1.

PETITIONER:

DR. DEVENDRA M. SURTI

Vs.

RESPONDENT:

STATE OF GUJARAT

DATE OF JUDGMENT:

02/05/1968

BENCH:

RAMASWAMI, V.

BENCH:

RAMASWAMI, V.

VAIDYIALINGAM, C.A.

CITATION:

1969 AIR 63 1969 SCR (1) 235

ACT:

Bombay Shops and Establishments. Act, 79 of 1948, s. 2(4) Rule, 23(1)-Doctor's dispensary whether a commercial establishment as defined in s. 2(4)-Non-maintenance of register of employees under r. 23(1)whether an offence.

HEADNOTE:

The appellant, a medical practitioner who also maintained a dispensary was prosecuted for non-maintenance of a register of employees as required by r. 23(1) of the rules made under the Bombay Shops and Establishments Act, 1948. He contended that he could not be prosecuted because his dispensary was not a 'commercial establishment' as defined in s. 2(4) of the Act. He was acquitted by the trial magistrate but the High Court, on appeal by the State convicted him. In appeal by special leave to this Court,

HELD : Section 2(4) has used words of very wide import and' grammatically it may even include the consulting room where a doctor examines his patients with the help of a solitary nurse or attendant. But the language of s. 2(4) must be construed on the principle noscitur a sociis. i.e. when two or more words susceptible of analogous meaning are coupled together the words take their colour from each other and the more general are restricted to 'a sense analogous to less general. [240 A--C]

The words 'commercial establishment' and 'profession' in s. 2(4) are used along with the words 'business 'and trade' and must therefore be restricted to activity analogous to business or trade. Professional activity cannot be treated as within the definition of s. 2(4) unless it is organised as trade and business are organised i.e. the activity as systematically or habitually undertaken for rendering material services to the community at large or a part of such community with the help of the employees and such an activity generally involves cooperation of the employer and the employees. [244 C-E]

Tested in the light of these principles the appellant did not fall within. the purview of the Act and his conviction was illegal. [244 E-F]

The National Union of Commercial Employees, and Anr. v. M. R. Mehr, Industrial Tribunal, Bombay, [1962] Supp. 3 S.C.R. 157, relied On.

Reed v. Ingham, 3 E-B 889, Scales v. Pickering. (1828) 4 Bing. 448, 452, 453, McKay v. Rutherfurd, 6 Moore P.C. 425, Commissioners of Inland Revenue v. Maxse, [1919] 1 K.B. 647, 657 and William Esplen, Son, and Swainston Ld. v. Inland Revenue Commissioners, [1919] 2 K.B. 73 1, referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 102 of 1966.

Appeal from the judgment and order dated February 14, 1966 of the Gujarat High Court in Criminal Appeal No. 208 of' 1964.

236

5. Parliament was aware of the fact that employees in establishments other than those to which, the Act applies were getting bonus under adjudication provided by the Industrial Disputes Act and other similar Acts. If it intended to deprive them of such bonus surely it would have expressed so in the Act;

6. Sec. 39 in clear terms saves the right to claim bonus under the Industrial Disputes Act or any corresponding law by providing that the provisions of this Act shall be in addition to and not in derogation of the provisions of those Acts.

It is true that the preamble states that the Act is to provide for payment of bonus to persons employed in certain establishments and sec. 1(3) provides that the Act is to

apply, save as otherwise provided therein, to factories and every other establishments in which 20 or more persons are employed. Sub-sec. (4) of sec. 1 also provides that the Act is to have effect in relation to such factories and establishments from the- accounting year commencing on any day in 1964 and every subsequent accounting year. But these provisions do not, for that reason, necessarily mean that the Act was not intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus and the persons to whom it should apply. Even where an Act deals comprehensively with a particular subject-matter, the Legislature can surely provide that it shall apply to particular persons or groups of persons or to specified institutions only. Therefore, the fact that the preamble states that the Act shall apply to certain establishments does not necessarily mean that it was not intended to be a comprehensive provision dealing with the subject-matter of bonus. While dealing with the subject-matter of bonus the Legislature can lay down as a matter of policy that it will exclude from its application certain types of establishments and also provide for exemption of certain other types of establishments even though such establishments would otherwise fall within the scope of the Act. The exclusion of establishments where less than 20 persons are employed in sec. 1(3) therefore is not a criterion suggesting that Parliament has not dealt with the subject-matter of bonus comprehensi9vely in the Act.

As already seen, there was until the enactment of this Act no statute under which payment of bonus was a statutory obligation on the part of ,in employer or a statutory right therefore of an employee. Under the Industrial Disputes Act, 1947 and other corresponding Acts, workmen of industrial establishments as defined therein could raise an industrial dispute and demand by way of bonus a proportionate share in profits and Industrial Tribunals could under those Acts adjudicate such disputes and oblige the employers to pay bonus on the principle that both capital

2.Bombay Gas Co. Ltd vs Jagannath Pandurang & Others on 12

August, 1975

Equivalent citations: 1972 AIR 2356, 1972 SCR (3) 929 Bench: Vaidyialingam, C.A.

PETITIONER:

BOMBAY GAS CO. LTD.

Vs.

RESPONDENT:

JAGANNATH PANDURANG & OTHERS

DATE OF JUDGMENT12/08/1975

BENCH:

VAIDYIALINGAM, C.A.

BENCH:

VAIDYIALINGAM, C.A.

DUA, I.D.

CITATION:

1972 AIR 2356 1972 SCR (3) 929

1972 SCC (2) 119

CITATOR INFO :

RF 1974 SC1495 (11)

ACT:

Industrial Disputes Act 1947 Section 10-Award of an Industrial Tribunal, if binds workman coming to Work under the employer after the award.

Labour. Law-Principles of res judicata, if apply to industrial disputes.

HEADNOTE:

The 118 respondents are workmen of the appellant company`working in different departments of the company's works. Respondents 1 to 14 are Syphon Pumpers. They filed 14 applications before the Additional Authority under s 15 of the Payment of Wages Act claiming overtime wages for the period February 1957 to January 1958. Respondents 15 8 are Mains workers. They filed 66 applications before the same authority claiming overtime wages for tho period December 1956 to November 1957. Respondents 81 to 118 filed 38 applications before the Third Additional Authority claiming wages for weekly of days. They belonged to the Mains, Heating Appliances and Fitting Department 'they had joined the appellant company after 1948. Before the Authority under Payment of Wages Act the company contended that all the claims were barred under an award of the Industrial Tribunal in Ref. No. 54 of 1949, which was made on 30-3-1950 and

published on 11-5-1950. The Tribunal held that workers of Services and District fittings departments and lamp- repairers who used to work till 1948 on all the seven days of the week, would be entitled to be paid weekly day off. The Authority held that (1) the claims of the Booster Attendants for wages for overtime work and weekly off days were covered by the award, (2) the claims of Applicants other than Booster Attendants were not covered by the award, and (3) the Bombay Shops and Establishments Act was not applicable to them, and dismissed the applications of respondents I to 80. The applications made by respondents 81 to 113 were allowed by the Third Additional Authority holding that the award was no bar to those applications, and that the provisions of the Bombay Shops and Establishments Act were applicable. The Court of Small Causes, Bombay, which dealt with the appeals filed by the workmen and the company held that the claims of workers for overtime. wages and wages for weekly off days were barred by the award. It also held that the appellant company was a commercial establishment within The meaning of that terms under the Bombay Shops and Establishments Act. All the workmen filed a writ petition challenging the judgment of the Court of Small Causes. The High Court held that the claims of the respondents were not barred by the award and remanded the applications of respondents I to 80 to the Authority under the Payment of Wages Act for ascertaining and decreeing the amount. As regards respondents 81 to 118 the judgment of the Third Additional Authority under the Payment of Wages Act was restored. This appeal is preferred on the basis of the special leave granted by the Supreme Court. Dismissing the appeal,

JUDGMENT:

The High Court seems to have been of the impression that these workmen were entitled to be paid for the days off either under the award or under s 18(3) of the Bombay Shops and Establishments Act. It seems to have assumed that there was a scale of wages for weekly off days under the award. That this is an obvious mistake would be apparent from a reading of paragraphs 114 and 115 of the award to the following effect:

"114. It must be remembered that the wages of daily rated workers are ordinarily fixed with reference to what their monthly income would be on the basis of a month consisting of 26 working days. This undoubtedly secures to them the benefit of holidays with pay. .. The company and the union have entered into an agreement about June 1946 as regards wage scales of various categories of workers that in respect of most of the daily rated workers the wages must have been fixed on the basis of what their monthly income would be for 26 working days.

