Shah, J. - (1.) 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 register 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, 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 bidies 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 working therein were 'workers', within the meaning of the Factories Act, 63 of 1948:The State vs. Alisaheb Kashim Tamboli, ILR (1955) Bom 624. 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 vs. State of Maharashtra, AIR 1962 SC 517 (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 the 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 permission or leave, but for assuring the owner that he did not intend to give up work that he did 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 tabacco 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 owners, at the close of the day the bidis used to be delivered to the owners 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.
(2.) 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 holiday 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 35,000 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 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 deprivation of the benefits enjoyed by them, the Government of Maharashtra issued the following Notification in exercise of the power 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 powers 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 add the names of the establishments. The effect of the Notification was to make bidi roller in places set out in the schedule "deemed workers", and on that account entitled to the benefits provided to workers under the Factories Act.
(3.) The petitioners then challenged by this petition the validity of S. 85 of the Factories Act and the Notification issued in exercise of the authority conferred thereby, on the plea that the provisions of the section and the Notification issued thereunder infringe the fundamental rights of the petitioners under Art. 14 and 19(1) (g) of the Constitution. 'Factory' is defined in S. 2(m) of the Act as meaning "any premises including the precincts thereof: (i) Whereon ten or more workers are 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 powers, or is ordinari1y 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;" ;