to  be deemed  factories by a Notification under s. 85 of  the  Act and to impose thereby obligations laid by the Factories  Act upon  the owners of those places.  Before dealing  with  the impact  of  s.  85 of the Factories  Act  and  the  impugned Notification upon the fundamental rights of the petitioners, it  would  be useful to make a brief retrospect  of  factory legislation in India,  869 with special reference to bidi-making establishments. The  Indian Legislature enacted Act 15 of 1881 as the  first Act  which  dealt with factories.  The Act  was  limited  in scope : it was followed by Act 11 of 1891 which in turn  was followed by Act 12 of 191 1. Diverse amendments were made to that  Act from time to time.  In 1929 a Royal Commission  of Labour   in   India  was  appointed  to  make   a   detailed investigation   into   labour  problems.    The   Commission investigated the conditions in various industries  including the  bidi-making industry and submitted its report  in  June 1931 containing diverse recommendations for amendment of the Indian  Factories  Act, 1911.  The Commission  stressed  the need  for exercise of power to extend the provisions of  the Act to industries not covered by the definition of the  term ’factory’,  and considered the bidi-making industry in  that context   inparticular.    In  describing   the   conditions prevailing in bidi manufactories, the Commission observed :               "Every  type  of building is used,  bat  small               workshops preponderate and it is here that the               graver  problems mainly arise.  Many of  these

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             places are small airless boxes, often  without               any windows, where the workers are crowded  so               thickly  on  the ground that there  is  barely               room to squeeze between them.  Others are dark               semi-basements with damp mud floors unsuitable               for  manufacturing processes, particularly  in               an industry where workers sit or squat on  the               floor  throughout the working  day.   Sanitary               conveniences  and  adequate  arrangements  for               removal   of  refuse  are  generally   absent.               Payment  is almost universally made by  piece-               rate, the hours are frequently unregulated  by               the  employer and many smaller  workshops  are               open day and               870               night.  Regular intervals for meals and weekly               holidays  are generally non-existent.  In  the               case of adults these matters are automatically               regulated  by  individual  circumstances,  the               worker  coming  and going as  he  pleases  and               often, indeed, working in more than one  place               in  the course of the week.   Nevertheless  in               the  case of full-time workers, i.  e.,  those               not  using,  bidi-making  as  a  supplementary               source of income, the hours are too frequently               unduly  long,  the length of the  working  day               being  determined by the worker’s own  poverty               and the comparatively low yield of the  piece-               rates paid." The  Commission recommended the enactment of a separate  Act applicable in the first instance to all places without power machinery,  employing fifty or more persons during any  part of  the year and suggested that the  Provincial  Governments may  be  authorised to extend any provision of  the  Act  to factories employing less than the prescribed number when  in their  opinion  conditions  justify such  action.   But  the Indian Legislature enacted a comprehensive measure-Act 25 of 1934-amending  and consolidating the provisions  of  factory legislation  in India.  The object of the Act was to  reduce hours of work, improve working Conditions in the  factories, provide for adequate inspection and strict observance of the Act  :  but  -places where  the  manufacturing  process  was carried on without the aid of power were notcovered by  the definition of ’factory’ in s. 2 (j). The  Legislature  by Act 16 of 1941 amended   s. 5 and authorised the  Provincial Government  by  Notification  in  the  Official  Gazette  to declare all or any of the provisions applicable to factories to any place wherein manufacturing process was being carried on  or was so ordinarily carried on with or without the  aid of power where ten or more persons were working therein.  871 A  Labour  Investigation  Committee  was  appointed  by  the Government  of  India  in  February,  1944  to   investigate conditions  of employment in respect of various  industries. This  Committee enquired into the conditions of  workmen  in the  bidi, cigar and cigarette industry, and  observed  that the  picture  drawn by the Royal Commission on  the  working conditions in the bidi industry remained largely true.  They observed:               "The prominent features of the bidi and  cigar               industries are long hours and insanitary  con-               ditions  of  work  and  employment  of   child               labour.   Women  are also  employed  in  large               numbers in this industry. x x x x               x x x x x The bidi and cigar labour., however,

