. I

292 • ,

UNION OF INDIA. AND ANOTHER

G.M. KOKTL AND OTHERS

March. 21, 1984

, [V.D. TUL.ZAPURKAR AND R.S. PATHAK JJ.)

Factorles Act, 1948-s. 59..-Benefit of Overti'me wage1 at daub le the rate of ordinary wages-Scape af Section •70 of Bombay Shops and Establishments Act, 1948 extends the benefit under s. 59 of FactoHes Acr to all persons employed in factory irrespective of the fact whether they are workers under

$, 2(1)- of the Factories Act or !tot and

1whethet they are exempted under 1. 64 of Factories -let .read.with rule 100 made by State Government.'

 Bombay Shops & EStablishments Act. 1948S-. 70-ln'erprttation of .

. The respondents who were workingin different capacities ia the factory of India Security Prss at Nasik, an establishment of the apyel lant, filed an application before the . Central Government Labour Court,· Bombay under s. 33 C(2) or the Industrial Disputes Act, 1947 daiming

overtime wages at double th~ ordinary rate of wageS under s. S9 of 'the

Fctories Act read with s. 70, of the Bomay Shops and Establishment.a .Act, 194'8. The Labour Court dismissed the contentions of the appellant and granted relief.

Hence this appeal. ·

Dismissing the Appeal

• ...

HELD : Thecontention that the respondents were not workers with'." in tM meaning of s. 2(1) of the Factories Act and therefore not' entitled to the benefit of s. 59 of that Act read with s ! 10 of the Bombay Shops and Establishments Act 19 48 must fail on the plain language of s. 7.0. "'I'be 'Qlain provision of s. 70 which is,'relevant consists of two parts; the first part states that if there be a factory the Shops and Establishments Act. ill not apply and the second part_ stat_cs. that 10 such a.factory ', the prQvisions of the Factorie.s Act shall, notwithst'anding anything co_nt_alned in that Act,"apply.to airpe.rsons employed _in or in cOtinection with the factory". Clearly, the underlined portion (the nonobstante .clauSe and the ·

pbase- 'au persotis employed') has th-e effect of enlargi, ng the scope of Factories ACt by making it applicable to all persons emPloyed in such factory irrespective of whether employed as worker~ or otherwise.

Therefore although the respondeftts have 11ot been 'workers' within the meaning ofs. 2(1) they will get the benefit of.s. 59. [298 C-F)

)-'. ·.

• B.P. Htra, Works Manager, Central Raillfay, _Pare!, Bombay, etc. y.. ll.

C.M, Pradhan etc .(1960] S.C.R. 137 referred to. . .

H The contention.ttiat by reson of rq\e 100 .inade by the late Govern

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UNiON v. G.M. KOKiL

ment under s. ()4 of the Factories Act the benefit qnder s. 59 was not available to the respoildents falling within the cxenJpted category by reason of their holding po.sts of supervision, has no force. [3001' and, 29SE]

It is weH-known, that a non-obstante clause is a legislative device \Vhich is usually employed to give over-riding effect to certain provision over some contrary provision'"'that m3.y be found either . in the same eqactment r some other enactment.; that is to say, to avpid the operation and effect of all contrary provisions. Thus the nonobstante clause in s. 1(), namely, "notwithstanding anything'to the contrary contained in that Act -and as such it must refer to the exempting provisions which would be

contrary to tlie general applicability of .the Act. Jt!St-as because of the non-obstant.e clause the Act is applicable even to employees in the factory , who might not be rworkers' under s. 2(1), the same non-obstaote clause will keep away the applicability of exemption provisions Qua all tbose working in the factory· The Labour Court was therefore right in taking the view that because of the nono15stante clause s 64 read with Rille 100 itself would not. apply i:o the respondents and they would be entitled to-<; laim overtime wages under s. 59 of that Act read with s. 70 of tbe Bombay Shops and Establishments Act, 1948.

[300 C-G]

The contention that the respondents were nOt workmen under the Industrial Dispujcs Act and .as such th.eir application was not Maintain .. able, must be rejected.

