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Diwansing Bahdursing Vs. Ahmedabad Municipal Transport Service (The Transport Manager) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 809 of 1955
Judge
Reported in(1955)57BOMLR1035
ActsFactories Act, 1948 - Sections 59 and 70; Payment of Wages Act, 1936 - Sections 17; Bombay Shops and Establishments Act - Sections 4; Constitution of India - Articles 226 and 227
AppellantDiwansing Bahdursing
RespondentAhmedabad Municipal Transport Service (The Transport Manager)
Excerpt:
.....delayed wages under the payment of wages act, 1936, basing their claim on section 70 of the bombay shops and establishments act, 1948 :-- ;that the repair workshop of the municipal transport service being a part of the establishment of a local authority, i. e. the municipal corporation, was, by the combined operation of section 4 and schedule ii of the bombay shops and establishments act, not governed by any of the provisions of the act, and ;that, therefore, the petitioners were not entitled to the benefit of the factories act under section 70 of the bombay shops and establishments act. ;the expression 'establishment' in schedule ii to the bombay shops and establishments act, 1948, has a wider and a different connotation from the connotation which it has under the interpretation..........or order of the district court at ahmedabad and restoring the order passed by the payment of wages authority. in order to appreciate the contention of the petitioners it is necessary to refer to certain provisions of the payment of wages act, the bombay shop and establishments act and the factories act. the payment of wages act iv of 1936 by s. 1(4) applies to persons employed in any factory and to persons employed upon any railway by a railway administration. an employee of the specified description is, by s. 15, entitled to make a claim before the authority appointed under the act claiming relief against deduction from wages and delay in payment of wages, and the authority has after holding an inquiry to decide the claim. by s. 17 the order passed by the authority is made.....
Judgment:

Shah, J.

1. The petitioners were employed by the Ahmedabad Municipal Transport Service as watch and ward supervisors. The Ahmedabad Municipal Transport Service maintained a repair establishment, which is registered as a 'factory' under the Factories Act LXIII of 1948. The petitioners were, in the course of their duties, required to work within the precincts of that factory. On 17 September 1953, the petitioners submitted an application before the authority under the Payment of Wages Act for an order for payment of Rs. 2,646-15-0 being the amount claimed by them as delayed wages. The petitioners contented that they were watch and ward supervisors working in the factory and as supervisors they had to perform day and night duty alternately with a recess of only two hours and that the same was a condition of their service when holding the post of supervisors. They claimed that the period for which they worked was in excess of the maximum period for which they were under the law liable to work, and therefore they were entitled to overtime wages.

2. The petition was resisted by the Municipal Transport Service. The authority under the Payment of Wages Act held that the petitioners were entitled to overtime wages, but he held that the payment which they could claim in the application should be limited to a period of six months prior to the date of the application. Accordingly he awarded to petitioner 1 Rs. 167-2-0 and to petitioner 2 Rs. 328 as overtime wages.

3. Against the order passed by the authority an appeal was preferred under S. 17 of the Payment of Wages Act to the District Court at Ahmedabad. The appeal was a consolidated appeal against the order passed in favour of the two petitioners. In appeal the District Court set aside the order passed by the authority and dismissed the application with costs throughout. In the view of the learned District Judge the Ahmedabad Municipal Transport Service was an 'establishment' within the meaning of S. 4 of the Bombay Shops and Establishments Act, and being an establishment of a local authority, it must be regarded as exempt from the operation of that Act. He held on that view that the whole Act including S. 70 did not apply to the petitioners and the petitioners not being workers within the meaning of the Factories Act, were not entitled to claim any overtime wages for work in excess of the period specified in S. 59 of the Factories Act.

