judgement:
Civil Appeal No. 548 of 1958.
Appeal by Special Leave from the judgment and order dated March 27, 1957, of the Patna High Court in Misc.
Judicial Case No. 315 of 1956.
B. Sen, P. W. Sahasrabudhe and A. C. Ratnaparkhi.
for the Appellant K. L. Hathi and R. H. Dhebar, for Respondent No. 1.
N. C. Chatterjee and section N. Mukerji, for Respondent No. 2. 1961.
October 9.
The Judgment of the Court was delivered by SARKAR, J.
on September 25, 1947, the appellant was appointed by respondent No. 2, the Tata Iron and Steel Co., Ltd. (hereafter called the Company) as the Chief Labour officer of its collieries of which it appears to have a few, and he worked 33 under the Company till the latter terminated his services by a notice dated December 5,1955.
On such discharge, the appellant , claiming to be a Welfare Officer of a mine within r.74(2) of the Mines Rules 1955, which rule we shall later ser out, filed an appeal before respondent No.1, the Chief Inspector of Mines in India, under that rule questioning the validity of his discharged by the Company.
The Chief Inspector held that the appellant was not a Welfare Officer within that rule and refused to entertain his appeal.
The appellant then moved the High Court at Patna under article 226 of the Constitution for an appropriate writ directing the chief inspector to decide the appeal.
The High Court dismissed the appellant 's petition agreeing substantially with the view taken by the Chief Inspector.
The appellant has now appealed to this Court against the judgment of the High Court.
The Mines Rules; 1955 were framed under the , and came into force on July 2, 1956.
We are principally concerned with the proviso for.
74(2) but this has to be read with r.72.
The relevant portions of these rules are set out below.
Rule 72.
(1) In every mine wherein 500 or more persons are ordinarily employed there shall be appointed at least one Welfare Officer: Provided that if the number of persons ordinarily employed exceeds 2000, there shall be appointed additional Welfare Officer on a scale of one for every 2000 persons or fraction thereof (2) No person shall as a Welfare Officer of a mine unless he possesses (Here certain qualifications are specified) Provided that in case of a person already in service as a Welfare Officer in a mine the 34 above qualifications may, with the approval of the Chief Inspector be relaxed.
(3). . . . . (4) A written notice of ever y such appointment. . and of the date thereof shall be sent by the owner, agent or manager t o the Chief Inspector within 7 days from the date of such appointment. . .
Rule 73.
Duties of Welfare officers: . . . . . . . . . . (Here certain duties are prescribed) Rule 74.
(1). . . . . . . (2) The condition of service of a Welfare Officer shall be the same as of other members of the staff of corresponding status in the mine; Provided that in the case of discharge or dismissal, the Welfare Officer, shall have a right of appeal to the Chief Inspector whose decision thereon shall be final and binding upon the owner, agent or manager of the mine as the case may be.
The Chief Inspector mentioned in these Rules is the Chief Inspector of Mines in India.
If the appellant was not a Welfare officer within the proviso to r. 74(2) as the company contends, then, of course, no appeal by him lay under it.
He would then clearly not be entitled to the writ he asked.
The question therefore is whether the appellant was a Welfare Officer within the rule and is really one of construction of it.
We desire now to point out certain facts as to which there is no controversy.
First, both the Act and the Rules came into force long after the appellant had been appointed by the Company.
Secondly no relaxation of qualifications had been sought from or granted by the Chief Inspector with respect to 35 The appellant under the proviso to sub r.
(2) of r. 72 after the Rules came in to force.
Thirdly, no notice as contemplated in r. 72(4) had been given concerning the appellant.
It appears that the Chief Inspector found that the appellant "was performing duties akin to those of Welfare officers contemplated by rule 73 and he was qualified to work as a Welfare officer.
" We propose to deal with this appeal on the basis of these findings.
Dealing with the contention noticed by the Chief Inspector and the High Court that a Welfare Officer under r. 74(2) is one who is appointed after the Rules came into force, Mr. Sen for the appellant said that a person like the appellant who had the requisite qualifications and was discharging the duties prescribed for a Welfare officer from before the Rules came into force, would be a Welfare officer within them.
He pointed out that the proviso to sub r.
(2) of r. 72 clearly contemplated the continuance of the service of such a person as a Welfare officer with relaxation where such was necessary and was granted.
He also said that sub r.
(4) of r. 72 was inapplicable to Such a person because he had been appointed long ago and because the proviso to r. 72(2) indicated that its application was not intended.
We do not think it necessary to pronounce on this question in the present case.
In our view, the appeal must fail even if Mr. Sen 's contention is right and that for another reason .
We observe that the Rules do not define the term "Welfare officer".
But we think it is beyond doubt and indeed the contrary has not been contended that the Welfare officer mentioned in the proviso to r. 74(2) is the same officer as is mentioned in sub r (1) of r. 72.
Now it is, in our view, perfectly plain that the Welfare officer contemplated by r. 72(1) is such an officer of one mine.
The rule says that there shall be at least one Welfare officer for every mine employing between 500 and 2000 persons and this makes any other view impossible 36 As we understood Mr. Sen, he also accepted that the Welfare officer contemplated is one appointed in respect of one mine.
Now, the appellant was on his own case, the Welfare Officer of several mines of the Company and not of one of such mines only.
Therefore, we think that he was not a Welfare officer within r. 72(1) and hence not within the proviso to r. 74(2).
But Mr. Sen contends that the appellant might be considered as having been severally and independently appointed the Welfare officer of each of the Company 's several collieries in his charge.
We think that would be an impossible view to take.
One appointment cannot be treated as several appointments and it is not in dispute that the appellant had only one appointment for all the Company 's collieries.
