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PETITIONER: UNION OF INDIA AND ANOTHER

       Vs.

RESPONDENT: G.M. KOKIL AND OTHERS

DATE OF JUDGMENT21/03/1984

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. PATHAK, R.S.

CITATION:  1984 AIR 1022            1984 SCR  (3) 292  1984 SCALE  (1)521  CITATOR INFO :  D          1990 SC1382  (7)  RF         1992 SC  81  (11)

ACT:      Factories Act,  1948-s.59-Benefit of  overtime wages at double the  rate of  ordinary wages-Scope  of Section  70 of Bombay  Shops  and  Establishments  Act,  1948  extends  the benefit under s. 59 of Factories Act to all persons employed in factory irrespective of the fact whether they are workers under s.  2(1) of  the factories Act or not and whether they are exempted under s. 64 of Factories Act read with rule 100 made by State Government.      Bombay  Shops   &  Establishments   Act.   1948S-   70- Interpretation of.

HEADNOTE:      The  respondents   who  were   working   in   different capacities in  the factory of India Security Press at Nasik, an establishment  of the  appellant,  filed  an  application before the  Central Government Labour Court, Bombay under s. 33 C(2)  of  the  Industrial  Disputes  Act,  1947  claiming overtime wages at double the ordinary rate of wages under s. 59 of  the Factories Act read with s. 70 of the Bombay Shops and Establishments Act, 1948. The Labour Court dismissed the contentions of  the appellant and granted relief. Hence this appeal.      Dismissing the Appeal ^      HELD: The  contention that  the  respondents  were  not workers within  the meaning  of s. 2(1) of the Factories Act and therefore  not entitled  to the benefit of s. 59 of that Act read  with s.  70 of the Bombay Shops and Establishments Act 1948  must fail on the plain language of s. 70. The main provision of  s. 70 which is relevant consists of two parts; the first  part states  that if there be a factory the Shops and Establishment  Act will  not apply  and the  second part states that  to  such  a  factory  ’the  provisions  of  the Factories Act  shall, notwithstanding  anything contained in that Act,  apply to all persons employed in or in connection with the factory". Clearly, the underlined portion (the non- obstante clause  and the  phrase ’all persons employed’) has the effect of enlarging the scope of Factories Act by making

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it applicable  to  all  persons  employed  in  such  factory irrespective of  whether employed  as workers  or otherwise. Therefore although  the respondents  have not been ’workers’ within the  meaning of  s. 2(1) they will get the benefit of s. 59. [298 C-F]      B.P.  Hira,  Works  Manager,  Central  Railway,  Parel, Bombay, etc.  v. C.M. Pradhan etc [1960] S.C.R. 137 referred to.      The contention  that by  reason of rule 100 made by the State Govern- 293 ment under  s. 64  of the Factories Act the benefit under s. 59 was  not available  to the respondents falling within the exempted category  by  reason  of  their  holding  posts  of supervision, has no force. [300F and 295E]      It is  well-known  that  a  non-obstante  clause  is  a legislative device  which is  usually employed to give over- riding  effect  to  certain  provision  over  some  contrary provision that  may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non-obstante clause in  s. 70,  namely, "notwithstanding  anything to the contrary contained  in that Act and as such it must refer to the exempting  provisions which  would be  contrary  to  the general applicability  of the  Act. Just  as because  of the non-obstante clause  the Act is applicable even to employees in the  factory who might not be workers’ under s. 2(1), the same non-obstante clause will keep away the applicability of exemption provisions  quarrel those  working in  the factory The Labour Court was therefore right in taking the view that because of  the non-obstante  clause s 64 read with Rule 100 itself would  not apply to the respondents and they would be entitled to  claim overtime  wages under  s. 59  of that Act read with  s. 70 of the Bombay Shops and Establishments Act, 1948. [300 C-G]      The contention  that the  respondents were  not workmen under  the   Industrial  Disputes  Act  and  as  such  their application was  not maintainable,  must  be  rejected.  The contention depends  upon the appreciation of evidence led by the parties  on the nature of duties and functions performed by the  concerned respondents  and it was on an appreciation of the  entire material  that the  Labour Court  recorded  a finding that having regard to the nature of their duties and functions all respondents, other than those who were holding the  posts  of  Senior  Supervisors  and  supervisors,  were industrial employees,  i. e.  workman under  the  Industrial Disputes Act  and it  is not  possible  for  this  Court  to interfere with such a finding of fact recorded by the Labour Court.  Even   otherwise  after   considering  some  of  the important material on record the court is satisfied that the Labour. Court’s finding is correct. [301 C-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2736 of 1972.      From the  Award dated  the 31st  December, 1971  of the Central Govt  Labour Court Bombay in application no. L.C.B.- 326 of 1969.      Harbans Lal,  N. S.  Das Bahl  and R. N. Poddar for the appellants.      V.  M.   Tarkunde,  K.  Shivraj  Choudhary  and  K.  R. Choudhary for the respondents.      The Judgment of the Court was delivered by