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             satisfies  many  of the  criteria  of  sweated               labour,  such  as  sub-contract  system,  long               hours,  insanitary  working  conditions,  home               work  (in  bidis),  employment  of  women  and               children,  irregularity  of  employment,   low               wages, and lack of bargaining power." Dealing  especially  with the conditions prevailing  in  the Province of Bombay they observed               "’In  Bombay  these  workshops  are   situated               immediately  behind  panshops.  x x  x  x  The               conditions  of  these  workshops,  so  far  as               sanitation,   light   and   ventilation    are               concerned.,  beggar  description.   They   are               dark,  dingy  places with very  few,  if  any,               windows   and   the   approaches   are    very               insanitary.   Workers  are  huddled  together,               men,  women  and in some cases  children,  and               there  is hardly any space to move.   One  can               see bags of tobacco               872               heaped in one corner and manufactured bidis in               another.   Most  of  the  workshops  have   no               lavatories  and where they ate, they are in  a               most   deplorable  condition.   Some  of   the               workshops have low wooden ceiling above  which               some  workers  sit and carry  on  their  work.               These  are not usually reached  by  staircases               and  the  workers  have to go  up  with  great               difficulty."                      The Committee recorded its  conclusions               as follows               matters    requiring  immediate  attention  in               the   bidi  and  cigar  industries   are   the               unhealthy working    conditions.,  long  hours               of  work,employment  of  women  and  children,               deductions  from  wages and  the  sub-contract               system  of Organisation.  It is  desirable  to               abolish  the out-work system and to  encourage               establishment of big factories in the bidi and               cigar   industries,   if   protective   labour               legislation is to be enforced with any  degree               of success." Application of factory legislation to protect the legitimate interests of bidi rollers was therefore a crying  necessity. The Factories Act, 1948 extended the definition of  factory. The  bidi  making industry was spread in  small  units  over extensive  areas,  and the working conditions in  the  units varied  considerably,  and  presumably on  that  account  no legislation  applicable exclusively to establishments  manu- facturing bidies was undertaken, but establishments in which the number of persons working exceeded the number  specified in cl. (in) of s. 2 were registered under the Factories Act. It  is true that even then a number of  establishments  were not  brought within the operation of the Factories Act,  but with  the enactent of the Minimum Wages Act and fixation  of minimum   wages  by  the  diverse  States  there  was   some improvement in the condition of bidi rollers. 873 Under s. 85 of the Factories Act of 1948 power was  reserved to make the Act applicable to any place in which manufacture of  bides was carried on could be exercised but it does  not appear to have been exercised for the reason that the larger establishments  in  which bidi-making was  carried  on  were regarded  as covered by the Factories Act, it being  assumed that the expression "employed’ in s. 2 (1) of the  Factories

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Act   included   mere   engagement  or   occupation   in   a manufacturing process without any contract giving rise to  a relation  of master and servant : State V.  Alisaheb  Kashim Tamboli  (1)  and Ram Chandra Prasad v. The State  of  Bihar (2).    The  Factories Act, as the preamble recites is an Act  to consolidate   and  amend  the  law  regulating   labour   in factories.  The Act is enacted primarily with the object  of protecting workers employed in factories against  industrial and  occupational  hazards.  For that purpose  it  seeks  to impose upon the owners or the occupiers certain  obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conducive to their  health and  safety.  The Act requires that the workers should  work in  healthy and sanitary conditions and for that purpose  it provides that precautions should be taken for the safety  of workers and prevention of accidents.  