# SHRI B. P. HIRA, WORKS MANAGER, CENTRAL RAILWAY, PAREL, BOMBAY E1:C v. SHRI C. M. PRADHAN ETC

- **Citation:** [1960] 1 S.C.R. 137
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeals Nos. 131 to 304 of 1957
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. W Anchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-b-p-hira-works-manager-central-railway-parel-bombay-e1-c-v-shri-c-m-1727
- **Pages:** 13

## Headnote

Overtime Wages-Claim by employees in railway factoryValidity-F actories Act, z948 (LXIII of z948), ss. z(l), 59-The
Bombay Shops and Establishments Act, z948 (Bom. 79 of z948).
SS, 4, 70.
These appeals by special leave arose from applications made
by the respondents, who were employed as timekeepers in the
time office of the Central Railway Workshop and Factory, Parel,
Bombay, claiming payment of overtime wages under the Payment
of Wages Act, 1936 (4 of 1936). The case of the respondents was
that they were workers within the meaning of s. 2(1) of the
Factories Act, 1948 (LXIII of 1948) and as such were entitled
to overtime wages under s. 59 of the said Act. Alternatively,
they urged that even if they. were not workers within the mean.
ing of s. 2(1) of the said Act, they would nevertheless be entitled
to overtime wages under the s. 59 by reason of s. 70 of .the
Bombay Shops and Establishments Act, 1948 (Born. 79 of 1948).
The validity of the claim on both the grounds was disputed by
the appellant. The Authority under the Payment of Wages Act
found that only four of the respondents, who were required to do
the work of progress timekeepers, 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 the
Authority accepted the alternative case made by the respondents and directed the appellant to file a statement showing the
overtime wages due to each of the respondents and ordered it to
pay the same.
Held, that the Authority was right in the view that fr took
of s. 70 of the Bombay Shops and Establishments Act, 1948, and
its decision must be affirmed.
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.
It is not correct to say that s. 4 of the Bombay Shops and
Establishments Act, 1948, has the effect of excluding the operation of s. 70 of the Act. Section 4 applies only to establish·
ments and not to factories; but even if it applied, to factories
18
z959
Moy 8.
Z9$9
B. P. Hira
v.
C. M. PradhaH
138
SUPREME COURT REPORTS [1960(1)]
that cannot materially affect the application of s. 70 which is
intended to operate not withstanding the other provisions of the
Act.
Consistently with its policy, the Act, which provides for
overtime wages for employees in all establishments, provides for
overtime wages for employees in factories as well by making the
relevant provisions of the Factories Act applicable to them.

## Text

S.C.R.
SUPREME COURT REPORTS
137
SHRI B. P. HIRA, WORKS MANAGER,
CENTRAL RAILWAY, PAREL, BOMBAY E1:C.
v.
SHRI C. M. PRADHAN ETC.
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. W ANCHOO, JJ.)
Overtime Wages-Claim by employees in railway factoryValidity-F actories Act, z948 (LXIII of z948), ss. z(l), 59-The
Bombay Shops and Establishments Act, z948 (Bom. 79 of z948).
SS, 4, 70.
These appeals by special leave arose from applications made
by the respondents, who were employed as timekeepers in the
time office of the Central Railway Workshop and Factory, Parel,
Bombay, claiming payment of overtime wages under the Payment
of Wages Act, 1936 (4 of 1936). The case of the respondents was
that they were workers within the meaning of s. 2(1) of the
Factories Act, 1948 (LXIII of 1948) and as such were entitled
to overtime wages under s. 59 of the said Act. Alternatively,
they urged that even if they. were not workers within the mean.
ing of s. 2(1) of the said Act, they would nevertheless be entitled
to overtime wages under the s. 59 by reason of s. 70 of .the
Bombay Shops and Establishments Act, 1948 (Born. 79 of 1948).
The validity of the claim on both the grounds was disputed by
the appellant. The Authority under the Payment of Wages Act
found that only four of the respondents, who were required to do
the work of progress timekeepers, 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 the
Authority accepted the alternative case made by the respondents and directed the appellant to file a statement showing the
overtime wages due to each of the respondents and ordered it to
pay the same.
Held, that the Authority was right in the view that fr took
of s. 70 of the Bombay Shops and Establishments Act, 1948, and
its decision must be affirmed.
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.
It is not correct to say that s. 4 of the Bombay Shops and
Establishments Act, 1948, has the effect of excluding the operation of s. 70 of the Act. Section 4 applies only to establish·
ments and not to factories; but even if it applied, to factories
18
z959
Moy 8.