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294      TULZAPURKAR, J.  The only  point raised  by counsel for the Appellants in this appeal is whether the respondents who are employees  working in  the  Factory  of  India  Security Press, Nasik  are entitled  to over-time  wages at twice the normal rate  of their wages under s. 59 of the Factories Act 1948 read  with s. 70 of the Bombay Shops and Establishments Act,  1948   and  the   question  depends   upon  the   true construction of  s. 70  of the latter Act. Since in our view the question  of proper  construction of  the said  s. 70 is concluded by  a decision  of this  Court in  Shri B.P. Hira, Works Manager,  Central Railway, Parel, Bombay, etc. v. Shri C.M. Pradhan  etc.(1) it  is unnecessary  to indulge  in any elaborate statement  of facts or discussion of all the rival contentions that  were urged  before the  Central Government Labour Court Bombay, whose decision rendered on December 31, 1971 is challenged in this appeal.      Briefly  stated  the  admitted  facts  are:  The  India Security Press,  Nasik is  a very  big establishment  of the Central Government  headed by  the General  Manager, who  is also known  as Master,  India  Security  Press.  Apart  from administrative offices  it has a factory. The Press has four wings, namely, (a) the stamp press, (b) currency note press, (c) new  currency note  press and  (d) central stamp stores. There are  various  categories  of  workers  who  have  been classified into  two groups such as (1) employees working in the administrative  offices and  (2) those  working  in  the factory. The  78 respondents,  belonging  to  all  the  four wings, have been employees working in the factory (of these, R-1 to  R-3 are  Chief Inspectors (Control); R-4 to R-36 are Inspectors (Control); R-37 & R-38 are Senior Supervisors; R- 39  to  R-52  are  Supervisors;  R-53  to  R-77  are  Junior Supervisors  and   R-78  is   a  Store   Keeper).  These  78 Respondents filed  an  application  against  the  Appellants before the  Central Government Labour Court, Bombay under s. 33C (2)  of the Industrial Disputes Act, 1947 claiming over- time wages under s. 59 of the Factories Act. read with s. 70 of the  Bombay Shops  and Establishments Act. Their case was that though the normal working period for all those who were working under  the roof of the factory was 44 hrs. per week, they were,  along with the regular factory workers, required to work  for more than 44 hrs. a week but the management had been causing  loss  to  them  by  paying  them,  unlike  the factory-workers, over-time wages at the basic rates even for work done beyond 44 hrs. whereas they were entitled to over- time wages 295 at double  the rate  of their  normal  wages  (inclusive  of dearness allowance, etc.), and as such they were entitled to get the  amount of difference ascertained, computed and paid to them; and they claimed this relief in respect of overtime work done during the past 12 years i.e. from 1-1-1956 to 30- 8-1968. Along  with the  application they  gave  a  detailed schedule and  the particulars of their claim totalling to an amount of Rs. 7,00,000 and odd.      This claim  was resisted  by the  Appellants on several grounds but  we need mention only those grounds which have a bearing on  the only point that was raised and argued before us  by  counsel  for  the  appellants.  Inter  alia  it  was contended that  none of the Respondents was a ’worker’ under s. 2  (i) of  the Factories  Act and  as such  they were not entitled to the benefit of s. 59 of that Act read with s. 70 of the  Bombay Shops  and Establishments  Act, 1948.  It was further contended  that even  assuming that  the respondents were entitled  to claim  the benefit  of the s. 59 read with

