UNION OF INDIA. AND ANOTHER v. G.M. KOKTL AND OTHERS March. 21, 1984 , [V.D. TUL.ZAPURKAR AND R.S. PATHAK JJ.)

·292 , • A

p. 293 Copy page pinpoint

ment under s. ()4 of the Factories Act the benefit qnder s. 59 was not available to the respoildents falling within the cxenJpted category by reason of their holding po.sts of supervision, has no force. [3001' and, 29SE] A It is weH-known, that a non-obstante clause is a legislative device \Vhich is usually employed to give over-riding effect to certain provision over some contrary provision'"'that m3.y be found either . in the same eq- actment ~r some other enactment.; that is to say, to avpid the operation and effect of all contrary provisions. Thus the non·obstante clause in s. 1(), namely, "notwithstanding anything'to the contrary contained in that Act B -and as such it must refer to the exempting provisions which would be· contrary to tlie general applicability of .the Act. Jt!St-as because of the non-obstant.e clause the Act is applicable even to employees in the factory ,who might not be rworkers' under s. 2(1), the same non-obstaote clause will keep away the applicability of exemption provisions Qua all tbose working in the factory·· The Labour Court was therefore right in taking the view that because of the non·o15stante clause t s 64 read with Rille 100 itself would not. apply i:o the respondents and they would be entitled to-<;laim overtime wages under s. 59 of that Act read with s. 70 of tbe Bombay Shops and Establishments Act, 1948. [300 C-G]

The contention that the respondents were nOt workmen under the Industrial Dispujcs Act and .as such th.eir application was not Maintain .. D able, must be rejected. The contention depends upon the appreciation of evidence led by th.e partie_~ on the nature of _duties and functions Perfor- med. by the concerned respondents and it Was on an appreciation of the entire material that the Labotir Court recorded a findirig that having regard to the nature of thei'r-duties and functions all respondents, other than tho&e who were holdi_ng the posts of Senior Supervisors and supervi- sors, were industrial employees, Le •. workmen under.· the Industrial Disputes Act and it is not possible for this Court to interfere with such a finidng of fact recordelf by the Labour Court. Even othetwise '"after considering some of the important material on record the courr is s:1tisficd that the Labour Court's finding is correct. (301 C-P]

C!VlL 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.-32/i of 1969.

Harbans Lal, N. S. Das Bahl and R. N. Podd1r for the appellants. • • V. M. Tarkunde, K. Shivraj Choudharp and K. R. Choudhary for therespondents. , l H Tlie Jud~ment of the Court was delivered by . .

294 SUPRllME COURT REPORTS [1984] 3 s.c.R. A TULZAPURKAR, J ..The only point raised by counsei' for the App'lllants in this appeal is whether the respondents who are employees w9rking in the Factory of India l>ecurity Press, N;;sik are entitled to over-time· wages at twice the normal rate of their wages under s. 59. of the Factories Act 1948 . . read withs. 70 of the Bombay Shops and Establishments Act, 1948 and the question • depends upo!l' tlte true construction· of s.. 70 of the latter Act. Since i.n our view the question of proper construction of the said s. 70 is concluded !>Ya decis~on of this Court 'in Shri B.P. Hira, *' Works Manager, Central Railway, Pare/, Bombay, etc. v. Shri C.M. Pradhan etc.( l) it is unnecessar}' to indulge in any elaborate statement of facts or discussion of all the rival contentions that c were urged before the Central Government Labour Court Bombay, 0

whose decision renliered on December 3!, .1971· is challenged in this appeal. • • · ·

