JITENDRA AMULAKHRAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision is by the Agent of the Central Bank of India who challenges his conviction under sections 52(f) and 52(b) (Bombay Shops and Establishments Act 1948 for contravention of Rule18 of the Rules framed under the Act sec. 63(1) and sec. 18(2) of the Act respectively. The conviction relates to the failure of the applicant to observe the Rules in regard to a person who is a Police Watchman by name Amirmiya. It appears that the Central Bank had requested the District Superintendent of Police of Ahmedabad to provide a watchman for the Bank. The District Superintendent of Police sent some names of retired policemen to the Central Bank of India for selecting one of them. Those persons were interviewed by the Bank authority and Amirmiya was selected for the post of watchman. The District Superintendent of Police was informed accordingly by the letter Exhibit 20. Thereupon the District Superintendent of Police issued an order dated 24th January 1959 appointing Amirmiya as Ramoshi in the Central Bank of India Ltd.Shahpur Branch Ahmedabad with effect from 1st February 1959. That order is at Exhibit 16. It is also in evidence that the hours of work of Amirmiya were fixed by the Police Commissioner and that the appointment order is also passed by the Police Commissioner. Amirmiya is also paid his salary by the Police Department although it is in evidence that the Bank pays to the Police Department Amirmiya is supplied with the dress by the Police Commissioner and the Police Commissioner exercises powers to grant leave to Amirmiya and to accept his resignation. It is the Police Commissioner who exercises the powers of punishing the watchman. In spite of these admissions the learned Magistrate held that Amirmiya was an employee of the Agent of the Bank and not of the Police Commissioner and that the provisions of the Act are applicable to the case. He held that Amirmiya has worked overtime as he worked from 7.00 P. M. to 7.00 A. M. The learned Magistrate held that the Agent of the Bank had not paid overtime wages to Amirmiya. He therefore held that the accused had committed a breach of sec. 63(1) of the Act and was therefore liable to be punished under sec. 52(f) of the Act. He also held that the Agent of the Bank had not given any holiday during the week from 19th February 1961 to 25th February 1961 to Amirmiya as required by sec. 18(1) of the Act and that he had contravened sec. 18(2) of the Act. He therefore held that the Agent of the Bank was guilty of the offence under secs. 52(f) and 52(b) of the Act. The learned Magistrate also convicted the Agent of the Bank for contravening Rule 18(10) of the Rules framed under the Act.

(2.) Rule 18(10) of the Rules framed under the Act reads as follows:-- (10). In any register or record which an employer is required to maintain under these rules the entries relating to any day shall be made on such day and shall be authenticated under the signature of the employer or the Manager. Section 18(1) of the Act reads as follows:-- (1). Every shop and commercial establishment shall remain closed on one day of the week. The employer shall prepare a calendar or list of such closed days at the beginning of the year notify such calendar or list to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the shop or commercial establishment. Section 18(2) of the Act reads as follows:-- (2). It shall not be lawful for an employer to call an employee at or for an employee to go to his shop or commercial establishment or any other place for any work in connection with the business of his shop or commercial establishment on a day on which such shop or commercial establishment remains closed. Section 63(1) of the Act reads as follows:-- (1). 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.

(3.) It is contended that it is sufficiently proved that Amirmiya is an employee and that the Agent of the Bank is an employer and that if Amirmiya is an employee and the Agent of the Bank is an employer the convictions are justified.