Appeals Nos131 to 304 of 1957
Appeals by special leave from the judgments and order dated October 19 1955 and January 31 1956 of the Authority under  Bombay in Applications Nos
950 961 963 967 970 989 992 994 1013 1015 1016 1049 1050 and 11510 11511 and 11513 11517 of 1955 respectively
MC Setalvad Attorney General for India R Ganapathy Iyer and R H Dhebar for the appellants
Purshottam Tricumdas and G N Srivastava for the respondents in all the appeals except C A No 186 of 1957
1959 May 8
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This group of 174 appeals by special leave arises from the several applications made against Mr B P Hira Works Manager Central Railway Workshop and Factory Parel Bombay hereafter called the appellant by the employees at the said factory hereafter called the respondents under the IV of 1936 claiming payment of overtime wages since 1948
All these applications were heard by the Payment of Wages Authority Bombay as companion matters and they have been disposed of by a common judgment
The main judgment has however been delivered by the said Authority in the application filed by Mr C M Pradhan hereafter called the respondent which gives rise to Civil Appeal No 131 of 1957 before us
We would therefore deal with this appeal in particular and our decision in this appeal will govern the rest of the appeals in this group
139 In his application made before the Payment of Wages Authority the respondent alleged that he had been employed in the factory called the Central Railway Workshop and Factory Parel Bombay and that he had not been paid overtime wages due to him from April 1 1949 to September 30 1954
The respondent claimed that the delay made by him in filing the present application should be condoned because jointly with his co workers he had been in correspondence with the railway administration in regard to the said payment of overtime wages since 1948 and that the claim made by him and his colleagues had been finally rejected by the railway administration on August 31 1954
His case was that he had filed the present application soon thereafter and so the delay made by him in making the claim before the Authority should be condoned
The Authority heard the parties on the question of delay and held that the delay only in respect of the claim for the period after May 1953 should be condoned
In the result the claim for overtime wages for the period prior to May 19 1953 was rejected on the preliminary ground of delay whereas the claim
for the period subsequent to the said date was considered on the merits
The respondent s case was that he was entitled to the overtime wages for work on such Sundays when he was not given a holiday within three days prior to or three days subsequent to the Sundays on which he worked
The appellant conceded that the respondent had not been given a holiday within the three days prior to or the three days subsequent to the Sundays on which he had worked as required by section 52 of the Indian 
The respondent alleged that he was a worker within the meaning of section 2 sub section
1 of the said LXIII of 1948 and as such he was entitled to overtime wages under s 59 of the said Act
Alternatively he urged that even if he was not a worker within the meaning of section 21 of the said Act he would nevertheless be entitled to overtime wages under the said section 59 by reason of section 70 of the Bombay Shops and Establishments Act 1948 Bom
79 of 1948 hereafter called the Act
Thus the claim for 140 overtime wages was made by the respondent on two alternative grounds
The appellant disputed the validity of this claim
It was urged on its behalf that the respondent was not a worker under section 21 of the and that section 70 of the Act did not justfy the claim alternatively made by the respondent for overtime wages
The Authority considered the evidence led before it in respect of all the repondents for overtime wages
It appears that these respondents are employed by the appellant in the time office of the Parel Workshop and not in the factory itself
The duties of these timekeepers are to maintain initial records of attendance of workshop staff to prepare pay sheets for them to maintain their leave accounts to dispose of final settlement cases of the said staff and to maintain records for statistical information
The Authority held that the time office where the timekeepers work is an integral part of the factory and so it came to the conclusion that the timekeepers are employed in the factory called the Central Railway Workshop and Factory Parel Bombay
The Authority then examined the question as to whether the timekeepers are workers within the meaning of section 21 of the 
Evidence showed that four timekeepers are required to do the work of progress timekeepers
This work consists in preparing the progress time sheets and operation time sheets of machine shop staff working on various jobs dealing with the production of railway spare parts
The Authority was disposed to take the view that having regard to the nature of the work assigned to the progress time keepers they must be held to be persons employed in work incidental to or connected with the manufacturing process or the subject of the manufacturing process and as such they are workers within the meaning of section 21 of the 
In the result the finding made by the Authority was that timekeepers are employees of the workshop but are not workers under the  while the progress time keepers can claim the status of workers under the said Act
141 The Authority then considered the respondent s argument that even if he was not a worker under the he was neverthless entitled to claim the benefit of section 59 of the said Act by virtue of section 70 of the Act