The contention depends upon the appreciation of evidence led by th.e partie_~ on the nature of _duties and functions Performed. by the concerned respondents and it Was on an appreciation of the entire material that the Labotir Court recorded a findirig that having regard to the nature of thei'r-duties and functions all respondents, other than tho&e who were holdi_ng the posts of Senior Supervisors and supervisors, were industrial employees, Le •. workmen under.· the Industrial Disputes Act and it is not possible for this Court to interfere with such a finidng of fact recordelf by the Labour Court.

Even othetwise '"after considering some of the important material on record the courr is s:1tisficd that the Labour Court's finding is correct.

(301 C-P]

C!VlL APPELLATE JURISDICTION : Civil Appeal No. 2736 of 1972

 From the Award dated the 31st December, 1971 of the Central Govt. Labour Court Bombay in application no. L.C.B.-32/i of 1969.

Harbans Lal, N. S. Das Bahl and R. N. Podd1r for the appellants. • • V. M. Tarkunde, K. Shivraj Choudharp and K. R. Choudhary for therespondents. ,

Tlie Judment of the Court was delivered by •

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294 SUPRllME COURT REPORTS [1984] 3 s.c.R.

. D.

TULZAPURKAR, J .. The only point raised by counsei' for the App'lllants in this appeal is whether the respondents who are employees w9rking in the Factory of India l>ecurity Press, N;; sik are entitled to over-time wages at twice the normal rate of their wages under s. 59. of the Factories Act 1948 read withs. 70 of the . .

Bombay Shops and Establishments Act, 1948 and the question depends upo!l' tlte true construction of s .. 70 of the latter Act.

Since i.n our view the question of proper construction of the said s. 70 is concluded !>Ya decison of this Court 'in Shri B.P. Hira, Works Manager, Central Railway, Pare/, Bombay, etc. v. Shri C.M. Pradhan etc.( l) it is unnecessar}' to indulge in any elaborate statement of facts or discussion of all the rival contentions that were urged before the Central Government Labour Court Bombay, whose decision renliered on December

0 3!, .1971 is challenged in this appeal. • • ·

.Briefly stated t)le admitted facts are : The India Security press, Nasik is a very big establishmen't of the CenJral Govern ment headed by the General ManageP, who is also known as Master, India Security. Press. Apart from administrative offices it has a factory. The Press has four wings, namely,, (a) the stamp press, (b) currency note press, (c) new currency nbte press and (d} central stamp stores. There are various categorie:i' of workers who have been classified into two groups such as(!) employees work ing in the administrative offices and (2) those working in the factor)'. The 78 respondents, belonging .to all the four wings, have been employees working in. the factory (Of these, R' 1 to R-3 are Chieflnspectors (Control); R-4 to R-36 art! Inspectors {Control);.

R37 & R-38 are Senior Supervisors; R39 to R52 are Super visors;' R53 to , R77 are Junior Supervisors and R-78 is a Store Keeper). These 78 Respondents filed an application.against the Appellants before the Central Government Labour Court, Bombay under s. 33C (2) of the. Industrial Disputes Act, 1947 claiming over'time wages under s. 59 of the Facto1ies Act. . read with s. 70 of the Bombay Shops and Establishments Act.

Their case was that though, the normal working period for all those who were working under the roof of the factory was 44 hrs. per week, they were, along with the regular factory workers, required to work for more than 44.hrs. a week but the manage rnent had been causing loss to them by paying them, '.unlike the factory-workers, overtime' wages at the basic rates even for work done beyond 44 hrs. whereas they were entitled to ovHtime waes . . . j, (1960) 1 SCR 137,

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YNION v. a.Iii. KOKIL (Tulzapurkar,

J.) 295

at double the rate of their normal wage{( inclusive of dearness A allowance, etc.), al)d as such they were entitled to get the amount of difference ascertained, computed and paid to them; and they claimed this relief in respect of overtime work done during the past 12 years i.e. from 1-l-i956 to 30-8-1968. Along with the application they gave a detailed schedule and the particulars of their claim totalling to an amount of Rs. 7 ,00,000 and odd.' B

This claim was resisted by the Appellants on several grounds but we need mention only those grounds which have a Dearing on the only point that was raised and argued before us by counsel for the appellants. Inter alia it was contended that none of the Respondents was a 'worker' under s. 2 (I) of the Factories Act and as such they were not entitled to the benefit of s. 59 of that Act read withs. 70 of the Bombay Shops and Establishments At,

