1. This is a petition under Article 226 of the Constitution filed by an employer who runs the business of manufacturing cloth on powerlooms seeking to quash and set aside the order passed by the first respondent on May 15, 1974. The short facts necessary for the purpose of disposing of this application are, that respondent No. 2 was a piece-rated worker in the employment of the petitioner, and was, as such, entitled to get wages on the out-turn of his work at the rate of rupee 1 per hundred yards of yarn whenever he was present and worked in the establishment. Respondent No. 2 filed an application under Section 33C(2) of the Industrial Disputes Act, 1947, before the first respondent who presided over the Labour Court at Sholapur, claiming that he should be paid at the rate of Rs. 8 per day for the 200 weekly holidays between January 1, 1968 and December 31, 1972 under Section 18(3) of the Bombay Shops and Establishments Act, 1948. In the Labour Court, the present petitioner took up the defence that though his concern was governed by the provisions of the Shops and Establishments Act, 1948, the powerloom industry was exempted from the provisions of Section 18 of that Act, and the second respondent was, therefore, not entitled to be paid for the weekly holidays. There were other defences which were also raised by the present petitioner, on merits, in the Labour Court, but it is not necessary to deal with the same as the question referred to above was tried by the first respondent as a preliminary issue, and he held that on a true construction of the relevant provisions of the Shops and Establishments Act, 1948, the second respondent, as a piece-rated worker, was entitled to be paid for the weekly holidays. It is that order of the first respondent that is sought to be challenged in the present petition on the ground that the decision of the first respondent was vitiated by an error of law apparent on the face of the record in regard to the plain construction of the relevant provisions of the Bombay Shops and Establishments Act.
2. The question that arises before us has to be decided purely as a question of construction of the relevant provisions of the Shops and Establishments Act, 1948, and the facts which are necessary for the purpose of deciding that question are not in dispute. It is not in dispute that the second respondent is an employee of the petitioner, that he is employed on a piece-rated wage, and that he powerloom industry is exempted from the provisions of Section 18 of the Act. the relevant provisions that the Court is called upon to construe in the present case are Sections 4 and 18 of the Act, and Entry No. 59 in Schedule II to the Act. there are also some other entries in the said Schedule which were referred to in the course of the arguments before us, but I do not consider it necessary to deal with those entries, as the question which we are called upon to consider can, in my opinion, be decided on a plain reading of the provisions referred to above. Sub-section (1) of Section 18 enacts that every shop and commercial establishment must remain closed on one day of the week, and Sub-section (3) of the said section is in the following terms:
(3) 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.
Section 4 of the Act, however, provides that the provisions of the Act mentioned in the third column of Schedule II thereto are not to apply to the establishments, employees and other persons mentioned against them in the second column of that Schedule, and the proviso to Section 4 empowers the State Government, by notification, to alter or amend the entries in Schedule II. Entry 59 in Schedule II to the Act is in the following terms:
_________________________________________________________________________________Serial Establishments, employees or Provisions of the ActNo. other persons(1) (2) (3)_________________________________________________________________________________59 Hand-loom and power-loom Sections 13(i) and 18 establishments. subject to the conditionthat the employees concerned are granted one day holidayin a week without making anydeductions from theirwages on account thereof._________________________________________________________________________________
It may be mentioned that the Court is not concerned in the present case with Section 13 of the Act to which col. (3) of that entry refers, but the contention of Mr. Jagirdar who appeared for the petitioner was that the condition, subject to which the exemption from Section 18 has been granted to power-loom establishments, is so worded that it is applicable only to workers other than those employed on daily wage or those who are paid a piece-rated wage. In support of that contention, he relies strongly on the use of the word 'concerned' which governs the word 'employees' in the third column of entry No. 59, and also on the word 'deductions' which occurs in the same column of the same entry. Mr. Jagirdar pointed out that the word 'deductions' occurs in Sub-section (3) of Section 18 only in the very first part thereof and does not occur, and indeed cannot occur, in regard to the second or the third part of that sub-section which deals with the persons employed on a daily wage or employees paid a piece-rated wage. On first impression, I was not inclined to accept that contention of Mr. Jagirdar, for unless there is some reason or some principle on which, for the purpose of granting exemption from Section 18, a distinction should be drawn between persons employed on a daily