The Authority accepted this contention and held that even if the respondent was not a worker under the  section 70 of the Act entitled him to claim overtime wages under section 59 of the 
That is why the Authority ordered that the respondents would be entitled for the period 19 5 1953 to 30 9 1954 to overtime wages at double the ordinary rate for the Sundays on which they worked when they were not given a a holiday on one of the three days immediately preceding or after the said Sunday
The appellant was accordingly directed to file a statement showing the overtime wages to which the several respondents were entitled and orders were passed on each one of the applications directing the appellant to pay the respective amounts to
each one of the respondents
It is against these orders that the appellant has filed the present group of appeals by special leave
The first point which has been urged before us by the learned Attorney General on behalf of the appellant is that the Authority was in error in holding that the progress timekeepers are workers under section 21 of the 
A worker under section 21 means 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 manufacturing process or in any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process and the manufacturing process under section 2k means any process for inter alia 1 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
It is clear that the duties of the progress timekeepers do not fall within the first part of a 2k
The Authority has however 142 held that the said duties can be treated as incidental to or connected with the manufacturing process or the subject of manufacturing process it is the correctness of this finding that is challenged by the appellant
On the other hand Mr Purshottam for the respondents argues that the Authority was in error in holding that the timekeepers are not workers under section 2 1
His contention is that the expression incidental to or connected with the manufacturing process  is wide enough to include not only the cases of the progress timekeepers but the cases of all timekeepers as a class
It is true that the finding of the
Authority in respect of the timekeepers is against the respondents but Mr Purshottam says that he is entitled to support the final order passed by the Authority on the additional ground that the time
keepers like the progress timekeepers are workers under section 21 and as such they are entitled to claim overtime wages under section 59 of the 
The final decision of the Authority is however based on the view that under section 70 of the Act the respondents would be entitled to overtime wages under section 59 of the even if they are not workers under section 21
That being so we think it is necessary first to consider the correctness of this view
If the conclusion of the Authority on the scope and effect of the provisions of section 70 of the Act is correct then it would be unnecessary to consider whether the timekeepers and the progress timekeepers are workers under section 21 of the 
We would therefore deal with that question first
It appears that there are three statutes which pro
vide for the payment of extra wages for overtime work
The proviso to section 71 c of the Indian Railways Act IX of 1890 lays down that the exempted railway servant specified in it shall be paid for overtime at not less than one and a quarter times his ordinary rate of pay
This provision has been subsequently amended by Act 59 of 1956 which makes the rate for overtime one and one half times the ordinary rate of pay but it is common ground that we are not 143 concerned with the amended provision in these appeals since the respondents  claim is for
a period prior to the date of the amendment
It is suggested by the appellant that the respondents are railway servants under section 3 7 of the said Act and as such they may be entitled to make a claim for overtime wages under the said proviso but the respondents have not made and do not wish to make a claim under the said provision and so the question as to the application of the said section need not detain us
If the construction placed on section 70 of the Act by the Authority is correct the claims of employees who are working in a factory in the State of Bombay would be governed by that provision this position is not seriously disputed before us
Section 59 of the also deals with the question of extra wages for overtime
It provides for the payment of wages in respect of overtime work at the rate of twice the ordinary rate of wages
This benefit is however available only to persons who are workers within the meaning of section 21 of the said Act Since we are dealing with the case on the assumption that the respondents are not workers under s  21 it follows that section 59 by itself would not be applicable to them
The Bombay Shops and Establishments Act 1948 is the third statute which makes a provision for the payment of extra wages for overtime work
Section 63 of the Act deals with this topic
Section 631 provides for the payment of overtime work at the rate of 1 12 times the ordinary rate of wages in the case of employees in any establishment other than a residential hotel restaurant or eating house whereas sub section
2 provides for wages for overtime at the rate of twice the ordinary rate of wages in respect of employees in a residential hotel restaurant or eatinghouse subject to the other conditions specified in the said section
It is clear that this section does not apply to the respondents because they are employees in a factory and not in any of the establishments enumerated in its two sub sections
144 The respondents  case however is that by virtue of section 70 of the
Act the provisions of the Factories Actincluding a 59 are extended to the cases of all employees in factories and so they are entitled to claim wages for overtime under the said section of the 