4. It is against that order that this application has been filed under Arts. 226 and 227 of the Constitution of India. By this application the two petitioners have prayed for a writ or order quashing the judgment or order of the District Court at Ahmedabad and restoring the order passed by the Payment of Wages authority. In order to appreciate the contention of the petitioners it is necessary to refer to certain provisions of the Payment of Wages Act, the Bombay Shop and Establishments Act and the Factories Act. The Payment of Wages Act IV of 1936 by S. 1(4) applies to persons employed in any factory and to persons employed upon any railway by a railway administration. An employee of the specified description is, by S. 15, entitled to make a claim before the authority appointed under the Act claiming relief against deduction from wages and delay in payment of wages, and the authority has after holding an inquiry to decide the claim. By S. 17 the order passed by the authority is made appealable at the instance of the employer to the District Court, if the total amount directed to be paid as wages and compensation exceeds Rs. 300. The Bombay Shops and Establishments Act provides for regulation of conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, other places of public amusement or entertainment of other establishments. It sets out machinery for registrations of establishments and imposes limitation as to hours of work and provides for closing hours of shops, interval, rest and weekly holidays. 'Establishment' is defined in the Bombay Shops and Establishments Act in S. 2(8) as meaning a shop, commercial establishment residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment to which the Act applies and includes such other establishments as the State Government may, by notification in the official gazette, declare to be an establishment for purposes of the Act. 'Commercial establishment' means according to the Act an establishment which carries on any business, trade or profession of any work in connexion with or incidental or ancillary to, any business, trade or profession and includes a society but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. A shop is defined, in so far as the definition is material, as including any premises where goods are sold either by retail or wholesale, or where services are rendered to customers but does not include a factory, a commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. It is evident from the definitions of 'establishment' 'commercial establishment,' and 'shop' that the legislature desired to exclude factories from the operation of the Bombay Shops and Establishments Act of 1948. The legislature intended by enacting the Act to make provision regulating conditions of work and employment for certain establishments in the nature of shops, commercial establishments, theatres and places of public amusements. The legislature having excluded from the definition of the 'establishment' factories, persons employed in factories would ex facie not be governed by the Bombay Shops and Establishments Act and the provisions thereof would not be applicable to employees in factories. But by S. 70 of the Act, it is provided that nothing in the Bombay Shops and Establishments 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 (Factories Act), apply to such person. By that provision employees employed within the precincts of a factory are excluded from the operation of the Act; but the legislature has directed that employees within the precincts of a factory shall be governed by the provisions of the Factories Act notwithstanding anything contained in that Act. The provisions of the Factories Act primarily apply to workers as defined in that Act and a 'worker' in that Act means a person employed directly or through any agency whether for wages of 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, or the subject of the manufacturing process. The provisions, therefore, of the Factories Act will only apply to persons who are required to perform duties in or connected with manufacturing processes and not to employees working in a clerical or connected with manufacturing processes and not to employees working in a clerical or supervisory capacity. But by s. 70 of the Bombay Shops and Establishments Act, the legislature has provided that the provisions of the Factories Act shall apply to all persons working within the precincts of a factory, that is, the benefit of the Factories Act would be available to all persons employed within the precincts or a factory whether they are workers or not.

5. The petitioners are indisputably employees working within the precincts of factory and even though they are not entitled to the benefit of the Bombay Shops and Establishments Act, 1948, by reasons of the provisions of S. 70, they would, unless specially excepted, by entitled to the benefit of the Factories Act. But S. 4 of the Bombay Shops and Establishments Act exempts certain establishments, employees and other persons mentioned against them in the second column of Sch. II to the Bombay Shops and Establishments Act from the operation of the Act, or certain provisions thereof. Item 3 of Sch. II exempts establishments of local authorities from the operation of all the provisions of the Act. The legislature by the combined operation of S. 4 and Sch. II desired to exempt from the operation of the Bombay Shops and Establishments Act establishments of local authorities. The legislature appears to have intended that the administration of local authorities should not be required to conform to the requirements of the Act. A local authority normally performs function such as providing facilities for educations, lighting and scavenging streets, supplying water, and drainage facilities. It is also authorized to carry on certain business activities, such as maintaining transport services, gas works, electricity supply, etc. For carrying on these activities the local authority has to maintain, besides its offices, stores workshops, repair services, maintance unite, etc. The management and operation of these activities appear to be included in the expression 'establishments' in Sch. II, and to such establishments the provisions of the Bombay Shops and Establishments Act do not apply. The workshop of the Ahmedabad Municipal Transport Service being in a part of the establishment of a local authority, i.e., the Ahmedabad Municipal Corporation, would not be governed by any of the provisions of the Act.

