LexUNION OF INDIA AND ANOTHER versus G.M. KOKIL AND OTHERS
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A 0 D ' E F G . I • ·292 • , UNION OF INDIA. AND ANOTHER v. G.M. KOKTL AND OTHERS March. 21, 1984 , [V.D. TUL.ZAPURKAR AND R.S. PATHAK JJ.) Factorles Act, 1948-s. 59..-Benefit of Overti'me wage1 at daub le the rate of ordinary wages-Scape af Section •70 of Bombay Shops and Establishments Act, 1948 extends the benefit under s. 59 of FactoHes Acr to all persons employed in factory irrespective ·of the fact whether they are workers under $, 2(1)- of the Factories Act or !tot and 1whethet they are exempted under 1. 64 of Factories -let .read.with rule 100 made by State Government.' · Bombay Shops & EStablishments Act. 1948S-. 70-ln'erprttation of . . The respondents who were working- in different capacities ia the factory of India Security Pr~ss at Nasik, an establishment of the apyel· lant, filed an application before the . Central Government Labour Court,· Bombay under s. 33 C(2) or the Industrial Disputes Act, 1947 daiming overtime wages at double th~ ordinary rate of wageS under s. S9 of 'the F~ctories Act read with s. 70, of the· Bom~ay Shops and Establishment.a .Act, 194'8. The Labour Court dismissed the contentions of the appellant and granted relief. Hence this appeal. · Dismissing the Appeal • ... HELD : The- contention that the respondents were not workers with'." in tM meaning of s. 2(1) of the Factories Act and therefore not' entitled to the benefit of s. 59 of that Act read with s ! 10 ·of the Bombay Shops and Establishments Act 19 48 must fail on the plain language of s. 7.0. "'I'be 'Qlain ·provision of s. 70 which is,'relevant consists of two parts; the first part states that if there be a factory the Shops and Establishments Act. ~ill not apply and the second part_ stat_cs. that 10 such· a.factory ',the prQvisions of the Factorie.s Act shall, notwithst'anding anything co_nt_alned in that Act,"·apply.to air- pe.rsons employed _in or in cOtinection with the factory". Clearly, the underlined portion (the non·obstante .clauSe and the · pb~ase- 'au· persotis employed') has th-e effect of enlargi,ng the scope of Factories ACt by making it applicable to all persons emPloyed in such factory irrespective of whether employed as worker~ or otherwise. Therefore although the respondeftts have 11ot been 'workers' within the meaning ofs. 2(1) they will get the benefit of.s. 59. [298 C-F) )-'. ·. • B.P. Htra, Works Manager, Central Raillfay, _Pare!, Bombay, etc. y.. ll. C.M, Pradhan etc .(1960] S.C.R. 137 referred to. ~ . . H The contention.ttiat by re~son of rq\e 100 .inade by the ~late Govern· ·' • UNiON v. G.M. KOKiL 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] 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 -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 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 .. 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
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