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Cambay Municipality Vs. Vijaykumar Rasiklal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR857
AppellantCambay Municipality
RespondentVijaykumar Rasiklal and ors.
Cases ReferredEdward Mills Co. Ltd. Beawar and Ors. v. State of Ajmer and Anr.
Excerpt:
- - in law, the preliminary objection raised by miss shah is well-founded. in a situation of this type, ordinarily, there are three courses open and whichever suits the situation better can be adopted. where any court is satisfied that a case pending before it involves a question as to the validity of any act, ordinance or regulation or of any provision contained in an act, ordinance or regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such act, ordinance, regulation or provision is invalid or inoperative, but has not been so declared by the high court to which that court is subordinate or by the supreme court, the court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the.....s.h. sheth, j.1. cambay municipality and its inspector for shops and establishments have filed this petition under the following circumstances.2. respondents nos. 1 to 49 are owning and operating power-looms in the city of khambhat. they have been employing workmen on piece-rate basis. petitioner no. 2 inspected the premises where these power-looms are situate and found that respondents nos. 1 to 49 had not been paying to their workmen for the weekly rest day under section 18 of the bombay shops and establishments act, 1948. petitioner no. 2, therefore, filed 2227 complaints against 49 power-loom owners in the court of the judicial magistrate, first class, at khambhat. the learned magistrate held in all those cases by a common order that section 18 of the bombay shops and establishments.....
Judgment:

S.H. Sheth, J.

1. Cambay Municipality and its Inspector for shops and establishments have filed this petition under the following circumstances.

2. Respondents Nos. 1 to 49 are owning and operating power-looms in the city of Khambhat. They have been employing workmen on piece-rate basis. Petitioner No. 2 inspected the premises where these power-looms are situate and found that respondents Nos. 1 to 49 had not been paying to their workmen for the weekly rest day under Section 18 of the Bombay Shops and Establishments Act, 1948. Petitioner No. 2, therefore, filed 2227 complaints against 49 power-loom owners in the Court of the Judicial Magistrate, First Class, at Khambhat. The learned Magistrate held in all those cases by a common order that Section 18 of the Bombay Shops and Establishments Act, 1948 (Bombay Act No. LXXIX of 1948) was repugnant to Section 13 of the Minimum Wages Act, 1948 and was, therefore, void. He, therefore, dropped all the complaints under Section 258 of the Code of Criminal Procedure, 1973. This common order recorded by the learned Magistrate in 2227 complaints has been challenged by the petitioners in this petition.

3. Miss Shah who appears on behalf of respondents Nos. 1 to 49, except respondent No. 32, has raised a preliminary objection to the maintainability of this position. According to her, one petition against orders recorded in 2227 complaints- though it may be a common order- is not maintainable. It appears from the record that the learned Magistrate recorded his finding in favour of the accused in 2227 complaints and directed that one copy of his order shall be placed on record in each one of those complaints. In law, the preliminary objection raised by Miss Shah is well-founded. 2227 orders- though identical in character- cannot be challenged in one petition filed under Articles 226 and 227 of the Constitution. The correct procedure is that the petitioners must file- in order to get rid of them- 2227 petitions and pay Court fees in all of them. In view of this situation which developed on account of the preliminary objection raised by Miss Shah, Mr. Zaveri who appears on behalf of the petitioners asked us to decide this petition as if it is directed against the order in any one case and exercise our suo motu jurisdiction under Section 397 of the Code of Criminal Procedure. In a situation of this type, ordinarily, there are three courses open and whichever suits the situation better can be adopted. The first course H that the petition is heard against one order recorded in one criminal case and the challenge to the order recorded in the rest of the cases is dropped. Mr. Zaveri did not agree to this course. The second course which is open is that the petitioners pay Court-fees in this petition on the basis that there are 2227 petitions and to treat this petition against the order recorded in each one of those complaints. Adoption of this course would have amounted to the petitioners paying more than Rs. 44,000/- by way of Court-fees. Mr. Zaveri did not agree to this course also.

4. The question, therefore, which arose for our consideration was whether we should decide this petition against the order recorded in one of the complaints and exercise suo motu revisional power under Section 397 of the Code of Criminal Procedure. In order to persuade us that we should adopt the last-mentioned course, Mr. Zaveri brought to our notice that in all the 2227 criminal cases, respondents Nos. 1 to 49 were the accused and that they have been served. Therefore, there is nothing which comes in way of our exercising suo motu revisional jurisdiction under Section 397. We were inclined to adopt this course. But, since, on merits, we are of the opinion that this petition cannot be allowed, we are dismissing it without exercising our suo motu revisional jurisdiction under Section 397. In that view of the matter, the preliminary objection raised by Miss Shah is over-ruled. We may, however, note that respondent No. 32 died during the pendency of the petition and that his name was deleted. Nothing which has been stated in this judgment, therefore, shall apply to the case or cases against him.

