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Gujarat High Court · body

1987 DIGILAW 94 (GUJ)

STATE OF GUJARAT v. ROYAL TAILOR,navsari

1987-09-15

B.S.KAPADIA

body1987
B. S. KAPADIA, J. ( 1 ) THE State of Gujarat has filed the present petition under Art. 227 challenging the order passed by the learned Sessions Judge Valsad at Navsari dated 6/10/1986 in Revision Application Nos. 62 63 and 64 of 1986. By the said order in the aforesaid revision applications the order passed by the learned Chief Judicial Magistrate dated 27/05/1986 of convicting the accused for the alleged breach of the various Rules under the Minimum Wages Rules and sentencing him to pay the fine as mentioned therein was set aside. ( 2 ) IT is the case of the State Government that the present respondents who were the accused had committed breach of Rules 26 27 and 26a of the Minimum Wages Rules and therefore these three criminal cases were filed against them being Criminal Case Nos. 5005 of 1985 5006 of 1985 and 5007 of 1986. In all the three cases the learned Magistrate convicted the said opponents and imposed a fine of Rs. 150. 00 on each of the accused by the order dated 27/05/1986 But the said order has been set aside in revision by the learned Sessions Judge. ( 3 ) THE point that has been raised is that the provisions of the Minimum Wages Act do not apply to the present opponents inasmuch as the Opponent No. 1 is a Tailoring Establishment employed only 3 employees and opponent No. 2 is the owner/proprietor of the opponent No. 1. The Minimum Wages Inspector visited the opponent Establishment on 10/05/1985 and he found that they had not kept the necessary records under the Minimum Wages Rules of 1961. Even in the statement under sec. 313 of the Criminal Procedure Code the accused had admitted that he has not kept the muster roll presence card wage slip since last three years. They also not kept any salary register or over-time register. However the contention that was raised is that the provision of the Minimum Wages Act do not apply to the opponent No. 1 Establishment which is the Tailoring Establishment. ( 4 ) MR. J. U. Mehta the learned Additional Public Prosecutor submits that in view of Item No. 16 in the Schedule of the Minimum Wages Act 1948 the provisions of the Act would apply to the opponent Establishment. Mr. ( 4 ) MR. J. U. Mehta the learned Additional Public Prosecutor submits that in view of Item No. 16 in the Schedule of the Minimum Wages Act 1948 the provisions of the Act would apply to the opponent Establishment. Mr. M. R. Shah the learned Advocate for the opponents on the other hand submits that in view of the amendment made in the Schedule inserting Item No. 49 Item No. 16 would not have its applicability to the opponent Establishment and Item No. 49 also does not apply because the opponent Establishment is not employing more than three workers. ( 5 ) IN a nut shell the question would be that because of the insertion of the entry No. 49 in the First Schedule whether entry No. 16 would apply to Tailoring Establishment. ( 6 ) WITH a view to appreciate that point it would be necessary to note that the word `employer has been defined in sec. 2 (e) of the Act the relevant extract thereof is as under : 2 employer means any person who employs whether directly or through another person or whether on behalf of himself or any other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act and includes except in sub-sec. (3) of sec. 26: (I) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person named under clause (f) of sub-sec. (1) of sec. 7 Factories Act 1948 (LXIII of 1948) as manager of the factory; (II) xxx xxx xxx xxx (iii) xxx xxx xxx xxx (iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person responsible to the owner for the supervision and control of the employees or for the payment of wages. It is also provided in sec. 3 that the appropriate Government shall in the manner hereinafter provided in the said Act fix the minimum rates of wages payable to employees employed in an employment specified in Part I of the Schedule at the commencement of this Act. It is also provided in sec. 3 that the appropriate Government shall in the manner hereinafter provided in the said Act fix the minimum rates of wages payable to employees employed in an employment specified in Part I of the Schedule at the commencement of this Act. By the said section a duty is cast on the State Government to fix the rates of wages of the employees in the employment specified in the Schedule by following the procedure as laid down in the Act. Section 27 of the Act empowers the State Government to add either part of the Schedule in employment in respect of which it is of the opinion that the minimum rates of wages should be fixed under this Act after giving by notification in the Official Gazette not less than three months notice of its intention so to do and that can be done by issuing the notification. ( 7 ) SCHEDULE I of the said Act provides entries and one of the entries is entry No. 16 which is as under:employment in any shop or commercial establishment other than that covered under any of other entries in this schedule. Explanation is given to the said entry for the purpose of