We think that this appeal fails and we dismiss it with costs.
Appeal dismissed.

summary:
The appellant was appointed as the Chief Labour officer by the Company in 1947.
In December; 1955, the company terminated his services The appellant, claiming to be a Welfare officer, preferred an appeal to the Chief Inspector of Mines under r. 74(2) of the Mines Rules, 1955.
^ Held, that the appellant was not a Welfare officer and as such could not prefer an appeal under r. 74 (2).
The Welfare officer mentioned in r. 74 (2) is the same officer as is mentioned in r. 72 (1) which rule contemplates a Welfare officer appointed in respect of one mine.
But the appellant was an officer of several mines of the Company and not of one of such mines only.


judgement:
vil APPEAL No. 198 of 1956.
Appeal from the judgment and decree dated August 24, 1950, of the Allahabad High Court in Execution First Appeal No. 399 of 1947.
Gopi Nath Kunzru and Ganpat Rai, for the appellants G. section Pathak and G. C. Mathur, for the respondent.
October l 2.
The Judgment of the Court was delivered by SHAH, J.
The Banaras Bank Ltd. a public limited company having its registered office at Banaras (hereinafter referred to as the Bank) was ordered on March l, 1 940 to be compulsorliy wound up by the High Court of Judicature at Allahabad, and the Official Liquidator was appointed to conduct the proceedings in winding up.
On September 12, 1942, an order was made by the High Court under section 187 of the Indian Companies Act, 1913 (VII of 1913) for payment of unpaid calls and the appellants Jyoti Bhushan Gupta.
and Gokul Chand, whose names had been placed on the list of contributors, were directed to pay with interest Rs. 95,178/5/9 to the official Liquidator of the Bank.
This order was, by virtue of section 199 of the Act, enforceable in the manner in which the decree of the High Court made in any suit pending therein may be enforced.
On September 12, 1946, the order was transferred to the District Judge, Allahabad for execution.
On September 23, 1946, the official Liquidator applied to the District Court, Allahabad for execution of the order dated September 12, 1942, and prayed that certain amounts due to the appellants be attached in satisfaction of the claim.
The execution proceedings were transferred by the District Judge 75 to the Civil Judge, Allahabad.
The appellants contended Inter alia that as the application for execution was not preferred within 3 years of the order for payment as prescribed by article 182 of the First Schedule of the Limitation Act it was barred by the law of limitation.
The official Liquidator contended that the application was governed by article 183 of the Act and that, in any event, certain part payments having been made towards the claim by the appellants, the period of limitation was extended thereby.
At the hearing, the alternative plea of part payment was abandoned by the Official Liquidator.
The Civi1 Judge held that the application for execution was barred limitation as it was not preferred within 3 years from the order of the High Court.
In appeal to the High Court of Allahabad, the order passed by the Civil Judge was reversed and the proceedings were remitted to the Civil Judge with a direction to restore the execution application to its original number and to proceed with it according to law.
Against that order with certificate of fitness granted by the High Court under article 133 of the Constitution, this appeal is preferred.
Counsel for the Company contended that the order passed by the High Court not being a final order the appeal on certificate granted by this High Court is not maintainable.
We have not thought it necessary, having regard to the importance of the question raised by the appellants and the fact that this Court may in a proper case regularise the proceeding in this Court by granting special leave, even if certificate under article 133 of the Constitution could not be issued by the High Court, to hear the parties on the question as to the maintainability of the appeal OD the certificate and have heard the appeal on the merits.
We are of the view that the appeal must fail on the merits.
76 article 182 of the Indian Limitation Act provides a period of 3 years for an application for execution of a decreer an order of any Civil Court not provided by article 183 or section 48 of the Code of Civil Procedure, 1908 (V of l908).
By article 183 a period of l2 years for enforcing a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction is prescribed and the period commences to run from the date on which a present right to enforce the judgment, decree or order accrues to some person capable of.
releasing the right.
The order sought to be executed was not passed by the High Court in the trial of a suit: it was passed in exercise of the jurisdiction conferred upon the High Court by section 187 of the Indian Companies s Act, 1913.
Section 3 of the Indian Companies Act by sub s.(1) enacts that the Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate.
By the proviso, the Central Government may by notification in the official Gazette empower any District Court to exercise all or any of the jurisdiction conferred upon the High Court.
But it is common ground that no notification conferring jurisdiction and empowering the District Court at Banaras where the registered office of the company is situate to pass orders under B. 187 has been issued.
The High Court was therefore the only Court competent to direct under B. 187 of the Indian Companies Act payment of the amount due from the appellants.
Counsel for the appellants contends that the authority exercised by the High Court in directing payment under section 187 of the Indian Companies Act, 1913, is neither ordinary, nor original civil.
He submits that by section 187 a special power is vested in the High Court by the Indian Companies Act, 1913, which is exercisable in its extraordinary jurisdiction.
To appreciate this argument it is necessary to refer to the statute authorising the establish 77 ment of the High Court, and the Letters Patent constituting the same.
The High Court for the North Western Province, of which the Allahabad High Court is the successor, was constituted by the Letters Patent issued on March 17, 1866, in exercise of the powers conferred by cl. 16 of the Charter Act of 1861 (24.25 Vict. C. 104).
By that clause, Her Majesty the Queen was authorised to establish a High Court and to invest the High Court with such jurisdiction, powers and authority as under the Charter Act may by cl. 9 be conferred upon the High Court to be established in any of the presidencies, i. e., calcutta, Bombay and Madras.
The High Courts of Calcutta, Bombay and Madras, which were popularly known as the Presidency High Courts were by cl. 12 of their respective Letters Patent invested with ordinary original civil jurisdiction to entertain and try suits of every description subject to the restriction as to territorial limitations contained in cl. 11 thereof.
