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Sitaldas D. Ramchandani Vs. Kalelkar (B.S.) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 1630 and 1631 to 1635 of 1961
Judge
Reported in(1963)65BOMLR10; [1963(7)FLR19]; (1963)ILLJ395Bom; 1963MhLJ6
ActsBombay Shops and Establishments Act, 1948 - Sections 18 and 18(3)
AppellantSitaldas D. Ramchandani
RespondentKalelkar (B.S.)
Excerpt:
.....sections 18(5) proviso, 18(1), 14(1), 24(1), 31(1), 2(5) - payment of wages to employees for weekly holidays--condition to be satisfied by employees to be entitled to such wages--proviso to section 18(3), interpretation of.;under section 18(3) of the bombay shops and establishments act, 1948, an employee is 'entitled to wages for the day for which the establishment remains closed in any week under section 18(1) of the act, provided he has been employed for six days continuously in that week.;the question whether a worker was employed for six days continuously in any week will have to be decided in each case on the facts and circumstances of that case.;under section 18(3) of the act the only condition to be satisfied is about the period of employment and not about having worked a..........as the respondents, are his employees. the respondents had made applications to the payment of wages authority, in which they claimed wages for the weekly holidays during the period from 1 november, 1958 to 31 october 1959, under s. 18(3) of the bombay shops and establishments act, 1948. sub-section (1) of s. 18 states that every shop and commercial establishment shall remain closed on one day of the week. sub-section (3) is in the following terms : 'no deduction shall be made from the wages of any employee in a shop or commercial establishment on account of any day on which it has remained closed under this section. if any employee is employed on a daily wage, he shall nonetheless be paid his daily wage for the day on which such shop or commercial establishment remains closed. if.....
Judgment:

Chainani, C.J.

1. The petitioner in these petitions is the employer. Respondents 2, to whom I will refer hereafter as the respondents, are his employees. The respondents had made applications to the Payment of Wages Authority, in which they claimed wages for the weekly holidays during the period from 1 November, 1958 to 31 October 1959, under S. 18(3) of the Bombay Shops and Establishments Act, 1948. Sub-section (1) of S. 18 states that every shop and commercial establishment shall remain closed on one day of the week. Sub-section (3) is in the following terms :

'No deduction shall be made from the wages of any employee in a shop or commercial establishment on account of any day on which it has remained closed under this section. If any employee is employed on a daily wage, he shall nonetheless be paid his daily wage for the day on which such shop or commercial establishment remains closed. If any employee is paid a piece-rated wage, he shall nonetheless be paid his wage for the day on which the shop or commercial establishment remains closed, at a rate equivalent to the daily average of his wages for the days on which he has actually worked during the six days preceding such closed day, exclusive of any earning in respect of overtime :

Provided that nothing in this sub-section shall apply to any person whose total period of continuous employment is less than six days.'

2. Under the proviso an employee is not entitled to wages for the day on which the shop is closed, which has been referred to by the Payment of Wages Authority as the weekly off day, if his total period of continuous employment is less than six days. The respondents contended before the authority that after an employee has put in six days of continuous employment, he, is entitled to wages for the weekly off day in every subsequent week, irrespective of the number of days on which he works in that week. The petitioner, on the other hand, contended that in order to get wages for the weekly off day, the employee must work for six full days in a week, that is, for 48 hours. Sub-section (1) of S. 14 states that no employees shall be required or allowed to work for more than 48 hours in any week. It was urged on behalf of the petitioner that unless an employee has worked for 48 hours in a week, he cannot claim wages for the weekly off day in that week. In Emperor v. Hasanali Gulamali [(1941) 44 Bom. L.R. 50] the question arose about the interpretation of S. 17 of the Act of 1939. Sub-section (1) of this section stated that every person employed in a restaurant, eating house, theatre or any other place of public amusement or entertainment shall be given at least one day in a week as a holiday; provided that nothing in this sub-section shall apply to any person whose total period of employment is less than six days. At p. 52 it was observed :

'... The first clause refers to one day in a week being given as a holiday and the proviso lays down that those who have worked for six days would be entitled to such a holiday. The meaning is that those who have worked for six days in any week would be entitled to one day as holiday; and the second provides that the holiday shall be with pay.'

3. The Payment of Wages Authority relied on this decision and held that an employee is entitled to his wages for the weekly holiday, on which the establishment remains closed, provided he has worked for six days in that week, and that if for any reason he does, not work or is not able to work on six days that is to say, if he is absent in the week for even one whole day, he is not entitled to wages for the weekly holiday in that week.

4. The authority then proceeded to consider for how many hours an employee must work every day for the six days of his attendance in order to be entitled to the wage for the weekly holiday. The authority has laid down the following formula :

'If the employee has worked for 48 hours on the six days of his attendance in the week, he would be entitled to this full daily wage in the weekly holiday on which the establishment remains closed. If he has not worked for 48 hours, but less, take his average hours of work per day during the week and he would be entitled to the proportionate daily wage on the weekly holiday the full daily wage being for 8 hours' work.'