Incidental  provisions are  made for securing information necessary to ensure  that the  objects are carried out and the State  Governments  are empowered to appoint Inspectors, to call for reports and  to inspect  the  prescribed registers with a view  to  maintain effective  supervision.   The  duty of the  employer  is  to secure  the  health  and safety of workers  and  extends  to providing   adequate  plant.,  machinery   and   appliances, supervision over workers, healthy and safe premises,  proper system   of  working  and  extends  to   giving   reasonable instructions.   Detailed  provisions are therefore  made  in diverse chapters of the Act imposing obligations upon the (1) I.L.R. 1955 Bom. 642. (2) (1956) I.L.R. 35.  Patna  877. 874 owners of the factories to maintain inspecting staff and for maintenance   of   health,   cleanliness,   prevention    of overcrowding  and provision for amenities such as  lighting, drinking  water,  etc. etc.  Provisions are  also  made  for safety of workers and their welfare, such as restrictions on working  hours  and on the employment of young  persons  and females and grant of annual leave with wages.  Employment in a manufacturing process was at one time regarded as a matter of  contract between the employer and the employee  and  the State  was  not  concerned to impose  any  duties  upon  the employer.  It is however now recognised that the State has a vital  concern in preventing exploitation of labour  and  in insisting  upon proper safeguards for the health and  safety of  the  workers.   The Factories  Act  undoubtedly  imposes numerous  restrictions upon the employers to secure  to  the workers  adequate safeguards for their health  and  physical well-being.  But imposition of such restrictions is not  and cannot  be regarded, in the context of the modem outlook  on industrial  relations,  as unreasonable.  Extension  of  the benefits  of the Factories Act to premises and  workers  not falling strictly within the purview of the Act, is  intended to  serve  the same purpose.  By authorising  imposition  of restrictions  for the benefit of workers who in the view  of the  State  stand  in need of some or  all  the  protections afforded  by the Factories Act, but who are not governed  by the Act, the Legislature is merely seeking to effectuate the object  of  the  Act i. e. it authorises  extension  of  the benefit  of  the Act to persons to whom the  Act,  to  fully effectuate the object, should have been, but has on  account of  administrative or other difficulties not been  extended. Provisions  made for the benefit of ’deemed workers’  cannot therefore  be regarded as not reasonable within the  meaning of Art. 19 (1) (g) of the Constitution. The  Factories  Act primarily applies to  establishments  in

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which ten or more persons are working  875 where  power  is used and twenty or more  persons  where  no power  is used, thereby excluding from its  operation  small 2establishments.   Presumably,  the  Legislature  felt  that uniform   application   of   the  Factories   Act   to   all establishments  in which a manufacturing process is  carried on  requiring even small establishments to comply  with  the elaborate requirements of the Factories Act may impose great administrative  strain  upon  governmental  machinery,   and involve  hardship  ordinarily  not  commensurate  with   the benefit secured thereby.  But the Legislature with a view to prevent  circumvention  of the provisions of  the  Factories Act, and to secure to the persons working in  establishments where   manufacturing  process  is  carried   on,   adequate safeguards where necessity is felt has authorised the  State Government  by Notification to declare any place which  does not fall within the definition of."factory" to be a  factory and  to  make  all  or any of  the  provisions  of  the  Act applicable thereto.  Similarly the Act is primarily intended to  govern  relations  of persons  standing  as  master  and servant  in  connection  with  manufacturing  processes   in factories, and liberty of contract otherwise was not  sought to be affected by the principal provisions of the Act.   But here   again  the  Legislature  has  authorised  the   State Government to issue Notifications applying the provisions of the  Act even to those establishments in which  persons  are working with the permission or under agreement with, but not as  employees  of the owners.  Exclusion  from  restrictions inherent  in the definitions of "’factory" and "worker"  has its source not in any desire to afford special privileges to any   class  of  owners.   The  policy  underlying   s.   85 authorising  the State Government to extend the  benefit  of the Act is apparent on its face.  