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Jitendra Amulakhrai Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR512
AppellantJitendra Amulakhrai
RespondentThe State of Gujarat and anr.
Excerpt:
- - the conviction relates to the failure of the applicant to observe the rules in regard to a person who is a police watchman by name amirmiya.v.b. raju, j.1. this revision is by the agent of the central bank of india who challenges his conviction under sections 52(f) and 52(b)(bombay shops and establishments act, 1948) for contravention of rule 18(10) of the rules framed under the act section 63(1) and section 18(2) of the act respectively. the conviction relates to the failure of the applicant to observe the rules in regard to a person who is a police watchman by name amirmiya. it appears that the central bank had requested the district superintendent of police of ahmedabad to provide a watchman for the bank. the district superintendent of police sent some names of retired policemen to the central bank of india for selecting one of them. those persons were interviewed by the bank authority and amirmiya was selected for the.....
Judgment:

V.B. Raju, J.

1. This revision is by the Agent of the Central Bank of India who challenges his conviction under Sections 52(f) and 52(b)(Bombay Shops and Establishments Act, 1948) for contravention of Rule 18(10) of the Rules framed under the Act Section 63(1) and Section 18(2) of the Act respectively. The conviction relates to the failure of the applicant to observe the Rules in regard to a person who is a Police Watchman by name Amirmiya. It appears that the Central Bank had requested the District Superintendent of Police of Ahmedabad to provide a watchman for the Bank. The District Superintendent of Police sent some names of retired policemen to the Central Bank of India for selecting one of them. Those persons were interviewed by the Bank authority and Amirmiya was selected for the post of watchman. The District Superintendent of Police was informed accordingly by the letter Exhibit 20. Thereupon the District Superintendent of Police issued an order dated 24th January 1959 appointing Amirmiya as Ramoshi in the Central Bank of India Ltd.Shahpur Branch Ahmedabad with effect from 1st February 1959. That order is at Exhibit 16. It is also in evidence that the hours of work of Amirmiya were fixed by the Police Commissioner and that the appointment order is also passed by the Police Commissioner. Amirmiya is also paid his salary by the Police Department although it is in evidence that the Bank pays to the Police Department Amirmiya is supplied with the dress by the Police Commissioner and the Police Commissioner exercises powers to grant leave to Amirmiya and to accept his resignation. It is the Police Commissioner who exercises the powers of punishing the watchman. In spite of these admissions the learned Magistrate held that Amirmiya was an employee of the Agent of the Bank and not of the Police Commissioner and that the provisions of the Act are applicable to the case. He held that Amirmiya has worked overtime as he worked from 7.00 P.M. to 7.00 A.M. The learned Magistrate held that the Agent of the Bank had not paid overtime wages to Amirmiya. He therefore held that the accused had committed a breach of Section 63(1) of the Act and was therefore liable to be punished under Section 52(f) of the Act. He also held that the Agent of the Bank had not given any holiday during the week from 19th February 1961 to 25th February 1961 to Amirmiya as required by Section 18(1) of the Act and that he had contravened Section 18(2) of the Act. He therefore held that the Agent of the Bank was guilty of the offence under Sections 52(f) and 52(b) of the Act. The learned Magistrate also convicted the Agent of the Bank for contravening Rule 18(10) of the Rules framed under the Act.

2. Rule 18(10) of the Rules framed under the Act reads as follows:

(10). In any register or record which an employer is required to maintain under these rules the entries relating to any day shall be made on such day and shall be authenticated under the signature of the employer or the Manager.

Section 18(1) of the Act reads as follows:

(1). Every shop and commercial establishment shall remain closed on one day of the week. The employer shall prepare a calendar or list of such closed days at the beginning of the year notify such calendar or list to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the shop or commercial establishment.Section 18(2) of the Act reads as follows:

(2). It shall not be lawful for an employer to call an employee at or for an employee to go to his shop or commercial establishment or any other place for any work in connection with the business of his shop or commercial establishment on a day on which such shop or commercial establishment remains closed.Section 63(1) of the Act reads as follows:(1). Where an employee in any establishment other than a residential hotel restaurant or eating house is required to work in excess of the limit of hours of work he shall be entitled in respect of the overtime work to wages at the rate of one and a half times his ordinary rate of wages.

3. It is contended that it is sufficiently proved that Amirmiya is an employee and that the Agent of the Bank is an employer and that if Amirmiya is an employee and the Agent of the Bank is an employer the convictions are justified.

4. An employee is defined in Section 2(6) of the Act as follows:

(6). Employee means a person wholly or principally employed in and in connection with any establishment and includes an apprentice but does not include a member of the employers family;

An employer is defined in Section 2(7) of the Act as follows:

(7). Employer means a person owning or having ultimate control over the affairs of an establishment;

5. No doubt in view of these definitions Amirmiya would be an employee and the Agent of the Bank would be an employer. But for the purposes of Sections 18 and 63 of the Act and Rule 18 of the rules it is not sufficient that there is an employer and there is an employee. For the purposes of these sections and the Rules the employee must bean employee of the employer. It is not sufficient that the Agent of the Central Bank is an employer and that Amirmiya is an employee because a watchman of the Bank of India would also be an employee. The Agent of the Bank of India would also be an employer. There is no duty cast on the Agent of the Central Bank with regard to the employees of the Bank of India. There is no duty cast upon the Agent of the Bank of India in regard to the employees of the Central Bank. For instance if we read Rule 18(6) it provides that the employer shall provide each employee with a book called Leave Book. It does not mean that the employer shall provide each employee employed in the whole of Ahmedabad with a Leave Book. It only means that the employer shall provide each of his employees with a Leave Book. Similarly the Rule which requires an employer to pay overtime wages to an employee has obvious reference only to his employee and not to all persons employed in the whole of Ahmedabad and the whole of India.

6. It is therefore necessary to see whether Amirmiya is an employee of the employer. It is however contended that the word establishment is used in the definition of the employee and also employer. But unfortunately the words used are any establishment in the definition of the employee and the words used in the definition of an employer arena establishment. The definition of employee does not read thus:

Employee of an establishment means a person wholly or principally employed in and in connection with that establishment and includes an apprentice but does not include a member of the employer's family.

The definition of 4 employer also does not read thus:

Employer of an establishment means a person owning or having ultimate control over the affairs of that establishment.

The idea of an employee of a particular establishment and the employer of a particular establishment are absent in the definitions. Rule 18(6) does not read thus:

The employer of an establishment shall provide each employee of that establishment with a book called Leave Book etc.

7. With regard to Amirmiya also the Agent of the Central Bank is not an employer because on the facts of the case the Agent of Central Bank does not have ultimate control over the affairs of Amirmiya. The power to grant him leave the power to punish him and the power to accept his resignation do not vest in him but vest in the Police authorities. Therefore with regard to Amirmiya the agent of the Central Bank is not an employer.

8. On the facts proved and admitted therefore Amirmiya is not an employee of the Agent of the Central Bank. The Agent of the Central Bank is not employer of Amirmiya. The Agent of the Central Bank cannot fix the hours of work of Amirmiya. It is the Police authorities who fix his hours of work. The Agent of the Central Bank cannot therefore be penalised for taking overtime work from Amirmiya and not paying him overtime wages. The same observations apply to providing a holiday. The Central Bank does not pay Amirmiya directly any wages.

9. For all these reasons the conviction and sentence passed upon the applicant are set aside. Fine if paid to be refunded.


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