115. Some difference must however be made in the case of the classes of workers specifically mentioned in demand 11(b)... Until recently these categories of workers used to work for all the 7 days of the week and earn wages for all the days. Certainly it cannot be said in their case that their daily rates of wages were fixed with reference to a month of 26 working days. . . Time demand in respect of workers of the Mains Services and District Fittings Departments and lamp-repairers and others who were till l 948 required to work on Sundays and in respect of whom a weekly day of was introduced thereafter without any corresponding increase in their wages is granted."

The matter would be further clear when paragraph 14 of the award is read, wherein the Tribunal has observed: "While therefore, I approve of Rs. 30 as the minimum wage for male mazdoors (coolies) which is at present given

3 Union Of India And Another vs G.M. Kokil And Others on 21 March, 1984

Equivalent citations: 1984 AIR 1022, 1984 SCR (3) 292 Bench: Tulzapurkar, V.D.

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)

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.

JUDGMENT:

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-

http://www.indiankanoon.org/search/?formInput=bombay+shop+and+establishment+t+act%2C1948+

4 . Shri B. P. Hira, Works ... vs Shri C. M. Pradhan Etc on 8 May, 1959

Equivalent citations: 1959 AIR 1226, 1960 SCR (1) 137 Bench: Gajendragadkar, P.B.

PETITIONER:

SHRI B. P. HIRA, WORKS MANAGER,CENTRAL RAILWAY, PAREL, BOMBA

Vs.

RESPONDENT:

SHRI C. M. PRADHAN ETC.

DATE OF JUDGMENT:

08/05/1959

BENCH:

GAJENDRAGADKAR, P.B.

BENCH:

GAJENDRAGADKAR, P.B.

SINHA, BHUVNESHWAR P.

WANCHOO, K.N.

CITATION:

1959 AIR 1226 1960 SCR (1) 137

ACT:

Overtime Wages-Claim by employees in railway factory- Validity-Factories Act, 1948 (LXIII of 1948), SS. 2(1),59- The Bombay Shops and Establishments Act, 1948 (Bom. 79 of 1948). SS. 4, 70.

HEADNOTE:

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 meaning 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 (Bom. 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 respond- ents 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 it 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 establishments and not to factories; but even if it applied, to factories

18

138

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.

Judgement

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 1-1/2 times the ordinary rate of wages 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

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 regulation and conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating-houses, theaters, 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 defend 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 (1) Published in the Bombay Government Gazette, Part IV, dated 11-1-1949.

5. Sardar Refreshments vs State Of Maharashtra And Anr. on 15 April, 2005

Equivalent citations: 2005 (4) BomCR 63, 2005 (3) MhLj 792

Bench: C D.Y.

Sardar Refreshments vs State Of Maharashtra And Anr. on 15/4/2005

JUDGMENT

Chandrachud D.Y., J.

1. The Bombay Shops and Establishments Act 1948 inter alia defines the expression commercial establishment in Clause (4) of Section 2 to mean an establishment which carries on any business, trade or profession or any work in connection with or incidental or ancillary to any business, trade or profession. The definition also excludes certain establishments and among them are residential hotels, restaurants, eating houses, theatres and other places of public amusement or entertainment. Clause (8) of Section 2 defines the expression 'establishment' inter alia to mean a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment to which the Act applies. Section 7 of the Act provides for the registration of establishments. Section 19 inter alia provides for the opening the closing hours of restaurants and eating houses. Sub-section (1) of Section 19 provides that notwithstanding anything contained in any other enactment for the time being in force, no restaurant or eating house shall be opened on any day earlier than 5 a.m. and closed later than twelve midnight for service. The proviso thereto stipulates that an employee in restaurant or eating house may be required to commence work not earlier than 4.30 a.m. and shall not be required to work later than 12.30 a.m. Sub-section (2) of Section 19 provides that subject to the provisions of Sub-section (1) the State Government may fix

later opening or earlier closing hours for different restaurants or eating houses or for different areas or for different periods of the year. A power to grant an exemption from the provisions of the Act is conferred in Section 4. Section 4 provides that notwithstanding anything contained in the Act, the provisions of the 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 schedule. By the proviso to Section 4, the State Government is empowered by notification in the Official Gazette to add, omit or alter any of the entries of the schedule subject to such conditions if any that may be prescribed in the notification. The Second Schedule to the Act contains in pursuance of Section 4 a list of establishments and a statement of those provisions of the Act from which the establishments are exempted.

6 The Kolhapur District Central ... vs Maharashtra Labour Welfare ... on 7 February, 2003

Equivalent citations: 2003 (4) BomCR 582, (2003) IILLJ 913 Bom Bench: R Lodha, N Mhatre

The Kolhapur District Central Cooperative Bank Limited vs Maharashtra Labour Welfare Board, Constituted Under The Bombay Labour Welfare Fund Act, 1953, Asstt. Labour Welfare Commissioner And S.Y. Nagulwar, Inspector Under The Bombay Labour Welfare Fund Act, 1953 on 7/2/2003

JUDGMENT

The Bombay Labour Welfare Fund Act, 1953 (for short, "Act of 1953") was enacted to provide for the constitution of a Fund for the financing of activities to promote welfare of labour in the State of Maharashtra for conducting such activities and for certain other purposes. The Maharashtra Labour Welfare Board is the Board constituted under Section 4 and contribution means the sum of money payable to the Board in accordance with the provisions of Section 6BB. Employer in Clause (3) of Section 2 reads thus:

"(3) "Employer" means any person who employes either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes-

(i)in a factory, any person named under Section 7(i)(f) of the Factories Act, 1948 as the manager;

(ii) in any establishment, any person responsible to the owner for the supervision and control of the employees or for the payment of wages."

5. "Establishment" as defined in Clause (4) reads thus:

"Establishment" means -

(i) a factory;

(ii) a tramway or motor omnibus service or a motor transport undertaking to which the Motor Transport Workers Act, 1961, applies; and

(iii) any establishment within the meaning of the Bombay Shops and Establishments Act, 1948, which employs, or on any working day during the preceding twelve months, employed five or more persons

7. Kalidas Dhanjibhai vs The State Of Bombay on 29 October, 1954

Equivalent citations: 1955 AIR 62, 1955 SCR (1) 887 Bench: Bose, Vivian

PETITIONER:

KALIDAS DHANJIBHAI

Vs.

RESPONDENT:

THE STATE OF BOMBAY.

DATE OF JUDGMENT:

29/10/1954

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

MUKHERJEA, B.K.

JAGANNADHADAS, B.