This contention has been upheld by the Authority
It is not disputed by the appellant that the Bombay Legislature was competent to prescribe for the extension of the provisions of the to employees in the factories within the territory of the State of Bombay and since sanction for this legislation has been duly obtained from the Governor General of India on January 3 19491 no question about any repugnance between the provisions of section 70 and those of the can possibly arise
Thus the validity of the said section is not in dispute and so the only point which calls for our decision is one of construction Does section 70 supplement the provisions of the by extending them to all employees in factories like the respondents though they are not workers under section 21 of the said Act  Before dealing with this point it is necessary to refer briefly to the broad features of the Act
The Act no doubt is a piece of beneficent social legislation intended to serve the cause of labour welfare
It has been passed in order to consolidate and amend the law relating to the regulation and conditions of work and employment in shops commercial establishments residential hotels restaurants eating houses theaters other places of public amusements and entertainments and other establishments
Section 2 sub sections
3 4 and 27 define respectivly the establishment commercial establishment and shop
The definitions of commercial establishment and shop exclude inter alia factory
Establishment is defend as meaning a shop commercial establishment residential hotel restaurant eating house theatre or other place of public amusement are entertainment to which the Act applies and includes such other establishment as the State Government may by notification in the official gazette declare 1 Published in the Bombay Government Gazette Part IV dated 11 1 1949
145 to be an establishment for the purposes of this Act
It would be noticed that the definition of establishment is very wide and it does not purport to be exhaustive because it expressly empowers the State Government to include within its purview by notification other establishments not specified in it
Section 2 sub section
6 defines an employee as meaning a person wholly or principally employed in and in connection with any establishment and includes an apprentice but does not include a member of the employer s family
This definition shows that the Act intends to confer the benefit of its provision on all persons who fall within the wide definition of the expression  Employee 
It is necessary at this stage to refer to the definition of factory under the Act
Section 29 defines a factory as meaning any premises which is a factory within the meaning of cl
m of section 2 of the or which is deemed to be a factory under section 85 of the said Act
Now section 2m of the defines a factory as meaning 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 XXXV of 1952 or a railway running shed  and section 85 confers authority on the State Government to extend the definition of factory to other places subject to the requirements specified in the said section
It is common ground that the place where the respondents are employed is a factory under section 2m of the  and so it satisfies the definition of section 29 of the Act
19 146 The scheme of the Act shows that it deals separately with shops and commercial establishments ch 111 residential hotels restaurants and eating houses ch IV and theaters and other places of public amusement ch V
Separate provisions are made to regulate these different establishments having regard to the special needs of each one of them
There are however general provisions applicable to and regulating all the establishments alike and these are found in chs
VI to IX
It is significant that with the exception of section 70 no other section of the Act deals with factories
We have already noticed that in defining  commercial establishment  and  shop  respectively the Act has expressly excluded  factories  from the said expressions
It is true that the definition of  establishment  does not expressly exclude factory but it is plain that factory is treated by the Act as separate and distinct and there can be no doubt that the provisions in the Act which apply to establishment are not intended to and do not apply to factories
In other words though the definition of  establishment  is wide enough it does not include factory for the purposes of the Act
It is conceivable that a kitchen attached to an establishment like a residential hotel may satisfy the definition of factory but it seems to us that such an adjunct of an establishment is prima facie not intended by the Act to be treated apart and separately from the main establishment itself and so it would be taken as a part of the establishment and be governed by the provisions of the Act in relation thereto
The factory where the respondents are employed is not connected with much less an inseparable adjunct of any establishment and so this academic aspect of the matter which was incidentally posed before us by the learned Attorney General need not be pursued any further in the present appeal
The conclusion of the Authority has been challenged by the appellant on the ground that section 70 on which it is based cannot be invoked by the respondents
In support of this argument reliance is placed on section 4 of the Act
Section 4 provides that notwithstanding anything contained in the Act its provisions mentioned 147 in the third column of sch
11 shall not apply to the establishments employees and other persons mentioned against them in the second column of the said schedule
The proviso to this section authorises the State Government to add to omit or alter any of the entries in the said schedule in the manner indicated by it
