Supreme Court of India
Philips India Ltd vs Labour Court, Madras & Ors on 26 March, 1985
Equivalent citations: 1985 AIR 1034, 1985 SCR (3) 491, AIR 1985 SUPREME COURT 1034, 1985 LAB. I. C. 854, (1985) 2 MAD LJ 23, 1985 UJ (SC) 542, 1985 SCC (L&S) 594, (1985) 66 FJR 474, (1985) 50 FACLR 477, (1985) 2 LABLJ 33, (1985) 1 LAB LN 633, 1985 (3) SCC 103, (1985) 2 COMLJ 162
Author: V. Khalid
Bench: V. Khalid, D.A. Desai
PETITIONER:
PHILIPS INDIA LTD.
Vs.
RESPONDENT:
LABOUR COURT, MADRAS & ORS.
DATE OF JUDGMENT26/03/1985
BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
DESAI, D.A.
CITATION:
1985 AIR 1034 1985 SCR (3) 491
1985 SCC (3) 103 1985 SCALE (1)592
CITATOR INFO :
RF 1992 SC 1 (64)
ACT:
The Tamil Nadu Shops and Establishments Act, 1947,
Sections 14(1) and 31, interpretation of-Construction of a
statutory provision-Canon of construction Ex visceribus
actus-Words and phrases-Meaning of "over time", no such
person", "such establishment", "rate of overtime wages",
occurrirg in Section 14(1) and 31-Where the employer
prescribes working hours less than the maximum permissible
in the statute, whether he is obliged to pay the statutorily
prescribed rate and not the rates of overtime charges agreed
upon, in respect of work done in excess of the number of
weekly working hours prescribed by the employer and up to
the number of statutorily permitted weekly working hours of
48 hours.
HEADNOTE:
Under Section 14(1) of the Tamil Nadu Shops and
Establishments Act, 1947, "no person employed in any
establishment shall be required or allowed to work for more
than eight hours in any day forty-eight hours in any week,
and under Section 31", where any person employed in any
establishment is required to work overtime, he shall be
entitled, in respect of such overtime work, to wages at
twice the ordinary rate of wages."
In the establishment of Philips India Ltd. which
switched over to five p days of week, with effect from March
29,1965 the total number of working hours per week was fixed
at 39 hours with a daily working hour of 7-3/4 hours from
Monday through Thursday and 8 hours on Friday. The company
also Introduced the rate of overtime payment at 1 1/2 time
the ordinary wages for work done over and above the maximum
number of working hours per week as well as for working on
holidays. This rate was admissible for overtime work done
beyond 39 hours per week but this was subject to an
important condition that whenever the total working hours
exceed either 8 hours per day or 48 hours per week, the
employees were entitled to over time at twice the ordinary
wages as mandated by Section 31 of the Act. In the
establishment of the State Bank of India which is governed
by the Desai Award, the daily working hours from Monday to
Friday was 6-1/2 hours a day and 4 hours on Saturday,
totaling a weekly 36-1/2 hours. The rate of overtime
allowance was 1-1/2 times the wages for every quarter of an
hour of overtime work done for which payment have to be
made,
492
Claim petitions were filed by the employers of Philips
India Ltd., and the State Bank of India before different
Labour Courts under Section 33(c)(2) of the Industrial
Disputes Act, 1947 inviting the Labour Court to compute the
monetary benefits in respect of overtime allowance for the
work done beyond the prescribed hours of work per week in
terms of section 31 of the Act. Their contention was that
they were entitled to overtime wages at double the rate of
ordinary wages for work done in excess of 39 hours/36-1/2
hours a week.
