Union of India & ANR Vs. G.M.
Kokil & Ors [1984] INSC 62 (21 March 1984)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
PATHAK, R.S.
CITATION: 1984 AIR 1022 1984 SCR (3) 292 1984
SCALE (1)521
CITATOR INFO :
D 1990 SC1382 (7) RF 1992 SC 81 (11)
ACT:
Factories Act, 1948-s.59-Benefit of overtime
wages at double the rate of ordinary wages-Scope of Section 70 of Bombay Shops
and Establishments Act, 1948 extends the benefit under s. 59 of Factories Act
to all persons employed in factory irrespective of the fact whether they are
workers under s. 2(1) of the factories Act or not and whether they are exempted
under s. 64 of Factories Act read with rule 100 made by State Government.
Bombay Shops & Establishments Act. 1948S-
70- Interpretation of.
HEADNOTE:
The respondents who were working in different
capacities in the factory of India Security Press at Nasik, an establishment of
the appellant, filed an application before the Central Government Labour Court,
Bombay under s.
33 C(2) of the Industrial Disputes Act, 1947
claiming overtime wages at double the ordinary rate of wages under s.
59 of the Factories Act read with s. 70 of
the Bombay Shops and Establishments Act, 1948. The Labour Court dismissed the
contentions of the appellant and granted relief. Hence this appeal.
Dismissing the Appeal ^
HELD: The contention that the respondents
were not workers within the 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. 70 of
the Bombay Shops and Establishments Act 1948 must fail on the plain language of
s. 70. The main provision of s. 70 which is relevant consists of two parts;
the first part states that if there be a
factory the Shops and Establishment Act will not apply and the second part
states that to such a factory 'the provisions of the Factories Act shall,
notwithstanding anything contained in that Act, apply to all persons employed
in or in connection with the factory". Clearly, the underlined portion
(the non- obstante clause 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 s. 2(1) they will get the benefit of s.
59. [298 C-F] B.P. Hira, Works Manager, Central Railway, Parel, Bombay, etc. v.
C.M. Pradhan etc [1960] S.C.R. 137 referred to.
The contention that by reason of rule 100
made by the State Govern- 293 ment under s. 64 of the Factories Act the benefit
under s.
59 was not available to the respondents
falling within the exempted category by reason of their holding posts of
supervision, has no force. [300F and 295E] It is well-known that a non-obstante
clause is a legislative device which is usually employed to give over- riding
effect to certain provision over some contrary provision that may be found
either in the same enactment or some other enactment, that is to say, to avoid
the operation and effect of all contrary provisions. Thus the non-obstante
clause in s. 70, 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 the general applicability of the Act. Just as
because of the non-obstante clause the Act is applicable even to employees in
the factory who might not be workers' under s. 2(1), the same non-obstante
clause will keep away the applicability of exemption provisions quarrel those
working in the factory The Labour Court was therefore right in taking the view
that because of the non-obstante clause s 64 read with Rule 100 itself would
not apply to the respondents and they would be entitled to claim overtime wages
under s. 59 of that Act read with s. 70 of the Bombay Shops and Establishments
Act, 1948. [300 C-G] The contention that the respondents were not workmen under
the Industrial Disputes Act and as such their application was not maintainable,
must be rejected. The contention depends upon the appreciation of evidence led
by the parties on the nature of duties and functions performed by the concerned
respondents and it was on an appreciation of the entire material that the
Labour Court recorded a finding that having regard to the nature of their
duties and functions all respondents, other than those who were holding the
posts of Senior Supervisors and supervisors, were industrial employees, i. e.
workman under the Industrial 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 considering some of the important material on record the court
is satisfied that the Labour. Court's finding is correct. [301 C-F]
CIVIL 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.- 326 of 1969.
Harbans Lal, N. S. Das Bahl and R. N. Poddar
for the appellants.