CITATION:

1955 AIR 62 1955 SCR (1) 887

ACT:

Bombay Shops and Establishments Act, 1948 (Bombay Act LXXIX of 1948), s. 2(27)-Premises (situated in Ahmedabad) where no buying or selling is done-Owner employing three workers- Doing business in a very small way-By going to certain local mills-Collecting orders for spare Parts-Manufacturing the parts in his workshop -Concern of this nature-Whether a shop within the meaning of s. 2(27).

HEADNOTE:

The appellant, the owner of a small establishment in Ahmedabad, employs three workers, does business in a very small way by going to certain local mills, collecting orders from them for spare parts, manufacturing the parts so ordered in his workshop, delivering them to the mills when ready and collecting the money therefor. No buying or selling is done on the premises.

Hold, that a concern of this nature is not a shop within the meaning of s. 2(27) of the Bombay Shops and Establishments Act, 1948,

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 80 of 1953.

Appeal by Special Leave granted by the Supreme Court by its order dated the 9th February, 1953, from the Judgment and Order dated the 23rd September, 1952, of the High Court of Judicature at Bombay in Criminal Appeal No. 828 of 1952 arising out of the Judgment and Order dated the 27th March, 1952, of the Court of Stipendiary Magistrate, Ahmedabad, in Summary Case No. 3029 of 1954.

Rajni Patel and M. S. K. Sastri for the appellant. M. C. Setalvad, Attorney-General of India, and (Porus A. Mehta and P. G.Gokhale, with him) for the respondent. 1954. October 29. The Judgment of the Court was delivered by

BOSE, J.-This case is unimportant in itself, for a small fine of Rs. 50 (Rs. 25 on each of two counts) has been imposed for a couple of breaches under section 52 (f) of the Bombay Shops and Establishments Act, 1948, read with rule 18(5) and (6) of the Rules framed under

888

the Act. But the question involved is of general importance in the State of Bombay and affects a large number of similar establishments, so in order to obtain a clarification of the law, this has been selected as a test case. The appellant is the owner of a small establishbment called the Honesty Engineering Works situate in Ahmedabad in the State of Bombay. He employs three workers. He does business in a very small way by going to certain local mills, collecting orders from them for spare parts, manufacturing the parts so

ordered in his workshop, delivering them to the mills when ready and collecting the money therefor. No buying or selling is done on the premises. The question is whether a concern of this nature is a "shop" within the meaning of section 2(27) of the Act. The learned trying Magistrate held that it was not and so acquitted. The High Court, on an appeal against the acquittal, held it was and convicted.

It is admitted that the appellant maintains no "leave registers" and gives his workers no "leave books" and it is admitted that the Government Inspector of Establishments discovered this on 12th January, 1951, when he inspected the appellant's works. If his establishment is a "shop" within the meaning of section 2(27) he is guilty under the Act; if it is not, he is not guilty.

"Shop" is defined as follows in section 2(27): "'Shop' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a store room, godown, warehouse or work place, whether in the same premises or otherwise, mainly used in connection with such trade or business but does not include a factory, a commercial establishment, 'residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment".

10. Gujar (A.R.) vs State Of Maharashtra on 16 August, 1966

Equivalent citations: (1968) 70 BOMLR 817, (1969) IILLJ 509 Bom Bench: S Kotval, N Mody

Gujar (A.R.) vs State Of Maharashtra on 16/8/1966

JUDGMENT

Kotval, C.J.

1. This is an appeal against the decision of Kantawalla, J., in Miscellaneous Petition No. 399 of 1963. The appeal involves a question as to the interpretation of S. 5 of the Bombay Shops and Establishments Act, 1948. The question arises upon the following facts.

2. G. R. Rao Brothers, the appellants, constitute a firm and carry on a tailoring business at Dadar, Bombay. They are being prosecuted in the Court of the Presidency Magistrate, Twelfth Court, Bandra, Bombay, upon the complaint of respondent 2, the Inspector appointed under the Bombay Shops and Establishments Act, and filed sometime in July 1963 (none of the parties has been able to give this Court the exact date although protracted arguments were addressed). According to the complaint, the appellants had not maintained a register of employment in form J or H prescribed by the rules made under the Bombay Shops and Establishments Act in respect of certain named employees. The offence was detected on 15 June, 1963. The appellants were charged with the contravention of S. 52(f) of the Bombay Shops and Establishments Act, read with rule 20 of the Maharashtra Shops and Establishments Rules, which prescribe that every employer

or manager of a shop or commercial establishment shall maintain a register of employment in form H, provided that where the opening and closing hours and period of interval for rest are ordinarily uniform, the employer or manager may maintain such register in form J.

11. Merchant (N.E.) vs Bombay Municipal Corporation on 31 July, 1967

Equivalent citations: (1968) ILLJ 187 Bom Bench: D Palekar, M Chitale

Merchant (N.E.) vs Bombay Municipal Corporation on 31/7/1967

JUDGMENT

Palekar, J.

1. This is a revision from an order of conviction and sentence passed by the Honorary Presidency Magistrate (Municipal Bench). Bombay, under S. 52(a) read with S. 7(2)(2A) of the Bombay Shops and Establishments Act, 1948. The applicants are chartered accountants carrying on their business in the name, N. E. Merchant & Co. Both of them are qualified chartered accountants entitled to practice as such in their own right.

2. One Narayan Mahadeo Malik, who is the inspector in the Shops and Establishments Department of the Bombay Municipal Corporation, visited the establishment of the applicants on 15 July 1965, and found the following contraventions of the Act, viz., the Bombay Shops and Establishments Act, 1948 :

11. C.N. Bhaskaran vs Sri S.A. Patil And Others on 9 September, 1985

Equivalent citations: (1986) ILLJ 163 Bom Bench: B Lentin, S Kurdukar

C.N. Bhaskaran vs Sri S.A. Patil And Others on 9/9/1985

JUDGMENT

Kurdukar, J.

Shri. Menon learned counsel appearing in support of this appeal reiterated the same contention before us. Shri. Menon submitted that the learned single Judge erred in holding that by reason of incorporation of S. 38B of the Bombay Shops and Establishments Act, 1948 the provisions of Industrial Employment (Standing Orders) Act, 1946 and the rules made thereunder are engrafted into Bombay Shops and

Establishments Act with only necessary consequential changes in points of detail. He then urged that if the interpretation put by the learned single Judge is accepted it will bring a material change in the Industrial Employment (Standing Orders) Act and virtually the learned single Judge has inadvertently stepped into the shoes of the legislature by rendering the provisions of S. 1(3) of the Industrial Employment (Standing Orders) Act ineffective which is a limiting clause. According to the learned counsel the effect of the judgment is to make the provisions of S. 1(3) of the Industrial Employment (Standing Orders) Act, redundant as for as Shops and Establishments Act is concerned. Shri. Menon also urged that the interpretation given by the learned single Judge to the phrase 'mutatis Mutandis' is incorrect. According to the learned counsel the interpretation of the phrase 'Mutatis mutandis' connotes changes to be made which ought to include the substantive provisions of S. 1(3) of the Industrial Employment (Standing Orders) Act, 1946 and should not result in setting aside or striking down of any of the provisions of the said statute. S. 38B of the Bombay Shops and Establishments Act 1948 must be read with S. 1(3) of the Industrial Employment (Standing Orders) Act, 1948 and if so read it must mean that unless the condition in regard to the employees of a hundred or more is established as provided in S. 1(3) of Industrial Employment (Standing Orders) Act by the second respondent, S. 38B of the Bombay Shops and Establishments Act, will not come into operation. We are unable to agree with any of these contentions raised before us. It is common ground that on 1st May, 1978 S. 38B was inserted by Maharashtra Act 64 of 1977. In order to appreciate the contention of Shri. Menon, it would be necessary to refer to the provision contained in S. 38B S. 38B of the Bombay Shops and Establishments Act, 1948, reads as under :