Though the matters were before two operate Labour
Courts and were decided at different intervals, both the
Labour Courts held that Section 14 of the Act does not
prescribe number of working hours per day but it merely
specified maximum number of working hours that can be
introduced by an employer in an establishment governed by
the Act. But once the employer chooses to prescribe working
hours per day or total number of working hours per week less
than permissible under section 14, the rate of overtime
allowance as prescribed in section 31 would be applicable to
the workmen notwithstanding the fact that the prescribed
number of working hours per day or total number of working
hours per week were less than the maximum which the statute
permitted. Accordingly, both the Labour Courts computed the
monetary benefits by granting overtime allowance at the rate
of double the ordinary wages and the difference between what
was paid by the employer in each case at 1-l/2 times the
ordinary wages and what became payable as per the Courts
order was directed to be paid to each employee,
Aggrieved thereby the company and the Bank filed in all
five writ petitions questioning the correctness of the said
decision, Due to a conflict of opinion in the matter of
interpretation of Sections 14 and 31 by two earlier
decisions of the Madras High. Court, the matter was referred
to a Division Bench, The High Court called in aid Section 50
of the Act to observe that if the existing right and
privileges of an employee in any establishment are more
favourable to him than those created by the Act, the same
were preserved and held; (i) that once the employer
prescribed daily working hours as well as the weekly total,
work rendered in excess of the proscribed working hours
would constitute overtime work and when the statute
prescribes the rate of overtime work, it is obligatory upon
the employer to make payment at the statutory rate, (ii)
that even if Section 14(1) was interpreted as prescribing
normal working hours and that work in excess of the normal
working hours so prescribed would constitute overtime which
would attract Section 31, yet once the employer prescribed
hours less than the statutorily permissible working hours,
any work done beyond the prescribed working hours would be
overtime work and the rate of overtime work should be
governed by Section 31 of the Act, The High Court
accordingly dismissed all the petitions.
Hence the appeals by special leave,
Allowing the appeals, the Court
^
HELD:1.1 A bare perusal of Section 14(1) of the
Tamilnadu Shops
493
and Establishment Act, shows that it prescribes a ceiling on
working hours. Obviously, it cannot be interpreted to mean
that the employer must provide maximum number of working
hours as therein set out in the establishment governed by
the Act. It is open to the employer to prescribe working
hours for a day and total number of working hours for a week
less than the ceiling prescribed by the statute. Section 14
puts an embargo on the employers' right to prescribe working
hours beyond therein prescribed subject however, to its
liability to pay higher rate of wages for the overtime work
done. [500B-C]
1.2 The proviso to Section 14(1) makes it very clear
that the upper limit fixed by the substantive provision can
be exceeded up to the ceiling fixed by the proviso and not
beyond in any case. This is a prohibition in public interest
for safeguarding the health which may be adversely affected
by fatigue, stress and strain consequent upon continuous
work daily or for total number of hours in a week. This
simultaneously ensures a weekly off day even if the
employer prescribes number of working hours as provided in
Section 14(1).
[500D-E]
1.3 Section 14(1) upon its true construction permits an
employer to prescribe daily working hours not exceeding 8
hours a day and total number of working hours at 48 in a
week. By the proviso the employer can take ; overtime work
and that the bar imposed by sub-section (1) of Section 14
may be breached to the extent provided in the proviso, if
the working hours do not exceed 10 hours in any day and
total number of working hours at 48 in a week. 8 hours a day
and 48 hours in a week would constitute normal working
hours. Anything in excess of 8 hours a day but not exceeding
10 hours a day and 48 hours a week and not exceeding 54
hours a week will constitute overtime. [500E-G]
2.1 The expression used in Section 14(1) is "no such
person" meaning thereby that person, who would be required
to work 8 hours a day or 48 hours a week, may be allowed to
work in excess of that limit subject to payment of overtime
wages. [500H]
2.2 The expression "such person" in the proviso to
Section 14 refers to person who is required to work for 8
hours a day and 48 hours a week.
[502B]
2.3 The expression "such establishment" in the proviso
to Section 14 would indicate that establishment which has
prescribed the working hours as set out in the main part of
the section namely, 8 hours a day and 48 hours in a week.
In such an establishment overtime work for such a person
would only be that work which would be done in excess of
either 8 hours a day or 48 hours a week. Such overtime work
has to be compensated at twice the ordinary rate of wages
prescribed in Section 31. [502C-D]
2.4 The expression "such overtime" can refer to one
contemplated by the proviso to Section 14(1? and no other.
Reading Sections 14 and 31 together
494
a scheme emerges. The statute first puts an embargo on the
power of the employers to prescribe normal working hours,
not exceeding 8 hours per day and 48 hours per week. The
proviso makes it obligatory to pay overtime wages for work
in excess of the prescribed hours as set out in Section
14(1).