5. The next question which has been raised for our consideration is whether the learned Magistrate had the jurisdiction to decide the question of repugnancy between a provision in a State enactment and a similar provision in a Central enactment. In the instant case, the learned Magistrate has on merits decided that there is repugnancy between Section 18 of the Bombay Shops and Establishments Act, 1948, and Section 13 of the Minimum Wages Act, 1948. It appears that the attention of the learned Magistrate was not invited to Section 395 of the Code of Criminal Procedure, 1973. Sub-section (1) of Section 395 which governs such proceedings in the Magistrate's Court provides as follows:

Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.

There is no dispute about the fact that the question relating to the repugnancy between Section 18 of the Bombay Shops and Establishments Act, 1948 and Section 13 of the Minimum Wages Act, 1948 has not been decided by this High Court or by the Bombay High Court prior to 1960, or the Supreme Court. It is clear from the common order which the learned Magistrate recorded in all these complaints that Section 18 of the Bombay Shops and Establishments Act, 1948, in his opinion, was repugnant to Section 13 of the Minimum Wages Act, 1948. The two conditions precedent upon the satisfaction of which provisions of Sub-section (1) of Section 395 come into play were satisfied in this case. It was, therefore, the duty of the learned Magistrate to have set out the case and the reasons for so doing and to have referred it for the decision of this High Court. Inasmuch as he did not so do and assumed jurisdiction to decide what he did, his decision is liable to be quashed. In our opinion, he ought to have referred the case to us.

6. On merits, the question which has been raised for our consideration is whether Section 18 of the Bombay Shops and Establishments Act, 1948 is repugnant to Section 13 of the Minimum Wages Act, 1948. In order to examine this contention, it is necessary to reproduce Section 18 of the Bombay Shops and Establishments Act, 1948. It reads as follows:

18. (1) Every shop and commercial establishment shall remain closed on one day of the week. Except where the day is fixed under Sub-section (IB) the employer shall prepare a calendar or list of such closed days, 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. Such calendar or list shall be prepared at the beginning of the year but in the case of a shop or establishment to which this Act becomes applicable for the first time after the beginning of a year, the first calendar or list for the remaining part of the year shall be prepared before the expiry of one month from the date of the application of this Act thereto.

(1A) Notwithstanding anything contained in Sub-section (1) but except where the day is fixed under Sub-section (IB), a shop or commercial establishment may remain open on any day notified as a closed day under Sub-section (1), if-

(a) it remains closed on any other day of the week; and

(b) the employer has notified to the Inspector, his intention to close the shop or the commercial establishment, as the case may be, on the day substituted under Clause (a), at least seven days before the substituted day or the day notified as closed day under Sub-section (I), whichever is earlier.

(IB) (a) Notwithstanding anything contained in Sub-section (1) in respect of any area within the jurisdiction of a local authority, the local authority and in respect of any other area, the State Government may by an order published in the prescribed manner, fix the day on which a shop or commercial establishment shall remain closed every week; and different days may be fixed with reference to different classes of shops or establishments, different parts of the same area or different periods of the year.

(b) Every shop and commercial establishment to which such order applies shall remain closed accordingly:

Provided that nothing in this clause shall apply to a shop or commercial establishment, the employer of which has notified to the Inspector at the beginning of the year his intention to close the shop or establishment on a public holiday within the meaning of the Negotiable Instruments Act, 1881.(c) The making of an order under Clause (a) shall be subject to the condition of previous publication.

(2) It shall not be lawful for an employer (sic) call an employee at, or for an employee lo 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 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.

(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.

7. Section 13 of the Minimum Wages Act, 1948, which provides for fixing hours for a normal working day and other connected matters reads as under:

13. Fixing hours for a normal working day, etc.-(l) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may-

(a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals;

(b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest;

(c) provide for payment for work on a day of rest at a rate not less than the overtime rate;

(2) The provisions of Sub-section (1) shall, in relation to the following classes of employees, apply only to such extent and subject to such extent and subject to such conditions as may be prescribed

(a) employees engaged on urgent work, or in any emergency which could not have been foreseen or prevented;

(b) employees engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working in the employment concerned;

(c) employees whose employment is essentially intermittent;

(d) employees engaged in any work which for technical reasons has to be completed before the duty is over;

(e) employees engaged in a work which could not to carried on, except at times dependent on the irregular action of natural forces.

