Rajasthan High Court - Jaipur
National Textile Corpn. (D.P. And R.) ... vs Judge, Labour Court And Ors. on 1 November, 1995
Equivalent citations: (1998)IIILLJ700RAJ, 1996WLC(RAJ)UC610
ORDER N.L. Tibrewal, J.
1. By this petition under Article 226 of the Constitution the petitioner challenges the order dated, September 12, 1989 passed by the Labour Court, Jaipur, under Section 33C(2) of the Industrial Disputes Act, 1947 (for short the I.D. Act).
2. The relevant facts necessary for the present petition are that Respondents No. 2 to 5 herein. who are Office Boys working in the office of the Unit Mahalaxmi Mills, Beawar, moved an application under Section 33C(2) of the I.D. Act for compulation of their wages for over time claiming a total sum of Rs. 42,048. The Labour Court vide impugned order recorded a finding that the respondent- workmen have worked 1/2 hour in excess to the prescribed normal working hours and as such, they were entitled to get over time wages at double the rates of ordinary wages for 1 excess hours worked by them during June, 1982 to June, 1985, the Labour Court computed Rs. 2,628 as over time wages and the same amount was awarded to each of the workman.
3. Learned counsel appearing for the petitioner has made two-fold submissions to challenge the said award. The first contention is that the workers were bound to work for 8 hours a day as per the Factories Act and upto that limit of working hours no extra remuneration or over time was payable. The second contention was that the application moved by the workmen under Section 33C(2) of the I.D. Act was not maintainable as the matter regarding payment of wages for over time could not (sic.) be adjudicated/settled by an award under the I.D. Act or by a settlement between the parties.
4. After giving my serious consideration to the above submissions. I find that none of them can be accepted.
5. The learned Judge. Labour Court has recorded a finding on the basis of admission of the employer that before June 22, 1976, the respondent-Office Boys were working for 7 1/2 hours a day and, thereafter, they have been made to work 1/2 hour in excess to the normal working hours for which they were entitled to get over time wages. The argument of the employer that the workmen were bound to work for 8 hours per day, was rejected by the Labour Court observing that the working hours prescribed under the Factories Act for an adult worker merely specifies maximum number of working hours in a week. In other words, the finding of the Labour Court is to the effect that the workmen were entitled to get extra wages for over time working in excess to the prescribed normal working hours.
6. Section 51 of the Factories Act says that no adult worker shall be required or allowed to work in a factory for more than 48 hours in any week. Assuming that the above provision applied to the office boys, it does not prescribe number of working hours per day for which a worker was bound to work, but it only specified maximum number of working hours per week that can be introduced by an employer. It only prescribes a ceiling or an outer limit of working hours of a worker in a week and cannot be interpreted to mean that the employer must provide maximum number of working hours in a week. It is always open to the employer to prescribe less hours for a day or less total number of working hours for a week. Section 51, thus puts an embargo on the employer's right to prescribe total working hours for a week. Then Section 59 of the Factories Act creates an obligation on the employer to pay extra wages for over time if a worker works for more than 9 hours in any day or for more than 48 hours in any week. This Section prescribes the rates of extra wages for over time if a worker works for more than 9 hours in any day or for more than 48 hours in any week as twice to the ordinary rate of wages. From a combined reading of Section 51 and Section 59 of the Factories Act it cannot be taken to mean that an employer has an absolute right to take work from a worker upto the maximum period of working hours in a week without payment of extra wages of overtime, even the prescribed normal working hours are less than the maximum hours permissible under Section 51. If the prescribed normal working hours in a factory are less than the maximum permissible working hours for a week, the worker would be entitled to get extra wages for over time if he works for more than the prescribed working hours. The argument of Mr. Sharma that employer can prescribe maximum working hours without incurring any obligation to pay over time wages, to the workers cannot be accepted for the simple reason that conditions of service cannot be altered by the employer unilaterally. In other words, where an employer has prescribed normal working hours less than the maximum permissible by the statute and it seeks to take work in excess of the prescribed working hours, he shall be required to pay extra wages for the over time.
7. The expression "over time" is not defined either in the Factories Act or the I.D. Act, but it in no uncertain terms means in the context of working hours the period in excess of the prescribed hours.
8. The undisputed facts in the case are that after June 22, 1976 the office boys were made to work half an hour more every day than the prescribed normal hours by increasing the working hours unilaterally by the employer, for which they have no legal right, as such they (office boys) were entitled to get wages for extra half hour work and in my opinion, no error was committed by the Labour Court in accepting the claim of extra wages for overtime filed by the respondent-Office Boys and I have no hesitation in rejecting the contention raised by Mr. Sharma.
9. It is true that extra wages for over time at the rate of twice the ordinary rate of wages of a worker as provided under Section 59 is payable where a worker works for more than 9 hours in any day or for more than 48 hours in any week. The employer ordinarily prescribes wages for normal working hours per day or cumulative for a week or month and he would be liable to pay the employees wages at the ordinary rate of wages prescribed in any of the ways. The statutory rate of wages for over time as prescribed under Section 59 of the Factories Act would apply if a worker is made to work for a period as provided in the section. In the case where the employer prescribes working hours per week less than the maximum, the provisions, both as to the maximum hours as well as rate of over time allowance beyond the maximum hours prescribed by the statute, have no relevance. In a situation where the employer prescribes working hours per day or total number of hours of work per week less than the maximum permissible under the statute, any work taken in excess of the prescribed hours of work would be over time and the employer would be liable to pay compensation, but not necessarily the statutory compensation which is attracted only when the employer takes work in excess of the maximum hours of work prescribed by the statute. The dispute about the rate of over time allowance in that situation could be an industrial dispute if the same is disputed by the employer and there is no agreement between the parties. In the instant case, the rate of compensation/extra wages for over time was never disputed by the employee in the Labour Court, as such, the second contention urged by Mr. Sharma has also no merit to be entertained by this Court. It is true that proceedings under Section 33C(2) are in the nature of execution proceedings and disputed claims of the parties cannot be decided under these proceedings, but, in the instant case, the employer did not dispute the rate of extra wages for over time claimed by the respondents, as such, I find no merit in the second contention also.
8. The Labour Court has awarded interest at the rate of 12% per annum from October 3, 1985 in case the employer did not pay the amount of over time wages as computed by it in three months from the date of order. This part of the order, in my opinion, requires modification to the extent that the interest shall be payable from the date of order i.e. September 12, 1989, in case the amount was not paid by the employer in the specified period of three months. It is also made clear that while computing the amount of interest the period from May 23, 1990 till the procurement of this order shall be excluded on account of stay order being in operation during this period.
Consequently, the petition is dismissed with modification about the interest as indicated above. Cost is made easy in the facts and circumstances.