JUDGMENT Chainani, C. J.
1. The petitioner is employed as a coolie in the Mains Department of the Bombay Gas Works belonging to the respondents. At the Gas Works, to which I will hereafter refer as the factory, gas is manufactured. This gas is supplied to consumers through pipes, which are connected to a storage lank. The duties of the petitioner are to excavate and dig trenches for the purpose of laying pipes, through which gas is transported to the customers. The petitioner does not, therefore, work within the premises of the factory, but outside at the places where the pipes are to be laid. The petitioner has been issued an identity card by the Chief Engineer of the factory. His attendance is marked at the place of his work, but his wages arc paid to him at the factory. If he wants leave, he has to go to the factory and apply to the Mains Overseer, whose office is situated there. The petitioner had worked overtime on certain days between December 1956 and November 1957. His remuneration consists of a basic wage and dearness allowance. Under Section 59 of the Factories Act, a worker is to be paid at twice his ordinary rate of wages, for overtime work done by him. The petitioner was, however, paid only twice his basic wage and not twice his basic wage plus dearness allowance for the period for which he had worked overtime. The petitioner, therefore, made an application to the Payment of Wages Authority, in which he contended that he was entitled to overtime wages at the rate specified in Section 59 of the Factories Act, that Rs. 336-35 were due to him on this account and that as this amount had been wrongly deducted from his wages, the respondents should be directed to pay it to him. He also claimed Rs. 16 more on account of increments. We are not now concerned with that part of his claim. The respondents did not admit the petitioner’s claim. They contended that the Factories Act did not apply to the petitioner. The Authority held that the petitioner was a worker governed by the Factories Act and that he was, therefore, entitled to be paid for overtime work at the rate specified in Section 59 of the Factories Act. The Authority, therefore, granted the petitioner’s claim and made an order directing the respondents to pay the amount claimed by him. Against this order, the respondents appealed to the Small Cause Court. The learned Judge of that Court did not agree with the view of the Authority that the Factories Act applied to the petitioner. In his view, the petitioner could not be held to be a “worker” while he was employed in the work of laying pipes outside the factory. The evidence in the case showed that the petitioner had also worked overtime for the purpose of connecting the gas pipes to the storage tank in the compound of the factory. In the opinion of the learned Judge, this part of his work was incidental to the manufacturing process. He, therefore, granted a minor part of the petitioner’s claim of Rs. 17.75, but rejected his main claim, which related to wages for overtime work done outside the factory. This order made by the Small Causes Court is being challenged in this petition.
2. The question, which arises for our determination, is at what rate the petitioner should be paid for overtime work clone by him in the course of his normal duties, viz., that of laying pipes outside the factory. The petitioner has based his claim on three alternative grounds. It has been urged by Mr. Bhandare on his behalf that he is a worker within the meaning of the Factories Act and that, consequently, he should be paid overtime wages under Section 59 of the Act. He has further contended that even if the petitioner is held not to be a worker, the Factories Act would still apply to him by reason of Section 70 of the Bombay Shops and Establishments Act. The last ground urged is that the petitioner is entitled to be paid for overtime work under Section 63 of the Shops and Establishments Act.
3. Sub-section (1) of Section 59 of the Factories Act stated that “Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages”.
Before the petitioner can take advantage of this section, he must show that he is a worker within the meaning of the Act. A “worker” is defined in Clause (1) of Section 2 as meaning “a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the Machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process”.
Broadly speaking, the definition includes within the term “worker” persons, who are employed in any manufacturing process or in any other kind of work incidental to, or connected with, a manufacturing process, or the subject of manufacturing process. “Manufacturing process” is defined in1 Clause (k) of Section 2 as meaning “any process for (1) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal”.
The definition also includes certain other processes referred to in Sub-clauses (ii), (iii), (iv) and (v). The petitioner is not employed in any of these processes, or in those referred to in the main part of the definition. The article, which is being manufactured or produced at the factory, is gas. The gas produced may require to be cleaned or treated before it can be used or sold. These are manufacturing processes. It has, therefore, been urged that gas is the subject of a manufacturing process and that as the petitioner is employed on work connected with gas, viz., that of laying pipes for the purpose of transporting gas to consumers, the petitioner is a worker. We do not think that there is any force in this argument, because having regard to the context, it seems to us that work connected with the subject of the manufacturing process, for doing which a person can be deemed to be a worker, must be work, which is done before the manufacturing process is complete. The words “subject of the manufacturing process” must be read along with the preceding words in the definition, which contemplate employment in a manufacturing process or in any work-incidental to or connected with it. Consequently, in our opinion, these words refer to an article while it is in the process of manufacture. Any work connected with the article, which is manufactured, would not bring, the employee within the definition, but only that work, ‘which is done while the article is still in the stage of production or while any manufacturing process, as defined in the Act, is still going on in connection with it. Any other view would lead to results that could not possibly have been intended. If the argument that any employment in connection with the subject of manufacturing, the process would make the person employed a worker is accepted, a person, who for instance is employed as a salesman in a cloth shop situated far away from, the mills in which the cloth was manufactured will have to be held to be a worker merely because-cloth was the subject of a manufacturing process-The words “work …… connected with …… the subject of the manufacturing process” cannot therefore be interpreted in the manner urged by Mr. Bhandare. They mean work connected with the article, which is produced, while any process of manufacture as defined in the Act is going on in connection with that article.