[502D-E]
2.5 The employer would ordinarily prescribe wages for
normal working hours. Once the wages for normal working
hours per day and cumulative for the week or month are
prescribed, they would be styled as ordinary rate of wages.
Thus the employer will be liable to pay to the employee
wages at the ordinary rate of wages for prescribed hours of
work as permissible in Section 14(1) and whenever he takes
work in excess of the prescribed hours of work the rate for
overtime work prescribed by Section 31 would come into play
[502F-G]
3.1 The canon of statutory construction is that the
statute must be read as a whole. This is a general rule
applicable to all statutes and known as "construction ex
visceribus actus or the "elementary rule" or "settled rule".
The only recognised exception to this well-laid principle is
that it cannot be called in aid to alter the meaning of what
is of itself clear and explicit.
[503A-B]
Attorney General v. HRH Prince Earnest Augusts, [1957]
1 All E.R. 497 quoted with approval.
Poppatlal Shah v. State of Madras, [1953] SCR 677;
Punjab Beverages Pvt. Ltd. v Suresh Chand, [1978] 3 SCR 370
referred to.
It is undoubtedly true that Section 14(1) does not
prescribe normal hours of work but merely puts an embargo on
the employers' right to prescribe daily and weekly hours of
work beyond permissible under the statute. But where the
statute itself prescribes such permission hours of work and
also makes it obligatory to pay overtime wages and
prescribes rates, it can only mean work in excess of the
maximum hours of work permissible under the statute which
alone would attract the rate of payment for overtime work
"Such overtime work" in Section 31 would and would only mean
overtime as understood in the proviso to Section 14(1) which
has reference to maximum hours of work permitted by
Section14(1). This is how the statute has to be read as a
whole.
[506D-F]
3.3 Applying this well-laid canon of construction,
the expression "rate of overtime wages" in Section 31 has to
be understood and interpreted in the light of the provision
contained in Section 14(1) read with its proviso. By
reference to the statutory provisions and unhampered by
precedents, it becomes clear that when normal working hours
as permitted by Section 14(1) are prescribed by
establishment for his employees working in the establishment
to which the Act applies, wages for work in excess of such
prescribed hours of work will have to be paid at the rate
prescribed in Section 31. The framers of the
495
statute provided the whole scheme by first putting an
embargo on the maximum number of working house payable at
ordinary rates and then permitting overtime work up to the
ceiling, simultaneously making it obligatory to pay overtime
wages at the rate prescribed in the very statute. [503D-F]
3.4 Where the employer prescribed working hours per day
or total number of hours of work per week less than the
maximum permissible under the statute, in the absence of the
definition of that term in the Act, any work taken in excess
of the prescribed hours of work would be overtime work and
the employer would be liable to pay some compensation but
not necessarily the statutory compensation which would be
attracted only when the employer takes work in excess of the
maximum hours of work prescribed by the statute. In such a
situation the rate of wages payable would be as to what
ought to be the rate of wages payable. Such a rate must be
the subject matter of agreement between the parties or an
award by industrial adjudication. Any work taken for a
period in excess of the maximum permissible under the
statute would indisputedly attract the statutory rate of
overtime of wages.
[506G-H; 507D]
Indian Oxygen Ltd. v. Their workmen, [1969] I SCR 550,
explained and relied on.
A.K Basu v. ICI (India) Pvt. Ltd. and Ors. [1975] 1 LLJ
239, (Calcutta); M/s Carew & Co. Ltd. v. Sailaja Kanti
Chatterjee and Anr. [1972] 11 LLJ 359, (Calcutta) overruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 833_34 & 835-837 (NL) of 1976.
From the Judgement and Order dated 4. 4. 1974 of the Madras High Court in Writ Petitions Nos. 2827, 2828/72, 1006, 1007/71.
F.S. Nariman, D.N. Gupta and S. Ramasubramanium for the Appellants.
M.K. Ramamurthy, J. Ramamurthy and Ambrish Kumar for the Respondents.
The Judgment of the Court was delivered by KHALID, J. What is the rate of overtime allowance admissible to the employees of the two appellants working their establishments situated in the State of Tamil Nadu is the only question raised in these appeals by special leave ?
