SITALDAS D RAMCHANDANI Vs. KALELKAR B S
LAWS(BOM)-1962-8-27
HIGH COURT OF BOMBAY
Decided on August 27,1962

SITALDAS D.RAMCHANDANI Appellant
VERSUS
KALELKAR(B.S.) Respondents


Referred Judgements :-

EMPEROR V. HASANALI GULAMALI [REFERRED TO]


JUDGEMENT

Chainani, C.J. - (1.)The petitioner in these petitions is the employer. Respondents 2, to whom I will refer hereafter as the respondents, are his employees. The respondents had made applications to the Payment of Wages Authority, in which they claimed wages for the weekly holidays during the period from 1 November, 1958 to 31 October 1959, under S. 18(3) of the Bombay Shops and Establishments Act, 1948. Sub-section (1) of S. 18 states that every shop and commercial establishment shall remain closed on one day of the week. Sub-section (3) is in the following terms :
"No deduction shall be made from the wages of any employee in a shop or commercial establishment on account of any day on which it has remained closed under this section. If any employee is employed on a daily wage, he shall nonetheless be paid his daily wage for the day on which such shop or commercial establishment remains closed. If any employee is paid a piece-rated wage, he shall nonetheless be paid his wage for the day on which the shop or commercial establishment remains closed, at a rate equivalent to the daily average of his wages for the days on which he has actually worked during the six days preceding such closed day, exclusive of any earning in respect of overtime : Provided that nothing in this sub-section shall apply to any person whose total period of continuous employment is less than six days."

(2.)Under the proviso an employee is not entitled to wages for the day on which the shop is closed, which has been referred to by the Payment of Wages Authority as the weekly offday, if his total period of continuous employment is less than six days. The respondents contended before the authority that after an employee has put in six days of continuous employment, he, is entitled to wages for the weekly offday in every subsequent week, irrespective of the number of days on which he works in that week. The petitioner, on the other hand, contended that in order to get wages for the weekly offday, the employee must work for six full days in a week, that is, for 48 hours. Sub-section (1) of S. 14 states that no employees shall be required or allowed to work for more than 48 hours in any week. It was urged on behalf of the petitioner that unless an employee has worked for 48 hours in a week, he cannot claim wages for the weekly offday in that week. In Emperor v. Hasanali Gulamali [(1941) 44 Bom. L.R. 50] the question arose about the interpretation of S. 17 of the Act of 1939. Sub-section (1) of this section stated that every person employed in a restaurant, eating house, theatre or any other place of public amusement or entertainment shall be given at least one day in a week as a holiday; provided that nothing in this sub-section shall apply to any person whose total period of employment is less than six days. At p. 52 it was observed :
"... The first clause refers to one day in a week being given as a holiday and the proviso lays down that those who have worked for six days would be entitled to such a holiday. The meaning is that those who have worked for six days in any week would be entitled to one day as holiday; and the second provides that the holiday shall be with pay."

(3.)The Payment of Wages Authority relied on this decision and held that an employee is entitled to his wages for the weekly holiday, on which the establishment remains closed, provided he has worked for six days in that week, and that if for any reason he does, not work or is not able to work on six days that is to say, if he is absent in the week for even one whole day, he is not entitled to wages for the weekly holiday in that week.


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