But by its Letters Patent, the High Court for the North Western Province was not invested with jurisdiction to entertain civil suits in exercise of its ordinary original civil jurisdiction.
Counsel for the appellants submits that Art.183 applies only to decrees and orders passed by the High Courts established by the Royal Charter, which by their constitution are authorised to entertain, hear and try civil suits in exercise of their ordinary civil jurisdiction, and as no such power was conferred upon the Allahabad High Court, the order sought to be executed was not passed in exercise of the ordinary original civil jurisdiction.
It is true that when the Letters Patent were issued the High Court had no jurisdiction under a law relating to companies of the nature exercised by the High Court, the character whereof falls to be determined in this appeal.
But by cl. 16 of the Charter Act and cl. 35 of the Letters Patent of the Allahabad High Court jurisdiction 78 which Was not initially conferred upon the High Court could the conferred by legislation within the competence of the Governor General in Council and the Governor in Council.
By the Companies Act of 1913, the High Court was invested with jurisdiction to order payment of the amounts due by debtors of companies ordered to be wound up.
This jurisdiction may be invoked as of right against all persons whose names are placed on the list of contributors.
The jurisdiction is ordinary: it does not depend on any extraordinary action on the part of the High Court.
The jurisdiction is also original in character because the petition for exercise of the jurisdiction is entertainable by the High Court as a court of first instance and not in exercise of its appellate jurisdiction.
Again by section 187 no special jurisdiction is conferred.
The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company: the jurisdiction is therefore civil.
Normally, a creditor has to file a suit to enforce liability for payment of a debt due to him from him debtor.
The Legislature has by section 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment, but on that account the real character of the jurisdiction exercised by the High Court is not altered.
Nor is there any substance in the contention that the authority to order payment of a debt under section 187 is merely a power of the High Court and not its jurisdiction.
By section 3 read with section 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory: and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by section 3 read with 8. 187 of the Companies Act.
The Judicial Committee of the Privy Council was called upon In the matter of Candas Narondas Navivahu and C. A. Turner(1) to determine the true (1) I. L. R. (1889) 13, Eom.
79 nature of the jurisdiction exercised by the High Court of judicature at Bombay in respect of insolvent debtors.
The Privy Council held that article 180 of Schedule II of the Indian Limitation Act XV of 1877 (which was similar to article 183 of the Indian Limitation Act, l908) applies to a judgment of a Court for the relief of insolvent ebtors entered up in the High Court, in accordance with section 86 of the Statute 11 and 12 Vic., c. 21.
It was held in that case that although a Court exercising insolvency jurisdiction determines the substance of the question relating to an insolvent 's estate, the, proceedings in execution and the judgment are the High Court 'section The judgment is entered up in the ordinary course of the duty cast upon the High Court by the law, not by way of special or extra ordinary action, but in the exercise of its ordinary original civil jurisdiction.
Lord Hobhouse delivering the judgment of the judicial committee observed: "But it was strongly contended at the bar that this jurisdiction though civil and original, was not ordinary: and Mr. Rugby argued that the passages of the Charter which have just been epitomised divide the jurisdiction into four classes ordinary original, extraordinary original, appellate, and those special matters which are tho subject of special and separate provisions.
But their Lordships are of the opinion that the expression "ordinary jurisdiction" embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion upon special occasions and by special orders.
They are confirmed in this view by observing that, in the next group of clauses which indicated the law to be applied by the Court to the various clauses of cases, there is not a four fold division of jurisdiction, but a three fold one, into ordinary, extraordinary, 80 and appellate.
The judgment of 1868 was entered up by the High Court, not by way of special or discretionary action, but in the ordinary course of the duty cast upon it by law, according to which every other case of the same kind would be dealt with.
It was, therefore, entered up in exercise of the ordineary original civil jurisdiction of the High Court.
" Council for the appellants contended that by cl. 18 of the letters Patent the High Court of Bombay was invested with insolvency jurisdiction whereas the High Court of Allahabad is not invested by the Letters Patent with any jurisdiction in the matter of companies and therefore the principle of "In re Candas Narondas" does not apply.
But under cl. 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be deter mined by reference to the law relating to insolvent debtors.
The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified.
There is, however, no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts.
When in exercise of its authority conferred by a special statute the High court in an application presented to it as a court of first instance declares liability to pay a debt, the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court, the jurisdiction is ordinary.
In P. T. Munia Servai v The Hanuman Bank Ltd, Tanjore (1), a Division Bench of the Madras (I) 1.
L. R. 81 High Court by the Banking Companies Act, ]949 (X of 1949) is part of its ordinary civil jurisdiction within the meaning of article 183 of the Limitation Act and an order passed in exercise of its ordinary original Civil Jurisdiction is governed by article 183 and not by article 182 of the Limitation Act.
In that case on an application preferred by the Official Liquidator of the Hanuman Bank Ltd., a direction for payment by the High Court of certain sums of money by the appellant Munia on or before a certain date was made.
To an application for enforcement of that liability article 183 of the Limitation Act was held applicable.
In our view, the High Court was right ill holding that the application for execution filed by the official Liquidator was within limitation.
The appeal, therefore, fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The Banaras Bank Ltd. was ordered by the Allahabad High Court to be compulsorily wound up.
The High Court passed an order under section 187 of the Indian Companies Act, 1913, directing the appellants, whose names had been placed on the list of contributors, to pay a certain sum of money to the official Liquidator.
The official Liquidator applied for execution of the order more than three years after the making thereof.
The appellants contended that the execution application, not having Been preferred within three years as prescribed by article 182 of the Limitation Act was barred.