6. It was urged before us that the expression 'establishment' in Sch. II must have the meaning assigned to it by the interpretation clause, and a factory not being included in the definition of 'establishment' the legislature has not excluded factories maintained by local authorities from the operation of the Bombay Shops and Establishments Act. It is conceded that the substantive provisions of the Act which aim at ameliorating the conditions of employees and which put restriction upon employers do not apply to employee in factories, but, it is claimed that by the operation of S. 70, the employees within the precincts of a factory get the benefit of the Factories Act. Now, S. 2 which is the interpretation section, states that in the Act, unless there is anything repugnant in the subject or context, the expression 'establishment' shall have the meaning assigned thereto in Sub-section (8). Ordinarily when the legislature has used the same expression in different parts of a statute, it may be presumed that the expression is intended to have the same meaning, and if the expression is defined, it is intended to have the meaning assigned thereto in the interpretation clause. But in our view, it appears to be clear from the diverse items of Sch. II that the expression 'establishment' was intended to have a wider and a different connotation, from the connotation which it has in the interpretation clause. It may be noted that in the Act as originally passed of the offices of local authorities, the office of the Central Government, the office of the Bombay Port Trust and of certain other bodies were excluded from the operation of the Act by enumeration in Sch. II. The first part of the schedule is headed 'establishment,' and thereafter it proceeds to exclude several types of establishments and offices. It is evident that the legislature was of the view that 'office' were included in the connotation of the expression 'establishments' in Sch. II. But when we turn to the definition of the expressions, 'establishment,' commercial establishments, and 'shop,' it is difficult to accept the view that office described in the schedule could fall within those definitions. It is true that the local Government under notification issued on 24 August 1949, under authority reserved to it by the Act has amended the schedule and has substituted the word 'establishments' for the word 'office' in items 1 to 5 of the Sch II. But in item 6A the expression 'office' has been maintained as office of the Reserve Bank of India. Similarly, in items 6B, 6C, 6E, 6H, 6I and 6K office various bodies are also mentioned. Having regard to their nature, some at least, if not all, of those offices cannot conceivable be called 'establishment' within the meaning of the definition. It would be difficult to hold that an office of a diplomatic representative of a foreign Government (such representative not being a Trade Commissioner or a Consular Officer) can ever be regarded as an 'establishment' within the meaning of S. 2(8). Still the legislature has sought to exclude these offices from the operation of the Act presumably on the view that they are establishments. If such offices were not establishments as contemplated by S. 4 and Sch. II, it was not necessary to incorporate them in the schedule to exclude the operation of the Act to those office. But when the legislature has chosen to incorporate them in Sch. II, the apparent discrepancy between the definition clause on the one hand and S. 4 and the schedule on the other can be resolved only if the expression 'establishment' in the later provision has a connotation different from the connotation which it has in the interpretation clause. The legislature appears to have thought that offices of the various bodies described in Sch. II should not be subject to the provision of the Bombay Shops and Establishments Act, and to effectuate that object these offices were included in the schedule. The word 'office' originally used in items (i), (ii), (iv) and (v) has also been substituted by the word 'establishment' so that the establishments of the Central Government, of the State Government and or certain other bodies are also exempt from the operation of the Act. That amendment in Sch. II appears to have been made to widen the scope of the exemption and not to restrict it. The local Government having substituted the expression 'establishments' for the expression 'office' in items 1 to 5, it appears that the legislature intended the offices and other places where the activities of the local authorities were carried on were not subject to the provisions of the Bombay Shops and Establishments Act, and if that view is correct, none of the provisions of the Bombay Shops and Establishments Acts would apply to offices and other places where the activity of the local authority is carried on. A workshop of the Ahmedabad Municipal Transport Service is a part of the establishment of a local authority and the provisions of the Bombay Shops and Establishments Act do not therefore apply to that workshop. If those provisions do not apply, then, in our judgment, relying upon the provision of S. 70 of the Act, it is not open to the petitioners to make a claim on the plea that by S. 70 the Factories Act has been so amended as to enable them to claim overtime wages even though under the unamended Factories Act they are not entitled to overtime wages.

* * * * * *

7. The petitioners have substantially failed on the question that they had sought to raise before this Court. They will, therefore, pay the costs of respondent 1. We further modify the order of costs passed by the learned District Judge and direct that the parties do bear own costs in the District Court and in the trial court.


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