.Briefly stated t)le admitted facts· are : The India Security · press, Nasik is a very big establishmen't of the CenJral Govern· . D. ment headed by the General ManageP, 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 nbte press and (d} central stamp stores. There are various categorie:i' of workers who have been classified into two groups such as(!) employees work· I ing in the administrative offices and (2) those working in the -f factor)'. The 78 respondents, belonging .to all the four wings, have been ·employees working· in. the factory (Of these, R' 1 to R-3 are Chieflnspectors (Control); R-4 to R-36 art! Inspectors {Control);. R·37 & R-38 are Senior Supervisors; R·39 to R·52 are Super· visors;' 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 Facto1ies 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 manage· rnent had been causing loss to them by paying them, '.unlike the factory-workers, over·time' wages at the basic rates even for work . they were entitled to .ovH·time wa~es . beyond 44 hrs. whereas done j, (1960) 1 SCR 137,

YNION v. a.Iii. KOKIL (Tulzapurkar, J.) 295

at double the rate of their normal wage{( inclusive of dearness A allowance, etc.), al)d 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-l-i956 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.' ~ B

This claim was resisted by the Appellants on several grounds but we need mention only those grounds which have a Dearing 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 c and as such they were not entitled to the benefit of s. 59 of that Act read withs. 70 of the Bombay Shops and Establishments A~t,

1948. It was fUrther contended that even assuming that the respondents were entitled to claim the benefit of the s. 59 read with the s. 70 notwithstanding that none of them was a worker, by reason of Rule 100 nlade by the State Government in exercise of D its powers under s.• 64 of the Factories Act, s. 59 became inappli- cable to the Respondents and therefore could not be availed of by them inasmuch as quite a substantial number of them fell \tithin . the category of per~on who had been "defined or declared to be holding positions of supervision or management or being employ- ed in a confidential position in the factory." In other words. quite E. a large number of the Respondents fell within the exempted cat~gory under s- 64 road 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 applica. F tion under s. 33C (2) of that Act was not maintainable.

The Central Government Labour Court, Bombay n?gatived f I· 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 ofihe oral and documentary " G 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), Jtinior 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 H ' employees i.e. workmen 'under the Indus.trial Disputes Act, 1947- and as such were entitled· to the relief claimed by them but as

SUPREM6.COURT REPORTS [1984j 3 S.C.R. A regards th,e respondents who were holding the posts of Senior Snperyisors (R-37 and..R-38) and· Supervisors (R-39 to R-5 '.)not being workmen under the lndustrfai 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. · ' .

B As stated earlier, the validity or otherwise ~f the first two '!< contentions that were urged before the Labour Court and teiterat- • ed before us by Counsel for the., appollants depands upon the · • proper construction of s. 70 of the Bombay Shops and Establish- ments Act, 1948 and in order to appreciate both the contentions it will be necessary to ,set outs. 59,s. 64 together with Rule 100 of the Factories Act and s. JO of the Bombay Shops and Establish- ments Act, 1948. Sections 59 and 64 occur in Chapter VI of the factories Act, l'H8 and the. material portions thereof run thus : • · "59: Extra. Wages for overtime.-(!) Where a· worker works in a factory for more than nine hours in anyday or for more than forty-eight hours irr any week, he shall, in respect of overtime wo1'k, be entitled to\Vages at the rate of twice his ordinary rate of wages."

"'6,4. Power to make exempting rules-(1) The State • Government may make rules defining the> persons who hold . positions of supervisions or management or are em ployed in ·i a confidential ·position in a factory, or empowering the Chjef Inspector to declare any persc.:tt, other than a person de'finea by '6Uch ruJes, 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 sq employed and the provi- .slons of this Chapter, other than provisions of clause (b) of sub-section (1) of section 66 and of the proviso to that su{J- )--- section, .shall not apply to any person so defined or declared.:

G Provided that any person so defined -0r declared shall, where the ordinary rate of wag~s of such person does not exceed rupees seven hundred and fifty per month, be enti- tled. to extra wages in respect of overtime work under section 59 .'' H Rnle 100 ire.med under· s. 64 runs thus !