The official Liquidator contended that the order was made in the exercise of ordinary original civil jurisdiction by the High Court and the application was governed by article 183 which prescribed a period of limitation of twelve years.
^ Held, that article 183 was applicable to the case and the application for execution was within time.
The order was Made by the High Court in the exercise of its ordinary original civil jurisdiction as contemplated in article 183.
Though the Letters Patent did not invest the High Court with any original jurisdiction it could be conferred by legislation.
The Indian Companies Act, 1913, invested the High Court with the jurisdiction to order payment of amounts due by debtors of companies ordered to be wound up.
The jurisdiction was ordinary, it did not depend on and extraordinary action on the part of the High Court.
It was original as a petition for the exercise of it was entertained by the High Court as a court of: first instance and not as an appellate court, and since the High Court adjudicated upon the liability of the debtor to pay debts due by him to the company the jurisdiction was civil.
In the matter of Candas Narondas, Navivahu and C. A; Turner, I. L. R. and P. T. Munia Cervai 74 vs The Hunuman Bnak Ltd., I.L.R , referred to


judgement:
Civil Appeal No. 529/1959.
Appeal by special leave from the Award dated February 28, 1958, of the Central Government Industrial Tribunal Calcutta, in reference No. Of 1957.
H. R. Gokhale, Yeshwant Chitale, Ratna Rao and K. R. Choudhri, for the appellants.
section T. Desai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent No. 1. 1961.
October 10.
The Judgment of the Court was delivered by DAS GUPTA, J.
This appeal by special leave is against an award of the Central Government Industrial Tribunal at Calcutta in a dispute referred to that Tribunal by the Central Government under s.10 of the Industrial Disputes Act between the workmen of the Bombay Port Trust, who are the appellants before US and the Trustees of the Port of Bombay, the respondents in the appeal.
The workmen concerned in the dispute as referred are shore workers belonging to "A" category, "B" category and casual category.
These three categories came into existence under the scheme adopted by the Bombay Port Trust in April 1948 for direct employment of shore workers in place of the system previously in force under which such labourers used to be supplied by contractors known as Toliwallas.
The matters in dispute were specified thus in the letter of reference to the Tribunal: "Arrears due to the shore workers belonging to the "A" category, "B" category and casual category in respect of (i) weekly off with pay for the period 15th March, 1951 to 2nd March, 1956; (ii) work on weekly off days during the period 15th March, 1951 to 2nd March, 1956, without a compensatory day off in lieu; and 39 (iii) average daily wages for the weekly off days after the introduction of the piece rate scheme with effect from 3rd March, 1956, when the average fluctuated from week to week.
" It became clear at the hearing before the Tribunal that of the period mentioned in Item (i) and Item (ii), viz., the 15th March, 1951 to 2nd March, 1956, no "weekly off" was given at all from the 15th March 1951 to October 1953 but workmen were made to work generally for all the 7 days of the week, and further that from October 1953 to 2nd March, 1956, Sunday was given as the "weekly off" and no work was taken on that day.
The real dispute therefore as regards Item (i) and Item (ii) was in respect of (a) arrears of wages for Sunday the weekly off on which no work was done from October, 1953 to March 2 1956, and (b) arrears of wages for work done during the period 15th March, 1951 to October, 1953 on Sundays which should have been given as a weekly off day but was not, though no compensatory day was given in lieu thereof.
As regards arrears of wages for Sundays on which no work was done the worksmen 's case is that they were entitled to receive payment for eah such Sunday amounts equal to their average daily wages during the preceding week.
But admittedly no payment was made for these Sundays.
The respondent 's case however is that on a proper interpretation of Rules 23 of the Minimum Wages (Central) Rules, 1960, the workmen were not entitled to payment for Sundays on which no work was done by them and further that in any case they have been constructively paid for the Sundays also inasmuch as the daily wages were fixed at I/26th of the monthly wage.
The Tribunal accepted these contentions raised on behalf of the employer and held that there were no arrears of wages in respect of Sundays 40 for which no work was done.
With regard to the period March 15, 1951 to October, 1953 it appears the workmen except morphias were paid at twice J the.
Ordinary rate inclusive of all allowances, for all work done on Sundays; Morphias were paid one and a half time the normal rates of wages.
The workers ' case is that for the work done on Sundays during this period they were entitled to three time.
the ordinary rate.
This claim was also rejected by the Tribunal which however held that the Morphias were entitled to double their wages inclusive of all allowances and so directed that they shall be paid for work done by them on weekly rest days from 15th March, 1951 to October 1953 the difference between double their wages inclusive of all allowances and that they have been paid.
We may state at once that the dispute as regards arrears due to workers belonging to "casual" category has not been pressed before US and does not therefore require consideration in this appeal.
The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already been awarded for this period to Morphias) does not also merit serious consideration as the learned counsel for the appellant was unable to show any legal basis for such a claim.
He tried to persuade to that as Rule 23 of the Minimum Wages (Central) Rules required the employer to give a weekly holiday on Sunday (unless this is given on some other day instead) it is not right that when the employer does not comply with that requirement he should get off with paying nothing more than what he would have paid for such work done on any day of the week because of the Rules in respect of extra payment for over time work.
The itself contains provisions for contravention of the provisions of the Act or Rules or orders made thereunder.
Section 22 provides for punishment inter alia for contravention of rules or orders under section 13.
Section 22A provides for punishment withfine 41 (which may extend to five hundred to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention.
The Minimum Wages Rules were made by the Central Government in exercise of the powers conferred by section 30 of the (Act XI of 1948) and so contravention of rule 23 of these rules is punishable under section 22A of the Act.
Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay.
Neither the Minimum Wages At nor the Rules contain any provision for such additional payment over and above what would be payable for over time work as such.