12. Chandulal Mohanlal vs State Of Bombay And Ors. on 27 February, 1961

Equivalent citations: AIR 1961 Guj 184, (1961) GLR 422, (1961) 0 GLR 514

Bench: S Desai, Bhagwati

Chandulal Mohanlal vs State Of Bombay And Ors. on 27/2/1961

JUDGMENT

Desai, C.J

It is secondly urged that the petitioner's business carried on in his godown is neither a shop nor a commercial establishment, but a manufactory. Learned Advocate has sought to derive support for the present contention from a decision of their Lordships of the Supreme Court in Kalidas

Dhanjibhai v. State of Bombay, 57, Bom LR 702 : ((S) AIR 1955 SC 62). The argument here is that the petitioner's is a potential factory and our attention has been drawn to some observations of Mr. Justice Bose in that case. That case arose from an order of conviction and sentence of fine imposed under the Bombay Shops and Establishments Act. 1948. The accused owned a small workshop in which he employed three workmen. The method of his doing business was to go to the local mills, to collect orders from them for small parts of machinery, to manufacture those parts in his workshop, to deliver the parts to the mills when ready and to collect money therefor from the mills. No buying or selling was done on the premises. The question arose whether the workshop was a shop as defined in Section 2(27) of the Bombay Shops and Establishments Act, 1948, and it was held by the Supreme Court that the workshop in question was not a shop within the meaning of that Provision. The question which arose for examination by their Lordships was totally different and the observations made by them were in a wholly different context, and it is not permissible to read these observations in a manner divorced from their context. That being the position, it is not necessary to burden this judgment with the observations to which our attention has been drawn by Mr. Nanavaty, Mr. Nanavaty has also relied on the Explanation at the foot of the Notification dated 10th December, 1957. We agree that for the purpose of the entry 16 ot that Notification, the expressions 'Shop' and 'Commercial Establishment' must be given the same meaning as assigned to them under the Bombay Shops and Establishments Act, 1948. The expression 'Commercial Establishment' is defined in Section 2(4) of that Act as under:

13. N.E. Merchant And Anr. vs State on 31 July, 1967

Equivalent citations: AIR 1968 Bom 283, (1967) 69 BOMLR 758, ILR 1967 Bom 1392 Bench: Chitale, Palekar

N.E. Merchant And Anr. vs State on 31/7/1967

JUDGMENT

Palekar, J.

(1) This is a revision from an order of conviction and sentence passed by the Honorary Presidency Magistrate (Municipal Bench), Bombay, under S. 52(a) read with S. 7(2)(2-A) of the Bombay Shops and Establishments Act, 1948. The applicants are chartered accountants carrying on their business in the name Messrs. N. E. Merchant and Co. Both of them are qualified chartered accountants entitled to practise as such in their own right.

(2) One Narayan Mahadeo Malik who is the Inspector in the Shops and Establishments Department of the Bombay Municipal Corporation visited the establishment of the applicants on 15-7-1965 and found the following contraventions of the Act, viz., the Bombay Shops and Establishments Act, 1948.

(1) The registration Certificate was not displayed at a conspicuous place in the establishment.

(2) Application in Form "B" together with the prescribed fee for the renewal of the Registration Certificate No. B-II-1831 for the year 1965 was not submitted.

The learned Magistrate held that the first contravention had not been proved but the second was proved. He, therefore, convicted the applicant under S. 52(a) read with Section 7(2)(2-A) of the Act.

(3) Section 7(2-A) of the Act provides

"A registration certificate granted under sub-section (2), shall be valid up to the end of the year for which it is granted. An application for the renewal of a registration certificate shall be submitted not less than fifteen days before the date of expiry of the registration certificate or of the renewed registration certificate, as the case may be, and shall be accompanied by such fees, and the renewed registration certificate shall be in such form, as may be prescribed."

The form prescribed is form B. There is no dispute that the applicants had obtained a registration certificate under S. 7(1) and (2) of the Act for the year 1964 being Registration Certificate No. B-II-1831, but no application for the renewal of that certificate was made as required by Sub-section (2-A). In other words, the contravention is admitted. The contention which was put forward on behalf of the applicants was that the Act was not applicable to the establishment of the applicants, and therefore, there was no need to apply either for a registration certificate under S. 7 (1) and (2), for a renewal of that registration certificate under sub-sec (2-A). That contention, however, was negatived by the learned Honorary Presidency Magistrate, and on conviction the applicants were ordered to pay a fine of Rs. 30 each or in default to suffer simple imprisonment for seven days.

(3) Section 7 of the Act is found in Chapter II dealing with Registration of Establishments and requires the employer of every establishment to send to the Inspector of the local area concerned a statement in a prescribed form together with a fee for obtaining a registration certificate. The applicants contend that they do not come within the definition of either the word "employer" or "establishment" as defined in the Act, and hence there could be no contravention of any of the provisions of S. 7.

(4) The Bombay Shops and Establishments Act, 1948, is an Act to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments, residential hotels restaurants, eating houses, theatres, other places of public amusement or entertainment and other entertainments. Section 2 under its Clause (7) defines the word "employer". Employer means a person owning or having ultimate control over the affairs of an establishment. Under Clause (8) "Establishments" means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment to which this Act applies

and includes such other establishment as the State Government may, by notification in the Official Gazette, declare to be an establishment for the purpose of the Act. "Commercial Establishment" is defined in Clause (4) of that section. It means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business trade or profession and includes a society registered under the Societies Registration Act, 1860, and a charitable or other trust, whether for purposes of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment.

14. Ahmedabad Panjarapole Sanstha vs Miscellaneous Mazdoor Sabha And ... on 24 March, 1986

Equivalent citations: (1986) 2 GLR 983

Bench: P Gokulakrishnan, S Majmudar

Ahmedabad Panjarapole Sanstha vs Miscellaneous Mazdoor Sabha And Ors. on 24/3/1986

JUDGMENT

P.R. Gokulakrishnan, C.J.

Mr. Vakil, the learned Counsel appearing for the petitioner, elaborately argued as to the applicability of the Bombay Shops and Establishments Act, 1948 (Bombay Act No. LXXIX of 1948) and contended that this Vastrapur branch establishment cannot be a 'commercial establishment' and as such it cannot be said that the Minimum Wages Act is applicable. In view of the decision of the Supreme Court in Bangalore Water Supply v. A. Rajappa 1978 (I) L.L.J. 349, it has been rightly held by the Labour Court that petitioner-Panjarapole is an industry as defined by Section 2(j) of the I.D. Act, 1947. In fairness to Mr. Vakil for the petitioner, he did not seriously take up this contention. However, his main thrust of the argument was that even assuming that the petitioner is an industry, the Vastrapur establishment is an independent and separate one and as such, it cannot be said that it is a 'commercial establishment'. According to the learned Counsel, such type of establishments are being run on philanthropic basis and as such, there is no 'commercial' activity in the same. We are afraid, we cannot accept this argument advanced by the learned Counsel for the petitioner.