(3) For the purposes of Clause (c) of Sub-section (2), employment of an employee is essentially intermittent when it is declared to be so by the appropriate Government on the ground that the daily hours of duty of the employee, or if there be no daily hours of duty as such for the employee, the hours of duty, normally include periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention.

8. In this context, it is necessary to turn to Section 4 of the Bombay Shops and Establishments Act, 1948. Sub-Section (1) of Section 4 provides as follows:

Notwithstanding anything contained in this Act, the provisions of this Act mentioned in the third column of Schedule II shall not apply to the establishments, employees and other persons mentioned against them in the second column of the said Schedule.

Proviso to Sub-section (1) of Section 4 is not relevant for the purpose of the present case.

9. We now turn to Schedule II to the Act. Entry 59 provides as follows

Serial Establishments, employees Provisions of theNo. or other persons. Act.1 2 259 Handloom and power-loom Sections 13(1) and 18 subjectestablishments. to the condition that theemployees concerned are granted one day holiday in a week with out making any deductions from their wages on account thereof.

When Entry 59 is read with Section 4 (I), one thing which becomes abundantly clear is that to powerloom establishments, Sub-section (1) of Section 13 and Section 18 have not been made applicable except to the extent specified in column 3 against Entry 59 in Schedule II. There are two exceptions: (i) that the employees concerned are granted one day holiday in a week or a weekly holiday; (ii) that no deduction is made from their wages on account of the employer having granted them a weekly holiday. The repugnancy which we are required to consider is between the last part of Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, and Clause (c) of Sub-section (1) of Section 13 of the Minimum Wages Act, 1948, read with notification issued by the Government of Gujarat on November 5, 1966 (published in Gujarat Government Gazette on November 17, 1966) under Clause (a) of Sub-section (1) of Section 5 of the Minimum Wages Act, 1948. We are referring to the notification issued in 1966 because that was the notification which was in force at the relevant time. In order to complete the narration, we may state that that notification is no longer in force now and has been superseded by the subsequent notification issued in 1975. The last part of Sub-section (3) of Section 18 which was inserted by Bombay Act 28 of 1952 is in the following terms:

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.

In other words, what Sub-section (3) of Section 18 requires an employer to do is to pay to a piece rated workman in respect of his weekly holiday the daily average of his wages which he earned during the six days preceding the weekly holiday, indeed, exclusive of any earning which he made in respect of overtime work which he did. Clause (c) of Sub-section (1) of Section 13 provides that 'the appropriate Government may provide for payment for work on a day of rest at a rate not less than the overtime rate.' On a comparison of these two provisions, it appears that they do not exactly provide the same yardstick for computing payment which an employer is required to make to a workman in respect of his weekly holiday because the appropriate Government may provide under Clause (c) of Sub-section (1) of Section 13 a different criterion for determining a payment to be made to a piece rated worker for his weekly holiday. It is not in dispute before us that the notification issued by the Government of Gujarat on November 5, 1966 governed the field. The preamble to the notification clearly shows that it was issued in respect of power-loom industry. There is nothing in the notification to show that it was not applicable to piece rated workmen. Paragraph 3 in the Explanation appended to that notification provided as follows:

Where the workers are paid on piece rate basis, the rate should be so fixed that the minimum rates of wages payable to them shall not be less than the wages payable on the aforesaid monthly rate basis.

The notification provided for minimum wages payable to a workman if he had worked for one month.

10. Mr. Zaveri has argued that paragraph 3 in the Explanation provides the method of fixing minimum rates of wages payable to piece-rated workmen for the month and that it does not lay down the method of computing wages payable to piece rated workmen in respect of their weekly holiday. The acceptance of the view which Mr. Zaveri has canvassed before us will lead to the result that, so far as piece rated workmen were concerned, no criterion was provided at the relevant lime for determining what wages shall be payable to them in respect of their weekly holiday. If that was the case, then obviously there was no conflict between Sub-section (3) of Section 18 (in so far as it related to piece lated workmen) of the Bombay Shops and Establishments Act, 1948 and Clause (c) of Sub-section (1) of Section 13 of the Minimum Wages Act, 1948. In our opinion, it is not necessary to resolve this controversy because the last part of Sub-section (3) of Section 18 has pot beep made applicable to power-loom industry by virtue of Sub-section (1) of Section 4 read with Entry 59 in Schedule II to the Bombay Shops and Establishments Act, 1948.

