TMI Blog1959 (5) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 131 of 1957 before us. We would, therefore, deal with this appeal in particular and our decision in this appeal will govern the rest of the appeals in this group. In his application made before the Payment of Wages Authority the respondent alleged that he had been employed in the factory called the Central Railway Workshop and Factory, Parel, Bombay, and that he had not been paid overtime wages due to him from April 1, 1949, to September 30, 1954. The respondent claimed that the delay made by him in filing the present application should be condoned because jointly with his co-workers he had been in correspondence with the railway administration in regard to the said payment of overtime wages since, 1948 and that the claim made by him and his colleagues had been finally rejected by the railway administration on August 31, 1954. His case was that he had filed the present application soon thereafter and so the delay made by him ,in making the claim before the Authority should be condoned. The Authority heard the parties on the; question of delay and held that the delay only in respect of the claim for the period after May 1953 should be condoned. In the result the claim for ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keepers, are required to do the work of progress timekeepers. This work consists in preparing the progress time-sheets and operation time-sheets of machine-shop staff working on various jobs dealing with the production of railway spare parts. The Authority was disposed to take the view that having regard to the nature of the work assigned to the progress time- keepers they must be held to be persons employed in work incidental to, or connected with the manufacturing process or the subject of the manufacturing process and as such they are workers within the meaning of s. 2(1) of the Factories Act. In the result, the finding made by the Authority was that timekeepers are employees of the workshop, but are not workers under the Factories Act; while the progress time- keepers can claim the status of workers under the said Act. The Authority then considered the respondent's argument that even if he was not a worker under the Factories Act he was neverthless entitled to claim the benefit of s. 59 of the said Act by virtue of s. 70 of the Act. The Authority accepted this contention and held that, even if the respondent was not a worker under the Factories Act, s. 70 of the Act enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he finding of the.Authority in respect of the timekeepers is against the respondents; but Mr. Purshottam says that he is entitled to support the final order passed by the Authority on the additional ground that the time. keepers, like the progress timekeepers, are workers under s. 2(1) and as such they are entitled to claim overtime wages under s. 59 of the Factories Act. The final decision of the Authority is, however, based on the view that under s. 70 of the Act the respondents would be entitled to overtime wages under s. 59 of the Factories Act even if they are not workers under s. 2(1). That being so, we think it is necessary first to consider the correctness of this view. If the conclusion of the Authority on the scope and effect of the provisions of s. 70 of the Act is correct, then it would be unnecessary to consider whether the timekeepers and the progress timekeepers are workers under s. 2(1) of the Factories Act. We would, therefore, deal with that question first. It appears that there are three statutes which pro. vide for the payment of extra wages for overtime work. The proviso to s. 71 (c) of the Indian Railways Act (IX of 1890) lays down that the exempted railway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, however, is that by virtue of s. 70 of the. Act the provisions of the Factories Act,including a. 59, are extended to the cases of all employees in factories, and so they are entitled to claim wages for overtime under the said section of the Factories Act. This contention has been upheld by the Authority. It is not disputed by the appellant that the Bombay Legislature was competent to prescribe for the extension of the provisions of the Factories Act to employees in the factories within the territory of the State of Bombay; and since sanction for this legislation has been duly obtained from the Governor- General of India on January 3, 1949(1), no question about any repugnance between the provisions of s. 70 and those of the Factories Act can possibly arise. Thus the validity of the said section is not in dispute; and so the only point which calls for our decision is one of construction: Does s. 70 supplement the provisions of the Factories Act by extending them to all employees in factories like the respondents though they are not workers under s. 2(1) of the said Act ? Before dealing with this point it is necessary to refer briefly to the broad features of the Act. The Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,- but does not include a mine subject to the operation of the Mines Act, 1952 (XXXV of 1952), or a railway running shed; and s. 85 confers authority on the State Government to extend the definition of factory to other places subject to the requirements specified in the said section. It is common ground that the place where the respondents are employed is a factory under s. 2(m) of the Factories Act, and so it satisfies the definition of s. 2(9) of the Act. The scheme of the Act shows that it deals separately with shops and commercial establishments (ch. 111), residential hotels, restaurants and eating-houses (ch., IV) and theaters and other places of public amusement (ch. V). Separate provisions are made to regulate these different establishments having regard to the special needs of each one of them. There are, however, general provisions applicable to and regulating all the establishments alike and these are found in chs. VI to IX. It is significant that with the exception of s. 70, no other section of the Act deals with factories. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd applies only to establishments and it has no application to factories; and we are dealing with employees in a factory. Indeed as we have already observed, no provision of the Act except s. 70 applies to factories and so it would not be legitimate to base any argument on the assumption that s. 4 is applicable to the present case. Incidentally the learned Attorney-General suggested, though faintly, that the establishments mentioned at sr. nos. 1 to 6 in col. 2 of sch. II are wider than and different from the establishment as defined by s. 2(8). We do not think that this suggestion is well-founded. There can be no doubt that s. 4 grants exemptions to the said establishments from the application of the provisions mentioned in col. 3 of sch. II; and that itself postulates that but for the exemption thus granted the provisions of the Act would have applied to them. Indeed the scheme of sch. 11 shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at sr. nos. 1 to 6 including 6(a) to 6(k), in regard to the others which are enumerated at sr. nos. 7 to 55 it is only some provisions of the Act specified in col. 3 that are ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is intended to clarify the position that though factory has been defined by s. 2(9) of the Act, no provision of the Act is intended to be applied to a factory or employees in. it. Having clarified this position the second part of the section extends the application of the Factories Act to the said persons. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as defined by s. 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of s. 70. This part provides that the provisions of the Factories Act shall apply to the persons in question notwithstanding anything contained in the said Act. The said Act contains the provision by which workers are defined under s. 2(1), and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applies only to workers as defined and not to employees in factories who are not workers. It is in reference to this provision that s. 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