496(2) M/s Philips India Ltd-the appellant in the first batch of appeals-a company incorporated under the Companies Act has an establishment in the State of Tamil Nadu. This establishment is governed by The Tamil Nadu Shops and Establishments Act, 1947 ('Act' for short). According to the practice followed by the company, the employees of the establishment had to render service for 39 hours a week, made up of 7 hours per day from Monday to Friday and 4 - hours on Saturday. Effective from March 29, 1965, when the company switched over to five days week, it still retained the total number of working hours per week at 39 by extending the working hours from Monday to Thursday at 7-3/4 hours and 8 hours on Friday. Thus the total working hours per week remained constant at 39. The company also introduced the rate of overtime payment at 1-1/2 time the ordinary wages for work done over and above the maximum number of working hours per week as well as for working on holidays. This rate was admissible for overtime work done beyond 39 hours per week but this was subject to an important condition that whenever the total working hours exceed either 8 hours per day or 48 hours per week, the employees were entitled to overtime at twice the ordinary wages as mandated by Sec. 31 of the Act.
(3) State Bank of India ('Bank' for short), the appellant in the second batch of appeals, paid overtime allowance at the rate as awarded by the National Industrial Tribunal (Bank Disputes) popularly known as Desai Award. The Tribunal fixed the working hours not exceeding 6-1/2 hours a day from Monday to Friday and not excluding 4 hours a day on Saturday. After thus fixing working hours at 36-1/2 per week, the Tribunal proceeded to give direction about rate of overtime allowance admissible to the employees governed by award. Modifying the rates as awarded by the Shastri Award, the Tribunal directed that the rate of overtime allowance would be 1-1/2 times the wages as explained in the relevant portion of the award for every quarter of an hour of overtime work done for which payment has to be made. (See Para 10.46 of the Desai Award).
(4) 11 employees of the company filed Claim Petition No. 329/71 in the Labour Court at Madras under Sec. 33-C(2) of the Industrial Disputes Act, 1947 (I.D. Act for short), inviting the Labour Court to compute the monetary benefit in respect of overtime allowance for the work done beyond the prescribed hours of work n per week as provided in Sec. 31 of the Act. In other words, they claimed that in view of the provision contained in Sec. 31 of the Act, 497 the employees of the company working in the establishment at Madras are entitled to overtime wages at double the rate of ordinary wages for work done in excess of 39 hours per week and not at 1-1/2 times the rate of ordinary wages as is being done by the company.
(5) Another Claim Petition No. 306/71 was moved for identical relief by some other employees of the company.
(6) Similarly three employees of the State Bank of India filed three separate Claim Petition Nos. 19,20 and 21 of 1964 before the Central Government Labour Court, Madras praying for incidental relief on almost identical grounds. In other words, they claimed overtime wages at double the rate of ordinary wages as prescribed in Sec. 31 of the Act.
(7) Though the matters were before the separate Labour Courts and were decided at different intervals, both the Labour Courts held that Sec. 14 of the Act does not prescribe number of working hours per day but it merely specifies maximum number of working hours that can be introduced by an employer in an establishment governed by the Act. But once the employer chooses to prescribe working hours per day or total number of working hours per week less than permissible under Sec. 14, the rate of overtime allowance as prescribed in Sec. 31 would be applicable to the work- men notwithstanding the fact that the prescribed number of working hours per day or total number of working hours per week were less than the maximum which the statute permitted. Accordingly, both the Labour Courts computed the monetary benefit by granting overtime allowance at the rate of double the ordinary wages and the difference between what was paid by the employer in each case at 1-1/2 times the ordinary wages and what became payable as per the Courts order was directed to be paid to each employee.
(8) The Bank and the company filed in all five writ petitions questioning the correctness of the two common orders made by the two Labour Courts, under Art. 226 of the Constitution in the High Court of Judicature at Madras. All the five writ petitions came up before a learned Single Judge of the Madras High Court who was of the opinion that there was a conflict in the matter of interpretation of Secs. 14 and 31 of the Act in two decisions of the same court being (i) Railway Employees & Co. v. Labour Court (1) and (ii) K.P.V. Shaik (1) (1960) II LLJ 215.
498Mohd. Rowther & Co. v. KS. Narayanan (1) and therefore he referred the petitions to a Division Bench. All the writ petitions were accordingly heard by a Division Bench of the same High Court.