1948. It was fUrther contended that even assuming that the respondents were entitled to claim the benefit of the s. 59 read with the s. 70 notwithstanding that none of them was a worker, by reason of Rule 100 nlade by the State Government in exercise of its powers under s .• 64 of the Factories Act, s. 59 became inapplicable to the Respondents and therefore could not be availed of by them inasmuch as quite a substantial number of them fell \tithin . the category of peron who had been "defined or declared to be

holding positions of supervision or management or being employed in a confidential position in the factory." In other words. quite a large number of the Respondents fell within the exempted

catgory under s- 64 road with Rule 100 framed by the State Government and, therefore, the benefit of s. 59 was not available to them. It was fUrther urged that none of the Respondents was an industrial employee, i.e. 'a workman' within the meaning of s. 2 (s) of the Industrial Disputes Act and as such their applica. tion under s. 33C (2) of that Act was not maintainable.

The Central Government Labour Court, Bombay n?gatived the first two contentions in view of the decision of this Court in the case of B.P. Hira v. C.M. Pradhan (supra) and as regards the third contention on an appreciation ofihe oral and documentary evidence led by the parties, it came to the conclusion that all respondents holding the posts of Chief Inspectors (Control) (R 1 to R-3), Inspectors (Control) <R-4 to R-36), Jtinior Supervisors (R-53 to R~57) and Store Keeper (R-78) having regard to the nature of duties and functions performed by them were industrial employees i.e. workmen 'under the Indus.trial Disputes Act, 1947and as such were entitled to the relief claimed by them but as

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SUPREM6.COURT REPORTS [1984j 3 S.C.R.

regards th, e respondents who were holding the posts of Senior Snperyisors (R-37 and..R-38) and Supervisors (R-39 to R-5 '.)not being workmen under the lndustrfai Disputes Act were not entitled to the relief claimed,-of course, they were denied the relief only for the period during which they were holding those posts, This decision is challenged in the appeal. ·

As stated earlier, the validity or otherwise f the first two '!< contentions that were urged before the Labour Court and teiterat- • ed before us by Counsel for the., appollants depands upon the • proper construction of s. 70 of the Bombay Shops and Establishments Act, 1948 and in order to appreciate both the contentions it C will be necessary to , set outs. 59, s. 64 together with Rule 100 of the Factories Act and s. JO of the Bombay Shops and Establishments Act, 1948. Sections 59 and 64 occur in Chapter VI of the factories Act, l'H8 and the. material portions thereof run thus :

• "59: Extra. Wages for overtime.-(!) Where a worker works in a factory for more than nine hours in anyday or for more than forty-eight hours irr any week, he shall, in respect of overtime wo1'k, be entitled to\Vages at the rate of twice his ordinary rate of wages."

"'6,4. Power to make exempting rules-(1) The State Government may make rules defining the> persons who hold . positions of supervisions or management or are em ployed in a confidential position in a factory, or empowering the Chjef Inspector to declare any persc.:tt, other than a person de'finea by '6Uch ruJes, as a person holding position of supervision or management or employedin a confidential position in a factory if, in the opinion of , the Chief Inspector, such person holds such position or is sq employed and the provi- .slons of this Chapter, other than provisions of clause (b) of sub-section (1) of section 66 and of the proviso to that su{Jsection, .shall not apply to any person so defined or declared.:

Provided that any person so defined -0r declared shall, where the ordinary rate of wags of such person does not exceed rupees seven hundred and fifty per month, be entitled. to extra wages in respect of overtime work under section 59 .''

Rnle 100 ire.med under s. 64 runs thus !

)---

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UNION v. o.M:. KOKIL (Tulzapurkar, J.) , eg'

"Persons defined to hold positions of .supervision or A management or confidential position.

The' following persons shall be deemed to hold position of supervision or management or to be empluyed in a confidential positi<m in a factory-

. {a) All' persons specified in the Schednle annexed hereto.

(b) Any other person who, in the opinion of the Chief Inspector, holds a. position of supervision or management or is employed in .a confidentiatl positiOn.

Schedule

List of persons dfined to hold positions of supervision or managemeµt in factories :-

Manager

. Assistant Manager

·····

Departmental Heads and Assistants

Head Store Keepers and Assistants

Technical Experts."

