1. The petitioners are a limited liability company incorporated under the Indian Companies Act. They carry on the business of manufacturing and selling cotton textile goods. The petitioners have two factories in Ahmedabad : one is popularly known as the Calico Mills and the other as the Jubilee Mills. These two factories are situated in different localities separated by a distance of about four miles. For transporting raw materials and finished goods from one factory to the other the petitioners maintain a fleet of motor lorries and for driving those motor lorries and for driving those motor lorries they employer motor-drivers. On 21 April, 1948, an award was made by the industrial court standardizing the wages of all workers employed in the textile industry in the town of Ahmedabad. This award did not apply to lorry-drivers. By another award dated 1 November, 1951 the industrial court fixed the minimum wages payable to the lorry-drivers at Rs. 48 per month, and regarding the hours of work it was directed by the industrial court :
'... no employees of this class (lorry-drivers) should remain at one time at the disposal of his employer (excluding the time for lunch but treating the periods immediately prior to and following the lunch time as one period) for more than 1 1/2 hours and that if any work has to be done in excess of this period the driver shall be paid overtime for such work.'
2. The petitioners, at the time when this award was made, were not members of the Ahmedabad Millowners' Association which was a party to the industrial dispute. But this award was, by the notification dated 30 April, 1954, issued by the Government of Bombay, applied to the petitioners.
3. lications were submitted by respondents 1, 2 and 3 who were motor-lorry drivers employed by the petitioners to the Authority under the Payment of Wages Act, Ahmedabad, claiming that as they were required to work and had worked between 1 January and 31 October, 1954 for more than eight hours a day they were entitled under the provisions of the Factories Act of over-time compensation at the rates prescribed by S. 59 of the Factories Act. The Authority under the Payment of Wages Act by his order, dated 10 September, 1955, awarded to the three claimants certain amounts as overtime compensation. Against the orders made by the Authority under Payment of Wages Act appeals were preferred to the District Court, Ahmedabad. The appellate authority confirmed the orders passed by the Authority under the Payment of Wages Act. Against the order passed by the appellate authority this application has been filed under Arts. 226 and 227 of the Constitution of India and the petitioners are challenging the legality of the orders passed by the Authority under the Payment of Wages Act.
4. V. Gupte, for the petitioners, contends that the motor-lorry drivers employed by the petitioners are not workers employed in or within the precincts of the factories and they are, therefore, not entitled to make an application for recovering delayed wages. Counsel also contends that there being in force as award which was made by a competent industrial tribunal, so long as the award is outstanding, the lorry-drivers employed by the petitioners cannot ignore that award and claim compensation otherwise than under the award. In order to appreciate these contentions, it may be necessary to refer to the relevant provisions of the Factories Act (Act No. 63) of 1948. The expression 'factory' is defined by S. 2(m) of the Act as meaning 'any premises including the precincts thereof' where the number of workers prescribed thereby working. A 'worker' is defined by S. 2(l) as meaning :
'a person employed, directly or through any agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.'
5. By S. 51 of the Act weekly hours of work are prescribed and it is provided that no adult worker shall be recruited or allowed to work in a factory for more than 48 hours in any week. By S. 54 it is provided that subject to the provisions of S. 51, to adult worker shall be required or allowed to work in a factory for more than nine hours a day. By S. 55 intervals for rest are prescribed. By S. 59(1) it is provided that 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, be entitled to wages at the rate of twice his ordinary rate of wages.
6. By S. 70 of the Bombay Shops and Establishments Act, 1948, it is provided :
'Nothing in this 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, 1948 shall, notwithstanding anything contained in the said Act, apply to such person.'
7. The effect of this provision is to extend the benefit of the Factories Act to workers not only working in a factory but employed in or within the precincts of a factory notwithstanding anything contained in the Factories Act.
8. The first question which falls to be determined in whether the motor-lorry driver employed by the petitioners who applied to the Authority under the Payment of Wages Act were employed in or within the precincts of the factories of the petitioners so as to be entitled to the benefits of the Factories Act.
9. The appellate authority has in Para. 22 of his judgment set out the facts found by him. He has observed that the motor-lorry drivers had to report to work at the mill at 8 a.m. had to clean the trucks and take charge of the trucks which were then loaded and then had to take to the Jubilee Mills and when they were unloaded to bring them back to the Calico Mills. He further observed that this process went on right upto 6-30 p.m. He also observed that during the time the trucks were being loaded and unloaded the drivers could not leave the mill premises, i.e., except for the period which was actually employed in making a trip from the Calico Mills to the Jubilee Mills and back, the remaining period was spent by the drivers 'in the mill premises or mill precincts.' In the view of the appellate authority lorry-drivers may or may not be doing actual work when trucks were being loaded or un-loaded, but they were available for work and were on duty within the mill premises or mill precincts, and therefore, the motor-drivers were working for the major portion of their duty in the mill premises and they must be deemed to have been employed in a factory.