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the s. 70 notwithstanding that none of them was a worker, by reason of  Rule 100 made by the State Government in exercise of its powers under s. 64 of the Factories Act, s. 59 became inapplicable to  the Respondents  and therefore could not be availed of by them inasmuch as quite a substantial number of them fell  within  the  category  of  person  who  had  been "defined or  declared to be holding positions of supervision or management  or being  employed in a confidential position in the factory." In other words. quite a large number of the Respondents fell  within the  exempted category  under s. 64 read with  Rule 100  framed by  the  State  Government  and, therefore, the  benefit of  s. 59 was not available to them. It was  further urged  that none  of the  Respondents was an industrial employee,  i.e. ’a workman’ within the meaning of s. 2  (s) of  the Industrial  Disputes Act and as such their application  under   s.  33C   (2)  of   that  Act  was  not maintainable.      The Central  Government Labour  Court, Bombay negatived the first  two contentions  in view  of the decision of this Court in  the case  of B.P. Hira v. C.M. Pradhan (supra) and as regards  the third  contention on  an appreciation of the oral and documentary evidence led by the parties, it came to the conclusion  that all  respondents holding  the posts  of Chief  Inspectors   (Control)  (R-1   to  R-3),   Inspectors (Control) (R-4  to R-36),  Junior Supervisors (R-53 to R-57) and Store  Keeper (R-78)  having regard  to  the  nature  of duties and  functions  performed  by  them  were  industrial employees i  e. workmen  under the  Industrial Disputes Act, 1947 and as such were entitled to the relief claimed by them but as 296 regards the respondents who were holding the posts of Senior Supervisors (R-37  and R-38)  and Supervisors  (R-39 to R-5) not being workmen under the Industrial Disputes Act were not entitled to  the relief claimed, of course, they were denied the relief  only for  the  period  during  which  they  were holding those  posts. This  decision is  challenged  in  the appeal.      As stated  earlier, the  validity or  otherwise of  the first two  contentions that  were urged  before  the  Labour Court and reiterated before us by Counsel for the appellants depends upon  the proper  construction of s.70 of the Bombay Shops  and   Establishments  Act,   1948  and  in  order  to appreciate both  the contentions it will be necessary to set out s. 59, s. 64 together with Rule 100 of the Factories Act and s.  70 of  the Bombay Shops and Establishments Act, 1918 Sections 59 and 64 occur in Chapter VI of the Factories Act, 1948 and the material portions thereof run thus:           "59. Extra  Wages for overtime.-(1) 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,  he      shall, in respect of overtime work be entitled to wages      at the rate of twice his ordinary rate of wages."           "64. Power  to make exempting rules, (1) The State      Government may make rules defining the persons who hold      positions of supervisions or management or are employed      in a  confidential position in a factory, or empowering      the Chief Inspector to declare any person, other than a      person defined  by such  rules,  as  a  person  holding      position of  supervision or management or employed in a      confidential position  in a  factory if, in the opinion      of the Chief Inspector, such person holds such position      or is  so employed  and the provisions of this Chapter,      other than  provisions of clause (b) of sub-section (1)      of section  66 and  of the proviso to that sub-section,

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    shall not apply to any person so defined or declared:           Provided that  any person  so defined  or declared      shall, where  the ordinary rate of wages of such person      does not  exceed rupees  seven hundred  and  fifty  per      month,  be  entitled  to  extra  wages  in  respect  of      overtime work under section 59."           Rule 100 framed under s. 64 runs thus: 297           "Persons defined  to hold positions of supervision           or management or confidential position.           The following  persons shall  be  deemed  to  hold      position of supervision or management or to be employed      in a confidential position in a factory-           (a)  All persons specified in the Schedule annexed                hereto.           (b)  Any other  person who,  in the opinion of the                Chief  Inspector,   holds   a   position   of                supervision or management or is employed in a                confidential position.           Schedule           List of  persons  defined  to  hold  positions  of      supervision or management in factories:-           Manager           Assistant Manager           .......           .......           Departmental Heads and Assistants           .......           Head Store Keepers and Assistants           Technical Experts."      Section 70  of the Bombay Shops and Establishments Act, 1948 runs thus:           "70. Persons employed in factory to be governed by           Factories Act and not by this Act.           Nothing in  this Act shall be deemed to apply to a      factory and  the provisions  of the Factories Act, 1948      shall, notwithstanding  anything contained in that Act,      apply to all persons employed in and in connection with      a factory:           Provided  that,   where  any  shop  or  commercial      establish- 298      ment situate  within the  precincts of a factory is not      connected with the manufacturing process of the factory      the provisions of this Act shall apply to it:           Provided further  that, the  State Government may,      by notification  in the  official Gazette, apply all or      any of the provisions of the Factories Act, 1948 to any      shop or  commercial establishment  situate  within  the      precincts of  a factory  and on the application of that      Act to  such  shop  or  commercial  establishment,  the      provisions of this Act shall cease to apply to it."      Counsel for  the appellants urged that the respondents, though employed  in the  factory  of  the  Press,  were  not ’workers’ within  the meaning  of s.  2 (1) of the Factories Act and  therefore were not entitled to the benefit of s. 59 of that  Act read  with  s.  70  of  the  Bombay  Shops  and Establishments Act,  1948. On  the plain language of sec. 70 of the  Bombay Shops  and Establishments Act this contention has to  fail. We  are  concerned  not  with  either  of  the provisos but with the main provision of s. 70 which consists of two  parts; the  first part  states that  if there  be  a factory the  Shops and Establishments Act will not apply and the  second   part  states  that  to  such  a  factory  "the provisions  of  the  Factories  Act  shall,  notwithstanding