It is urged that the establishment of any railway administration is mentioned as sr
No 5 in sch
II and the entry against it in col 3 of the said schedule shows that the provisions of the Act are inapplicable to the said establishments
If the establishment in question is exempted from the application of all the provisions of the Act how can section 70 be said to apply to it asks the learned Attorney General
It is obvious that section 4 mentions and applies only to establishments and it has no application to factories and we are dealing with employees in a factory
Indeed as we have already observed no provision of the Act except section 70 applies to factories and so it would not be legitimate to base any argument on the assumption that section 4 is applicable to the present case
Incidentally the learned Attorney General suggested though faintly that the establishments mentioned at sr
1 to 6 in col 2 of sch
II are wider than and different from the establishment as defined by section 28
We do not think that this suggestion is well founded
There can be no doubt that section 4 grants exemptions to the said establishments from the application of the provisions mentioned in col 3 of sch
II and that itself postulates that but for the exemption thus granted the provisions of the Act would have applied to them
Indeed the scheme of sch
11 shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at sr
1 to 6 including 6a to 6k in regard to the others which are enumerated at sr
7 to 55 it is only some provisions of the Act specified in col 3 that are excluded
In other words the remaining sections not so specified would apply to them
If that is so they must be and are establishments under section 28 of the Act
148 In this connection it must be borne in mind thats
28 empowers the State Government to include by notification any office or institution within the definition of establishment and so the inclusion of any such office or institution in col 2 of sch
11 would make it an establishment under the Act and as such it would be governed by it subject of course to the corresponding entry in col 3
That is why we think that the suggestion of the learned Attorney General as to the denotation and character of establishments enumerated in sr
1 to 5 in col 2 of sch
11 cannot be accepted
All the offices establishments and other institutions mentioned in col 2 of sch
II are and must be held to be establishments under section 28
In regard to the argument that the operation of section 4 excludes the application of section 70 we have held that section 4 applies only to establishments and not to factories
But even if section 4 is assumed to be applicable to factories we do not think it would materially affect the application of section 70
The plain object underlying section 70 and its context emphatically point out that it is intended to operate independently of the other provisions of the Act and in that sense it stands apart from them
It is this aspect of the matter which is clarified by the Legislature by laying down in section 70 that nothing in the Act shall be deemed to apply to any persons employed in the factory
That however anticipates the argument on the construction of section 70
Let us thereforecite the said section and construe it
Section 70 provides that nothing in this Act shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the shall notwithstanding anything in the said Act apply to such person
This section consists of two parts
The first part makes it clear that no provision in the Act shall be deemed to apply to the persons specified in it
The Legislature knew that in fact the Act contained no provision which in terms or expressly applies to any such person but in order to remove any possible doubt it has provided that no provision in the Act shall even by inference or fiction be deemed to apply to them
In other words this clause 149 is intended to clarify the position that though factory has been defined by section 29 of the Act no provision of the Act is intended to be applied to a factory or employees in
Having clarified this position the second part of the section extends the application of the to the said persons
It would have been possible for the Legislature to include in the present statute all the relevant provisions of the and make them applicable to factories as defined by section 29 but apparently the Legislature thought that the same object can be achieved by enacting the second part of section 70
This part provides that the provisions of the shall apply to the persons in question notwithstanding anything contained in the said Act
The said Act contains the provision by which workers are defined under section 21 and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applies only to workers as defined and not to employees in factories who are not workers
It is in reference to this provision that section 70 has provided that notwithstanding the said provision the relevant provisions of the will apply to persons employed in a factory
The non obstante clause in section 70 thus serves the purpose of clarifying the position that the is made applicable to employees in factories and that they are not governed by any of the provisions of the Act
This conclusion is obviously consistent with the policy of the Act
It has itself made provision for the payment of overtime wages to employees in all establishments by section 63 and it has made applicable inter alia the relevant provisions of the in regard to employees in factories
That is the view which the Authority has taken and in our opinion its validity or correctness is not open to doubt
In the result the orders passed by the authority are confirmed and the appeals are dismissed with costs in one set
Appeals dismissed