wage and employees who are paid a piece-rated wage on the one hand, and other employees on the other hand1, it might become necessary to give the word 'deductions' occurring in the third col. of entry No. 59 a wider connotation than it would normally bear. On a careful analysis of Sub-sections (1) and (3) of Section 18, and entry 59 to Schedule II, it is, however, clear to me that there is good reason why such a distinction should be made. The effect of exempting power-loom establishments from the applicability of Sub-section (1) of Section 18 is that they need not remain closed on any day of the week, but could remain open on all the 365 days of the year. If no special provision was made for employees other than those working on a daily wage or piece-rated wage, they would have to work for all the 365 days that a power-loom establishment may choose to remain open, unless they themselves took a holiday in which case they would have to be subjected to deduction from their wages in respect thereof. No such consideration would arise in the case of those employed on a daily wage or piece-rated wage, for both these categories of workers could remain absent as often as they liked. Since they are only to be paid either according to the number of days they worked, or the amount of work they turned out, they could work for as many days as they pleased and be paid wages accordingly. No provision at all was required to be made for providing a weekly holiday for them. That being the basic distinction between those employed on a daily wage and piece-rated workers on the one hand, and the other workers on the other, a special provision had to be made in col. (3) of entry No. 59 only in respect of workers who were neither daily wage employees nor piece-rated employees, that they should be given one day's holiday in a week, and further that they should be paid for that weekly holiday. The twin purpose of giving them a day off and of not affecting their fixed earnings could thus be achieved. Viewed in this context, I am of opinion that the word 'deductions' which occurs in col. (3) of entry No. 59 was the only appropriate word that could have been used in order to restrict the applicability of that limitation in the manner stated above. As Mr. Jagirdar has rightly urged, there would be no question of making any 'deductions' either in respect of those employed on a daily wage, or in respect of those who are paid a piece-rated wage. I, however, do not accept Mr. Jagirdar's contention that the word 'concerned' also leads to that conclusion. As a matter of plain language, the word 'concerned' only means, 'affected, interested or involved,' and those indeed are the meanings which are given to that word in Murray's Oxford English Dictionary. The persons who are affected by the exemption would be all the three categories of workers, and, under those circumstances, the use of the word 'concerned' in the said col. (3) cannot be of any assistance for the purpose of ascertaining whether the provisions of that column are to be restricted to one or the other class of employees only. The word 'deductions' has, however, been appropriately used in the third column of entry No. 59 as the Legislature clearly had intended to make a special provision in respect of employees other than daily wage employees or piece-rated employees. In regard to the employees for whom that special provision was intended to be made in col. (3), the question would be one not of computation of wage according to the time or turnover of work, but was one as to whether or not any deduction was to be made from their fixed wages.
3. The first respondent has in the impugned order sought to rely on a decision of a division Bench of this Court in the case of Sitaldas v. Kalelkar (1962) 65 Bom. L.R. 10, but the question which arose in that case was a different one. The Court was concerned in that case with the interpretation of the proviso to Sub-section (3) of Section 18 with which we are not concerned in the present case. What was held in Sitaldas case (at p. 12) was that the intention of the Legislature was that an employee should receive wages for the day on which the shop must remain closed under Sub-section (1) of Section 18, provided he has been in continuous employment for not less than six days in that week, and that the said proviso applied both to workers who are employed on a daily wage as well as to those who are paid a piece-rated wage. We are not concerned in the present case with the question as to whether the proviso to Sub-section (3) of Section 18 applies to those who are paid a piece-rated wage also. The question for our consideration is, whether the exemption in the third column of entry No. 59 applies to those who are paid a piece-rated wage. That is a wholly different question and, in my opinion, the first respondent has committed an error of law apparent on the face of record in misconstruing the terms of col. No. (3) of entry No. 59, as well as the decision of this Court in Sitaldas case which really had no application to the present case. I would, therefore, strike down the impugned order.
Per Sapre J.,
By the Court:
4. We grant writs as well as orders under Articles 226 and 227 of the Constitution quashing and setting aside the first respondent's order dated May 15, 1974, and direct that the second respondent's application under Section 33C(2) of the Industrial Disputes Act, 1947 be dismissed. We, however, make no order as to costs, as the petitioner, very fairly, does not press for costs.