Z9$9
B. P. Hira
v.
C. M. PradhaH
138
SUPREME COURT REPORTS [1960(1)]
that cannot materially affect the application of s. 70 which is
intended to operate not withstanding the other provisions of the
Act.
Consistently with its policy, the Act, which provides for
overtime wages for employees in all establishments, provides for
overtime wages for employees in factories as well by making the
relevant provisions of the Factories Act applicable to them.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
131 to 304 of 1957.
Appeals by special leave from the judgments and
order dated October 19, 1955 and January 31, 1956, of
the Authority under Payment of Wages Act, Bombay,
in Applications Nos. 950-961, 963-967, 970-989, 992,
994-1013, 1015-1016, 1049-1050 and 11510-11511 and
11513-11517 of 1955 respectively.
M.G. Setalvad, Attorney-General for India, R. Ganapathy Iyer and R.H. Dhebar, for the appellants.
Purshottam Tricumdas and 0. N. Srivastava, for the
respondents in all the appeals except C. A. No. 186
of 1957.
1959. May 8. The Judgment of the Court was
delivered by
Gaj.,.dragadkar J.
GAJENDRAGADKAR J.-This group of 174 appeals by.
special leave arises from the several applications made
against Mr. B. P. Hira, Works Manager, Central Railway Workshop and Factory, Pa.rel, Bombay (hereafter
called the appellant) by the employees at the said
factory (hereafter called the respondents) under the
Payment of Wages Act, 1936 (IV of 1936) claiming
payment of overtime wages since 1948. All these
applications were heard by the Payment of Wages
Authority, Bombay, as companion matters and they
have been disposed of by a common judgment. The
main judgment has, however, been delivered by the
said Authority in the application filed by Mr. C. M.
Pradhan (hereafter called the respondent) which gives
rise to Civil Appeal 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.
S.C.R.
SUPREME COURT REPORTS
139
In his application made before the Payment of
I959
W a.ges Authority the respondent alleged that h~ had
been employed in the factory called the Central RailB. P~.Hir•
way Workshop and Factory, Pa.rel, Bombay, and tha.t c. M. Prlld"'1,.
he had not been paid overtime wages due to him from
April 1, 1949, to September 30, 1954. The respondent Gajn4ra11SdkM J.
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 sa.id
payment of overtime wages since 1948 and that the
claim ma.de 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 re,spect of the claim for the period after May 1953 should
be condoned. · In the result the claim for overtime
wages for the period prior to May 19, 1953, was rejected
on the preliminary ground of delay whereas the claim
for the period subsequent to the sa.id da.te wa.s considered on the merits.•
The respondent's ca.se wa.s that he was entitled to
the overtime wages for work on such Sundays when
he was not given a holiday within three da.ys prior to
or three da.ys subsequent to the Sundays on which he
worked. The appellant conceded that the respondent
had not been given a. holiday within the three days
prior to or the three da.ys subsequent to the Sundays
on which he had worked as required by s. 52 of the
Indian Factories Act. The respondent alleged tha.t he
wa.s a. worker within the meaning of s. 2, sub-s. (1) of
the said Factories Act (LXIII of 1948) and &f! such he
wa.s entitled to overtime wages under s 59 of the said
Act. Alternatively he urged that even if he wa.s not a
worker within the meaning of s. 2(1) of the sa.id Act,
he would neverthless be entitled to overtime wages
under the said s. 59 by reason of s. 70 of the Bombay
Shops and Establishments Act, 1948 (Bom. 79 of 1948)
(hereafter called the Act).
Thus the claim for.
140
SUPREME COURT REPORTS
(1960(1)]
z959
overtime wages was made by the respondent on two
alternative grounds.
B. P~.Hir•
The appellant disputed the validity of this claim.
c. M. Prod/Jan It was urged on its behalf that the respondent was not
a worker under s. 2(1) of the ]'actories Act and that
Gojm4ro1•dk•r J. s. 70 of the Act did not justfy the claim alternatively
made by the respondent for overtime wages.
The Authority considered the evidence led before it
in respect of all the repondents for overtime wages. It
appears that these respondents are employed by the
appellant in the time office of the Pare! Workshop and
not in the factory itself. The duties of these timekeepers are to maintain initial records of attendance
of workshop staff, to prepare pay-sheets for them to
maintain their leave accounts, to dispose of final settlement cases of the said staff and to maintain records
for satistical information. The Authority held that
the time office where the timekeepers work is an integral part of the factory and so it came to the conclusion
that the timekeepers are employed in the factory called
the Central Railway Workshop and Factory, Parel,
Bombay.
