K.S. Radhakrishan, C.J.
1. Government of Jammu and Kashmir, in exercise of its powers conferred on it under Section 5 of the J&K; Shops and Establishments Act, 1966, exempted Food Corporation of India from paying overtime allowance at double the rate of its employees stationed in the State of Jammu and Kashmir vide its order dated September 23,1988. However, it was ordered that other benefits which were available to the employees under the provisions of the said Act shall remain intact.
2. The Government notification was challenged by petitioners on various grounds. Contention was raised that the Government did not have power under Section 5 of the Act to grant exemption from a part of the provisions of the Act; either it can exercise its power fully or not at all, but not partly. Further, it was also contended that the Corporation, which falls within the provisions of the Act, could demand overtime work only if they could agree to pay wages twice the ordinary wages which is a statutory obligation and can only be waived by the legislature. Referring to Section 48 of the J&K; Shops and Establishments Act, it was contended that where an employee in any establishment is required to work in excess of the limits of hours of work, he shall be entitled to wages at the rate twice his ordinary rate of wages in respect of the overtime work. Reference was also made to Section 11 of the Act which reads as follows;
Hours of work in shops and commercial establishments' - Subject to the provisions of this Act, no employee shall be required or allowed to work in any shop or commercial establishment for more than nine hours on any day and forty-eight hours in any week.
(2) Any employee may be required or allowed to work in a shop or a commercial establishment for any period in excess of the limit fixed under Sub-section (1) if such period does not exceed three hours in any week.
3. A Division Bench of this Court in LPA(SW) No. 234/1993 and LPA(SW) No. 234/1999, decided on February 17,2004, had occasion to consider a similar issue when validity of Circular No. 124 of 1982 dated December 14,1982 and exemption order dated September 23,1988 came up for consideration. Upholding the circular, the Division Bench held as under:
From bare perusal of the aforequoted passages from the Circular, it would be manifest that overtime allowance was payable to the employees working in the ports, godowns and depots, and not elsewhere, falling within the local areas to which the relevant Shops and Establishments Act was applicable. The appellants herein are, admittedly, working in the offices of the FCI and, therefore, not covered by the Circular.... We have been given to understand that the scheme of OTA was introduced to such employees who were engaged in the work of loading and unloading of goods at ports, godowns and depots, as the case may be. The appellants posted in the offices were performing different duties and cannot claim parity with the employees working in the ports, godowns and depots.
4. In our view, the reasoning given by the Division Bench should have concluded the issue once for all. Moreover, the same issue came up for consideration before various High Courts. Same view was taken by a Division Bench of Allahabad High Court in Bhartya Khadya Nigam Karamchari Sangh and Ors. v. State of UP and Ors. Civil Misc. Writ Petition No. 15897 of 1985, decided on December 7, 1995; Gujarat High Court in Special Civil Application No. 5006 of 1986, Food Corporation of India Employees' Association v. Food Corporation of India and Anr. decided on December 10, 1991, has also taken the same view so also various other High Courts.
5. Learned Single Judge, however, while examining the scope of Government order dated September 23,1988 took a curious approach while interpreting Section 5 of the Act. Section 5 of the Act reads as follows:
The Government may, by notification in the Government Gazette. exempt either permanently or for any specified period, any establishment or class of establishments or person or class of persons to which or to whom this Act applies, from all or any of its provisions, subject to such conditions as the Government may deem fit.' (Emphasis added)
6. The learned Judge opined that the Corporation had failed to show any law on the aspect that the Government while exercising the power under the Act can grant exemption from part of the provisions of the Act. The learned Judge held that the Government has the power to grant exemption to any establishment or class of establishments or person or class of persons to which the Act applies from any of the provisions of the Act but the Government cannot grant exemption from a part of a provision as had been done in the present case. Apriori, learned Judge took the view that no notification can also be issued restricting-payment of overtime wages, since the government lacked power
7. We are of the view that the learned Single Judge has completely misunderstood the words 'from all or any of its provisions' and 'subject to such conditions as the Government may deem fit'. Any of the provisions would take in part of the provision also. Further, Government have also got the discretion to impose a condition. When the Government has got the power to grant exemption from any of the provisions, we fail to understand how the Government do not have the power to grant partial exemption. The learned Single Judge is fundamentally wrong and the reasoning is against the rules of logic. We may reiterate the well established legal maxims in this regard which read as follows;
Omne majus continet in se minus - the greater contains the less. Cui licet quod majus non debet quod minus est non licere - he who has authority to do the more important act shall not be debarred from doing that of less importance.
8. The above principles would clearly indicate that he who has authority to do more important act shall not be debarred partly. Once the power to grant exemption is conceded, the Court cannot sit in judgment over the wisdom of the Legislature, or the rule making authority. On facts also, we are of the view that the exemption order is justified, so is also the view expressed by various High Courts.
9. In the circumstances, we are inclined to allow this appeal and set aside the judgment of the learned Single Judge.
Order accordingly