MALABAR TILE WORKS FEROKE KERALA A PARTNERSHIP FIRM Vs. UNION OF INDIA
LAWS(KER)-1967-2-19
HIGH COURT OF KERALA
Decided on February 22,1967

MALABAR TILE WORKS, FEROKE, KERALA, A PARTNERSHIP FIRM Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) This Original Petition has been filed by twelve employers, who are mainly engaged in the manufacture and sab of roofing tiles, bricks and allied goods, for a declaration that the payment of Bonus Ordinance, 1965, which was promulgated by the President of India on the 29th May, 1965, is unconstitutional, and for a writ in the nature of a mandamus restraining respondents 1, 2 and 3 from enforcing the provisions of the Ordinance against the petitioners. Respondents 1, 2 and 3 are The Union of India, The State of Kerala and The Industrial Tribunal, Calicut respectively. The remaining respondents are the Trade Unions representing the workers employed in the petitioners' factories. This Ordinance was replaced by the Payment of Bonus Act, 1965 (hereinafter referred to as the Act), which came into force on the 25th September, 1965. Accordingly the petitioners sought for some consequential amendments in the Original Petition; and it was allowed. The constitutional validity of the Act as a whole and several provisions contained therein came up for decision before the Supreme Court in Jalan Trading Company (Private) Ltd. v. Mill Mazdoor Union 1966 (II) LLJ. 546, which was rendered on the 5th August, 1966. This decision upheld the Act as constitutional, and also upheld certain provisions of the Act which were attacked in that case. In view of the said pronouncement of the Supreme Court, the learned counsel for the petitioners confined his attack only against a few provisions of the Act.
(2.) The first contention advanced by the learned counsel was that sub-s.(3) and (5) of S.1 of the Act are unconstitutional, as they offend Art.14 of the Constitution. S.1 of the Act reads as follows: "1. Short title, extent and application: (1) This Act may be called the Payment of Bonus Act, 1965. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) Save as otherwise provided in this Act, it shall apply to (a) every factory; and (b) every other establishment in which twenty or more persons are employed on any day during an accounting year. (4) Save as otherwise provided in this Act, the provisions of this Act shall, in relation to a factory or other establishment to which this Act applies, have effect in respect of the accounting year commencing on any day in the year 1964 and in respect of every subsequent accounting year. (5) An establishment to which this Act applies under clause (b) of sub-s.(3) shall continue to be governed by this Act notwithstanding that the number of persons employed therein falls below twenty." Under S.1(3) the Act applies to (a) every factory, and (b) every other establishment in which twenty or more persons are employed on any day during an accounting year. S.1(5) does not apply to a factory, but only to an establishment other than a factory. It provides that an establishment to which the Act applies under clause (b) of sub-s.(3) shall continue to be governed by the Act, notwithstanding that the number of persons employed therein falls below twenty. The factory is defined in S.2(17) of the Act. According to this definition it shall have the same meaning as in clause (m) of S.2 of the Factories Act, 1948, which reads as follows: "2. Interpretation In this Act, unless there is anything repugnant in the subject or context, * * * (m) 'factory', means any premises including the precincts thereof (i) whereon ten 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 with the aid of 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 (XXXV of 1952) or a railway running shed." It is clear from the above definition that any premises which is a factory will cease to be a factory, if the number of workers working therein falls short of ten, in the case of a factory where manufacturing process is being carried on with the aid of power, and if such number falls below 20, in the case of a factory working without the aid of power. It was, therefore, submitted by the learned counsel for the petitioners that the Act is made applicable to a factory only so long as it remains as a factory, whereas it is made applicable to an establishment other than factory to which the Act once applied, even if the number of workers falls below 20. In other words, in the case of a factory to which the Act once applied, the Act ceases to apply, when the number of workers working therein falls below ten or twenty, as the case may be at the relevant time. But in the case of an establishment other than a factory, to which the Act once applied, the Act continues to apply, even if the number of workers is reduced to one. It was contended that this is discrimination between a factory and an establishment other than a factory, without any discernible reason or basis, and that sub-s.(3) and (5) of S.1 of the Act are, therefore, violative of Art.14 of the Constitution.
(3.) The above argument is based on a construction which the learned counsel is putting to sub-s.(5) of S.1 of the Act to the effect that according to the sub-section, the Act shall continue to apply to an establishment other than a factory, even if the number of workers therein falls below twenty, provided that the Act had once applied to such an establishment. As we take the view that the petitioners are not competent to attack the constitutional validity of sub-s.(3) and (5) of S.1 of the Act, it is unnecessary for us to decide whether the above construction which learned counsel seeks to give to S.1(5) of the Act is correct or not. Assuming that he is right, his clients can have no complaint that any one of them has been subject to an unfavourable treatment, because of the fact that sub-s.(3) and (5) of S.1 of the Act treat a factory and an establishment other than a factory on a different basis. The petitioners are either owners or occupiers of factories; and we are concerned in this case only with factories, and not any establishment other than a factory, to which alone S.1(5) applies. The petitioners are in a more advantageous position, if the Act has dealt with factories and establishments other than factories in a differential manner, as they contend. It is a well established proposition of law that a person who is not aggrieved by the alleged differential treatment cannot complain of discrimination. In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta AIR 1955 SC 367 the Supreme Court dealing with a similar argument said as follows:- "We do not intend to examine this contention because, even if it be true that there is the discrimination alleged, namely between one class of British subject and another, that will not give the petitioner a right of challenge on this ground. He is not a British subject and so is not a member of the only class that could claim to be aggrieved on this score. This Court has decided in earlier cases that the only persons who can impugn any given piece of legislation under Art.32 are those who are aggrieved thereby. As the petitioner is not a person aggrieved so far as this point is concerned, he not being a British subject, he cannot attack the section on this ground. The same principle is affirmed in the decisions of the Supreme Court in Matajog Dobey v. H. C. Bhari AIR 1956 SC 44 , Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal AIR 1962 SC 1044 and Kunj Behari Lal v. Union of India AIR 1963 SC 518 . The petitioners are, therefore, not competent to challenge the constitutional validity of sub-s.(3) and (5) of S.1 of the Act on the ground of discrimination; and we accordingly overrule this contention.;


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