11. The question, therefore, which we are required to answer is as follows: What does the expression 'without making any deduction from their wages on account thereof used in column 3 against Entry 59 in Schedule II to the Bombay Shops and Establishments Act, 1948 mean 1 Does it mean that whole of Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, was excluded from its application to power-loom industry, or does it mean that only a part was excluded from its application to that industry? We have re-produced Sub-section (3) of Section 18 in the foregoing parts of this judgment. In our opinion, Sub-section (3) (excluding the proviso to it) consists of three clear concepts which are severable from each other. The first concepts relates to prohibition against deduction and is found in the first part of Sub-section (3) which reads as under:

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.

The second concept which is incorporated in second part of Sub-section (3) relates to a positive direction to pay wages in respect of a weekly holiday to daily wage earners. It reads as follows:

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.

The third and last concept which Sub-section (3) of Section 18 incorporates relates to a positive direction to pay to piece rated workmen wages in respect of their weekly holiday. It reads as follows:

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.

When we split up Sub-section (3) of Section 18 in the manner stated above, it is clear that Sub-section (3) deal with three clear aspects: (I) Prohibition against deduction, (ii) direction to pay to daily wage earners wages in respect of their weekly holiday and (iii) direction to pay to piece rated workman their wages in respect of their weekly holiday. Now, Sub-section (1) of Section 4 (when read with Entry 59 in Schedule II to the Bombay Shops and Establishments Act, 1948) excludes the power-loom establishments from the application of Sub-section (!) of Section 13 and whole of Section 18 except in respect of two matters. The one relates to the granting of a weekly holiday and the second relates to deduction, la other words, the concept of deduction which Sub-section (3) of Section 18 incorporates has been allowed to remain in force. We are clear, therefore, in our minds that only the first part of Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, has been allowed to remain operative in respect of power-loomestablishments by virtue of the provisions of Sub-section (1) of Section 4 read with Entry 59 in Schedule II to the Bombay Shops and Establishments Act, 1948. Therefore, it is difficult to uphold the contention raised by Mr. Zaveri that whole of Sub-section (3) of Section 18 has been allowed to be operative by the Legislature. If the legislative intent was to allow whole of Sub-section (3) of Section 18 to remain in force, nothing would have been easier for the State Legislature than to specify in the third column against Entry 59 in Schedule II Sub-section s (1) and (2) of Section 18. The very fact that the Legislature has not so provided clearly shows that whole of Section 18 was made inapplicable to power-loom establishments except in respect of weekly holiday to be granted to workmen and prohibition against deduction from their wages on account of their weekly holiday.

12. We may incidentally note that in respect of Section 13 which has been specified by the State Legislature in the third column against Entry 59 in Schedule If to the Bombay Shops and Establishments Act, 1948, they have specifically confined it to Section 13(1) alone, thereby making Sub-section (1) of Section 13 inapplicable. The fact that in respect of Section 18 as specified in Column 3 against Entry 59 in Schedule II to the Bombay Shops and Establishments Act, 1948, the Legislature has not followed the pattern which they have followed in respect of Section 13 clearly shows that the legislative intent was that prohibition against deduction alone should remain in force in respect of power-loom establishment and that the rest of Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, should not apply to power-loom establishments.

