Case: B. P. Heera &amp; Etc. Etc Vs. C.M. Pradhan &amp; Etc. Etc

Act, how can S. 70 be said to apply to it? asks the learned Attorney-General.It is obvious that S. 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 S. 70 applies to factories and so it would not be legitimate to base any argument on the assumption that S. 4 is applicable to the present case. 21. Incidentally the learned Attorney-General suggested, though faintly, that the establishments mentioned at sr. Nos. 1 to 6 in col. 2 of Sch. II are wider than and different from the establishment as defined by S. 2 (8).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. II shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at serial Nos. 1 to 6 including 6 (a) to 6(k), in regard to the others which are enumerated at serial Nos. 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 S. 2 (8) of the Act. 22. In this connection it must be borne in mind that S. 2 (8) 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. II 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 serial Nos. 1 to 5 in col. 2 of sch. II 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 S. 2 (8). 23. In regard to the argument that the operation of S. 4 excludes the application of S. 70 we have held that S. 4 applies only to establishments not factories.But even if S. 4 is assumed to be applicable to factories, we do not think it would materially affect the application of S. 70. The plain object underlying S. 70 and its context emphatically point out that it is intended to operate in dependently 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 S. 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 S. 70. Let us therefore cite the said section and construe it. 24. 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 Factories Act 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 person 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 the deemed to apply to them.In other words this clause is intended to clarify the position that though factory has been defined by S. 2 (9) of the Act, no provision of the Act is intended to be applied to a factory or employees in it. Having clarified this position the second part of the section extends the application of the Factories Act to the said persons. 25. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as defined by S. 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of S. 70. This part provides that the provisions of the Factories Act 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 S. 2(1), 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 S. 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will apply to persons employed in a factory. The non-obstante clause in S. 70 thus serves the purpose of clarifying the position that the Factories Act 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 S. 63; and it has made applicable inter alia the relevant provisions of the Factories Act 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is clear that the duties of the progress time-keepers do not fall within the first part of S. 2 (k)It is true that the finding of the Authority in respect of the timekeepers is against the respondents;If the construction placed on S. 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 usSince we are dealing with the case on the assumption that the respondents are not workers under S. 2 (1) it follows that S. 59 by itself would not be applicable to themIt is not disputed by the appellant that the Bombay Legislature was competent to prescribe for the extention of the provisions of the Factories Act 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 3-1-1949 (Published in the Bombay Government Gazette, Part IV, dated 11-1-1949.), no question about any repugnance between the provisions of S. 70 and those of the Factories Act can possibly ariseIt 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 a part 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 appealIt is obvious that S. 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 S. 70 applies to factories and so it would not be legitimate to base any argument on the assumption that S. 4 is applicable to the present caseWe 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. II shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at serial Nos. 1 to 6 including 6 (a) to 6(k), in regard to the others which are enumerated at serial Nos. 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 S. 2 (8) of the Act22. In this connection it must be borne in mind that S. 2 (8) 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. II 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 serial Nos. 1 to 5 in col. 2 of sch. II 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 S. 2 (8)23. In regard to the argument that the operation of S. 4 excludes the application of S. 70 we have held that S. 4 applies only to establishments not factories.But even if S. 4 is assumed to be applicable to factories, we do not think it would materially affect the application of S. 70. The plain object underlying S. 70 and its context emphatically point out that it is intended to operate in dependently 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 S. 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 S. 70. Let us therefore cite the said section and construe it25. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as defined by S. 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of S. 70. This part provides that the provisions of the Factories Act 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 S. 2(1), 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 S. 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will apply to persons employed in a factory. The non-obstante clause in S. 70 thus serves the purpose of clarifying the position that the Factories Act 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 S. 63; and it has made applicable inter alia the relevant provisions of the Factories Act 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.