15. Jayaben Suryakant Modi vs Welfare Commissioner And Ors.

on 5 February, 1996

Equivalent citations: (1996) 3 GLR 60, (1997) ILLJ 139 Guj Bench: M Calla

Jayaben Suryakant Modi vs Welfare Commissioner And Ors. on 5/2/1996

JUDGMENT

On the other hand it has been argued by Mr. Bhaya on behalf of the employees of the Gujarat Labour Welfare Board that firstly the Board is an establishment within the meaning of 'commercial establishment' under Section 2(4) of the Bombay Shops and Establishments Act, 1948 and in the alternative it has been argued by him that an 'establishment' may be covered under any law, not necessarily the law in force in a particular State in relation to Shops and Establishments only. He has submitted that the scope of Section 1(3)(b) is wide enough to take within its sweep any establishment under any law and not necessarily the law in relation to the Shops and Establishments only and according to him the use of the word 'and' between 'shops' and 'establishments' is disjunctive and not conjunetive. Mr. Bhaya has further argued that the Gujarat Labour Welfare Board is an establishment not only with reference to the provisions of the Bombay Shops and Establishments Act, 1948. But it is an establishment under several laws, which are in force in the State of Gujarat, whether they are Central Act or a State Act and to support his argument he has referred to the provisions of the Contract Labour (Regulation & Abolition) Act. 1948, Employment Exchange (Compulsory Notification of Vacancies) Act. Industrial Disputes Act. 1947 and Apprenticeship Act and has submitted that even if such laws are Central Laws, they are in force in the State of Gujarat also. According to him, it is not so necessary that the law in force in the State means only the State laws and not the Central laws and, therefore, if any establishment is an establishment within the meaning of any law in force in the State notwithstanding the distinction of State or Central Act, it has to he taken to be an establishment within the meaning of Section 11(3)(b) of the Payment of Gratuity Act, 1972 and the basis on which the claim of the employee has been turned down by the Appellate Authority under Payment of Gratuity Act at Ahmedabad is absolutely wrong and misconceived and the claim, which had been accepted by the Appellate Authority under the Payment of Gratuity Act at Rajkot is absolutely well founded. He thus seeks to assail the order passed by the Appellate Authority at Ahmedabad against the employee and seeks to defend the order passed by the Appelate Authority at Rajkot, which are impugned orders in Special Civil Application No. 342 of 1995 and Special Civil Application No. 10106 of 1995 respectively. Mr. Bhaya has placed strong reliance on the following decisions :

16. Vasudev Anant Kulkarni vs Executive Engineer, M. S. E. B. on 11 January, 1994

Equivalent citations: II (1994) ACC 435, 1995 ACJ 97, (1995) ILLJ 496 Bom

Bench: A Halbe, A Mane

Vasudev Anant Kulkarni vs Executive Engineer, M. S. E. B. on 11/1/1994

JUDGMENT

A.D. Mane, J.

1. A twin question of law is raised in this case, first of which relates to the scope and extent of Section 38-A of Bombay Shops and Establishments Act, 1948 (for short, the Bombay Act applies is entitled to claim compensation for a personal injury caused to him by accident arising out of and in the course of his employment from his employer, as workman under the provisions of Workman under the provisions of Workmen's Compensation Act, 1923.

17. Sadasivam vs State Of Madras, By The Asst. ... on 1 October,

1956

Equivalent citations: AIR 1957 Mad 144, 1957 CriLJ 374, (1957) ILLJ 524 Mad Bench: Ramaswami

ORDER

Ramaswami, J.

The, Bombay Shops and Establishments-Act LXXIX of 1948, repealing the earlier Bombay Shops and Establishments Act. 1939, provides in Section 18 that every shop and commercial establish-merit shall remain closed on one day of the Week and that no deduction shall be made, from the-wages of employees for such, closure and that at the beginning of each year, a list of such closing days shall be prepared by the employer' and con spicupusly exhibited1 in the shop or commercial establishment, that the Inspector should be notified of the list and that the employer may keep-the shop or establishment open on any day notified as closed, provided such shop or establishment is closed on some other day in the same week and that the Inspector is notified to that effect at least seven days before the notified day or the closed day, whichever is earlier

18. Rasheed A. Maskati And Others vs M. Abbas Ali Hussaini And Another on 18 January, 1990

Equivalent citations: 1990 (60) FLR 776, (1991) ILLJ 78 Bom Bench: D Mehta

Rasheed A. Maskati And Others vs M. Abbas Ali Hussaini And Another on 18/1/1990

JUDGMENT

In support of his submission, Shri Dalal has cited various authorities of the Supreme Court, our Court and the other High Courts. I shall deal with these authorities at a later stage. It will be pertinent, firstly to cite the provisions of the Minimum Wages Act as also of the Bombay Shops and Establishments Act, 1948.

Now, it is pertinent to point out that the expression "commercial establishment" has not been defined either under the Minimum Wages Act or the Rules made thereunder. That expression has been defined under Section 2(4) of the Bombay Shops and Establishments Act, 1948 in the following terms :

"(4) : "Commercial establishment" means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession (and includes establishment of any legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant or any other technical or professional consultant and also includes) a society registered under the Societies Registration Act, 1966, and a charitable or other trust, whether registered or not, which carries on (whether for purposes of gain or not) any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment :"

Under this definition, therefore, a charitable or other trust, whether registered or not, which carried on, whether for purposes of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto would be termed as a "commercial establishment

Shri Dalal cited a ruling delivered by me in the case of Jagdish v. Madhusudan (1987-I-LLJ-294). That was a case wherein the State Government had issued a Notification, dated 7th February, 1951 under the Shops and Establishments Act, which was published in the Bombay Government Gazette, dated 15th February, 1951. Under the said Notification, an establishment engaged by landlord for the purpose of collection of rent of his property or for any other purpose in the management of his property would be an establishment under Section 2(B) of the Bombay Shops and Establishments Act, 1948. The petitioner was a landlord and carried on the work of collection of rent with the help of a single employee. The Petitioner-landlord was prosecuted under the provisions of Section 7(1) read with Section 5(1) of the Bombay Shops and Establishments Act. The question was whether the establishment of the landlord could be said to be a "commercial establishment" under Section 2(4) of the Bombay Shops and Establishments Act. Under the circumstances, it was held (P. 299)

19. Municipal Committee, Saoner vs Rathi N.D. on 26 July, 1966

Equivalent citations: (1967) 69 BOMLR 214, (1967) IILLJ 481 Bom

Bench: L Paranjpe

Municipal Committee, Saoner vs Rathi N.D. on 26/7/1966

JUDGMENT

1. In this appeal, by special leave under S. 417(3) of the Code of Criminal Procedure, the appellant, municipal committee, Saoner, is challenging the correctness of the acquittal of respondent 1 of an offence under S. 53 of the Bombay Shops and Establishments Act, 1948.

2. The appellant-committee, through its inspector appointed under S. 48 of the Bombay Shops and Establishments Act, 1948, had prosecuted respondent 1 under S. 53 of that Act, for contravening S. 12 by effecting certain sales beyond the closing hours of the shop on March 10, 1965. The respondent had challenge the tenability of the prosecution on the ground that previous sanction as required by S. 60 was not given by the proper authority before instituting the prosecution. The learned trial magistrate upheld this preliminary objection and held that the prosecution, without the requisite prior sanction, was not tenable. In that view, he acquitted the respondent. That is how the matter was brought before this Court.

The administration of the Bombay Shops and Establishments Act, 1948, has been entrusted to local authorities. Under S. 2(15) a "local authority" means a body specified in Sch. I-A and includes any other body which the State Government may, by notification in the official gazette, declare to be a local authority for the purposes of this Act. The appellant-committee does not fall within Sch. I-A and would, therefore, not be "a local authority" under the section, as it stands. However, Sri Gaikwad showed Notification No. BSE 2261-Lab-III, dated March 27, 1963, on p. 1508 of Part I-L of official gazette dated April 25, 1963, by which the appellant-committee was declared to be a local authority for the purposes of the Act. Consequently, there can be no dispute that the sanction required by S. 60 had to be given only by the local authority, viz., the appellant-committee and not by the District Magistrate.