The Authority then examined. the question as to
whether the timekeepers are workers within the meaning of s. 2(1) of the Factories Act. Evidence showed
that four timekeepers, 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 Allthority
was disposed to take the view that having regard to
the nature of the work assigned to the progress timekeepers 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 timekeepers can claim the status of workers under the
said Act.
S.C.R.
SUPREME COURT REPORTS
141
The Authority then considered the respondent's
z959
argument that even if he was not a worker under the
B
.
• P. H.,a
Factories Act he was neverthless entitled to claim
v.
the benefit of s. 59 of the said Act by virtue of s. 70 c. M. Pradharl
of the Act. The Authority accepted this contention
. -
and held that, even if the respondent was not a. Ga1enaragadkar J.
worker under the Factories Act, s. 70 of the Act
entitled him to claim overtime wages under s. 59
of the Factories Act. That is why the Authority
orslered that the respondents would be entitled
fdr the period 19-5-1953 to 30-9-1954 to overtime
wages at double the ordinary rate for the Sundays
on which they worked when they were not given a
a holiday on one of the three days immediately
preceding or after the said Sunday. The appellant
was accordingly directed to file a statement showing
the overtime wages to which the several respondents
were entitled and orders were passed on each one of
the applications directing the appellant to pay the
respective amounts to each one of the respondents.
It is against these orders that the appellant has filed
the present group of appeals by special leave.
The first point which has been urged before us by
the learned Attorney-General on behalf of the appellant is that the Authority was in error in holding that
the progress timekeepers are workers under s. 2(1) of
the Factories Act. A worker under s. 2(1) means 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 manufacturing process, or in any
other kind of work incidental to, or connected with,
the manufacturing process, or the subject of the
manufacturing process; and the manufacturing process under s. 2(k) means any process for inter alia (1)
making, altering, repairing, ornamenting, finishing,
packing, oiling, washing, cleaning,
breaking-up,
demolishing or otherwise treating or adapting any
article or substance with a view to its use, sale,
transport, delivery or disposal. It is clear that the
duties of the progress timekeepers do not fall within
the first pa.rt of s. 2(k). The Authority has however,
142
SUPREME COURT REPORTS [1960(1)]
z959
held that the said duties can be treated as incidental
to, or connected with, the manufacturing process or
B. P~.Hira
the subject of manufacturing process; it is the
c. M. Pradhan correctness of this finding that is challenged by the
appellant.
Gaj""1raga4har J.
On the other hand, Mr. Purshottam, for the respondents, argues that the Authority was in error
in holding that the timekeepers are not workers under
s. 2 (1).
His contention is that the expression
"incidental to, or connected with, the manufacturing
process" is wide enough to include not only the cases
of the progress timekeepers but the cases of all timekeepers as a class. It is true that the 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 timekeepers, 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 scop_e 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 provide 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
servant specified in it shall be pa.id for overtime at
not less than one and a quarter times his ordinary
rate of pay. This provision has been subsequently
amended by Act 59of1956, which makes the rate for
overtime one and one-half times the ordinary rate
of pay ; but it is common ground that we are not
S.C.R.
SUPREME COURT REPORTS
143
concerned with the a.mended provision in these appeals
z959
since the respondents' claim is for a period prior to
I .
d b
h
B. P. Hir11
the date of the amendment.
t is suggeste
y t e
v.
appellant that the respondents are railway servants c. M. Pradhlln
under s. 3 (7) of the said Act, and as such they may
--
be entitled to make a. claim for overtime wages under Gajendragadkar J.
the said proviso ; but the respondents have not made,
and do not wish to make, a claim under the said
provision; and so the question as to the application
of the said section need not detain us. If the construction placed on s. 70 of the Act by the Authority
is cor.rect, the claims of employees who are working in
a. factory in the State of Bombay would be governed
by that provision; this position is not seriously disputed before us.
Section 59 of the Factories Act also deals with the
question of extra. wages for overtime. It provides
for the payment of wages in respect of overtime work
at the rate of twice the ordinary rate of wages. This
benefit is, however, available only to persons who a.re
workers within the meaning of s. 2(1) of the said Act
Since we are dealing with the ca.se on the assumption
that the respondents are not workers under s. 2(1) it
follows that s. 59 by itself would not be applicable
to them.