Section 70 of the Bombay Shops and Establiskments Act: 1948 runs thus :

"70. Persons employed in factory to be governed by .

Factories Act and not by this Act.

Nothing in this Act shall be .deeJ)led 'to apply to a• factory and the provisions' of the Factories Act, 1948 shall, notwithstanding anything c9ntained in that Act, apply to all persons employed in and in connection with a factory :

Provided t!iat, where any shop or commercial establish

.. 298

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SUPREME COURT REPORTS . [19~4) 3 s.c. k.

. ment situate within the precincts of a factory is not /

connected with the manufacturing process of the factory the provisions of this Act shall apply to it; · ,· . ' \ . .

Provideforther that, the State Government ay, by notification in the Official Gazette, apply all or any of the provisions of the Factories Act, 1948 to any shop , or. com- mercial establishment situate within the precincts of a 'factory and on the application .Of that Act to such shop or commercial establishment, the provisions' of this Act shall cease to apply to it." . ·

' ' ' Counsel for the appellants urg.ed that the respondents, though employed in the factory of the Press, were not 'workers'. within . the meaning of s. 2 (I) of the Factories Act and therefore were not entitled to the benefit ors. 59 of that Act read with s. 70. of the Bombay Shops and Establishments Act, 1948. On the plain language of sec. 7.0 of the Bombaf Shops and Establishments Act . this contention has to fail. W~ are concerned not with either of ·: the provisos but with the ma.in provision of s. 70 which consists of two parts; the first part states that if there be a factory the Shops . and Establishments 'Act will not apply and the second part states: that to such a factory "the provisions of the Factories Act shall,

notv/itstanding anything contained in that Act, apply to ali persons employed in or .in connection with a factory." Clearly, the portion "underlined (the 'non-obstante clame and the phrase 'all persons employed') has . the . effect of enlarging the scope of.

Factories Act by making it applicable to all persons employed in . such factory irrespective of whether employed as workers or otherwise. Therefore although the respondents have not been 'workers' within the meaning of sec. 2 (l) they will get.the benefit

' . ' of sec. 59:

- This' idetical question arose for consideration before this Co;; rt in the case of B.P. Hira v. C.M. Pradhan (supra). In that .case Shri C.M. Pradhan and other respondents were emplgyed. as

time-keepers in the time. office of.the Central Railway. Workshop and Factory, Pare!, Bombay and they had claimed over-time wages. under s.59 of the Factories Act first on the basis that they were 'workers' within the meaning of s 2(1) of that Act and alternatively on the basis that assuming, they were not 'workers' within the meaning of s. 2{1) of thai Act, they were. entitled to claim over-' time wages nnder s.59 of the Factories Act read with . s. 70 of. the Bombay Shops and Establishments Act, 1948. The validity of the

' •

' '

.. '

. tl'NJON v. G.M. KOKIL (Tulzapurkar, j_) 299.

. ( . , ' claim on hih th•, groun,.;> was di; puted by the appellant (Works Manageij .. The Authority under the Payment of Wages Act.found that only four of the responc!ents, who were required to do the . work of progress time-keeper, could claim the status of 'workers' within the meaning of s. 2( l) _of the Factories Act and the rest were merely employees ofthe workshop, but accepted. the alter-· native . case made by the respondents and held that each of the respondents was entitled to get the over-time wages under sec. 59 read with sec. 70 and this Court upheld the view of the Authority and confirmed its decision. The Court's view on the proper con1truction ofs. iO of the Bombay Shops and. Establishments Act 1948 has been succinctly snmmatised in the second head note, which appears at page 137 of the report, which runs thus:·

"On a propr construction of s. 70 of t!le Act it is ciear that the first part of the section excludes a factory and its_ . . employees from the operation of the Act; but the second part

makes the relevant provisions' of the FactoriesActapplicable ., to them. The'non-obstante. clause in the section shows that .· the employees.Jn a factory, , although they might not be workers within the meaning of s. 2( I) of the Factories Act, are entitled to claim overtime wages as provided for by that Act." ' . . .

A pari from the fact that the decision is binding on us, we are in respectful agreement with the construction placed by it on s. 70 of the Act. , The first contention , has, therefore, to.be rejected.