20. The Mahalaxmi Co-Operative ... vs Dilip Singh Parocha, Smt. Angoori ... on 17 November, 2006

Bench: R Desai, V Tahilramani

The Mahalaxmi Co-Operative Housing Society Limited vs Dilip Singh Parocha, Smt. Angoori Dilip Singh Parocha, Smt. Krishna Suresh Parocha And Shri A.B. Shaikh, Presiding Officer on 17/11/2006

JUDGMENT

Ranjana Desai, J.

Few facts which give rise to the present letters patent appeal may have to be shortly stated;

The appellant is a co-operative housing society engaged inter alia in the business of Real Estate. The 1st respondent was employed with the appellant as a sweeper since 1961. The 1st respondent filed an application being IDA No. 754 of 1987 in the Labour Court at Bombay under Section 33C(2) of the Industrial Disputes Act,1947 ("the said Act" for short) making monetary claim against the appellant on the ground that the appellant is covered under the Bombay Shops and Establishment Act, 1948 and is, therefore, required to pay the minimum wages payable to him under the Bombay Shops and Establishment Act, 1948. Respondent 1 also claimed other benefits such as weekly off and leave wages, national paid holidays, overtime wages etc.

The appellant filed its written statement and challenged the maintainability of the said application, inter alia on the ground that the appellant being a Co-operative Housing Society is not an industry and is not a commercial establishment within the meaning of Section 2(4) of the Bombay Shops and Establishment Act, 1948 and, therefore, the provisions of the said Act are not applicable to it.

21. Nitin A. Mehta vs Mehta Prafullaben Dalpatrai And ... on 2 May, 2000

Equivalent citations: 2001 (91) FLR 396, (2001) ILLJ 1348 Guj Bench: H Rathod

Nitin A. Mehta vs Mehta Prafullaben Dalpatrai And Anr. on 2/5/2000

JUDGMENT

Learned advocate for the petitioner-Society submitted that for Section 1(3)(a) the petitioner is not naturally falling within the provisions but in respect to Section 1(3)(b) the question is required to be examined as to whether the petitioner is an 'Establishment' within the meaning of 'State Act' or not. He, therefore, placed reliance upon Section 2(8) of the Bombay Shops and Establishments Act, 1948. Said Section 2(8) defines 'Establishments' as under :-

'Establishment means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the State Government may, by notification in the official Gazette declare, to be an establishment for the purpose of this Act.'

4. Thus, according to the submission of the learned advocate, the petitioner-Society is not an 'Establishment' or 'Commercial Establishment', and therefore, the provisions of Bombay Shops and Establishments Act, 1948 are not applicable. He further submitted that 'Commercial Establishment' is defined under Section 2(4) to mean, 'an establishment

which carries on any business, trade or profession or any work in connection or incidental or ancillary to any business, trade or profession and includes the Society registered under the Societies Registration Act and a Charitable or other Trust; whether registered or not, which carries on, whether for the purpose of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include (a) factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. He also placed reliance upon item No. 6-F of third Column of Schedule-II of the said Act. Section 4 of the Bombay Shops and Establishments Act, 1948 grants exemption in favour of certain shops or institutions to whom the said Act is not made applicable. Section 4 exemption depicts that, 'notwithstanding any thing contained in this regard, the provisions of this Act mentioned in the third column of Schedule II shall not apply to the establishments and other persons mentioned in the second column of the said schedule. Mr. Gandhi referred Item No. 6-F of the Second Schedule of the said Act. Section 6-F relates to 'Establishments pertaining to any kind of educational activities'. He therefore submitted that the provisions of the Act will not apply to such establishment which is having educational activities. Therefore, according to his submissions, the view taken by the Controlling Authority that he is having jurisdiction is erroneous and contrary to the provisions of the Act and the Bombay Shops and Establishments Act, 1948.

22. Narayanan Vaghul And Ors. vs R.K. Mhatre, Inspector, Security ... on 18 August, 1994

Equivalent citations: 1995 (2) BomCR 142, (1995) IILLJ 238 Bom, 1995 (1) MhLj 86 Bench: V Bahuguna

Narayanan Vaghul And Ors. vs R.K. Mhatre, Inspector, Security Guards Board And Ors. on 18/8/1994

JUDGMENT

Vijay Bahuguna, J.

Reading of the aforesaid provisions indicated that the Security Guards employed by the factory or establishment are covered under the Act and the Scheme. The contention in the writ petition that as the petitioners had employed Security Guards for the safely of the employees living in the staff quarters this Act and the Scheme would not apply as there is no commercial activity carried out from the staff quarters or the petitioners are not deriving any profits by maintenance of the staff quarters is wholly misconceived. What is relevant under the Act is identity of the employer which has been defined to be a factory or an establishment as defined in section 2(8) of the Bombay Shops and Establishments Act, 1948 and also section 2(4) of the said Act. The intention of the Legislature is to safeguard the interest and the service conditions of the Security Guards employed by the factories and establishments and it is explicit that Security Guards employed by the factories and establishments are covered under the provisions of the Act and the Scheme, irrespective of the place where they have been allotted work. The mere fact that a

Security Guard has been put by the factory or the establishment at the residence of an Officer or at the staff quarters is not at all relevant for the purposes of the Act. It is not the place of posting which is a relevant consideration under the Act and the Scheme. What is material is as to whether the appointment has been made by the factory or establishment. As the petitioners are the employer and the petitioners are carrying financing activities which by nature is commercial, the business of the petitioners is fully covered under the definition of section 2(8) of the Bombay Shops and Establishments Act, 1948 and as such being employer they are amenable to the provisions of the Act and the Scheme. The Security Guards have been employed by the petitioners for providing safety to their employees. The services are incidental to the business activity carried out by the petitioners and the petitioners being a commercial establishment, are covered under the provisions of the Act and the Scheme and hence may be liable for prosecution for having contravened the provisions of the Act and the Scheme.

23. B.N. Sarda (Pvt.) Ltd. vs Kisan K. Borade on 19 June,

1980

Equivalent citations: 1980 (41) FLR 168, (1981) ILLJ 190 Bom Bench: M Chandurkar, R Bonsale

B.N. Sarda (Pvt.) Ltd. vs Kisan K. Borade on 19/6/1980

JUDGMENT

Chandurkar, J.

The contention of the petitioner was that the employee was not employed in any factory or shop or establishment and since it is only in respect of person employed in a factory or shop or establishment that the Gratuity Act is applicable under cls. (a) and (b) of sub-s. (3) of S. 1 of the Gratuity Act, the claim of the employee could not be granted. With regard to the contention that the respondent was not employed in a shop or establishment, the contention was that the law in relation to shops and establishments for the time being in force in a State referred to in cl. (b) of S. 1(3) of the Gratuity Act has to be a Central law and not a State law. Alternatively, the contention was that the Bombay Shops and Establishments Act, 1948 which the law in relation to shops and establishments for the time being in force in the State was not applicable to the establishment in which the employee worked because the establishment was not situated in any local area specified in Schedule I to the Bombay Shops and Establishments, Act 1948

24. R.M. Bhade Shop Inspector, Pune vs P.S. Malgaonkar Div. Mag.4.I.F. ... on 6 March, 1990

Equivalent citations: 1990 (2) BomCR 426

Bench: I Shah

R.M. Bhade Shop Inspector, Pune vs P.S. Malgaonkar Div. Mag.4.I.F. And G.I. Co. Ltd. And Anr. on 6/3/1990

JUDGMENT

I.G. Shah, J.

