In The Honble

High Court of Judicature at Madras

2002 (92) FLR 1148

In the matter of
The Warden Cum Principal Petitioner
v.
The Deputy Commissioner Of Labour & Oth. Respondents

(Counsel on Behalf of Respondents)

Pintu Babu, Semester V, Roll No. 110

Hidayatullah National Law University

 Table of Contents
List of Abbreviations 03
Statement of Jurisdiction 04
Index of Authorities 05
Statement of Facts 07
Issues Raised 08
Summary of Arguments 09
Written Submissions 10
Prayer 16

Memorandum On Behalf Of Respondents 2

 List of Abbrevations

AIR All India Reporter

Anr. Another

Art. Art.

Cr. Criminal

Edn. Edition

Etc. et cetera

Govt. Government

Honble Honorable

i.e. That is

Ltd. Limited

Mah. Maharashtra

NGO Non-Governmental Organization

No. Number

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

v. Versus

Memorandum On Behalf Of Respondents 3

 Statement of Jurisdiction
The Petitioners has approached this Honble Supreme Court of Indistan under Article 227 of the
The Constitution of India, 1949.

227. Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the
territories interrelation to which it exercises jurisdiction

Memorandum On Behalf Of Respondents 4

 Index of Authorities
Acts
G.B. Pant University of Agriculture and Technology established under the U.P. Agricultural
University Act, 1958
Minimum Wages Act, 1948
Tamil Nadu Catering Establishment, 1958 (Act XIII of 1958)

Treatises, Books, Reports and Digests

Labour Laws, By Taxman, 2017 Ed.
Introduction to Labour and Industrial Laws, By Avtar Singh & Harpreet Kaur, 4th Ed., 2016
Textbook on Labour and Industrial Law, By H.K. Saharay, 6th Ed., 2014
Industrial Relations and Labour Laws, By B.D. Singh, 2014
Labour & Industrial Laws, By S.N. Mishra, 27th Ed., 2013

Journals
All India Reporter
Indian Law Reporter
Supreme Court Cases

Database
www.lexisnexis.com
www.manupatrafast.com
www.scconline.com
www.westlaw.com

Legal Dictionary
Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)
Garner B.A., Blacks Law Dictionary, (9th ed., 2009)

Memorandum On Behalf Of Respondents 5

Cases
Anand Bhavan Restaurant v. Deputy Director, ESIP Corp, Civil Appeal No. 5640 OF 2004
Ardeshir v. State of Bombay, AIR 1962 SC 29
Dr P.S.S Sundar Rao G.S v. Inspector of Factories Vellore, (1984) IILLJ 237 Mad
Dolores Gas and Coal Co Ltd Case, (1950) 2 KB 878
G.L. Hotels v. T.C. Sarin and Anr, JT 1993 (2) SC 119
G.B. Pant University of Agriculture and Technology v. State of U.P, G.B. Pant University of
Agriculture and Technology Civil Appeal No.13087 of 1996
Gujrat Electricity Board v. state of Gujrat and Anr, 1984 II L.L.J 370 (Guj)
Kent v. Astelt, (1819) LR
Pragnarain v. Crown, QB 19 5 AIR 1928 Lah 78
Simon Carves India Limited and Anr. v. The State of Gujarat, 1980 Cri LJ 28310
State Of Bomaby v. Ali Saheb Kashim Tamboli, AIR 1955 Bom 209
State of Bombay v. Ardeshir Hormosji Bhiwandiwala, (1956) I L.L.J 26
Workmen, Delhi Electric Supply Undertaking Vs Management, AIR 1973 SC 365

Memorandum On Behalf Of Respondents 6

 Statement of Facts
For the sake of brevity and convenience of this Honble Court the facts of the present case are
summarised as follows:

1. The Government Engineering College, Salem is an institution run by the Government of

Tamil Nadu.
2. The curriculum imparted by the petitioner college to the students of that college is in
accordance with the instructions of the University of Madras and for all other
administrative purposes, the petitioner college follows the various circulars, notifications
and instructions issued by the Director of Technical Education, Government of Tamil
Nadu, Madras-25.
3. Hostel facilities are provided to the students studying in the college and a Mess also
functions to cater to the needs of the students. The Mess is not a profit making organisation
and it is run on dividing basis. The Mess is run by the elected representatives of the
students. The Principal and staff members appointed by the Principal are only care takers
of the hostel Mess. Even this team would be changing every year.
4. While such is the position, the employees working in the Mess, numbering 43, filed an
application before the Authority appointed under the Minimum Wages Act, 1948, the first
respondent herein, seeking direction under Section 20(3) of the Minimum Wages Act for
payment of difference between the wages paid to the applicants and the wages they are
entitled under notifications issued under the Minimum Wages Act dated 7.10.91 and
12.6.90.
5. It is the grievance of the workmen that they were paid less than the minimum wages fixed
by the Government as per G.O. (2D) No. 43 dated 7.10.91. On the other hand, the
management argued that their Institution is excluded from the definition of Section 2(1),
(4) and (5) of the Tamil Nadu Catering Establishment, 1958 (Act XIII of 1958) (hereinafter
referred to as "the Act"), since their institution is not doing business with profit motive and
the workmen concerned do not come under the definition of "employees" or "workers";
accordingly, they are not entitled to get remedy under the Act.

Memorandum On Behalf Of Respondents 7

 Issues Raised
I. Whether the order of the Deputy Commissioner of Labour granting minimum rates of
wages to the applicants 1 to 43 respondents for a total sum of Rs. 80,384.20/- was correct
and should be upheld or not?

Memorandum On Behalf Of Respondents 8

 Summary of Arguments
I. Whether the order of the Deputy Commissioner of Labour granting minimum rates of
wages to the applicants 1 to 43 respondents for a total sum of Rs. 80,384.20 was correct
and should be upheld or not?
The respondents has been claiming to them be called as the regular employees of the
Establishment as in the present case which is a Hostel Mess. Respondents has received a
favourable order from the Deputy Commissioner of Labour as being the concerned authority.
Respondents claim they being employees under Minimum Wages Act, 148 should be paid
with the remaining amount entitled under notifications issued under the Minimum Wages
Act dated 7.10.91 and 12.6.90.

Memorandum On Behalf Of Respondents 9

 Written Submissions
I. Whether the order of the Deputy Commissioner of Labour granting minimum rates of
wages to the applicants 1 to 43 respondents for a total sum of Rs. 80,384.20 was correct
and should be upheld or not?
1. According to the Black Law' Dictionary, Factory is a term that includes all buildings and
premises wherein, or within the close or curtilage of which, steam, water, or any mechanical
power is used to move or work any machinery employed in preparing, manufacturing, or
finishing cotton, wool, hair, silk, flax, hemp, jute, or tow
According to Section 2(m) of Indian Factories Act, Factory means "any premises including
the precincts There of
i. Whereon ten or more workers are working, or were working on any day of the
preceding 12 months and in any part of which is manufacturing process is being
carried on with the aid of power as is ordinarily so carried on; or
ii. Whereon twenty or more workers are working or were working on any of the preceding
12 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.

A factory shall not include a mine subject to the operation of the Mines Act 1952 or a
mobile unit belonging to the armed forces of the Union, a railway running shed or hotel,
restaurant or eating places. It can be inferred from above that the following ingredients
are mandatory to constitute a premises as "Factory", which are as follows:-

i. If a premises is using power or working without the aid of power the number of
workers required to constitute a factory differ as follows
a. With the aid of power- 10 or more workers
b. Without the aid of power- 20 or more workers
ii. A manufacturing process should be carried on
iii. Work should be carried on in precincts.
The term "Precincts" in Oxford Dictionary is defined as Follows
i. the area within the walls or perceived boundaries of a particular building or place
ii. area in a town designated for specific or restricted use, especially one which is
closed to traffic

Memorandum On Behalf Of Respondents 10

 Therefore from the general meaning of the term "precincts" it means any closed area
surrounded by walls or boundaries. Though the expression used above "premises including
precincts" means "both premises with and premises without precincts. Where premises is
a building it would include a precincts also, but where the premises are lands they would
not have precincts. Thus both buildings and lands are covered by the above expression. It
was held in State of Bombay vs. Ardeshir Hormosji Bhiwandiwala1 that lands in which the
process of manufacturing salt is carried on is a factory.