UNION v. o.M:. KOKIL (Tulzapurkar, J.) , eg' "Persons defined to hold positions of .supervision or A management or confidential position. The' following persons shall be deemed to hold position of supervision or management or to be empluyed in a confi- dential positi<m in a factory- . {a) All' persons specified in the Schednle 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 confidentiatl· positiOn. c

Schedule List of persons d~fined to hold positions of supervision · or managemeµt in factories :- .D Manager . Assistant Manager

······ .E Departmental Heads and Assistants

Head Store Keepers and Assistants Technical Experts." F,

Section 70 of the Bombay Shops and Establiskments Act: 1948 runs thus :

"70. Persons employed in factory to be governed by . Factories Act and not by this Act. G

Nothing in this Act shall be .deeJ)led 'to apply to a• factory and the provisions' of the Factories Act, 1948 shall, notwithstanding anything c9ntained in that Act, apply to all persons employed in and in connection with a factory : H Provided t!iat, where any shop or commercial establish·

, , .. 298 .. (- - . SUPREME COURT REPORTS . [19~4) 3 s.c. k. · f, __ A· . 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·; · · ' \ . . ,· . I

Provide~forther that, the State Government ~ay, by · notification in the Official Gazette, apply all or any of the provisions of the Factories Act, 1948 to any shop ,or. com- · mercial · 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." · . · ' ' ·c '

Counsel for the appellants urg.ed that the respondents, though employed in the factory of the Press, were· not 'workers'. within ' '

. the meaning of s. 2 (I) of the Factories Act and therefore were not entitled to the benefit ors. 59 of that Act read with s. 70. of the Bombay Shops and Establishments Act, 1948. On the plain language of sec. 7.0 of the Bombaf Shops and Establishments Act . ' · this contention has to fail. W~ are concerned not with either of ·: the provisos but with the ma.in ·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, notv/it~standing anything contained in that Act, apply to ali persons E, employed in or .in connection with a factory." Clearly, the portion· "underlined· (the 'non-obstante clame 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 of sec. 59: ' . 'workers' within the meaning of sec. 2 (l) they will get.the benefit '

·- This' ide~tical question arose for consideration before this .. '

Co;;rt in the case of B.P. Hira v. C.M. Pradhan (supra). In that .case Shri C.M. Pradhan and other respondents were emplgyed. as time-keepers in the time. office of.the Central Railway. Workshop and Factory, Pare!, 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 alternati- vely on the basis that assuming, they were not 'workers' within the s. meaning of 2{1) of thai Act, they were. entitled to claim over-' time wages nnder s.59 of the Factories Act read with . s. 70 of. the Bombay Shops and Establishments Act, 1948. The validity of the

. tl'NJON v. G.M. KOKIL (Tulzapurkar, j_) 299. . ( . , ' claim on hih th•, groun,.;> was di;puted by the appellant (Works I

Manageij ..The Authority under the Payment of Wages Act.found that only four of the responc!ents, who were required to do the . work of progress time-keeper, could claim the status of 'workers' · within the meaning of s. 2( l) _of the Factories Act· and the ·rest · were merely employees ofthe workshop, but accepted. the alter-· native .case made by the respondents and held that each of the· respondents was entitled to get the over-time wages under sec. 59 · B ·read with sec. 70 and this Court upheld the view of the Authority and confirmed its decision. The Court's view on the proper con1- truction ofs. iO of the Bombay Shops and·. Establishments Act 1948 has been succinctly snmmatised in the second head note, which appears at page 137 of the report, which runs thus:· "On a· prop~r construction of s. 70 of t!le Act it is ciear of that the first part the section excludes a factory and its_ . . employees from the operation of the Act; but the second part makes the relevant provisions' of the FactoriesActapplicable ., · to them. The'non-obstante. clause in the section shows that .· ·the employees.Jn a factory, ,although they might not· be D workers within the meaning of s. 2( I) of the Factories Act, are entitled to claim overtime wages as provided for by· that Act." ' . . .