The workmen 's claim for further payment in respect of work done on Sunday during, the period March 15, 1951 to October 1953 has therefore been rightly rejected.
In respect of the claim for pay on Sundays during the period October 1953 to March 2, 1956, on which no work was done we have first to decide on the correct interpretation of the words "for which" in Rule 23, as it stood before it was amended by a Notification GSR 918 dated the 29th July, 1960.
Tho Rule as it stood before the amendment ran thus: "23.
Weekly Holidays (1) Unless other wise permitted by the Central Government, no worker shall be required or allowed to work in a scheduled employment, on the first day of the week (hereinafter referred to as the said day) except when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day for which he shall receive payment equal to his average daily wages during the preceding week.
42 Provided that the weekly holidays may be substituted by another day: Provided further that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.
" We are not concerned with cl. 2 of Rule 23.
The Explanation to the Rule is in the following words: Explanation For the purpose of this rule "week" shall mean a period of seven days beginning at midnight on Saturday night.
" The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals ordinarily once in every 7 days but in no case at intervals of more than 10 days.
This was clearly in accordance with the principle laid down in 8. 13 of the that the Government may provide for a day of rent for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 (which covers many other matters other than the matters mentioned in 8.13) no reference has been made to section 13 at all.
In giving effect to this policy of providing for a day of rest ordinarily once in 7 days but in no case at intervals of more than 10 days the rule making authority has thought fit also to make provision for making some payment in connection with this.
Difficulty has however been caused by the unfortunate complexcity of the sentence, in which the main provision as regards the day of rest and also the subsidiary provision for payment have been combined.
The dispute is about the meaning of the words "for which".
If one remembers the rule of grammar that what the grammarians call the "antecedent" (that is the noun or pronoun to which a relative pronoun relates) should be used as near as possible to the relative pronoun, one is tempted to think that "which" relates to the word "day" of the "said 43 day" immediately preceding the preceding the preposition "for".
Breaking up this last portion of the rule, the rule thus analysed would be equivalent to "and for the said day he shall receive payment equal to his average daily wages during the proceeding week".
That will be however only A grammarian 's construction.
In the Courts however while we have to remember the rules of grammar, because such rules are ordinarily observed by people in expressing their intentions, we have to look a little more closely to understand the: real intention expressed.
It seems to us unreasonable to impute the rule making authority an intention that while if the weekly rest is given on the said day" that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when the has or will have a holiday for the whole day on one of the five days immediately before or after the said day.
" For, it that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day.
It seems clear to us therefore that in using the words "for which" after the words the said day" the rule making authority did not intend to continue the word "which" to this said day" but intended to relate this "which" to any of the days on which rest is given.
In other words, 'for which" was used as short for and on such holiday whether on the said day or not".
We do not think the rules of grammar stand in the way of this interpretation.
Mr. Desai 's argument on behalf of the respondent is that '"which" relates to the word holiday and that accordingly it is only when the workman has or will have a holiday on one of the five days immediately before or after the said day, that he Shall receive payment.
According to him, the two phrases for the whole day" and "one of the five days immediately before or after the said day" are adver .
44 bial phrases modifying the verb "has" and "will have" and no part of these phrases can have any connection with the words for which".
Leaving of these out, the rule properly analysed is, he says, in really two portions: the first being "no worker shall be required or allowed to work in a scheduled employment, on the first day of week"; the second being except when he has or will have a holiday for which he shall receive payment equal to his average daily wages during the preceding week".
That will however be to re write the sentence in a manner for which we can find no justification.
It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made.
It will be unreasonable to ascribe such an intention to the legislature.
The Tribunal was so impressed by the unreasonableness of such a consequence that it came to the conclusion that no payment will be receivable by the workmen whether the weekly rest day is given on the first day of the week or on one of the five days immediately before or after the said day.
Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day.
It was this weekly holiday whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day that under the proviso could be substituted by another day.
The scheme clearly is for one holiday, generally, once in a week and it is for this one holiday that payment is provided.
45 Our attention was drawn to the view taken by the Bombay High Court in Trustees of the Port of Bombay vs Authority under the payment of Wages Act(1) which was followed by the Madras High Court in A.C.C. vs Labour Inspector(2) that the proper construction of the word "for which" is to relate to word "holiday" preceding the word" "for the whole day".
In Jaswant Sugar Mills vs Sub Divisional Magistrate (3) the Allahabad High Court took the view that for which" refers to the weekly holiday whether it is on a Sunday or on any other days of the week as permitted under the Rules.
In our opinion, the view taken by the Allahabad High Court correct.
On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and were entitled to receive payment equal to the average wages during the preceding week" in respect of the period October 1963 to March 2, 1956.
This brings us to the employer 's claim that there has been constructive payment for the Sundays during this period, viz., October 1953 to March 2, 1956.
The argument is that the daily wage for these workmen was fixed by dividing all the Components of the monthly scale of pay and allowances by 26 so that what, a workman receives as daily wage is really 1/26th of the wage for 30 days.
Thus, it is said, the total receipts for the 26 days, if no seperate payment is made for the rest days will be 26 x1/26th of 30 days wage.
, that is 30 days ' wage.
The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage.
However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage.
When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly (1)1957 (1) L. L. J. 627.
(2) 1960(I) L. L. J. 192.
(3) 1960 (II) L. L. J. 373.
46 intended that something in addition to what was being actually received for the six days of the week should be paid.
This cannot be defeated by a statement that though in form six days wages were being paid, infact and in substance, fieven days wages were being paid.
By no stretch of imagination can payment for six days be equated to payment for seven days.
We have therefore come to the conclusion that the workmen of the A and categories are entitled to arrears of wages in respect of Sundays during the period octobcr 1953 to March 2, 1956.