In order that any premises may be held as a factory the following conditions must be
fulfilled:

i. a manufacturing process must be carried on in any part of the premises of the

establishment
ii. where the manufacturing process is carried on with the aid of power ten or more
workers must be working, where the manufacturing process is carried on without
the aid of power twenty or more workers must be working in that establishment.
2. But the mere fact that the power is used in the premises is not sufficient but power must be
used in the aid of manufacturing process.2
There was a slate quarry extending over a large open space of about 300 acres. The work was
carried on in the open air, shed was the only building. In the quarry more than 50 persons were
employed for splitting the rock into slates and shaping them for sale. It was held that the quarry
was not a factory for, if a place in which a manufacturing process is being carried on in open
spaces it cannot constitute a factory. In Pragnarain Vs Crown3 it was held that factory means
premises wherein anything is done towards the making or finishing of an article up to the stage
when it is ready to be sold or in a suitable condition to be put in the market.
3. Factory is a premise where a manufacturing process is carried on. No, manufacturing process
is held to take place either in the sub-stations or in the Zonal Stations of the Delhi Electric
Supply Undertaking because the workmen employed therein gave no part in the manufacturing

1
State of Bombay vs. Ardeshir Hormosji Bhiwandiwala, (1956) I L.L.J 26
2
Kent Vs Astelt, (1819) LR
3
Pragnarain Vs Crown , QB 19 5 AIR 1928 Lah 78
Memorandum On Behalf Of Respondents 11
 process.4A gas main belonging to a gas company and situated about 400 yards out of the factory
was held to be belonging to the precincts of the factory.5
4. In Ardeshir V State of Bombay6 it was held that the word "premises" is a generic term meaning
open land or land with buildings or buildings alone. The expression "premises including
precincts" does not necessarily mean that premises must always have precincts. Even building
need not gave any precincts. The word 'including'; is not a term restricting the meaning to the
word "premises" but it is a term which enlarges its scope. The use of the word including
therefore does not indicate that the worked "premises" must be restricted to main building and
be not taken to cover open land as well. Though some provisions of the Act are not applicable
to salt works where the process of converting seawater into salt is carried on in the open. There
is nothing in the Act which makes it uniformly compulsory for every occupier of a factory to
comply with every requirement of the Act. An occupier is to comply with such provisions of
the Act which apply to the factory he is working. Hence the salt works would come within the
meaning of the word "premises" used in the definition in Section 2(m).
5. It is pertinent to mention here with the exception of the law laid down in the Judgment of
the Hon'ble High Court of Gujarat decided in 06.02.1973 in Simon Carves India Limited and
Anr. Vs. The State of Gujarat7 that the work incidental, ancillary and in connection with the
main activity of the company where 10 or more workers are working with the aid of power,
the same may not fall under the provisions of the Factories Act, 1948. The Hon'ble Judge stated
that "In order that the provisions of the Act are attracted it has to be shown that a
manufacturing process with the aid of power was being carried on by engaging 10 or more
workers in a fixed place as and by way of the main and predominant function of the company.
If the company temporarily for the purpose of execution of the contract for construction carries
on such manufacturing process at site temporarily provided by the owner for whom they are
doing the job, it cannot be said that they are running a factory within the meaning of the Act.
If a too literal construction is put on the term 'factory' as contended by the learned Advocate
for the opponent, the same would not be in consonance with the object and purpose of the Act."

4
Workmen, Delhi Electric Supply Undertaking Vs Management, AIR 1973 SC 365
5
Dolores Gas and Coal Co Ltd Case, (1950) 2 KB 878
6
Ardeshir V State of Bombay, AIR 1962 SC 29
7
Simon Carves India Limited and Anr. Vs. The State of Gujarat, 1980 Cri LJ 28310
Memorandum On Behalf Of Respondents 12
6. In Dr P.S.S Sundar Rao G.S Vs Inspector of Factories Vellore8 the question whether a laundry
attached to the Christian Medical College and Hospital Vellore is a factory within the meaning
of this Act. The Madras High Court held that the laundry run by the Hospital cannot be
separated from the main institution. In order to ensure high degree of hygienic standard the
Hospital is having its own laundry for washing linen used in the Hospital. Therefore, laundry
is only subsidiary, minor or incidental establishment of the Hospital which is not a factory.
One department of the Hospital established for the efficient functioning of the Hospital cannot
therefore be disjoined from the main institution and termed as a factory. The paramount or the
primary character of the main institution alone has to be taken into consideration and when the
main institution is not a factory; a department thereof cannot become so even though a
manufacturing process is carried on there.
7. Another necessity for premises to be regarded as a Factory is that a "Manufacturing Process"
should be conducted within the premises. The Factory Act according to Section 2(k) defines
manufacturing means any process for.
i. Making, altering, repairing, ornamenting, finishing, packing, oiling, washing,
cleaning, breaking up, demolishing, or otherwise treating or adapting any article
or substance with a view to its use sale, transport, delivery or disposal, or
ii. Pumping oil, water, sewage or any other substance; or
iii. Generating, transforming or transmitting power; or
iv. Composing types for printing, printing by letter press, lithography, photogravure
or other similar process or book binding; or
v. Constructing, reconstructing, repairing, refitting, finishing or breaking up ships or
vessels; or
vi. Preserving or storing any article in cold storage.
8. It was held in State Of Bomaby Vs Ali Saheb Kashim Tamboli9 that bidi making is a
manufacturing process. The process of transforming and transmitting electrical energy are
manufacturing process. Manufacturing process is carried on in sub-section of Electricity Board
within the meaning of section 2(k) (iii) though there is no transmission of electrical energy.