The Bombay Shops and Establishments Act, 1948,
is the third statute which makes a. provision for the
payment of extra wages for overtime work. Section
63 of the Act deals with this topic ... Section 63(1)
provides for the payment of overtime work at the
rate of H times the ordinary rate of w~ges in the
case of employees in any establishment other than a
residential hotel, restaurant, or eating-house, whereas
sub-s. (2) provides for wages for overtime at the rate
of twice the ordinary rate of wages in respect of
employees in a residential hotel, restaurant or eatinghouse, subject to the other conditions specified in the
said section. It is clear that this section does not
apply to the respondents because they are employees
in a. factory and not in any of the establishments
enumerated in its two sub-sections.
144
SUPREM~ COURT REPORTS (1960(1)]
z959
The respondents' case, however, is that by virtue of
s. 70 of the Act the provisions of the Factories Act,
B. P~.HiY•
including s. 59, are extended to the cases of all emc. M. Pradhan ployees in factories, and so they are entitled to claim
-
wages for overtime under the said section of the
Gajendragadkar J. 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('), no
question about ll.ny repugnance between the provisions of s. 70 and those of the Factories Act can possibly a.rise. 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 no doubt is a piece of beneficent social legislation
intended to serve the cause of labour welfare. It has
been passed in order to consolidate and amend the
law relating to the regulat.ion and conditions of work
and employment in shops, commercial establishments,
residential hotels, restaurants, eating-houses, theatres,
other places of public amusements and entertainments
and other establishments. Section 2, sub-ss. (3), (4)
and {27) define respectivly the establishment, commercial establishment and shop. The definitions of commercial establishment and shop exclude inter alia
factory.
Establishment is defind as meaning a shop,
commercial establishment, residential hotel, restaurant,
eating-house, theatre or other place of public amusement are entertainment to which the Act applies and
includes such other establishment as the State Government may by notification in the official gazette declare
(I) Published
in the Bombay Government
Gazette, Part
IV.
dated 11·1·1949.
S.C.R.
SUPREME COURT REJ:>OH.TS
145
to be an establishment for the purposes of this Act.
It would be noticed that the definition of establishment
I959
B. 'P. Hira
is very wide, and it does not purport to be exhaustive
v.
because it expressly empowers the State Government c. M. Pradhan
to include within its purview by notification other . .
-
establishments not specified in it. Section 2, sub-s. (6) Ga1endragadliar J.
defines an employee as meaning a person wholly or
principally employed in, and in connection with, any
establishment, and includes an apprentice hut does
not include a member of the employer's family.
'.fhis
definition shows that the Act intends to confer the
benefit of its provision on all persons who fall within
the wide definition of the expression" Employee".
It is necessary at this stage to refer to the definition
of " factory " under the Act. Section 2(9) defines a
factory as meaning any premises which is a factory
within the meaning of cl. (m) of s. 2 of the ]'actories
.A,ct or which is deemed to be a factory under s. 85 of
the said Act.
Nows. 2(m) of the Factories Act defines a factory as
meaning any premises including the precincts thereof-
" (i) whereon ten or more workers are working,
or were working on any day of the preceding
twelve months, and in any part of which a
manufacturing process is being carried on with the
aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working,
or were working on aiiy day of the preceding 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;"
ands. 85 confers authori'.y 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
}i'actories Act, and so it satisfies the defiuition of s. 2(9)
of the Act.
19
146
SUPREME COURT REPORTS [1960(1)]
z95o
The scheme of the Act shows that it deals separately
with shops and commercial establishments (ch. III),
n. P~.Hfra
residential hotels, restaurants and eating-houses (ch.
c. M. Pradhan IV) and theatres and other places of public amusement
(ch. V).
Separate provisions are made to regulate
Gajendragadkar J. 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.
We have already noticed that in defining "commercial establishment" and "shop " respectively the
Act has expressly excluded " factories " from the said
expressions. It is true that the definition of "establishment" does not expressly exclude factory ; but it is
plain that factory is treated by the Act as separate and
distinct and there can be no doubt that the provisions
in the Act which apply to establishment are not
intended to, and do not, apply to factories. In other
words, though the definition of " establishmept" is
wide enough, it does not include factory for the purposes of the Act. It is conceivable that a kitchen
attached to an establishment like a residential hotel
may satisfy the definition of factory ; but it seems to
us that such an adjunct of an establishment is prima
facie not intended by the Act to be treated apart and
separately from the main establishment itself; and so
it would be taken as a part of the establishment and
be governed by the provisions of the Act in relation
thereto.
The factory where the respondents are
employed is not connected with, much less an inseparable adjunct of, any establishment, and so this academic aspect of the matter which was incidentally posed
before us by the learned Attorney-General need not be
pursued any further in the present appeal.