The section aims at making provision  for  securing the health and  safety  of  persons engaged  in hazardous employments, and for that purpose  the Legislature  has entrusted to the State Governments, in  the case of establishments 876 not  falling expressly within the regulatory  provisions  of the  Act,  authority to extend those provisions,  where  the necessity  to regulate, having regard to the  circumstances, is  felt.  The power to extend the regulatory provisions  of the  Act  is therefore not intended to confer  an  arbitrary power  to pick and choose between  establishments  similarly situate  it is granted with a view to secure the  protection of persons engaged in industrial occupations in the jig  lit of  special  circumstances  of  a  particular  industry,   a locality or an establishment, where circumstances justifying the  extension of the protection exist.  The  conditions  of small  establishments in different parts of the country  may and  do widely vary.  Control in respect of some  industries or establishments not governed by the Factories Act may  not be  necessary,,  whereas  necessity in that  behalf  may  be acutely felt in others.  It is to carry out effectively  the object  underlying the Act that power has been given to  the State   Government  to  decide  with  reference   to   local conditions  whether it is desirable that the  provisions  of the  Act  or any of them should be made  applicable  to  any establishment  which  is not covered by  the  definition  of ""factory"  or to workers in a factory who are not  entitled to  the  benefits of the Act, because of the  definition  of "employment."               In M/S.  Bhikusa Yamasa Kshatriya v. Sangamner               Akola Taluka Bidi Kamgar Union (1), in dealing

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             with the validity of certain provisions of the               Minimum  Wages  Act, it was observed  by  this                             Court :               "The  object  and policy  of  the  Legislature               appear on the face of the Act.  The object  of               the  Act  is to prevent  exploitation  of  the               workers,  and  for  that purpose  it  aims  at               fixation of minimum wages which the  employers               must   pay.    The   Legislature   undoubtedly               intended to apply the Act to those  industries               or localities               (1)   [1963] Supp.  1 S.C.R. 524.                877               in  which by reason of causes such as  unorga-               nized  labour  or  absence  of  machinery  for               regulation of wages, the wages paid to workers               were,  in  the light of the general  level  of               wages, and subsistence level, inadequate. x  x               x  x x x x It is to carry out effectively  the               purpose of this enactment that power has  been               given to the appropriate Government to  decide               with reference to local conditions, whether it               is  desirable  that minimum  wages  should  be               fixed  in  regard to any  scheduled  trade  or               industry, in any locality, and if it is deemed               expedient  to  do so, the rates at  which  the               wages  should  be  fixed in  respect  of  that               industry  in  the  locality.   By   entrusting               authority  to  the appropriate  Government  to               determine  the minimum wages for any  industry               in any locality or generally, the  Legislature               has not divested itself of its authority,  nor               has  it conferred uncontrolled power upon  the               State  Government.  x  x x x x x x  x  x  x  x               Selective  application of a law  according  to               the  exigencies’.  where  it  is   sanctioned,               ordinarily     results     in      permissible               classification.   Article  14  forbids   class               legislation but not reasonable  classification               for the purpose of legislation.  If the  basis               of classification is indicated expressly or by               implication,  ’by delegating the functions  of               working out the details of a scheme, according               to  the objects of the statute and  principles               inherent  therein,  to a body  which  has  the               means to do so at its command, the legislation               will   not  be  exposed  to  the   attack   of               unconstitutionality.  In other words, even  if               the   statute   itself   does   not   make   a               classification for the purpose of applying its               provisions,  and  leaves it to  a  responsible               body to select and classify persons, objects,               transactions, localities or things for special               treatment, and sets out the policy of               878               principles for its guidance in the exercise of               its authority in the matter of selection,  the                             statute  will not be struck down as  i nfringing               Art. 14 of the Constitution." The  principle  of that case will apply in  considering  the plea  of discrimination raised by the petitioners.   Section 85 of the Factories Act permits selective application of the beneficent  provisions  of the Act to  workers  not  covered thereby.   The power is conferred to carry  out  effectively