5. In accordance with this formula, the authority ascertained the amount due to each respondent and directed the payment of that amount to him. We have been informed that the orders made by the authority have been carried out and that each respondent has been paid the amount awarded to him.

6. I will first deal with the argument, which has been advanced on behalf of the respondents, by Mr. Nargolkar, that the authority was wrong in holding that an employee must work for six days in a week, before he can claim wages for the weekly off day. He has argued that the proviso only requires that the total period of continuous employment shall be six days and that after a worker has served continuously for six days, he is entitled to wages for the weekly off day in subsequent weeks, irrespective of the number of days for which he works in those weeks. Section 18 applies to shops and commercial establishments. Section 24 contains similar provisions in regard to residential hotels, restaurants and eating houses. Sub-section (1) of this section states that every employee in a residential hotel, restaurant or eating place shall be given at least one day in a week as a holiday, provided that nothing in this sub-section shall apply to an employee whose total period of employment in any week is less than six days. Similar provisions in regard to theatres and other places of public amusement and entertainment are contained in S. 31. sub-section (1) of this section is as follows :

'Every employee in a theatre or other place of public amusement or entertainment shall be given at least one day in a week as a holiday :

Provided that nothing in this sub-section shall apply to an employee whose total period of employment in any week is less than six days.'

7. It will be noticed that the language used in the proviso to Sub-section (1) of S. 24 and in the proviso to Sub-section (1) of S. 31 is different from that used in the proviso to Sub-section (3) of S. 18. It has, therefore, been contended by Mr. Nargolkar that under S. 18(3) it is not necessary that an employee must be employed for six days in a week, before he can claim wages for the weekly holiday. It seems to us that Sub-section (3) of S. 18 must be read along with Sub-section (1) of this section. If these two provisions are read together, the intention of the legislature will be clear that an employee should receive wages for the day, on which the shop must remain closed under sub-section (1), provided he has been in continuous employment for not less than six days in that week. This inference is also supported by the provisions relating to piece rated workers. Such a worker is to be paid for the day on which the establishment remains closed at the rate equivalent to the daily average of his wages for the days on which he has actually worked during the six days preceding such closed day. The six days, which are to be taken into consideration, are the six days preceding the closed holiday. A piece rated employee must, therefore, be in employment for six days in the week in respect of which he claims the benefit of this section. The proviso applies both to workers, who are employed on a daily wage and to those who are paid a piece-rated wage. Consequently the condition about being employed for six days in the particular week will also apply to employees employed on a daily wage. Even though the language used in the proviso to Sub-section (3) of S. 18 is different from that used in the corresponding provision in Ss. 24 and 31, it is not likely that the legislature wanted to give higher rights to those working in shops than to those employed in other establishments such as hotels and restaurants. We do not also think that the legislature intended that even if a worker is employed for one day in a week, he should receive wages for the weekly off day merely because some months or years previously his period of continuous employment was six days or more.

8. We are, accordingly, of the opinion that an employee is entitled to wages for the day, for which the establishment remain closed in any week under S. 18(1), provided he has been employed for six days continuously in that week.

9. It also seems to us that the authority was wrong in considering for how many hours an employee must work in order to be able to claim the wage for the weekly off day. The authority has lost sight of the fact that the proviso refers to days and not to hours. It also talks of employment, not to work done on any day or during a week. It does not say that an employee must work for a certain number of hours on each of the six days or in the whole week, in order that he may be entitled to the wage for the weekly off day. The word 'day' is defined in Clause (5) in S. 2 of the Act as meaning the period of 24 hours beginning at midnight. It is not defined as meaning a period of eight hours. The authority was, therefore, wrong in taking the hours of work as the basis. The only condition be satisfied is about the period of employment and not about having worked a particular number of hours in the week or on each of the six days other than the closed day. If, therefore, a worker is employed in any week for six days continuously, he will be entitled to wages for the day on which the establishment remains closed in that week under Sub-section (1) of S. 18. The question whether a worker was employed for six days continuously in any week will have to be decided in each case on the facts and circumstances of that case.

10. In the view which we have taken, the orders made by the authority would have been set aside and the matters would have been remanded to the authority for further enquiry. Both parties are, however, agreed that as the respondents have already been paid the amounts awarded to them, the orders made by the authority need not be disturbed. The parties were more anxious to obtain a decision in regard to the correct interpretation of the proviso to S. 18(3), as a large number of other applications, in which the same question has arisen, are still pending.

11. The rule in each application will, therefore, be discharged. The petitioner to pay Rs. 100 in all to respondents 2 in these petitions, except petition No. 1631 of 1961, for their costs.


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