The conclusion of the Authority has been challenged
by the appellant on the ground that s. 70 on which it
is based cannot be invoked by the respondents. In
support of this argument reliance is placed on s. 4 of
the Act.
Section 4 provides that notwithstanding
anything contained in the Act its provisions mentioned
S.C.R.
SUPREME COUR'l' REPORTS
147
in the third column of sch. II shall not apply to
z959
the establishments, employees and other persons menh
d
1
f h
'd
B. P. Hira
tioncd against them in t e secon
co mun o t e sai
v.
schedule. The proviso to this section authorises the c. M. Pradhan
State Government to add to, omit or alter any of the
entries in the said schedule in the manner indicated Gajentlragatlkar J.
by it. It is urged that the establishment of any railway administration is mentioned as sr. no. 5 in sch.
II and the entry against it in col. 3 of the said schedule
shows that the provisions of the Act are inapplicable
to the said establishments. If the establishment in
question is exempted from the application of all the
provisions of the Act, how can s. 70 be said to apply
to it? asks the learned Attorney-General. lt is obvious
thats. 4 mentions and 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 applioable 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 thats. 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. II 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 excluded. In other words, the remaining sections
not so specified would apply to them. If that is so,
they must be and are establishments under s. 2(8) of
the Act.
148
SUPREME COURT REPORTS [1960(1)]
1 959
In this connection it must be borne in mind that
s. 2(8) empowers the State Government to include by
B. P ~.Hira
notification any office or institution within the definic. M. Pradhan tion of establishment; and so the inclusion of any such
office or institution in col. 2 of sch. II would make it
Gajcndragadkar J. an establishment under the Act, and as such it would
be governed by it subject of course to the corresponding entry in col. 3. That is why we think that the
suggestion of the leafrned Attorney-General as to the
denotation and character of establishments enumerated in sr. nos. 1 to 5 in col. 2 of sch. II cannot be
accepted. All the offices, establishments and other
institutions mentioned in col. 2 of sch. II are and must
be held to be establishments under s. 2(8).
In regard to the argument that the. operation of
s. 4 excludes the application of s. 70 we have held that
s. 4 applies only to establishments and not to factories.
But even ifs. 4 is assumed to be applicable to factories,
we do not think it would materially affect the application of s. 70.
The plain object underlying s. 70 and
its context emphatically point out that it is intended
to operate independently of the other provisions of the
Act and in that sense it stands apart from them. It is
this aspect of the matter which is clarified by the
Legislature by laying down in s. 70 that nothing in the
Act shall be deemed to apply to any persons employed
in the factory. That, however, anticipates the argument on the construction of s. 70.
Let us therefore,
cite the said section and construe it.
Section 70 provides that 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 shall, notwithstanding anything in the
said Act, apply to such person. This section consists
of two .parts. The first part makes it clear that no
provision in the Act shall be deemed to apply to the
persons specified in it. The Legislature knew that in
fact the Act contained no provision which in terms or
expressly applies to any such person; but in order to
remove any possible doubt it has provided that no
provision in the Act shall even by inference or fiction
be deemed to apply to them. In other words this clause
..
S.C.R.
SUPREME COURT REPORTS
149
I959
is intended to clarify the position that though factory
has been defined by s. 2(9) of the Act, no provision of
A
d
B.P.Hira
the
ct is inten ed to be applied to a. factory or
v.
employees in it. Having clarified this position the c. M. Pradhan'
second part of the section extends the application of . --
the Factories Act to the said persons.
Ga1endragadkar J.
It would have been possible for the Legislature to
include in the present statute a.11 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 a.pply to the persons in question notwithstanding
anything contained in the said Act. The said Act
contalns the provision by which workers are defined
under s. 2(1), and it necessarily involves the consequerue that the relevant provision about the payment
of o>ertime 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 t.liat notwithstanding the said provision the relevant
provsions of the Factories Act will apply to persons
employed in a factory. The non-obstante clause in
s. 7( thus serves the purpose of clarifying the position
thatthe Factories Act is made applicable to employees
in factories and that they are not governed by any of
the Jrovisions of the Act. This conclusion is. obviously
comi.stent with the policy of the Act. It has itself
macb provision for the payment of overtime wages to
empoyees in all establishments by s. 63 ; and it has
made applicable inter alia the relevant provisions of
the 1actories Act in regard to employees in factories.
Tha1 is the view which the Authority has taken, and
in 01r opinion its validity or correctness is not open to
doult.
Inthe result the orders passed by the authority are
confiomed and the appeals are dismissed with costs in
one set.
Appeals dismissed.