1 The Shops Inspector, Pune Municipal Corporation has filed this appeal against the order of acquittal of the present respondent No. 1 of the offences punishable under sections 8 and 5 read with section 52(1)(c) of the Bombay Shops and Establishments Act, 1948 passed by the learned Additional Sessions Judge, Pune in Criminal Revision Application No. 127 of 1979 setting aside the order of conviction and sentence of fine of Rs. 25/- passed against respondent No. 1 by the trial Court. Briefly stated the facts giving rise to this appeal are as under

25. Dayawanti Bai vs Corporation Of City Of Nagpur on 11

June, 1968

Equivalent citations: (1969) 71 BOMLR 323, (1969) IILLJ 128 Bom Bench: M Chandurkar

Dayawanti Bai vs Corporation Of City Of Nagpur on 11/6/1968

JUDGMENT

1. The petitioner owns a flour-mill and has obtained the necessary registration of her establishment under S. 7 of the Bombay Shops and Establishments Act, 1948. It appears that after the petitioner obtained the registration of establishment for purposes of running a flour-mill she installed a kadbi-cutting machine in the same premises. These premises consists of a shed and it is not disputed that both the flour-mill and the cutting machine are run by the same electric motor. An inspector appointed by the Corporation of City of Nagpur, under S. 48 of the Act, inspected the establishment of the petitioner at about 10-15 p.m. on 7 June 1966 and he found that there was no registration in respect of the kadbi-cutting business. The inspector also found that the shop was found to be open after the prescribed hours, namely, beyond 8-30 p.m. and that when certain documents which the employer is required to maintain, such as register of employment, register of leave and the visit book were asked for the petitioner failed to produce the same. On these facts the inspector after obtaining the sanction of the Deputy Municipal Commissioner lodged a complaint alleging that the petitioner was guilty of offences under Ss. 7(1), 11(1)(a) and 51 of the Bombay Shops and Establishments Act, 1948.

26. Jagdish Amritlal Karia vs Madhusudan Nagindas Hundiwala ...

on 1 August, 1985

Equivalent citations: (1987) ILLJ 294 Bom Bench: D Mehta

Jagdish Amritlal Karia vs Madhusudan Nagindas Hundiwala And Others on 1/8/1985

JUDGMENT

This Criminal Application has been filed by the petitioner Jagdish Amritlal Karia praying that the proceedings in case No. 294 of 1984 pending in the Miscellaneous Court of the learned Special Metropolitan Magistrate, Mazgaon, Bombay, be quashed.

2. A few relevant facts may be stated here below :-

On 8th March 1984 at about 2.30 p.m. one Madhusudan Nagindas Hundiwala, an Inspector appointed under section 48 of the Bombay Shops and Establishment Act (Bombay Act No. LXXIX of 1948) visited the office of the petitioner Jagdish A. Karia and his wife Anuradha J. Karia at the J.K. Industrial Estate. Moosa Killedar Street, Bombay. In the office Hundiwala found the Rent Collector Louis E. D'Souza, who was employed by the petitioner Jagdish A. Karia since the last about 3 1/2 years on a salary of Rs. 600/- per month. The Inspector found that no records or registers were maintained in respect of the said Rent Collector Louis E. D'Souza and the Rent Collector had attended the office although it was a Sunday. The Inspector stated in his report that the estate of the petitioner Jagdish K. Karia and Anuradha J. Karia had not been registered under the Shops and Establishments Act. The Inspector then submitted a report to his superiors. In due course a complaint was filed on 30th April 1984 in the Court of the learned Special Metropolitan Magistrate, Mazgaon, Bombay. The Complainant was Hundiwala, the Inspector who had visited the office of the petitioner. The petitioner was charged for contravention of section 7(1) read with sections 52 and 56 of the Bombay Shops and Establishments Act 1948. The Deputy Municipal Commissioner granted sanction to prosecute under section 60(1) of the said Act.

27. Rasheed A. Maskati And Ors. vs Abbas Ali Hussaini M. And Ors.

on 9 February, 1993

Equivalent citations: (1999) IIILLJ 331 Bom Bench: M Pendse, S Kapadia

JUDGMENT

S.H. Kapadia, J.

In view of the above pleadings and evidence led before the Competent Authority, the second respondent came to the conclusion by its order dated October 29, 1986, that respondent No. 1 was an employee within the meaning of Section 2(1) of the Minimum Wages Act, 1948, and that he was entitled to the difference in the minimum wages and the wages actually paid to him as claimed by him. Respondent No. 2 has given the above findings on the basis that respondent No. 1 was employed by the trust to do the above work, which was in the nature of semi-skilled work; that he was doing the work from 1960; that he was paid fixed amount every month which was less than the minimum wages under Section 3(1)(a) r/w Item 17, Part-I of the Schedule to the Minimum Wages Act; that the work carried out by the respondent No. 1 fell within the ambit of Item 17 of Part I of the Schedule to the Minimum Wages Act, 1948; that the building consisted of six storeys having 23 tenants and further that the appellant-trust was a 'commercial establishment' within the meaning of Section 2(4) of the Bombay Shops and Establishments Act, 1948, and as such, the establishment of the appellants was scheduled employment under Item 17 of Part-I of the Schedule to the Minimum Wages Act, 1948. The respondent No. 2 also came to the conclusion that as per Item 17 of Part I of the Schedule of Employment, even 'commercial establishment' as defined under Section 2(4) of the Bombay Shops and Establishments Act, 1948, included a charitable trust and in the circumstances, after considering the various authorities cited before the second respondent, the second respondent came to the conclusion that respondent No. 1 was entitled to be paid minimum wages.

28. Mohd. Iliyas Sk. Omar Kirmani vs ( Copy To Be Served On The Public on 2 August, 2010

Bench: S P Davare

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 459/2010

Mohd. Iliyas Sk. Omar Kirmani,

age 45 years, Occ. Business,

r/o D.R.T.28, Labour Colony,

Vishwasnagar, Aurangabad. Petitioner V E R S U S

1. The State of Maharashtra.

2. The Principal Secretary,

Home Department, Mantralaya,

Mumbai 32.

3. The Commissioner of Police,

Aurangabad Division,

Aurangabad.

( Copy to be served on the public

prosecutor, High Court of Bombay

Bench at Aurangabad.) Respondents. Shri Amol N. Kakade, Advocate for the petitioner. Mrs. B.R. Khekale learned APP for the respondents. 2

CORAM : SHRIHARI P. DAVARE, J.

DATE : 2nd AUGUST, 2010.

ORAL JUDGMENT :

According to the petitioner, he is the proprietor of the Firm namely Impact Services, Aurangabad which is registered under the Bombay Shop and Establishment Act, 1948 and the petitioner is carrying on the business of private securities Agency since last 15 years and has obtained the shop Act licence therefore since 1995 which is produced [at page 41] and about 1000 employees are dependent upon the petitioner and its business. It is the contention of the petitioner that the Private Security Agencies (Regulation) Act, 2005 came into force in the year 2005 and therefore petitioner applied for the licence under the said Act and Rules thereunder on 2.2.2009 to the Commissioner of police, Aurangabad Division, Aurangabad i.e. respondent No.3 and copy of the said application is produced at Exh.'A'(page 18). However, it is the grievance of the petitioner 4

that respondent No.3 passed an order on 27.5.2009 without assigning any ground/reasons therein and thereby rejected the said application of the petitioner for licence and copy of the said order is produced at Exh.B (page 19).

