GUJARAT BEEDI KARKHANA OWNERS ASSOCIATION Vs. UNION OF INDIA

JUDGEMENT

(1.) In these two petitions the petitioners challenge the vires of the provisions of the Beedi and Cigar Workers (Conditions of Employment) Act 1966 hereinafter referred to as the Act. Although the first petition was intended to be filed as the representative petition by the Association no permission under O.1.R. 8 was ultimately obtained. Therefore both the petitions are filed by the individual employers. There is no dispute that all these employers are employing workers for the manufacture of Beedi either on their premises or they employ home workers. The existing employment in the present cases is not through contract labour but those provisions are challenged as the Act covers within its scope even the contract labour which would be getting the same conditions of employment as prescribed by the Act. In the beginning various points were sought to be raised in these petitions but ultimately the challenge on the ground that there is a violation of the guarantee of free inter state trade and commerce under Article 301 and as to the vires of sec. 3 and as to the vires of the various provisions which have extended the benefits of other Acts by a process of incorporation by reference has been given up at the time of hearing. Both the petitions therefore now challenge the provisions of the Act on the following three grounds:-

(2.) One or two State Governments passed Special Acts (the reference is to the Madras Act of 1958) to regulate the conditions of work of these workers but found themselves unable to enforce the law owing to the fact that the industry is highly mobile and tended to an area where no such restrictive laws prevailed. It became necessary therefore to have Central legislation on the subject. The Bill seeks to provide for the regulation of the contract system of work licensing of beedi and cigar industrial premises and matters like health hours of work spread-over rest periods overtime annual leave with pay distribution of raw materials etc. This Act therefore seeks to prevent the mischief which had arisen because of the tendency on the part of the employer to convert their concerns into smaller units so as to escape from the provisions of the Factories Act. The Act also had to be passed because of the two prominent features of this industry where the manufacture of beedi was done through contractors and by distributing work in the private dwelling houses where the workers have been given raw materials by the employers or contractors. In view of the restrictive definition of the term worker in sec. 2(1) of the Factories Act 1948 such contract labour and such home workers could not be deemed to be workers and they were deprived of their rights under this labour welfare measure. Labour was also unorganized and unable to look after its own interest. Recourse to sec. 85 by the State Governments or even when a special Act was enacted in some States to regulate the conditions of these workers was not found to be helpful in view of the high mobility of this industry which continued to move to such areas where no such laws prevailed. That is why the Parliament had to enact this Act as a comprehensive labour welfare measure for giving just conditions of employment to these exploited workers. The Act has been extended to the whole of India except the State of Jammu and Kashmir under sec. 1(2) and it comes into force in different States when the notification in that behalf is issued by the State Government. Different States have now brought the Act into force by the notifications in this behalf. In our Gujarat State all other provisions except sec. 3 were brought into force on April 1 1968 while sec. 3 was brought into force on May 1 1968

(3.) The exemption provision is to be found in sec. 41 under which the State Government can exempt subject to the conditions and restrictions laid down any class of industrial premises from all or any of the provisions of the Act or the Rules except that in the case of women employees there shall be no power to exempt from the provisions regarding the annual leave with wages maternity benefits creches wages rejection of beedi or cigar and night work. It should be noted that there is no power to exempt in case of mere establishments which are not industrial premises. Sec. 43 in this connection is an important provision which enacts that nothing in the Act shall apply to the owner or occupier of a private dwelling house who carries on any manufacturing process in such private dwelling house with the assistance of the members of his family living with him in such dwelling house and dependent on him provided that the owner or occupier thereof is not an employee of an employer to whom this Act applies. The explanation provides that family means the spouse and children of the owner or occupier. Therefore the self-employed persons in private dwelling houses are exempted under sec. 43 unless such person carries on manufacturing work in such private dwelling house with the assistance of persons who are not his spouse and children or he himself is an employee of some other employer to whom the Act applies.