(9) The High Court took notice of the t`act that the Act does not define overtime work which according to the High Court means work done beyond the normal working hours in any establishment to which the Act applies. The High Court then proceeded to observe that the proviso to Sec. 14(1) only lays down that overtime wages may be paid for the work done in excess of the normal working hours. The High Court then held that once the employer prescribed daily working hours as well as the weekly total, work rendered in excess of the prescribed working hours would constitute overtime work and when the statute prescribes the rate of overtime work, it is obligatory upon the employer to make payment at the statutory rate. Sec. 50 of the Act was called in aid to observe that if the existing rights and privileges of an employee in any establishment are more favourable to him than those created by the Act, the same were preserved. Accordingly, it was held that even if Sec. 14(1) was interpreted as prescribing normal working hours and that work in excess of the normal working hours so prescribed would constitute overtime which would attract Sec. 31, yet once the employer prescribed hours less than the statutorily permissible working hours, any work done beyond the prescribed working hours would be overtime work and the rate of overtime work should be governed by Sec. 31 of the Act. The High Court accordingly discharged the rule and confirmed the orders made by both Labour Courts, Hence these appeals by special leave.
(10) It is not in dispute that the working hours in the Bank were governed by Desai Award. So also the rate of overtime allowance was governed by the Desai Award till the Labour Court ruled to the contrary Similarly, the company had prescribed its own working hours and provided for its own rate of payment for overtime work and the payment was made accordingly till the Labour Court ruled to the contrary. It is of importance to note that in both the cases the working hours were less than one maximum permissible under Sec. 14 of the Act. It is equally important to note that the rates of payment for overtime work in both the establishments prescribed by them were for the period of overtime work in excess of their own prescribed working hours and up to the (1) (1972) 11 LLJ 385 499 statutory limit prescribed in Sec 14 of the Act. It is admitted that where the overtime work exceeded the statutorily prescribed limit, the rate of payment for overtime work was the one statutorily prescribed in Sec. 31 of the Act. Therefore, the Contours of controversy is on a correct interpretation of the relevant provisions of the Act, what would be the rate of overtime allowance admissible to the employees of the establishments of the employer in each case situated in Tamil Nadu State for overtime work done in excess of the prescribed number of working hours by the employer and up to the number of working hours statutorily permitted. Tn other words, what ought to be the rate of overtime allowance for the work done in excess of 39 hours per week in the case of the company and 36 1/2 G hours per week in the case of the Bank and up to 48 hours per week in each case.
(11) At the outset let us notice the relevant provisions of the Act. Sec. 14 provides for daily and weekly hours of work. It reads as under:
"14. Daily and weekly hours of work-(I) Subject to the provisions of this Act, no person employed in any establishment shall be required or allowed to work for more than eight hours in any day and forty-eight hours in any week:
Provided that any such person may be allowed to work in such establishment for any period in excess of the limit fixed under this sub-section subject to payment of overtime wages, if the period of work, including overtime work, does not exceed ten hours in any day and in the aggregate fifty-four hours in any week."
Sec. 31 prescribes rate of` wages for overtime work. It reads as under:
"31. Wages for overtime work -Where any person employed in any establishment is required to work overtime, he shall be entitled, in respect of such overtime work, to wages at twice the ordinary rate of wages.
Explanation-For the purpose of this section, the expression "ordinary rate of wages 'shall mean such rate of wages as may be calculated in the manner prescribed.' 500 (12) The first question which we must engage our attention is: whether Sec. 14 upon its true interpretation prescribes daily working hours in an establishment as also total number of working hours per week for which work may be taken in any week without incurring the liability to pay higher rate of wages for overtime work.A bare perusal of Sec. 14(1) would show that it prescribes a ceiling on working hours. Obviously, it cannot be interpreted to mean that the employer must provide maximum number of working hours as therein set out in the establishment governed by the Act. It is open to the employer to prescribe working hours for a day and total number of working hours for a week less than the ceiling prescribed by the statute. Sec. 14 puts an embargo on the employers 'right to prescribe working hours beyond therein prescribed subject however, to its liability to pay higher rate of wages for the overtime work done. The proviso however, makes it very clear that the upper limit fixed by the substantive provision can be exceeded up to the ceiling fixed by the proviso and not beyond in any case. This is a prohibition in public interest for safeguarding the health which may be adversely affected by fatigue, stress and strain consequent upon continuous work daily or for total number of hours in a week. This simultaneously ensures a weekly off day even if the employer prescribes number of working hours as provided in Sec. 14(1). Sec. 14(1) therefore, upon its true construction permits an employer to prescribe daily working hours not exceeding 8 hours a day and total number of working hours at 48 in a week. By the proviso, the employer can take overtime work if the working hours do not exceed I hours in any day and 54 hours in a week, The proviso makes it abundantly clear that any work taken in excess of the working hours prescribed in the main part of sub-s. (I) of Sec. 14 would constitute overtime work. 8 hours a day and 48 hours in a week would constitute normal working hours.