A pari from the fact that the decision· is binding on us, we are in respectful agreement with the ·construction placed by it on s. 70 E of the Act. ,The first contention ,has, therefore, to.be rejected. Counsel for the appellants next urged that the effecc 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 includes. 64 (oc_curring. in the same Chapter VI) whic.h ·gives . F power to the State m:ivernment 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 excfoded from the purview· of s. 59 of that Act and since in the instant case a substantial number of the respondents G fall within the exempted category (Departmen.tal Heads .and Assis- tants) and Head Storekeepers and ·Assistant they .would not be able to claim overtime wages under s. 59 of that Act read ., with s, 70 of the Bombay Shops and Establish' ments Act.· In other words, counsel contended . that. s.: 59 must be· read·· H with s. 64 of the Factories Act and · because ·of Rule 100 framed under s. 64, ~· 59 becomes inapplicable to the respondent~ •

SUPREME COURT REPORTS [1984] 3 S.C.R. A falling within the exempted categorles. 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, nam~ly, s. 64 read wi~h Rule 100 and accord.ing to him such effect must follow from the ratio of this' Court's decision in the case of B.P. Hira v. C.M. Pradhan (sup{a) and the Labpur Court had rightly B taken the view that because of the non-obstante clause the respon .. dents' right to claim benefit of overtime ·wages under s. 59 read with s. 70 was not affected by t.he framing of rule 100 by the State Government in exercise of the power conforred on it under s. 64.

Section 70, so far as is relevant, says "the provisions of the c Factories Act shall, Mt~ithstanding anything contained in that Act, apply to all persons employed in and in connection with a a factory". It is well: known that non-obstante .clause is a legis- lative 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 enactmen i, that D is to say, to avoid the operation and effect of all contrary pro- visions. Tilus the non-obstante clause in s. 70, namely, "notwith- · standing anythi.ng in that Act'' must mean notwithstauding any- thing 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 • E proviSions of the Act are made applicable to a factory notwith, '-( standi)lg anything to the contrary contained in it, it must have the effect of excfoding th1 operation of the exemption provisions. Just as because of the non-obstante clause the Act is applicable even to employees in the factory w~o might not be 'workers' under sec. 2(l), the sime non-obstante clause Will keep away the 1 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 its~lf would not apply to the respondsnts and ihey would be entitled to claim overtime wages under s. 59 of that Act r~ad withs. 70.of the Bombay Shops and Establishments Act, 1948. G . Counsel for the appellants pointed out that if such construC>- tion was placed on s. 70 if 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 overiime H wages· which cnuld not have been the intention of the State \. Legislature, bu~ that, in our view, is a i;natter of the State Legisla· ture and not for th11 Court bnt it must be pointed out that .since

UNION v. G.M. KOKILj (Tulzapurkar, J.) 301 the rendering oi the aforesaid decision by this Court in 1%0 the A State Legislature has .not intervened, which perhaps suggests that the State Legislature is not keen to limit the operation of the no11- obstante clause in any manner. The second contention must also fail.

Counsel for the appellants made a feeble attempt to contend B that not merely such of the respondents who were holding the . posts of Senior Supervisors and Suparvisors were not industrial employees but all the other responde]Jts were also not industrial employees i.e. were not workmen under the Industrial Disputes Act. In the first place; the contention depends upon the apprecia- . tion of evidence led .by the parties on (he nature 'Of duties and c functions performed by the concerned respondents and it was on an appreciation the entire material that the .Labour Court record- ed a finding that having regard to the nature of their duties and functions all respondents, other tha~ those who were holdJng the post of Senior Supervisors and Supervisors, ·were industrial employees, i.e. workmen under the)ndustrial Disputes Act and it D is not possible for this Court to interfere with such a finding of fact recorded by the Labour"Court. Even otherwise after considreing· 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. ·. E ) In the result the appeal fails and is dismissed but there will be no order as to costs. ·

H.S.K. ·Appeal, dismissed•