13. In order to convince us that there is no difference between prohibition against deduction and the positive direction to pay as contemplated by Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, Mr. Zaveri has invited our attention to the decision of the High Court of Bombay in K.P. Mushran v. B.C. Patil and Anr. AIR 1952 Bom. 235. It was a case under Payment of Wages Act, 1936. A division Bench of the High Court of Bombay consisting of Chagla, C.J. and Bhagwati, J. was considering in that case the questions arising under Sections 7, 8, 9 and 15 of the Payment of Wages Act, 1936 and the meaning of 'wages' as given in Section (2)(vi) of that Act. It is not necessary to make any detailed reference to this decision, firstly, because it is not a decision under Minimum Wages Act, 1948 and, secondly, because the scheme of Sub-section (3) of Section 18 of the Bombay Shops and Establishment Act, 1948, is so different that it militates against the applicability of the principle laid down in that decision. The definition of 'wages' given in Section 2 (vi) of the Payment of Wages Act cannot be brought into play in order to bear upon the construction of Sub-section (3) of Section 18 because to do so is to obliterate the positive and express distinction which Legislature has made in Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, between prohibition against deduction from wages on the one hand and the positive direction to pay them on the other hand. In this connection, we may state that the expression 'wages' has been defined by Section 2(30) of the Bombay Shops and Establishments Act 1948, so as to mean 'wages' as defined in the Payment of Wages Act, 1936 Therefore, Mr. Zaveri argued that since the definition of 'wages' in the Payment of Wages Act, 1936, and the Bombay Shops and Establishments Act, 1948, is the same, we should construe 'deductions' used in Column 3 against Entry 59 in Schedule II to the Bombay Shops and Establishments Act, 1948, so as to mean a positive direction to pay. He tried to fortify that argument by urging before us that in industrial matters, 'prohibition against deduction' means a positive direction to pay. Assuming that it is so in industrial matters and assuming that it is so understood in industrial circles, we cannot accede to the view which Mr. Zaveri has urged before us because of the clear and precise language in which Legislature has expressed three concepts in Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, in the same context. Since the last part of Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948, is not applicable, to power-loom establishments, the question of repugnancy between that provision and the relevant provision in the Minimum Wages Act, 1948, does not arise. Therefore, the prosecutions launched by Cambay Municipality against respondents Nos. 1 to 49 by instituting 2227 cases under Section 18 read with Section 52 were not maintainable. They must, therefore, stand dismissed.

14. We may note that a similar question arose before one of us (Ahmadi, J.) in Criminal Revision Application No. 430 of 1977 decided by him on 11th October 1978. It was a case of a power-loom establishment under Sub-section (3) of Section 18 of the Bombay Shops and Establishment Act, 1948. Effect of Sub-section (1) of Section 4 read with Entry 59 was considered therein. Analysing Sub-section (3) of Section 18, this is what has been stated in that decision:

This sub-section refers to (i) regular employees who are paid wages: (ii) employees employed on daily wages; and (iii) employees paid piece rated wages.

In the context of what has been provided in Column 3 against Entry 59 in Schedule II, this is what has been stated in that decision:

In the ease of regular employees, the first part of the sub-section bars deduction from wages on account of any day on which the shoo or commercial establishment remained closed. In the case of daily wagers there is no question of deduction from their wages but the employer is directed to pay wages for the holiday also while in case of piece rated wagers, for the holiday, they have to be paid wages equivalent to daily average of their wages for the days on which work was done during six days preceding the closed day. It is thus clear that the question of deduction from wages can arise in the case of employees who are drawing a regular salary and not in the case of daily wagers or piece rated wagers.

Analysing the implications of the expression 'employees concerned' used in Column 3 against Entry 59, Schedule SI to the Bombay Shops and Establishments Act, 1948, this is what has been stated in that decision:

Entry 59 in the Second Schedule makes the provision of Section 18 inapplicable to bandloom and power-loom establishments, subject to the condition that the employees concerned are granted one day holiday in a week without making any deductions from their wages on account thereof, this condition was imperative for an obvious reason, for otherwise, the employer would run his factory throughout the year without giving a single holiday to his employees. The question then is: does this condition extend to daily wagers and piece rated wagers also

Answering the question which we find in the extract quoted above, this is what has been stated in that decision:

The expression 'employees concerned' makes it clear that the condition does not apply to all the employees referred to in Sub-section (3) of Section 18 but only to a class of employees and the word 'deductions' identifies that class, namely, those employees who are drawing a certain fixed wage. The question of deduction from their wages would arise only in the case of those employees who are drawing fixed wages and not in the case of daily wagers or piece rated wagers, for in their case it would be a question of paying and not deducting. If the intention of the Legislature was to require the employer to pay wages to all the three categories of employees even for weekly holidays, the simple course to adopt was to exclude Section 18(3) from Entry 59 in the Second Schedule. The underlying idea in making this distinction between the daily wagers and piece rated wagers on the one hand and regular salaried employees on the other seems to be that if no such condition were imposed the jegular employees would have had to work for the year round thus altering their service condition to their disadvantage. In the case of daily wagers and piece rated wagers, they are under no obligation to report for work at the factory and their failure to do so would not result in the same consequence which the regular employee would have to suffer.

In taking this view, reliance was placed on an unreported decision of the High Court of Bombay in Buchayya Chandrayya Jrabatti v. Chindhade and Anr. Special Civil Application No. 3025 of 1974 decided by a Division Bench of the Court on 22nd September, 1975. We are in complete agreement with the reasons which have been given in that decision and the conclusion recorded therein.

