Judgement

DUA, J.:- This appeal has been presented to this Court by the Ahmedabad Manufacturing and Calico Printing Company, Ltd., pursuant to the certificate granted by the Gujarat High Court under Article 133 (1) (c) of the Constitution. The Gujarat High Court had, on being approached by the respondents under Article 227 of the Constitution, quashed and set aside the order of the Industrial Court. Gujarat dated February 5, 1964 which had affirmed the order of the Second Labour Court, Ahmedabad dated August 9, 1963, and after setting aside that order had directed the Industrial Court to decide the matter afresh in the light of the observations made by the High Court in the impugned order.

2. The respondents in this Court has applied to the Labour Court under Section 79 of the Bombay, Industrial Relations Act, No. XI of 1947 (hereinafter called the Act) in December, 1962 complaining that the appellant company was liable to pay to the respondents (applicants before the Labour Court) dearness allowance every month according to the Dearness Allowance Award made by the Industrial Court but the same had not been paid for the month of September 1962 which was distributed in October, 1962. It was alleged that from October, 1962 the company had been committing breach of the Dearness Allowance Award of the Industrial Court. In that application the present respondents had based their claim on the following averments in Para 3:

".........the applicants are being paid Rupees 68/- as basic pay by the opponent. The maintenance of the garden is the legal responsibility of the opponent and for the health, welfare, recreation of the employees working in the several departments and for the decency of the adjacent offices the opponents are maintaining it. The applicants are doing the entire work in respect thereof."

3. In the written statement the appellant company raised several pleas in opposing that application. The pleas which were pressed in the Second Labour Court and in the Industrial Court and which are now strongly pressed before us are contained in Paras 3, 8 and 10 which so far as relevant may be reproducted;

"3. That the applicants not being in the employment of the opponent they have no locus standi to make an approach or to file this application.

8. That the opponent is not the employer of the applicants and the applicants are not its employees within the meanings of those words in the Act and as such the application is misconceived and not legally tenable.

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10. With respect to the allegations and averments made in Paras 1 to 4 of the application it is denied that the applicants are the employees of the opponent within the meaning of that term of (in?) the Act as alleged or that they are entitled to the benefits or the dearness allowance as alleged or otherwise. The true fact is that the applicants are not employed in any work which is ordinarily a part of the undertaking and as such they are not the employees within the definition of that word in the Act. The applicants are employed as coolies by a gardening contractor Messrs Dhiraj Painters and they are paid by the said contractor. The said garden lands include a large area of offices of some other concerns, a Government Post Office and a Museum which are open to the public, some quarters for workers as well as assistants and officers, a hospital. It is for the garden of the area which comprises these buildings and the area round caustic plant factory as well as the field in Dani Limda that this agreement was entered into with the contractor for keeping the trees and plants in proper trim. Hence the work which they are performing has been held to be not ordinarily a part of the undertaking and as such the application is wholly misconceived and not legally tenable and is clearly barred by res judicata."

4. The Second Labour Court dismissed the respondent s applications. In that Court s view the real question in issue was whether th