29. Dedicated Health Care Services ... vs Assistant Commissioner Of Income ... on 3 May, 2010

Bench: D D Chandrachud, J Devadhar

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O. O. C. J.

WRIT PETITION NO.404 OF 2010

Dedicated Health Care Services TPA

(India) Pvt. Ltd. and others ..Petitioners. Vs.

Assistant Commissioner of Income Tax and

others ..Respondents. .....

Mr. R.A. Dada, Senior Advocate with Mr. Jitendra Jain, Ms. M. Dada and Ms. Farnuaz Karbhari i/b RES Legal for the Petitioners. Mr. B.M. Chatterji with Mr. Yogesh Patki i/b Mr. Suresh Kumar for the Respondents.

....

CORAM : DR. D.Y.CHANDRACHUD &

J.P. DEVADHAR, JJ.

3 May, 2010.

ORAL JUDGMENT (Per DR.D.Y.CHANDRACHUD, J.):

Now undoubtedly a hospital by itself, being an artificial entity, or a corporate enterprise which conducts the hospital is not a medical professional. In Dr. Devendra M. Surti v. The State of Gujarat1 the Supreme Court held that "a professional activity must be an activity carried on by an individual by his personal skill and intelligence". The Supreme Court in that case was construing the provisions of Section 2(4) of the Bombay Shops and Establishments Act, 1948 which defined the expression "commercial establishment". In that case, a doctor who was running a dispensary was convicted for an offence under Section 52(e) read with Section 62 of the Act and of the Rules. The Supreme Court while allowing the appeal 1 AIR 1969 SC 63. (at paragraph 7 page 67)

30. E

quivalent citations: 1990 AIR 1383, 1990 SCR (2) 617 Bench: Ahmadi

PETITIONER:

CLOTHING FACTORY, NATIONAL WORKERS' UNIONAVADI, MADRAS, REPR

Vs.

RESPONDENT:

UNION OF INDIA BY ITS SECRETARY, MINISTRY OFDEFENCE, NEW DEL

DATE OF JUDGMENT20/04/1990

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1990 AIR 1383 1990 SCR (2) 617

1990 SCC (3) 50 JT 1990 (2) 231

1990 SCALE (1)798

ACT:

Factories Act, 1948--Section 59 and Presidential Order dated September 1, 1959 and February 13, 1963--Ordinance Clothing Factory--Payment of over-time wages for piece rated workers-Computation of.

HEADNOTE:

The controversy that requires determination in this appeal is whether piece-rated workers are entitled to over- time wages for work done beyond the normal hours of 44-3/4 hours and upto 48 hours in a week, i.e. for 3-1/4 hours in a week and the rate at which they should be paid the overtime wages for those hours.

The workers of the Clothing Factory are divided into two categories viz., (i) day workers and (ii) piece-rated work- ers. Whereas the day workers are paid wages in the scale of Rs.260-400, on the basis of their actual attendance the piece-rated workers are paid on

actual output or production calculated on the basis of time required for making the item at an hourly rate to be arrived at in accordance with the formula prescribed for the purpose. According to the appel- lants, the piece-rate system was introduced sometime in 1963 and since then the piece-rate workers were paid overtime wages accordingly for work done beyond the normal working hours i.e. 44-3/4 hours (8 hours per day other than Satur- days when the working hours are 4-3/4 hours), but the same was abruptly stopped from 1983 so much so that they were even denied the wage at the normal rate for work done beyond normal hours and upto 48 hours. Being dissatisfied, the appellant Union filed a writ petition in the High Court of Madras praying for a suitable direction to the respondents to pay the piece-rate workers extra or overtime wages at the rate prescribed by section 59(1) of the Factories Act if the total working hours of any workman exceeded 44-3/4 hours in a week. The learned Single Judge of the High Court by his order dated 6th December 1983, dismissed the writ petition. An appeal was preferred by the appellant Union but whilst the said appeal was yet pending disposal by the High Court, the appellant Union filed yet another writ

618

petition in the same High Court, which was later transferred to the Central Administrative Tribunal and which has been disposed of by the Tribunal by the impugned order. Hence this appeal by the Union after obtaining special leave. The appeal preferred against the order of the learned single Judge of the High Court was later dismissed for default. The workers claim that they are entitled to extra wages for these 3-1/4 hours at double the normal rate in accord- ance with section 59(1) of the Factories Act whereas the Union denies such liability.

Dismissing the appeal, this Court,

HELD: There is no dispute that the workers are paid overtime wages for work done in excess of 9 hours on any day or 48 hours in any week in accordance with section 59 of the Factories Act. This section does not provide for overtime wages for work done in excess of the normal working hours and upto 48 hours. [624C]

Under the Presidential order of 1st September, 1959, overtime wage was payable for work in excess of normal working hours and upto 9 hours on any day or 48 hours in a week at the rate prescribed in the departmental rules. By the subsequent Presidential Order of 13th February, 1963, the method of calculation and payment of overtime wage to piece workers was outlined. Under these orders the day workers are allowed overtime wages for working beyond the normal working hours whereas piece workers are allowed piece work profits as may be earned by them for working beyond normal working hours and upto 48 hours in a week. [625A-B] In the instant case, the grant of overtime wages for the period in excess of the normal working hours of 44-3/4 per week and upto 48 hours is governed by the relevant depart- mental rules and Section 59(1) of the Factories Act comes into play only if a piece worker has worked beyond 9 hours in a day or 48 hours in a week and not otherwise. Further, piece workers are allowed piece work profits

as may be earned by them for working beyond normal working hours and upto 48 hours in a week. [625G-H]

Union of India v.G.H. Kokil, [1984] Suppl. S.C.C. 196, distinguished.

JUDGMENT:

undertaking. It is also contended that the circular letter of 2nd February, 1983 is a document of doubtful origin and can not in any case override the prior orders contained in the letters of the Ministry of Defence earlier referred to. The appellants, therefore, contend that the impugned deci- sion needs to be set aside and the overtime payments which have been unilaterally and arbitrarily discontinued re- stored.

From the above resume it is clear that the controversy is limited to the question of non-payment of overtime wages for work done beyond the normal hours of 44-3/4 hours and upto 48 hours in a week i.e., for 3-14 hours in a week. There is no dispute that the workers are paid overtime wages for work done in excess of 9 hours on any day or 48 hours in any week in accordance with section 59 of the Factories Act. This section does not provide for overtime wages for work done in excess of the normal working hours and upto 48 hours. In Kokil's case (supra) the point for consideration was whether the employees working in the factory of the Indian Security Press, Nasik, were entitled to overtime wages under section 59 of the Factories Act read with sec- tion 70 of the Bombay Shops & Establishments Act, 1948, for the work done beyond the normal working hours. According to them their normal working hours were 44 per week, they were required to work in excess thereof but they were paid over- time wages for the extra hours of work at the basic rates though they were entitled to overtime wages at double the normal rate. In that case three contentions were raised, viz., (i) since none of the respondents was a 'worker' under section 2(1) of the Factories Act, their case was not gov- erned by section 59 of the said Act read with section 70 of the Bombay Shops & Establishments Act; (ii) assuming the respondents were entitled to claim the benefit of section 59 read with section 70 as aforesaid even though none of them was a worker, section 59 became inapplicable by virtue of Rule 100 made under section 64 of the Factories Act; and (iii) since none of the respondents was a 'workman' under section 2(s) of the Industrial Disputes Act, 1947, the application under section 33C(2) thereof was not maintain- able. This Court, on a true interpretation of section 70 of the Bombay Shops & Establishments Act, came to the conclu- sion that the non-obstante clause found therein made it clear that section 59 would apply and the same non-obstante caluse kept out the application of section 64 read with Rule