V. M. Tarkunde, K. Shivraj Choudhary and K.
R. Choudhary for the respondents.
The Judgment of the Court was delivered by
294 TULZAPURKAR, J. The only point raised by counsel for the Appellants in this
appeal is whether the respondents who are employees working in the Factory of
India Security Press, Nasik are entitled to over-time wages at twice the normal
rate of their wages under s. 59 of the Factories Act 1948 read with s. 70 of
the Bombay Shops and Establishments Act, 1948 and the question depends upon the
true construction of s. 70 of the latter Act. Since in our view the question of
proper construction of the said s. 70 is concluded by a decision of this Court
in Shri B.P. Hira, Works Manager, Central Railway, Parel, Bombay, etc. v. Shri
C.M. Pradhan etc.(1) it is unnecessary 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 rendered on December 31,
1971 is challenged in this appeal.
Briefly stated the admitted facts are: The
India Security Press, Nasik is a very big establishment of the Central
Government headed by the General Manager, 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 note press and (d) central stamp stores.
There are various categories of workers who
have been classified into two groups such as (1) employees working in the
administrative offices and (2) those working in the factory. The 78
respondents, belonging to all the four wings, have been employees working in
the factory (of these, R-1 to R-3 are Chief Inspectors (Control); R-4 to R-36
are Inspectors (Control); R-37 & R-38 are Senior Supervisors; R- 39 to R-52
are Supervisors; R-53 to R-77 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 Factories 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 management had been causing loss
to them by paying them, unlike the factory-workers, over-time wages at the basic
rates even for work done beyond 44 hrs. whereas they were entitled to over-
time wages 295 at double the rate of their normal wages (inclusive of dearness
allowance, etc.), and 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 1-1-1956 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.
This claim was resisted by the Appellants on
several grounds but we need mention only those grounds which have a bearing 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 with s. 70 of the Bombay Shops and
Establishments Act, 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 made 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 within the
category of person 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 category under s. 64 read 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 application under s.
33C (2) of that Act was not maintainable.
The Central Government Labour Court, Bombay
negatived 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 of the 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),
Junior 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 Industrial Disputes Act, 1947 and as such were entitled to
the relief claimed by them but as 296 regards the respondents who were holding
the posts of Senior Supervisors (R-37 and R-38) and Supervisors (R-39 to R-5)
not being workmen under the Industrial 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
of the first two contentions that were urged before the Labour Court and
reiterated before us by Counsel for the appellants depends upon the proper
construction of s.70 of the Bombay Shops and Establishments Act, 1948 and in
order to appreciate both the contentions it will be necessary to set out s. 59,
s. 64 together with Rule 100 of the Factories Act and s. 70 of the Bombay Shops
and Establishments Act, 1918 Sections 59 and 64 occur in Chapter VI of the Factories
Act, 1948 and the material portions thereof run thus:
"59. Extra Wages for overtime.-(1) Where
a worker works in a factory for more than nine hours in any day or for more
than forty-eight hours in any week, he shall, in respect of overtime work be
entitled to wages at the rate of twice his ordinary rate of wages."
"64. Power to make exempting rules, (1) The State Government may make
rules defining the persons who hold positions of supervisions or management or
are employed in a confidential position in a factory, or empowering the Chief
Inspector to declare any person, other than a person defined by such rules, as
a person holding position of supervision or management or employed in a
confidential position in a factory if, in the opinion of the Chief Inspector,
such person holds such position or is so employed and the provisions of this
Chapter, other than provisions of clause (b) of sub-section (1) of section 66
and of the proviso to that sub-section, shall not apply to any person so
defined or declared:
Provided that any person so defined or
declared shall, where the ordinary rate of wages 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." Rule 100 framed under s. 64 runs thus:
297 "Persons defined to hold positions
of supervision or management or confidential position.
The following persons shall be deemed to hold
position of supervision or management or to be employed in a confidential
position in a factory- (a) All persons specified in the Schedule 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 confidential position.
Schedule List of persons defined to hold
positions of supervision or management in factories:- Manager Assistant Manager
.......
.......
Departmental Heads and Assistants .......