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anything  contained  in  that  Act,  apply  to  all  persons employed in  or in  connection with a factory." Clearly, the portion underlined  (the non-obstante  clause and the phrase ’all persons  employed’) has  the effect  of  enlarging  the scope of  Factories Act  by  making  it  applicable  to  all persons employed  in such  factory irrespective  of  whether employed as  workers or  otherwise. Therefore  although  the respondents have  not been  ’workers’ within  the meaning of sec. 2 (1) they will get the benefit of  sec. 59.      This identical  question arose for consideration before this Court in the case of B.P. Hira v. C.M. Pradhan (supra). In that  case Shri  C.M. Pradhan  and other respondents were employed as  time-keepers in  the time office of the Central Railway Workshop  and Factory,  Parel, Bombay  and they  had claimed over-time  wages under  s.59 of  the  Factories  Act first on  the basis  that they  were  ’workers’  within  the meaning of s 2(1) of that Act and alternatively on the basis that assuming  they were not ’workers’ within the meaning of s. 2(1)  of that  Act, they  were entitled to claim overtime wages under  s.59 of the Factories Act read with s.70 of the Bombay Shops  and Establishments  Act, 1948. The validity of the 299 claim on  both the  grounds was  disputed by  the  appellant (Works Manager).  The Authority  under the  Payment of Wages Act found  that only  four  of  the  respondents,  who  were required to do the work of progress time-keeper, could claim the status of ’workers’ within the meaning of s. 2(1) of the Factories Act  and the  rest were  merely employees  of  the workshop, but  accepted the  alternative case  ’made by  the respondents and  held  that  each  of  the  respondents  was entitled to  get the over-time wages under sec. 59 read with sec. 70  and this Court upheld the view of the Authority and confirmed its  decision. The  Court’s  view  on  the  proper construction of s. 70 of the Bombay Shops and Establishments Act 1948  has been  succinctly summarized in the second head note, which  appears at  page 137  of the report, which runs thus:           "On a  proper construction  of s. 70 of the Act it      is clear  that the first part of the section excludes a      factory and  its employees  from the  operation of  the      Act; but  the second part makes the relevant provisions      of the  Factories Act  applicable  to  them.  The  non-      obstante clause in the section shows that the employees      in a factory, although they might not be workers within      the meaning  of s.  2(1)  of  the  Factories  Act,  are      entitled to  claim overtime  wages as  provided for  by      that Act."      Apart from the fact that the decision is binding on us, we are  in respectful agreement with the construction placed by it  on s.  70 of  the  Act.  The  first  contention  has, therefore, to be rejected.      Counsel for  the appellants  next urged that the effect of s.  70 as  indicated by the aforesaid decision is that it makes the  provisions of the Factories Act applicable to all persons (irrespective  of  their  capacity)  employed  in  a factory  but  the  provisions  of  the  Act  include  s.  64 (occurring in  the same Chapter VI) which gives power to the State Government  to make  exemptions and  it is under s. 64 that Rule 100 has been framed by the State Govt. under which the employees  specified in  the Schedule  to the  Rule have been excluded  from the  purview of  s. 59  of that  Act and since in  the instant  case  a  substantial  number  of  the respondents fall  within the exempted category (Departmental Heads and  Assistants) and  Head Storekeepers  and Assistant