expression `shop and `commercial establishment to the effect that they shall have the meanings respectively assigned to them in the Bombay Shops and Establishments Act 1948 ( 8 ) AT this juncture it may be mentioned that the Shops and Commercial Establishments as defined in the Act does not include any factory as defined under sec. 2 (m) of Factories Act 1948 It is also undisputed fact that the State Government has issued the notification under sec. 27 of the Act after following the formalities required for adding the employment specified in the table annexed thereto. The table speaks of the entry 49 which is as under:employment in any establishment engaged in manufacturing ready-made garments or its accessories and Tailoring establishment employing more than 3 workers. It may be noted that the said entry is added on and from 15-3-1984 to Part I of Schedule I of the said Act. ( 9 ) IT is also not in dispute that the opponent-Establishment is a commercial establishment registered under the Bombay Shops and Establishments Act and it also does not same within the purview of Factories Act. It may be noted that the said entry is added on and from 15-3-1984 to Part I of Schedule I of the said Act. ( 9 ) IT is also not in dispute that the opponent-Establishment is a commercial establishment registered under the Bombay Shops and Establishments Act and it also does not same within the purview of Factories Act. ( 10 ) ENTRY No. 16 is in the nature of residuary entry which would apply to Shops and Commercial Establishment other than that covered under any other Entries in the Schedule. Now reading entry No. 49 which has come into force from 15th March 1984 it cannot be said that entry No. 16 would apply to any establishment engaged in manufacturing ready-made garments or accessories and Tailoring establishment as the special entry has been made. It is well-known rule of interpretation that once when the special provision is made the general provision would not apply. Here in the present case the language of entry No. 16 makes it clear that it would apply to the commercial establishment other than that covered under any other entries and when entry No. 49 specially covers employees in any establishment engaged in manufacturing ready made garments or accessories or that the Tailoring Establishment and therefore entry No. 16 would not apply to such Establishment. ( 11 ) IT is submitted by Mr. Mehta that such entry provides only employment of more than three workers and therefore for less than three workers entry No. 16 would apply. This argument is misconceived. If the purpose of introducing entry No. 49 is considered in the light of sec. 27 of the Act it would be clear that these establishments of manufacturing ready made garments or accessories or Tailoring establishments have been included when the State Government was of the opinion that the minimum rates of wages should be fixed under the Act. ( 12 ) HERE in the present case by issuing notification the State Government has thought it fit for specially inserting the said Establishments employing more than three workers only and therefore it is clear that the State Government was not of the opinion that the minimum rates of wages should be fixed for such establishment engaging three or less than three workers. ( 13 ) IT is therefore clear that the very insertion of entry No. 49 takes away the applicability of entry No. 16 for the establishment covered under entry No. 49. ( 14 ) ANOTHER argument advanced by Mr. Mehta is that for the employees covered under the Shop and Establishment by entry No. 16 the rates of wages have been fixed while so far the Government has only issued the notification tentatively fixing the piece rates of employees in the establishment engaged in manufacturing ready made garments or its accessories or tailoring establishment and invited objection thereto. It is also submitted that the persons working in the establishment would be Mazdoors and therefore they would be getting daily wages; while the persons covered under entry No. 49 would be entitled to get piece rate wages. That would make the position anomalous and also to some extent ridiculous in the sense that a skilled worker would be getting wages as per the work done or production made while a daily Mazdoor would get wages irrespective of production. As stated above the intention of the Government while inserting the entry No. 49 was to fix minimum wages only in respect of the Tailoring Establishment as mentioned above employing more than three workers. That makes it clear that it was not the intention on the part of the Government to fix the minimum wages for such establishment employing three or less than three workers. In that view of the matter I am unable to accept the contention raised on behalf of the State. ( 15 ) I am of the view that the learned Sessions Judge has taken a correct interpretation and held that the provisions of the Minimum Wages Act would not apply to the opponents and hence they have been rightly acquitted by setting aside the order passed by the Chief Judicial Magistrate and passing the order for refunding the amount of fine if paid. Accordingly the petition is dismissed. Rule discharged. Rule discharged. .