With effect from March 3, 1856 the piece rate scheme was introduced fer the shore woIkers belonging to the A" category and B ' category.
Tbe essentials of this scheme are that a datum line was fixed for the different kinds of u.ork and tl piece rate would vary with the proportion which the out turn of the gang bears to the datum line in the following manner: "For a hift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowancefi above mentioned) shall rise uniformly from Rs. 3 1 O at 76% to Rs. 4 5 O at lOO% to Rs 8 at 150% of the datum line.
The piece rate wage earned after 150% of the datum line shall be processed at double the daily wage that is to say the piece rate wage will rise uniformly from Rs. 8 at 150% to Rs. 12 at to at to 200% of the datum line.
" The scheme further provided that: "Rs. 3 1 0 (comprised of Rs. 1 8 3 basic was including allowances and Rs. 1 9 O dearne6s allowance) shall be the mirlimum guar&nteed wage per dav on which a gang worker is given employment; if on any day the piece work earnings plus idle time payment andlor other earnings under this appendix fall short of the said minimum, 47 Port Trust shall make up the difference that day." "Rs. 3 7 0 (comprised of Rs. 1 14 0 basic wage including allowances and Rs. 1 9 0 dearness allowanance) shall be the minimum guaranteed wage per day on which a, morpia is given employment.
" On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced.
It is urged that for such worker there is no daily wage, as what the piece worker receives varies from day to day according to his total output.
It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing.
Against this, Mr. Gokhale 's argument is that average daily wages during the preceding week means average of the total earnings per day during the preceding week and so there can be no difficulty in ascertaining for every his worker his average daily wages during any week.
We are not prepared to accept this construction of average daily wages as average earnings per day.
The daily wage has in the industrial world a definite significance in contra distinction to weekly wages or monthly wages.
The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working over time.
So also, in our opinion, the term daily wages as ordinarily understood does not include over time earnings.
If it does not include overtime earnings, can it reasonably be said that it includes the high additional earnings, that a worker may receive by increasing his output above the minimum fixed ? We do not think that to be a reasonable interpretation of the words "daily wages.
" At the same time, we see no reason why the guaranteed minimum fixed for each workman 48 per day should not be considered his daily wages.
The piece rate system introduced for these work As men has fixed such a minimum.
Indeed, the fixation of such A minimum wage for a piece rate system makes, it may be said the piece rate a time rate cum piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates.
The argument that Rule 23 does not apply to these workmen after the introduction of the piece rate Scheme must therefore be rejected .
As regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai con.
tended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26 For the reasons for which this argument was rejected in respect of the period October, 1953, to March 2, l956, we reject this plea of constructive payment.
We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage.
As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal.
We express no opinion as to what the position in law is, after this amendment of Rule 23.
The appeal is accordingly allowed in part.
In the circumstances, the parties will bear their own costs in this Court.

summary:
The , and the Minimum Wages Rules, framed thereunder, laid down the principle that the Government should provide for a day of 1 est to the workers for every period of 7 days and also to make provisions for making some payment in connection therewith.
The dispute between the workers and employers of the present case related to (a) arrears of wages for Sunday, the "weekly off" day on which no work was done and (b) arrears of wages for work 37 done on Sundays which should have been given as a weekly off day but was not so given and no compensatory day was given in lieu thereof as contemplated under the Minimum Wages Rules.
As regards arrears of wages for Sundays on which no work was done the workmen 's case was that they were entitled to payment for each such Sunday amounts equal to their average daily wages during the preceding week, that for the work done on Sundays without the compensatory "off day" they were entitled to three times the ordinary rate.
The respondent 's case was that on a proper interpretation of r. 23 of the Minimum (Wages Central) Rules, 1960, the Workmen were not entitled to payment for Sundays on which no work was done and that in any case they had been constructively paid for Sundays inasmuch as the daily wages were fixed at I/26th of the monthly wages.
The Industrial Tribunal rejected all the claims of the workmen.
On appeal by special leave.
^ Held, that contravention of r. 23 of the Minimum Wages Rules was punishable under the but the Industrial Tribunal had no authority to impose penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise to pay.
Neither the nor the Rules contain any provision for such additional payment over and above what would be payable for over time work as such.
The workmen therefore cannot get three times the ordinary rate.
The phrase "for which" in r. 23 referred to the weekly holiday whether it was on a Sunday or on any other day of the week as permitted under the Rules.
No distinction was made between the holiday on the first day of the week and holiday on one of the five days immediately before or after the said day.
The scheme was for one holiday in the week and it was for that holiday that payment was provided.
Trustees of the Port of Bombay vs Authority under the Payment of Wages Act, (1957) I L.L.J. 627, A. C. C. vs Labour Inspector, (1960) 1 L. L. J. 192 and Jaswani Sugar Mills vs Sub divisional Magistrate, , approved.
The Central Government clearly intended under the Minimum Wages Rules that for work on a holiday something more than what was actually paid for six days of the week should be paid.
This could not be defeated by a statement that in form six days wages were paid, but in fact and in substance seven days wages were paid.
The plea of constructive payment must fail.
The argument that r. 23 did not apply to the workmen of the present case after the introduction of the piece rate scheme introduced in this case must be rejected 38


judgement:
Appeals Nos. 503 to 506 of 1958.
Appeals by special leave from the judgment and orders dated August 4, 1957, of the Bombay High Court in Letters patent Appeals Nos.
29 to 32, of 1957.
J. C. Bhatt, R. P. Bhatt, R. A. Gagrat and G. Gopalakrishnan, for the appellants.
N. C. Chatterjee, Madhowdas C. Bhagat and Radhey Lal Agarwal, for the respondents in C. A. No. 503 of 58.
Madhowdas C. Bhagat and Radhey Lal Agarwal, for the respondents in C. As.