8
Dr P.S.S Sundar Rao G.S Vs Inspector of Factories Vellore, (1984) IILLJ 237 Mad
9
State Of Bomaby Vs Ali Saheb Kashim Tamboli, AIR 1955 Bom 209
Memorandum On Behalf Of Respondents 13
 In Ardeshir Vs Bombay State10 salt was manufactured from sea water by applying different
processes which shows that it is due to human agency aided by natural forces, that salt is
extracted from sea water. The process carried out in the salt worked comes within the definition
of 'manufacturing process' in section 2(k) inasmuch as salt can be said to have been
manufactured from sea water by the process of treatment and adaptation of sea water into salt.
9. In Gujrat Electricity Board vs state of Gujrat and Anr11, the court had to determine whether
the conversion of high voltage into low voltage and distribution of electricity amounts to
manufacturing process. It was held that these activities are not covered by the expression
'manufacturing process" as envisaged under Section 2(k) of the Factories Act because these
activities do not involve generation of power. Therefore any sub-station engaged in conversion
or distribution of electricity is not a factory.
10. If a manufacturing process is not carried on within the premises it cannot be regarded as a
factory. Therefore concluding that to regard an establishment or premises as a factory it should
fulfill certain conditions as mentioned above and mainly manufacturing process should be
carried on.
11. Relying on a recent judgment of the Apex Court in G.B. Pant University of Agriculture and
Technology v. State of U.P, G.B. Pant University of Agriculture and Technology12 established
under the U.P. Agricultural University Act, 1958 happens to be a residential university having
about 14 hostels to provide accommodation to the students with a cafeteria to provide food
services to the residents of the hostels and others. There are about 170 employees working in
these cafeterias and these are the employees who claim regulation of the services as regular
employees of the University which, however, stands negated by the University authority.
Thereafter, a dispute was raised before the Labour Court. The Labour Court accepted the claim
of the employees and declared them to be the regular employees of the University from the
date of the award and held entitled to receive the same salary and other benefits as the other
regular employees of the University.
Hotels as a part forming Hotels and Restaurants under Section 2, Minimum Wages Act,
1948

10
Ardeshir Vs Bombay State, 1962 AIR 29
11
Gujrat Electricity Board vs state of Gujrat and Anr, 1984 II L.L.J 370 (Guj)
12
Civil Appeal No.13087 of 1996
Memorandum On Behalf Of Respondents 14
12. In Bombay Anand Bhavan Restaurant v. Deputy Director, ESIP Corp.13 since the establishment
of the appellants involves a manufacturing process with the aid of LPG gas, which can now be
termed as power, the establishment of the appellants can be termed as factories, and therefore,
the ESI Act will apply to these establishments.;
Subsequently, in G.L. Hotels v. T.C. Sarin and Anr.14 It should not further be forgotten that
the definition of certain premises as a factory or of certain activities as an industry etc. given
in social welfare legislations like the present, are necessarily artificial. The object is to extend
the welfare coverage to as large a section of the individuals as possible.

13
Anand Bhavan Restaurant v. Deputy Director, ESIP Corp, Civil Appeal No. 5640 OF 2004
14
G.L. Hotels v. T.C. Sarin and Anr, JT 1993 (2) SC 119
Memorandum On Behalf Of Respondents 15
 Prayer
Wherefore in the light of facts presented, issues raised, arguments advanced and authorities cited,
the Counsels on behalf of the Respondent humbly pray before this Honble Court that it may be
pleased to adjudge and declare that:

1. The present petition to be dismissed.

2. Award the remaining sum as wages as held by the order of Deputy Commissioner of
Labour.

Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Respondent shall as duty bound
ever pray.

Sd/- _______________________

Counsels for the Respondent

Memorandum On Behalf Of Respondents 16