Head Store Keepers and Assistants Technical
Experts." Section 70 of the Bombay Shops and Establishments 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 deemed to apply
to a factory and the provisions of the Factories Act, 1948 shall, notwithstanding
anything contained in that Act, apply to all persons employed in and in
connection with a factory:
Provided that, where any shop or commercial
establish- 298 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:
Provided further that, the State Government
may, by notification in the official Gazette, apply all or any of the
provisions of the Factories Act, 1948 to any shop or commercial 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 urged that the respondents,
though employed in the factory of the Press, were not 'workers' within the
meaning of s. 2 (1) of the Factories Act and therefore were not entitled to the
benefit of s. 59 of that Act read with s. 70 of the Bombay Shops and
Establishments Act, 1948. On the plain language of sec. 70 of the Bombay Shops
and Establishments Act this contention has to fail. We are concerned not with
either of the provisos but with the main 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, notwithstanding
anything contained in that Act, apply to all persons employed in or in
connection with a factory." Clearly, the portion underlined (the
non-obstante clause 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 (1) they will get the benefit of sec. 59.
This identical question arose for
consideration before this Court in the case of B.P. Hira v. C.M. Pradhan
(supra).
In that case Shri C.M. Pradhan and other
respondents were employed as time-keepers in the time office of the Central
Railway Workshop and Factory, Parel, 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
that Act, they were entitled to claim overtime wages under s.59 of the Factories
Act read with s.70 of the Bombay Shops and Establishments Act, 1948. The
validity of the 299 claim on both the grounds was disputed by the appellant
(Works Manager). The Authority under the Payment of Wages Act found that only
four of the respondents, who were required to do the work of progress time-keeper,
could claim the status of 'workers' within the meaning of s. 2(1) of the Factories
Act and the rest were merely employees of the workshop, but accepted the
alternative 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 construction of s. 70 of the Bombay Shops and
Establishments Act 1948 has been succinctly summarized in the second head note,
which appears at page 137 of the report, which runs thus:
"On a proper construction of s. 70 of
the Act it is clear 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 Factories Act applicable to them. The non- obstante
clause in the section shows that the employees in a factory, although they
might not be workers within the meaning of s. 2(1) of the Factories Act, are
entitled to claim overtime wages as provided for by that Act." Apart 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 effect 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 include s.
64 (occurring in the same Chapter VI) which gives power to the State Government
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 excluded 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 (Departmental 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 Establishments 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, s. 59 becomes inapplicable to the respondents
300 falling within the exempted categories 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, namely, s. 64 read with Rule 100 and
according to him such effect must follow from the ratio of this Court's
decision in case of B.P. Hira v. C.M. Pradhan (supra) and the Labour Court had rightly
taken the view that because of the non-obstante clause the respondents' right
to claim benefit of overtime wages under s 59 read with s. 70 was not affected
by the framing of rule 100 by the State Government in exercise of the power
conferred on it under s.
Section 70, so far as is relevant, says
"the provisions of the Factories Act shall, notwithstanding anything
contained in that Act, apply to all persons employed in and in connection with
a factory". It is well-known that a non- obstnte 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 enactment, that is to say, to avoid the operation and
effect of all contrary provisions. Thus the non-obstante clause in s. 70,
namely, "notwithstanding anything in that Act" must mean
notwithstanding 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 notwithstanding anything to the contrary
contained in it, it must have the effect of excluding the operation of the
exemption provisions. Just as because of the non-obstante clause the Act is
applicable even to employees in the factory who might not be 'workers' under
sec. 2(1), the same 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 itself would not apply to the
respondents and they would be entitled to claim overtime wages under s. 59 of
that Act read with s. 70 of the Bombay Shops and Establishments Act, 1948.
Counsel for the appellants pointed out that
if such construction was placed on s. 70 it 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 overtime wages which could not have been the
intention of the State Legislature, but that, in our view, is a matter of the
State Legislature and not for the Court but it must be pointed out that since
301 the rendering of the aforesaid decision by this Court in 1960 the State
Legislature has not intervened, which perhaps suggests that the State
Legislature is not keen to limit the operation of the non-obstante 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 Supervisors were not industrial employees but
all the other respondents were also not industrial employees i.e. were not
workmen under the Industrial Disputes Act. In the first place, the contention
depends upon the appreciation of evidence led by the parties on the 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 than those who were holding the post of Senior Supervisors and
Supervisors, were industrial employees, i.e. workmen under the Industrial 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 considering 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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