Counsel for the appellants next urged that the effecc of s. 70 as indicated bY .. the aforesaid decision is that it.makes the provisions . of the Factories-Act applicable to all persons (irrespective of their. capacity)' employed in a factory but· the provisions of the Act includes. 64 (oc_curring. in the same Chapter VI) whic.h gives . power to the State m:ivernment to make exemptions and it is under s. 64 that Rule 100 has been framed by the State Govt. under which the employees specified in the .Schedule to the Rule . . have been excfoded from the purview of s. 59 of that Act and since in the instant case a substantial number of the respondents fall within the exempted category (Departmen.tal Heads .and Assistants) and Head Storekeepers and Assistant they .would not be able to claim overtime wages under s. 59 of that Act read with s, 70 of the Bombay Shops and Establish' ments Act.· In other words, counsel contended . that. s.: 59 must be read· with s. 64 of the Factories Act and because of Rule 100 framed under s. 64, ~· 59 becomes inapplicable to the respondent~ •

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SUPREME COURT REPORTS

[1984] 3 S.C.R.

falling within the exempted categorles. On the other hand, counsel for the respondents urged that the non-obstante clause has the effect of keeping out of the way the exemption provisions, namly, s. 64 read wih Rule 100 and accord.ing to him such effect must follow from the ratio of this' Court's decision in the case of B.P.

Hira v. C.M. Pradhan (sup{a) and the Labpur Court had rightly taken the view that because of the non-obstante clause the respon .. dents' right to claim benefit of overtime wages under s. 59 read with s. 70 was not affected by t.he framing of rule 100 by the State

Government in exercise of the power conforred on it under s. 64.

Section 70, so far as is relevant, says "the provisions of the Factories Act shall, Mtithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory". It is well: known that a non-obstante .clause is a legislative device which is usually employed to give over-riding effect to certain provisions over some contrary. provisions that may be found either in the same enactment or some other enactmen i, that is to say, to avoid the operation and effect of all contrary provisions. Tilus the non-obstante clause in s. 70, namely, "notwith- ·

standing anythi.ng in that Act'' must mean notwithstauding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the . general applicability of the Act. In other words, as all the relevant

proviSions of the Act are made applicable to a factory notwith, standi)lg anything to the contrary contained in it, it must have the effect of excfoding th1 operation of the exemption provisions.

Just as because of the non-obstante clause the Act is applicable even to employees in the factory wo might not be 'workers' under sec. 2(l), the sime non-obstante clause Will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our View, was, therefore, right in taking the view that because of the non-obstante clause s. 64 read with Rule 100 itslf would not apply to the respondsnts and ihey would be entitled to claim overtime wages under s. 59 of that Act

rad withs. 70.of the Bombay Shops and Establishments Act, 1948.

Counsel for the appellants pointed out that if such construC>- tion was placed on s. 70 if will lead to an anomalous situation that . even employees of a factory occupying positions of a Manager or a General Manager would become entitled to overiime wages which cnuld not have been the intention of the State Legislature, bu~ that, in our view, is a i; natter of the State Legisla ture and not for th11 Court bnt it must be pointed out that . since

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UNION v. G.M. KOKILj (Tulzapurkar, J.) 301

the rendering oi the aforesaid decision by this Court in 1%0 the A State Legislature has .not intervened, which perhaps suggests that the State Legislature is not keen to limit the operation of the no11obstante clause in any manner. The second contention must also fail.

Counsel for the appellants made a feeble attempt to contend that not merely such of the respondents who were holding the . posts of Senior Supervisors and Suparvisors were not industrial employees but all the other responde]Jts were also not industrial employees i.e. were not workmen under the Industrial Disputes Act. In the first place; the contention depends upon the apprecia- . tion of evidence led . by the parties on (he nature 'Of duties and functions performed by the concerned respondents and it was on an appreciation the entire material that the .Labour Court recorded a finding that having regard to the nature of their duties and functions all respondents, other tha~ those who were holdJng the post of Senior Supervisors and Supervisors, were industrial employees, i.e. workmen under the)ndustrial Disputes Act and it is not possible for this Court to interfere with such a finding of fact recorded by the Labour"Court. Even otherwise after considreing

some of the important material on record through which we were . taken by counsel for the appellants, we are satisfied that the

Labour Court's finding is correct.

In the result the appeal fails and is dismissed but there will be no order as to costs. ·

H.S.K. Appeal, dismissed •

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