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the  purpose of the Act, and to an authority which  has  the means  at its command for making the requisite enquires  for ascertaining  whether extension of the benefits is,  in  the interest of the workers and the public generally,  demanded. Such a provision cannot be regarded as discriminatory. It  is true that even if a statute which  permits  executive action  to  be taken is not ultra vires, but  the  executive action  taken under the statute in the matter  of  selection may  be ultra vires if it infringes any  fundamental  right. In  the  present case, however, the affidavit of Mr.  V.  N. Pimenta, Under Secretary to Government of Maharashtra in the Industries  and  Labour Department,  discloses  clearly  the basis on which the factories mentioned in the Schedule  were selected by the Notification under s. 85(1).  In paragraph 7 of his affidavit it is stated :               "’On  careful  consideration of the  facts  of               this   (Shankar   Balaji  Waje’s)   case   the               Government of Maharashtra was of the view that               for  the  purpose  of.  protecting  the   bidi               rollers against any arbitrary treatment by the               bidi   manufacturers,  and  to  maintain   the               protection  given to them under the  Factories               Act which they had hitherto obtained prior  to               the decision of this Hon’ble Court in the case               of Shankar Balaji Waje a Notification under s.               85 of the Factories’                879               Act, 1948 should be issued.  Accordingly,  the               Government of Maharashtra issued the  impugned               Notification including therein those factories               which were on the register of Factories  main-               tained by the Chief Inspector of Factories." He  further  stated  that probably  there  were  other  bidi manufacturing establishments to which the provisions of  the Factories Act were applicable, but these factories were  not within the purview of the impugned Notification because they were  not on the register of factories maintained under  the Factories  Act and on the basis of which the impugned  Noti- fication  was  issued.   But such  establishments  were  not included  in  that register because of the  failure  of  the owners  to  register  them.   Mr.  Pimenta  said  that   the Government  was making enquiries about such other  factories and  that  they  would or would not  be  brought  under  the purview of the Act, as circumstances demanded, by  amendment of  the impugned notification under s. 85 of  the  Factories Act  when the enquiries were over.  He further  stated  that the impugned Notification was issued to maintain  industrial peace  and  harmony.   There is nothing  on  the  record  to discredit   these   statements.    Before,   the    impugned Notification  was issued, the Bombay and other  High  Courts had  held that bidi workers who though not servants  of  the owners  of  the bidi factories in which they  were  working, were  still employed in a manufacturing process to whom  the benefits of the Factories Act were admissible.  As a  result of  the clarification of the legal position by the  decision of  this Court in Shankar Balagi Waje’s case (1), there  was grave  unrest  among bidi rollers and the  State  Government felt obliged to intervene for the protection of bidi rollers against deprivation of benefits previously accorded to  them for  an appreciable length of time, and with that object  in view  in  the first instance applied the provisions  of  the Factories  Act by Notification issued under s/85(1)  to  all such (1)  [1962] Supp.  1 S.C.R. 249. 880