Anything in excess of 8 hours a day but not exceeding 10 hours a day and 48 hours a week and not exceeding 54 hours a week will constitute overtime work. This becomes clear from the language used in the proviso when it says that the bar imposed by sub-s. (1) of Sec. 14 may be breached to the extent provided in the proviso. The expression used is that no such person meaning thereby that person, who would be required to work 8 hours a day or 48 hours a week, may be allowed to work in excess of that limit subject to payment of overtime wages. 8 hours a day and 48 hours a week constitute normal time of work at ordinary wages and any work in excess of the time prescribed for work would attract the liability 501 to pay overtime wages. Undoubtedly, the High Court was right in saying that the expression 'overtime' is not defined in the Act but when Sec. 14(1) prescribes permissible hours of work both daily and weekly and makes it obligatory to pay overtime wages for work in excess of the permissible hours of work, the expression 'overtime' renders itself easy of understanding. Overtime work attracts the liability of paying overtime wages.
(13) 'Over' is a prefix qualifying the expression 'time' which is well-understood. 'Over' as a prefix generally indicates excessive or excessively; beyond an agreed or desirable limit. there are more than 150 expressions to which 'over' is added as a prefix. One such expression is 'overtime'. Collins English Dictionary reprinted and updated in 1983 gives the meaning of the expression 'overtime' as (i) work at regular job done in addition to regular working hours........ (iii) time in excess of a set period ............... (v) beyond the regular or stipulated time (vi) to exceed the required time for (say a photographic exposure). Webster's Third New International Dictionary gives the meaning of the expression 'overtime' as (i) time beyond or in excess of a set limit; working time in excess of a minimum total set for a given period; in excess of a set time limit or of the regular working time. Therefore, even though the expression 'overtime' is not defined in the Act, its connotation is unambiguous. In no uncertain terms, it means in the context of working hours, period in excess of the prescribed working hours, -
(14) The question really is not what is understood by the expression 'overtime', but what is the admissible rate of payment for overtime work. If the statute permits employment for a certain number of hours of work and mandates a higher rate of wages for work done in excess of the prescribed hours of work, obviously every employer to whom the Act applies will have to pay overtime wages at the rates prescribed in the statute. Accepting what the High Court has held that Sec. 14(1) merely prescribes the ceiling on working hours and casts an obligation to pay overtime wages as made obligatory in the proviso the question is what period of work shall be treated as overtime work so as to be able to claim overtime wages at statutory rate. Keeping out of consideration for the time being the working hours prescribed by the two appellants, take a case in which the working house are prescribed as permitted by Sec. 14(1). Functionally translated if an establishment, has prescribed working 502 hours as permitted by Sec. 14(1) i.e. 8 hours a day and 48 hours a week, the employees of such establishment would be entitled to overtime wages as directed by the proviso and at the rate prescribed in the statute. To some extent, the proviso in this case has made a positive specific provision simultaneously carving out an exception to Sec. 14(1). The proviso first permits work in excess of the prescribed number of the hours but it is hedged in with the condition to pay overtime wages. The expression 'such person' in the proviso refers to person who is required to work for eight hours a day and forty-eight hours a week. The expression 'such establishment' in the proviso would indicate that establishment which has prescribed the working hours as set out in the main part of the section namely, 8 hours a day and 48 hours in a week. In such an establishment overtime work for such a person would only be that work which would be done in excess of either 8 hours a day or 48 hours a week. Such overtime work has to be compensated at the rate prescribed in Section 31 which provides that there any person employed in an establishment is required to work overtime, he shall be entitled in respect of such overtime work to wages at twice the ordinary rate of wages. The expression 'such overtime' can refer to one contemplated by the proviso to Sec. 14(1) and no other. Reading sections 14 and 31 together, a scheme emerges. The statute first puts an embargo on the power of the employers to prescribe normal working hours, not exceeding 8 hours per day and 48 hours per