Judgment

GAJENDRAGADKAR, J.: This group of consolidated appeals has come before this Court with a certificate granted by the High Court at Bombay under Art. 133 of the Constitution; the certificate shows that according to the High Court the amount of the value of the subject-matter in dispute involved in these consolidated appeals exceeds Rs. 20,000 and they raise a substantial question of law.

2. The 385 appellants concerned in these 20 appeals are employees in the Watch and Ward department of various textile mills in Ahmedabad. They had filed 20 applications between July 22, 1953 to October 6, 1953, before the authority under the Payment of Wages Act (hereinafter called the authority) and had claimed overtime wages for the period between January 1951 to December 1951 and June-July 1953. These applications were accompanied by another set of 20 applications in which they prayed for condonation of delay made in putting forward the claim for overtime wages under the second proviso to S. 15(2) of the Payment of Wages Act (4 of 1936) (hereinafter called the Act). The authority considered the case made out by the appellants for condonation of delay and held that they had failed to prove sufficient cause for not making their applications within the prescribed period. The appellants then moved the High Court at Bombay under Arts. 226 & 227 of the Constitution. Then applications also failed and were dismissed. Then the appellants moved the High Court for a certificate, and a certificate was granted to them. It is with this certificate that they have come to this Court.

3. It is necessary at first to set out the circumstances under which the appellants have made their claim for overtime wages in their present applications. Section 59 of the Factories Act, 1948 (63 of 1948) which came into force on September 23, 1948, provides for the payment of extra wages for overtime to persons who are workers as defined by S. 2(1) of the Act. It is common ground that the appellants are not workers under the said section; and so they did not claim any of the benefits conferred on workers by the provisions of the Factories Act. The Bombay Shops and Establishments Act, 1948 (Bombay Act 79 of 1948) came into force in the State of Bombay on January 11, 1949; and it is not denied that the appellants are employees under S. 2(6) of the said Act. Section 70 of this Act provides for the application of S. 59 of the Factories Act to all employees working in factories like the appellants, but the words used in s. 70 are not very clear and the effect of its provisions was a matter of doubt which was finally resolved by the decision of this Court in the case of B. P. Hira, Works Manager, Central Railway, Parel, Bombay, etc. v. C. M. Pradhan, Civil Appeals Nos. 131 to 304 of 1957 D/- 8-5-1959. It is because the true effect of this section was not appreciated by the appellants that the present difficulty has arisen.

4. Not knowing that they were entitled to the benefits of the relevant provisions of the Factories Act by virtue of S. 70 of the Bombay Shops and Establishments Act. the representative union of the appellants raised an industrial dispute by a notice on September 20, 1949, claiming some of the amenities provided by the Factories Act (Ref. (1C) No. 192 of 1949). While delivering its award on this reference on November 25, 1950, the Full Bench of the Industrial Tribunal observed that the employees did not appear to be covered by the Factories Act and on that basis it awarded to them a nine-hour day, two holidays per month and a limited provision for overtime wages. It is clear that this award proceeded on the assumption that the relevant provisions of the Factories Act did not apply to the appellants. On May 2, 1952, the appellate decision delivered by the Chief Judge of the Court of Small Causes in the case of Ruby Mills; vide Bombay Labour Gazette dated January 1953. Vol. 32, No. 5, p. 521, however, construed S. 70 of the Bombay Shops and Establishments Act a