4. Distribution or transport of an article after it is manufactured is not a manufacturing process. Such work cannot also be said to be incidental to or connected with a manufacturing process. Consequently, employment in such work will not bring the employee within the definition of “worker”., The petitioner is employed for work, which is required to be done in order to supply to the consumers gas, which has been produced, and after it has undergone all the manufacturing processes. He is not employed in connection with gas while it is still in the stage of production. Consequently, he cannot be held to be a worker within the meaning of Section 2(1) of the Factories Act. Section 59 of the Factories Act will not, therefore, apply to him.
5. In this view, it is unnecessary to deal with the other argument, which has been advanced by Mr. Bhandare, that Section 59 applies to all workers-employed in a factory, irrespective of the fact whether they work in or outside the factory.
6. The petitioner has also based his claim on-Section 70 of the Bombay Shops and Establishments-Act. Sub-section (1) of Section 63 of this Act states that “Where an employee in any establishment other than a residential hotel, restaurant or eating house, is required to work in excess of the limit of hours, of work, he shall be entitled, in respect of the overtime work, to wages at the rate of one and a half times his ordinary rate of wages.”
Section 70 of this Act provides that “nothing in this Act shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the Factories Act, 1948, shall, notwithstanding anything in the said Act, apply to such person”.
This section, as pointed out by the Supreme Court in B. P. Hira v. C. M. Pradhan, , makes the provisions of the Factories Act applicable to employees in factories, who are not “workers”. The petitioner is employed by and under an officer of the factory. His wages are paid at the factory and he has also to go to the factory in order to get sanction for leave. It has, therefore, been contended that the petitioner is employed in the factory within the meaning of Section 70 of the Act. This argument does not appear to us to be correct. The words “employed in…. a factory” may be capable of two interpretations, but the other words “within the precincts of a factory” clearly imply that the place of work must be inside the premises or precincts of the factory. The words “employed in or within the precincts of a factory” will, therefore, have to be construed as “engaged for work in or within the precincts of a factory”. The petitioner does not ordinarily work in the Gas Works, i. e. in the factory. His employment is outside the factory on public road’s and other places, where pipes are to be laid. Section 70 of the Shops and Establishments Act will not, therefore, apply in this case.
7. It Has been further contended by Mr. Bhandare that if the petitioner is held to he not entitled to overtime wages under the Factories Act, he is ‘entitled to claim them under Section 63 of the Shops and Establishments Act. The petitioner had not based his claim on Section 63 either before the payment of Wages Authority or before the appellate authority, i. e. the Small Causes Court. Mr. Mistry has. therefore, urged that the petitioner should not be allowed to raise this point for the first time before us. The definition of “commercial establishment” given in the Act is very wide. It includes “an establishment which carries on any business, trade Or profession of any work in connection with, or incidental or ancillary to, any business, trade or profession”. It is possible to argue that the Mains Department of the respondents, in which the petitioner is employed, is a commercial establishment within the meaning of this Act, It may, therefore, be possible for the petitioner to claim the benefit of Section 63 of the Act. The petitioner is a poor worker and when prima facie there appears to be some force in the arguments, which have been advanced on this point, we do not think we should without proper investigation reject his claim merely because the claim on this ground had not been made earlier.
8. We, therefore, set aside the order made by the Small Causes Court in so far as it rejects the claim of the petitioner for wages for overtime work done outside the factory and remand the matter to the Payment of Wages Authority for considering whether the petitioner is entitled to overtime wages under Section 63 of the Bombay Shops and Establishments Act. The Authority should allow both the parties to lead such further evidence as they may wish to produce and then dispose of the application made by the petitioner in accordance with law. The Authority should expedite the hearing of this matter.
9. No order as to costs.
10. Case remanded.
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