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establishments  as were included in the list  maintained  by the  Chief Inspector of Factories and commenced  an  enquiry for  including others which were not included in that  list. In the situation which arose inclusion of bidi manufactories registered   as  factories  with  the  Chief  Inspector   of Factories  in  which bides were rolled by  workers  must  be deemed to be a rational basis for classification.  The  fact that  to other factories carrying on the same  business  but not  included  in  the  list  of  the  Chief  Inspector   of Factories,  the  provisions  of the Act  were  not  extended immediately does not expose the Notification to a charge  of absence  of rational classification.  Selective  application of  a  law  by  an authority such as a  State  based  on  an objective  test such as entry in the list maintained by  the Chief  Inspector of Factories in the exercise  of  statutory authority, would in the light of the emergency, be deemed to be  a  rational basis for classification.  It  also  appears from  the  affidavit of Mr. Pimenta that the  Government  of Maharashtra is holding enquiries about other factories which may  properly be, but are not, included, because of  absence of  adequate information.  The exclusion of owners  of  bidi establishments,  not on the list of the Chief  Inspector  of Factories,  is ex facie not due to any differentiation  made with "an evil eye or uneven hand" but on account of the felt necessity  of a situation which caused great hardship  to  a large  number of workers, and rectification of which in  the interest of maintaining industrial peace brooked no delay.   It  was  urged, however, that the application of  all  the provisions  of  the Factories Act  without  considering  the appropriateness  of  extending  the  individual  provisions, infringed  Art.  19 of the Constitution.  It  was  submitted that  provisions  like  ss. 79 and 80 which  only  apply  to factories  employing  per-sons who work under  contracts  of service  with  the  owner would be  wholly  inapplicable  to persons who work  881 under contracts not of service with the owner of the factory and  who are under no obligation to attend the  factory  for any  fixed  duration during working hours or for  any  fixed number  of days during the year, and providing benefits  for such  persons  by  extending  those  provisions  amounts  to imposing  unreasonable  restrictions upon the right  of  the owner of the factory.  Section 79 (1) provides for grant  of annual leave with wages for the number of days calculated at certain rates to every worker who has worked for a period of 240  days  or  more in a factory  during  a  calendar  year. Section 80 is consequential upon s. 79 : it provides that  a worker  shall -be paid for the leave allowed to him  at  the rate equal to the daily average wage of his total full  time earnings  for the days on which lie worked during the  month immediately  preceding his leave exclusive of any  over-time and  bonus  but  inclusive of dearness  allowance  and  cash equivalent   of   the   advantage   accruing   through   the concessional  sale  to the worker of food grains  and  other articles.   Section 79 clearly applies to workers  who  work for  the full period of employment during factory hours  and for the prescribed number of days and it may appear at first sight  somewhat  inappropriate that the  benefit  of  annual leave with wages should be extended by Notification under s. 85  (1) to persons who do not work for the hours  fixed  for the establishment But it is in our judgment clear that  s.79 if it is made applicable by Notification under s. 85   would apply to those workers only who work in the factory for  the full  period prescribed under ss. 61, 71 and 66 (1)  of  the Factories  Act by the employer for not less than the  number

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of qualifying days.  A "deemed worker" who is paid only  for work  done by him and who is under no obligation to  attened at any fixed time may be entitled to benefit of annual leave with  wages  only  if  he  fulfils  the  working  conditions applicable  to  workers as defined in s. 2 (1) of  the  Act. The  privilege of working for a period less than the  period prescribed for regular 882 workers in a factory will not, if he works for less than the prescribed  hours, come to the aid of a deemed worker so  as to  enable  him  to claim the benefits of s.  79;  but  that privilege will not deprive him, if he fulfils the conditions relating  to the duration of work, of the benefit of s.  79. The  fact that a deemed worker in a factory, to which s.  79 is extended by a Notification, by virtue of his contract  or otherwise  is  not bound to attend -it times  fixed  by  the owner of the factory does not mean that he can never fulfill the conditions relating to attendance for earning leave with wages.  If a deemed worker attends the factory for the  Cull duration  fixed as factory hours and works for 240  days  or more  during  a calendar year, he would be entitled  to  the benefits of ss. 79 and 80 of the Act. The  observations  made in Shankar Balaji Waje’s  case  (1), that Pandurang was not bound to work for the period of  work displayed in the factory and therefore "his days of work for the  purpose  of  s.  79 could not  be  calculated"  is  not inconsistent  with  the view expressed by  us.   