Summary:
A music performance attended by a large number of persons including two police informers Bankey and Asa Ram was going on on a platform in front of the house of one Ram Saroop
At that time there was a full moon and the light of a gas lamp and several lanterns
The informers had placed their guns on a cot close to the platform and one Bharat Singh was sitting on that cot
The accused along with 15 or 20 persons suddenly arrived armed with fire arms to kill the informers and stood behind a well on the southern side from where they shouted that no one should run away and advanced firing shots
Two persons were killed on the spot
Bharat Singh was hit and he ran northwards pursued by the culprits and was also shot dead
The culprits turned over the dead bodies and on seeing Bharat Singh s face they exclaimed that Asa Ram informer had been killed
They then passed in front of Ram Saroop s house and disappeared
While going they carried away Bankey s gun from the cot
The appellants and seven others were sent up for trial for this occurrence
At the trial the defence alleged that prosecution had developed its case
The police statements of the eye witness did not mention the facts regarding the scrtitiny of the lead bodies and the presence of the gas lantern and the defence counsel put the following two questions with respect to these omissions to the first eye witness produced  1
 Did you state to the Investigating Officer that the gang rolled the dead bodies of Nathi Saktu and Bharat Singh and scrutinised them and did you tell him that the face of Asa Ram resembled with that of the deceased Bharat Singh  2  Did you state to the Investigating Officer about the presence of the gas lantern  The Sessions judge disallowed the questions and on account of this order similar questions were not put to the other eye witnesses
The Sessions judge convicted the appellants under section 302 Indian Penal Code and sentenced them to death
The appellants appealed to the High Court and made an application alleging that the Sessions judge had not allowed the defence counsel to put omissions amounting to material contradictions to 876 the eye witnesses and prayed that the eye witnesses be summoned so that the questions disallowed may be put to them
Though the High Court held that the omissions amounted to contradictions and that the Sessions judge had wrongly dis allowed cross examination with respect thereto it found that even after ignoring these two circumstances there were other facts which showed that the culprits had come close to the eye witnesses and that they had unmistaken opportunity of identifying the appellants in the light of the full moon and the lanterns
The High Court accordingly dismissed the application for summoning the eye witnesses holding that no prejudice had been caused to the appellants by the disallowance of the cross examination in respect of omissions and also dismissed the appeals and confirmed the convictions and sentences of the appellants
Held Per SINHA KAPUR SARKAR and SUBBA RAO JJ that the omissions did not amount to contradictions and that the Sessions judge was right in disallowing cross examination in respect thereof
A statement to the police could be used under section 162 of the Code only for the purpose of contradicting a statement in the witness box under the second part of section 1 Evidence Act but it could not be used for the purpose of cross examining the witness under the first part of section 145
A statement made to the police but not reduced to writing could not be used for any purpose not even for contradiction
It was incorrect to say that all omissions in regard to important features of the incident which were expected to be included in the statement made before the police should be treated as contradictions
An omission in the police statement could amount to a statement and be used as a contradiction only when i it was necessarily implied from the recital or recitals found in the statement ii it was negative aspect of a positive recited in the statement or iii when the statement before the police and that before the Court could not stand together
It was for the the trial judge to decide in each case after comparing the part or parts of the statement recorded by the police with that made in the witness box whether the recital intended to be used for contradiction was one of the nature indicated above
In Ye Ponnusami Chetty Mad 475  In Ye Guruva Vannan ILR  Ram Bali vs State AIR 1952 All 289 Badri Chaudhry vs State AIR 1926 Pat 20 Sakhawat vs Crown ILR  referred to
Rudder vs The State AIR 1957 All 239 Mohinder Singh vs Emperor AIR 1932 Lah
103 Yusuf Mia vs Emperor AIR 1938 Pat
579 State of M P vs Banshilal Behari AIR 1958 MP 13 disapproved
Held Per IMAM and HIDAYATULLAH JJ that the questions that were put by the defence counsel were properly ruled out by the Sessions judge as they did not set up contradictions but attempted to obtain from the witnesses versions of what they 877 had stated to the police which were then to be contradicted
The reference to section I45 Evidence Act in section 162 of the Code of Criminal Procedure brings in the whole of the manner and machinery Of section I45 and not merely the second part
An accused is entitled to cross examine the witness under the first part of section 145 with respect to the police statement
Relevant and material omissions amount to vital contradictions which can be established by crossexamination and confronting the witness with his previous statement to the police
In the circumstances of the present case even if the defence had been allowed to put questions concerning the omissions it would not have affected the credibility of the witnesses and no prejudice was caused to appellants by the disallowance of the questions