15. Mr. Zaveri has invited our attention to Criminal Revision Application No. 217 of 1974. That criminal revision application arose out of a criminal case which raised this very question. That criminal revision application was summarily rejected by Mr. Justice A.N. Surti on 3rd October 1974 without a speaking order. Therefore, it does not have any value as a precedent for us because it does not contain any reasons given by this Court. We cannot look at the judgment of the learned Sessions Judge against which that criminal revision application was filed.

16. The view which we have expressed must conclude the controversy which has been raised before us. It is, therefore, not necessary for us to deal with the other aspects which were argued before us. In fairness to the learned advocates who have argued them, we only note them in this judgment. The first question which was argued was whether there is any repugnancy between Section 13 of the Minimum Wages Act, 1948 read with Rule 23(6) of the Rules made thereunder and the notification issued in 1966 on the one hand and Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948 in so far as piece rated workmen are concerned. The second question which was raised is whether Art. 254 of the. Constitution cures this repugnancy. The facts which were stated in that behalf are as follows. Minimum Wages Act was enacted in 1948. Bombay Shops and Establishments Act, was enacted in 1948. Both had received the assent of the Governor-General. Reference was made to Section 107 of the Government of India Act, 1935, which provided for resolving inconsistency between a Federal Law and a Provincial or State law. Both the Acts were governed by Entry 27 (Part II) in Concurrent Legislative List--List III appended to the Government of India Act, 1935. The repugnancy arose not on account of a provision which was made by the Bombay State Legislature in Section 18 when it was enacted in 1948 but on account of an amendment made to it in 1952 by the Bombay Shops and Establishments (Amendment) Act, 1952. By Section 8 of the Amending Act, Section 18 of the principal Act to which we have already referred was amended. The direction that a piece rated workman shall be paid his wages for the weekly holiday on a particular basis was for the first time provided by the Amending Act of 1952. The Amending Act received the assent of the President. In 1962, by Gujarat Act 11 of 1962, Section 18 of the principal Act was further amended. That amendment, however, is not strictly relevant to the present case. Sec. 13 of the Minimum Wages Act as originally enacted in 1948 was amended in 1957. We may note that Sub-section (1) of Section 13 which is relevant for the present purpose was enacted in 1948 and was the sole subject-matter of Section 13. The subsequent amendments introduced other things in sec, 13. Schedule to the Minimum Wages Act, 1948, was, inter alia, amended on 13th July 1964 by which Entry 18 was inserted therein. It relates to employment in power-loom industry. The amendment was made by notification in pursuance of the power conferred upon the State Government by Section 27 of that Act.

17. The question, therefore, which was raised before us was whether in relation to Bombay Shops and Establishments (Gujarat Amendment) Act, 1952, Section 13 of the Minimum Wages Act was the 'existing law' under Article 254 of the Constitution or whether Section 13 of the Minimum Wages Act enacted in 1948 read with Entry 18 inserted in the Schedule to that Act in 1964 could be an 'existing law' in relation to the Bombay Shops and Establishments (Gujarat Amendment) Act, 1952. We may note in this context the argument of Mr. Zaveri. According to him, though the subject-matter of Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948 was enacted as early as in 1948, it had no meaning whatsoever so far as the power-loom industry was concerned until Entry 18 in the Schedule to the Minimum Wages Act, 1948, was inserted by the State Government in 1964. Therefore, according to him, in respect of power-loom industry, Section 13 became law only in 1964 and, therefore, it could not be an 'existing law' under Article 254 of the Constitution in respect of the Bombay Shops and Establishments (Gujarat Amendment) Act, 1952. We may also note in this context that the concepts of 'existing law' and 'law in force' were adverted to and reference was made to Article 13 and Article 366 of the Constitution. Reference was also made to the decision of the Supreme Court in Edward Mills Co. Ltd. Beawar and Ors. v. State of Ajmer and Anr. : (1954)IILLJ686SC . The last thing which requires to be noted is that Entry 16 in the Schedule to the Minimum Wages Act, 1948 (which, in our opinion, has no relevance to the present case) was inserted by Gujarat Legislature by the Minimum Wages (Gujarat Amendment) Act, 1961. Since, in our opinion, last part of Sub-section (3) of Section 18 of the Bombay Shops and Establishments Act, 1948 is not applicable to power-loom industry, the prosecutions launched under that section read with Section 52 were not maintainable. They, therefore, must stand quashed.

18. For the reasons stated in this judgment and not for the reasons stated in the judgment of the Court below, we confirm the order made by the learned Magistrate and dismiss this petition. Rule is discharged.


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