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

1. 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 Payment of Wages Act, 1936 (4 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 us2. 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 1-4-1949, to 30-9-1954. 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 31-8-1954. 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 19-5-1953, was rejected on the preliminary ground of delay whereas the claim for the period subsequent to the said date was considered on the merits3. The respondents 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 be had worked as required by S. 52 of the Indian Factories Act. The respondent alleged that he was a worker within the meaning of S. 2, sub-s. (1) of the said Factories Act (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 S. 2 (1) of the said Act, he would nevertheless be entitled to overtime wages under the said S. 59 by reason of S. 70 of the Bombay Shops and Establishments Act, 1948 (Bom. 79 of 1948) (hereafter called the Act). Thus the claim for overtime wages was made by the respondent on two alternative grounds4. The appellant disputed the validity of this claim. It was urged on its behalf that the respondent was not a worker under S. 2 (1) of the Factories Act and that S. 70 of the Act did not justify the claim alternatively made by the respondent for overtime wages7. The Authority then considered the respondents argument that even if he was not a worker under the Factories Act he was nevertheless entitled to claim the benefit of S. 59 of the said Act by virtue of S. 70 of the Act. The Authority accepted this contention and held that, even if the respondent was not a worker under the Factories Act, S. 70 of the Act entitled him to claim overtime wages under S. 59 of the Factories Act. 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 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

Reasoning: 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.