504 to 506 of 1958.
September 29.
The Judgment of the Court was delivered by DAS GUPTA, J.
When a lessee takes lease of open land for the purpose of constructing on it buildings intended to be used for residence or for business is this "letting for residence,", or "letting for business"? That is the short question which arises for decision in these four appeals.
The appellant brought these four suits in the City Civil Courts, Bombay, for recovery of arrears of rent in respect of the premises mentioned in the plaint of these several suits.
It is clear under the law that the City Civil Court, Bombay, would have no jurisdiction to try these suits if the provisions of Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom.
57 of 1947), which later in this judgment we shall refer to as the "Rent Act", applied to the permises in suits.
For this reason the plaintiff stated in the plaint itself that this Rent Act did not apply to the demised premises.
The defendant in each case pleaded on 930 the contrary that the Rent Act applied and so the City Civil Court had no jurisdiction to try the suits.
The first issue framed in each of these suits therefore was, whether the Court had jurisdiction to entertain the suit.
The learned Judge held that Part II of the Rent Act applied to the premises in each of these suits and consequently only the special court,% specified in section 28 of the Rent Act had jurisdiction to entertain the suits and the City Civil Court had no jurisdiction.
Accordingly, he ordered the plaint in each of the four suits to be returned to the plaintiff for presentation to the proper Court.
The plaintiff appealed to the High Court of Bombay but all the four appeals were summarily dismissed.
The Letters Patent appeals preferred by the plaintiff from the decision of the Single Judge were also dismissed summarily.
These appeals have been preferred against that decision of the Bombay High Court in Letters Patent Appeals on special leave obtained from this Court.
Under a. 5, sub section 8 of the Rent Act unless there is anything repugnant in the context, "premises" means, among other things, "any land not being used for agricultural purposes.
" It is 'undisputed in these cases that the land in respect of which the suits were brought was not being used for agricultural purposes and so comes within the definition of " 'Premises" in section 5.
The provisions of Part If of the Act do not however apply to all premises which fall within this definition.
Section 6 with which this Part II opens provides in its first sub section that this part shall apply to premises let for residence, education, business, trade or storage in areas specified in Sch.
It is subject to a proviso that the State Government may direct that in any of the said areas, this Part shall cease to apply to premises let for any of the said purposes, with a further proviso that the State Government may again direct that in any of the said areas this Part shall re apply to premises let 931 for such of the, aforesaid purposes.
As there has been no notification under these provisos affecting the premises in suit, we are not concerned with them; nor are we concerned with sub section 1(A) under Which the State Government may direct that this Part shall, apply to premises let for any other purposes.
The four premises in respect of which the four suits were brought are all within the city of Bombay and thus in the area specified in Schedule of the Act.
In each of these cases we have therefore to examine the, purpose of the lease and to decide whether it was let for residence or for education, business, trade or storage.
The lease men tions that the leasee will construct buildings suitable for residential, business, industrial or office purposes.
The plaintiff 's case is that as open land is not intended to be used as it is for residence or business but for construction of buildings for residence or business the land is not being let for residence or business.
The defendant in each case contends that the letting was for residence or business as that was the ultimate purpose of taking the lease.
Mr. Bhatt addressed his arguments to the question whether the letting could be said to be for residence and did not separately address us on the question of letting for business as obviously if the land could not be said to be let for residence it could not also be said to be let for business.
The extreme proportion which Mr. Bhatt raised first of all on behalf of the appellant is that open land can never be let for residence and so.
when a. 6 speaks of premises being let for residence, land as defined in sub section 8 (a) of section 5 is outside the word "premises".
There is, in our opinion,, no substance in this contention.
It is quite clear that open land as it is can be used for residence and so there is no reason to think that open land was not intended to be included in ,premises" when a. 6 speaks of premises being let for residence.
932 The more substantial question for consideration is whether when open land is being leased not to be used for residence in its condition of open land but to be used for the purpose of residence after constructing buildings thereon, the letting of the open land can reasonably be called to be letting for residence.
Mr. Bhatt contends that as, what is to be considered is whether the letting of the open land is, for residence the land cannot be said to be for residence if not the open land, but, something constructed on the open land is to be used for residence.
In such a case, says Mr. Bhatt, the land is let for construction of a building and not for residence.
We are unable to accept this argument.
Land can be used for many purposes.
It maybe used for agriculture; for residence of human beings; for keeping cattle or other animals; for holding meetings; : or carrying on business or trade; for storage of goods; for supply of water by excavating tanks, and many other purposes.
Many of these purposes can be achieved on the open land without the construction of any buildings.
But many of them can be better achieved if some kind of structure is created on the open land.
It seems reasonable to us to think that when the Bombay Legislature took particular care to include open land not being used for agricultural purposes within the word "premises" and then went on in the very next section to speak of premises being let for several specified purposes, it was thinking of the purposes to which the land will be used irrespective of whether the purpose was intended to be achieved with or without construction of a structure.
The intention in mentioning only some purposes, viz., residence, education, business, trade or storage in section 6 was to exclude land let for purposes like, keeping of cattle, (except in the way of business or trade), and numerous other purposes to which the land may be put from the benefit of part II of the Act.
It seems to us that when people speak ordinarily of land being let for business, they are only 933 thinking that the ultimate purpose behind the letting is that business will be carried on and they are not thinking whether the business will be carried on on the land in its present state or by the construction of temporary sheds or by putting up permanent buildings.
Similarly, when a man says that he will take lease of a plot of land for storage of his goods, what he has in mind is that by taking lease of the land he will achieve the object of storing goods, irrespective of whether for such storage he will have to put up a structure or not.