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they would  not be  able to claim overtime wages under s. 59 of that  Act read  with  s.  70  of  the  Bombay  Shops  and Establishments Act.  In other  words, counsel contended that s. 59  must, be  read with  s. 64  of the  Factories Act and because of  Rule 100  framed under  s.  64,  s.  59  becomes inapplicable to the respondents 300 falling within  the exempted  categories On  the other hand, counsel for  the respondents  urged  that  the  non-obstante clause has  the  effect  of  keeping  out  of  the  way  the exemption provisions,  namely, s.  64 read with Rule 100 and according to  him such  effect must follow from the ratio of this Court’s  decision in  case of B.P. Hira v. C.M. Pradhan (supra) and the Labour Court had rightly taken the view that because of the non-obstante clause the respondents’ right to claim benefit  of overtime  wages under s 59 read with s. 70 was not  affected by  the framing  of rule  100 by the State Government in exercise of the power conferred on it under s. 64.      Section 70, so far as is relevant, says "the provisions of  the   Factories  Act   shall,  notwithstanding  anything contained in  that Act, apply to all persons employed in and in connection  with a factory". It is well-known that a non- obstnte clause  is a  legislative device  which  is  usually employed to  give over-riding  effect to  certain provisions over some  contrary provisions  that may  be found either in the same  enactment or some other enactment, that is to say, to  avoid   the  operation   and  effect   of  all  contrary provisions. Thus  the non-obstante  clause in s. 70, namely, "notwithstanding   anything   in   that   Act"   must   mean notwithstanding anything  to the  contrary contained in that Act and  as such  it must  refer to the exempting provisions which would  be contrary to the general applicability of the Act. In  other words,  as all the relevant provisions of the Act  are   made  applicable  to  a  factory  notwithstanding anything to  the contrary  contained in it, it must have the effect  of   excluding  the   operation  of   the  exemption provisions. Just  as because  of the non-obstante clause the Act is applicable even to employees in the factory who might not be  ’workers’ under  sec. 2(1),  the  same  non-obstante clause  will   keep  away  the  applicability  of  exemption provisions qua  all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non-obstante clause s. 64 read with Rule 100 itself would not apply to the respondents and they would be entitled  to claim overtime wages under s. 59 of that Act read with  s. 70 of the Bombay Shops and Establishments Act, 1948.      Counsel for  the appellants  pointed out  that if  such construction was  placed  on  s.  70  it  will  lead  to  an anomalous  situation   that  even  employees  of  a  factory occupying positions  of a Manager or a General Manager would become entitled  to overtime wages which could not have been the intention  of the  State Legislature,  but that,  in our view, is  a matter  of the State Legislature and not for the Court but it must be pointed out that since 301 the rendering  of the  aforesaid decision  by this  Court in 1960 the State Legislature has not intervened, which perhaps suggests that the State Legislature is not keen to limit the operation of  the non-obstante  clause in  any  manner.  The second contention must also fail.      Counsel for  the appellants  made a  feeble attempt  to contend that  not merely  such of  the respondents  who were holding the posts of Senior Supervisors and Supervisors were

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not industrial  employees but all the other respondents were also not  industrial employees  i.e. were  not workmen under the  Industrial  Disputes  Act.  In  the  first  place,  the contention depends  upon the appreciation of evidence led by the parties  on the nature of duties and functions performed by the  concerned respondents  and it was on an appreciation the entire material that the Labour Court recorded a finding that having  regard  to  the  nature  of  their  duties  and functions all respondents, other than those who were holding the  post   of  Senior  Supervisors  and  Supervisors,  were industrial employees,  i.e.  workmen  under  the  Industrial Disputes Act  and it  is not  possible  for  this  Court  to interfere with such a finding of fact recorded by the Labour Court.  Even   otherwise  after   considering  some  of  the important material  on record through which we were taken by counsel for the appellants, we are satisfied that the Labour Court’s finding is correct.      In the  result the  appeal fails  and is  dismissed but there will be no order as to costs. H.S.K.                                    Appeal dismissed. 302