10. Mr. Gupte, on behalf of the petitioners, contends that the motor-lorry drivers were primarily employed for driving motor vehicles; and that duty, contends counsel, was required to be performed substantially on the public road leading from Calico Mills to the Jubilee Mills and accordingly they were not employed, 'in or within the precincts' of the factories. We have already referred to the definition of the expression 'worker' given in S. 2(l) of the Factories Act. A worker is not merely a person who is employed in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process the expression 'worker' includes a person who is employed 'in any other kind of work incidental to or connected with the manufacturing process.' Provided the work is incidental to or connected with the manufacturing process or the subject of the manufacturing process, the person employed will be deemed to be a workers. It is not suggested and it cannot be suggested, that because in the course of employment a workers is required to go out of the factory he ceases to be a worker. On the definition of the expression 'worker' as contained in S. 2(l) of the Factories Act, even if the person employed is required to perform the duties outside the precincts of the factory; provided the work that he performs is incidental to or connected with the manufacturing process or the subject of the manufacturing process he will be deemed to be a worker.
11. There is a clear finding recorded by the appellate authority that the major portion of the duty of the motor-lorry drivers was in the mill premises and they must be deemed to be employed in the factory. In our judgment, the finding of the appellate authority is on a question of fact and must be regarded as binding in this application. If the motor-lorry drivers are employed for the major portion of their duty in the mill premises, evidently they will be entitled by virtue of the provision contained in S. 70 of the Bombay Shops and Establishment Act, to the same benefits as the workers employed in factories are entitled to under the Factories Act. By S. 1(4) of the Payment of Wages Act, 1936, it is provided that the Act applies inter alia to the payment of wages to persons employed in any factory. If, by virtue of the provision contained in S. 70 of the Bombay Shops and Establishments Act, the motor-lorry drivers employed by the petitioners were entitled to the same benefits to which persons employed in any factory were entitled they are, in our judgment, entitled to apply for recovery of overtime compensation by the combined reading of Ss. 1(4) and 15 of the Payment of Wages Act. In our view, therefore, there is no substance in the contention that the Authority under the Payment of Wages Act was not competent to entertain the applications.
12. The second contention that the only remedy which was available to the motor-lorry drivers was to enforce the terms of the award, dated 1 November 1951, and applied to them by the notification, dated 30 April, 1954, has also, in out judgment, no substance. Indisputably under S. 114 of the Bombay Industrial Relations Act, 1946, a registered agreement, or a settlement, submission or award is binding upon all person who are parties thereto and to whom it may be made applicable and by this award the minimum remuneration to be paid to a worker for remaining at the disposal of the employer for 10 1/2 hours a day. It is also not disputed that this award has not been determined in the manner prescribed by S. 116 of the Bombay Industrial Relations Act, and the award may be regarded as operative. But on that account we are unable to hold that the claim made by the motor-lorry drivers for overtime compensation is not maintainable. They claim remuneration payable to them under the contract of employment. Upon the contract of employment are superadded the conditions which are prescribed by the Factories Act, i.e., that the worker shall not be required or allowed to work for more than nine hours in any day and not more than 48 hours in any week and that if the workers are required to work overtime they are entitled to compensation at the rate prescribed by S. 59 of the Factories Act. The right which is not claimed by the workers is one conferred upon them by S. 59. The award prescribed a minimum remuneration of Rs. 48 per month and for earning the remuneration the worker has to remain at the disposal of the employer for the prescribed number of hours per day; but the award does not take away the liberty of contract with regard to the remuneration payable. If the remuneration is fixed by a contract and upon the contract are superadded certain conditions by the provisions of the Factories Act, even if the award prescribes the minimum remuneration payable to a worker and the maximum number of hours of work, in our judgment, the right to claim overtime compensation or wages under the Factories Act may not be deemed to be impaired thereby. If there is any inconsistency between the award and the provision of S. 59 of the Factories Act, to that extent alone the award may be deemed to be superseded by the Act.
13. In our view, therefore, the Courts below were right in a warding the overtime compensation to the three motor-lorry drivers employed by the petitioners.
14. In that view of the case, the rule will stand discharged with costs.