In the same way.
, we think, that when land has been let for the purpose of constructing buildings for residence, people will say that it is being let for residence, just as they will say that the land has been let for residence if the lessee intends to use it as caravan site so that the people may live on the open land in caravans.
In our opinion, the words ', 'let for residence, education, business, trade or storage" are wide enough to include a letting for the achievement of these purposes with construction of buildings as also without construction of buildings.
But, says Mr. Bhatt, look at sub a.
(i) of section 15 of the Rent Act which is in this very part II and that will show that the Legislature could not have intended land which is let for the construction of buildings for residence to I" within the phrase , 'premises let for residence".
Section 15 of the Act after its amendment by Bombay Act 49 of 1959 reads thus: "Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful, after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein.
" It may be mentioned that as the section originally stood the words "but subject to any contract to the contrary" were not there.
When the amending Act 934 of 1959 introduced these words the amendment further provided that these words shall be deemed always to have been there.
Even after the amendment, it remains unlawful, where there is no contract to the contrary, for any tenant of premises to sublet the whole or a by part thereof Mr. Bhatts argument is that in every case where there is no such contract to the contrary the difficulty that will result if land let for construction of residential buildings be held to be premises let for residence within the meaning of a. 6.
is that after the building is constructed the lessee will not be able to sublet the building or any portion of it; so that in many cases where the real purpose of taking the land is for the construction of building for letting out the same, that purpose will be defeated.
This argument as regards the difficulty in the matter of letting out the building constructed on the land on which lease has been taken was more plausible when the saving phrase "but subject to any contract to the contrary" did not form part of the section.
Now, however, the cases in which such difficulty will arise, if at all, would be few and far between; for, it is reasonable to expect that when taking lease of land for the construction of building intended to be let out to others for residence, the lessee of the land would take care to include in the contract of lease a term permitting him to let out the building.
Assuming that there may be cases where the contract of lease does not contain any such term and assuming further that it will not be lawful for the lessee of the land to let out the building constructed by him, the probability of such difficulty in some cases, can be no reason to out down the ordinary and reasonable connotation of the words , let for residence" in a. 6.
It 'is unnecessary for us to decide whether if there is no contract to the contrary, section 15 will really stand in the way of a lessee of the land letting out buildings constructed by him, on such land.
We may say however that there is in our opinion 935 much force in the argument which found favour with the Bombay High Court in Vinayak Goapl vs Laxman Kashinath (1), where the very question, which.is now before us arose for decision, that the bar of section 15 will operate only in the way of letting out the land of which lease has been taken, but will not stand in the way of letting the building constructed on the land.
In that case the Bombay High Court held that where land is leased for the purpose of construction of buildings for residence the land is "let for residence" within the meaning of section 6 of the Rent Act.
Mr. Bhatt devoted a considerable part of his argument to persuade us that some of the reasons given in that judgment do not stand scrutiny.
We think it unnecessary however to examine whether all the reasons given in the judgment are correct.
For, as already indicated, the words " 'let for residence" on a proper construction would cover the case of open land being let for construction of residential buildings and so the conclusion reached by the Bombay High Court in Vinayak Gopal 's Case(1) is, in our opinion, correct.
It is unnecessary for us also to consider for the purpose of the present appeals as to what may happen to the sub lessee if and when on the terms of a particular lease the building ultimately vests in the owner of the land nor as to what may happen if and when on the terms of a particular lease the lessee who has constructed the building gets the right to remove the building.
These considerations should not, in our opinion, affect the construction of the words "let for residence".
Turning now to the facts of the present case we find that in each of these cases the lease was taken with a view to construct buildings thereon for residential, business, industrial or office purposes.
The premises let am therefore "premises" to which (1) I. L. R. 936 under section 6(1) of the Rent Act the provision of part II of the Act, apply.
The Trial Court and the High Court were therefore right in holding that the City Civil Court Bombay, had no jurisdiction to try the suits.
The appeals are accordingly dismissed with costs.
There will be one set of hearing fee for the four appeals.
Appeal dismissed.

summary:
The appellant took lease of an open land for construction of buildings suitable for residential, business, industrial or office purposes.
The appellant brought suits in the City Civil court, Bombay, for the recovery of arrears of rent in respect of premises built on the said open land, all within the city of Bombay thus in the area specified in Schedule I of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The appellant stated in the Plaint itself that the Bombay Rent Control Act, 1947, did not apply to the dcmiscd premises.
The defendants pleaded that the Rent Act applied and the City Civil Court had no jurisdiction to try the suit.
The trial judge held that part II of the Rent Act applied to the premises and consequently only the special courts specified in section 28 of the Rent Act had jurisdiction to entertain the suit and ordered the plaints in the suits to be returned to the plaintiff, for presentation to the proper court.
The Bombay High Court summarily dismissed the appeals from the said orders.
The point at issue for decision was whether "when a lessee takes lease of open land for the purpose of constructing on it buildings intended to be used for residence or for business, this amounts to "Letting for residence" or "letting for business".
The appellants ' contention was that as open land not intended to be used, as it is, for residence or business but for construction of buildings for residence or business was taken on lease the land was not being let for residence or business.
Held, that the words "let for residence, education, business or storage" in s.6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, are wide enough to include a letting for the achievment of these purposes by construction of buildings as also without construction of buildings.
Held, further, that on the facts of the present case, in each of these cages, the lease was taken with a view to construct, buildings thereon for residential, business, industrial or office purposes and the land let was therefore 'premises ' to 929 which under section 6(1) of the Bombay Rent Act, the provisions of Part II of the Act applied.
Vinayak Gopal v Laxman Kashinath I. L. R. , approved.