In  Shankar Balaji  Waje’s  came (1), no Notification under  s.  85  was issued   by  the  State  Government,  and  the   Court   was considering,   whether  having  regard  to  the   conditions governing his attendance, he could be regarded as a  worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued  and  the workers concerned had worked for  the  full period  of work displayed in the factory for more  than  240 days  in  the preceding year, he would still not  have  been entitled  to annual leave with wages.  In our  judgment  the right  to leave with wages arises in favour of a  worker  or deemed  worker under s. 79 only if he has worked during  the full period of factory employment for the prescribed  number of  days  in  the previous year because by the  use  of  the expression  ’days’ in s. 79, working for the full period  of work displayed in the (1)  [1962] Supp.  S.C R. 249.  883 factory  under the appropriate section of the Factories  Act is  contemplated.   Work for a period less than  the  period displayed  will  not, in computing the number  of  days,  be taken into account as a day within the meaning of s. 679.         We  may also observe that in Bridhichand  Sharma  v. First,  Civil Judge, Nagpur (1), this Court in dealing  with the  question  whether rollers in a bidi  factory  who  were obliged  to work within the factory hours, but not  for  the entire period were entitled to the benefit of s. 79, held on a  consideration  of all the circumstances,  that  the  bidi rollers  being employed in the factory were  workers  within the  meaning of s. 2 (1) of the Factories Act, and  entitled to  that  benefit.   It was also  observed  that  the  leave provided   rider s. 79 arises as a matter of right when  the worker  has attended for the minimum number of working  days and  he  is entitled to it, and absence of the  worker  from attendance  for a longer period than that provided by s.  79 had  no  bearing on his right to leave under  that  section. That was again a case not covered by a Notification under s. 85.  On the facts proved the Court held that the workers  in

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the factory were ’employed’ and would if they fulfilled  the requirements of s. 79-viz, the total number of days    of work-be  entitled  to  the benefit of leave  with  Pay.  The attendance to qualify for leave in that case had   obviously to be for the appropriate full period fixed by the owner  of the factory. As  we  have already observed the Act primarily  applies  to workers   strictly  so  called  who  are  employed  in   any manufacturing  process in a factory, but it is open  to  the State  Government by a Notification to apply all or  any  of the  provisions  of  the  Act  to  any  place  wherein   any manufacturing   process  is  carried  on  and  if   such   a Notification is issued the place so declared is to be deemed a factory under the Act, the owner to be deemed an  occupier and the person working therein a worker notwithstanding  the fact that  (1) [1961] 3 S.C.R. 161. 884 the  number of persons working therein are not  employed  by the owner thereof but are working with the permission of  or under  agreement with such owner.  If by imposing  liability to afford to workers strictly so-called under the Act, there is no infringement of the fundamental right of the owner  of the  factory to carry on his business, a similar  obligation in favour of deemed workers, who satisfy the requirements of S.  79, cannot, having regard to the object of the  statute, be regarded as infringing that fundamental right.  Therefore by  imposing liability to afford to "deemed  worker"  annual leave with wages under s. 79 and s.     80   in   the   same manner and to the same extent as is     afforded to  workers strictly so-called under s. 2(1) of     the  Factories  Act, no  unreasonable  restriction  has  been  imposed  upon  the occupier or the owner of the factory.   To  conclude: in our judgment s. 85 which  authorises  the State Government to issue a Notification applying all or any of  the  provisions  of  the Act to any  place  in  which  a manufacturing process is carried on, and which involves  the consequence  that  the  place is deemed a  factory  and  the persons working therein are deemed workers is not by  itself discriminatory   so   as  to  infringe  Art.   14   of   the Constitution;  nor does the provision amount to  authorising imposition of unreasonable restriction upon the  fundamental right of the owner of the factory to carry on his  business. The impugned Notification issued under s. 85(1) is also  not open  to attack on the ground that the State has issued  the Notification by selecting for application of the  provisions of   the  Act,  some  out  of  the  places  in  which   bidi manufacturing  processes  are  carried  on.   Nor  does  the Notification  in so far as it seeks to apply the  provisions of  the  Act imposing upon the owner or an occupier  of  the factory  obligation to grant annual leave with wages  impose any unreasonable restriction,  885 On  that view the petition must fail and is  dismissed  with costs, two sets, one hearing fee. Petition Dismissed.