week. The proviso makes it obligatory to pay overtime wages for work in excess of the prescribed hours as set out in Sec. 14(1). Such overtime work has to be compensated by payment of overtime wages. And the rate of overtime wages is prescribed in Sec. 31 namely, at twice the ordinary rate of wages. The employer would ordinarily prescribe wages for normal working hours. Once the wages for normal working hours per day and cumulative for the week or month are prescribed, they could be styled as ordinary rate of wages. Thus the employer will be liable to pay to the employee wages at the ordinary rate of wages for prescribed hours of work as permissible in Sec. 14(1) and whenever he takes work in excess of the prescribed hours of work the rate for overtime work prescribed by Sec. 31 would come into play. Secs. 14 and 31 provide the whole scheme of prescribing normal hours of work to be paid for as ordinary rates of wages. They permit the employer to take work in excess of the normal working house up to the ceiling as set out in the proviso to Sec. 14(1) which makes it obligatory to pay overtime wages for work in excess of the normal working hours and the rate for the same is prescribed statutorily in Sec. 31.
503(15) No cannon of statutory construction is more firmly, established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styled as 'elementary rule' (See Attorney General v. HRH Prince Earnest Augustus (1) and as a 'settled rule' (See Poppatlal Shall v. State of - Madras)(2). The only recognised exception to this well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke laid down that: 'it is the most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expresseth meaning of the makers' (Quoted with approval in Punjab Breverages Pvt. Ltd. v. Suresh Chand).(3) (16) Applying this well-laid cannon of construction, the expression 'rate of overtime wages' in Sec. 31 has to be understood and interpreted in the light of the provision contained in Sec. 14(1) r read with its proviso.
(17) By reference to the statutory provisions and unhampered by precedents, it becomes clear that when normal working hours as permitted by Sec. 14(1) are prescribed by an employer for his employees working in the establishment to which the Act applies, wages for work in excess of such prescribed hours of work will have to be paid at the rate prescribed in Sec. 31. The framers of the statute provided the whole scheme by first putting an embargo on the maximum number of working hours payable at ordinary rates and then permitting overtime work up to the ceiling, simultaneously making it obligatory to pay overtime wages at the rate F prescribed in the very statute.
(18) The next question then is: where the employer prescribes working hours less than the maximum permissible in the statute, does he incur the obligation to pay overtime wages at the rates prescribed in the statute ? If the employer were to contend that even though it has prescribed normal working hours less than that permitted by the statute, and therefore, it would not be liable (1) [1957] 1 All E.R. 497 (2) [1953] SCR 677 (3) [1978] 3 SR 370 504 to pay any overtime wages for the work taken in excess of its own prescribed rates of wages, the prescription of working hours less than the maximum permissible under the statute would be a facade because thereby the employer would enable itself to increase the working hours without incurring any liability to pay overtime wages. Ordinarily, therefore, where an employer prescribes normal working hours less than the maximum permitted by the statute and if it seeks to take work in excess of its own prescribed number of hours of work, the employer renders itself liable to pay overtime wages at any rate higher than the ordinary rate of wages. As explained earlier, prescribed working hours is the normal time of work and anything in excess of it is overtime work. It was not disputed on behalf of the employer that any work taken for a period in excess of the working hours prescribed by both the appellants-employers would make it obligatory for the employer to pay overtime wages and necessarily that must be higher than the ordinary rate of wages prescribed for normal working hours. This is not in dispute. Both the appellants-employers have prescribed rate of overtime wages at 11/2 time the ordinary wages for the period in excess of the prescribed working hours and up to the maximum permissible under the Act. Both concede that beyond the maximum number of working hours permitted by Sec. 14(1), there is no option with the employer but to pay overtime wages at the rate prescribed in Sec. 31. It is not a case as was sought to be canvassed in Indian Oxygen Ltd. v. Their Workmen(l), where the employer contended that even though it had prescribed total working hours per week at 39 hours and as the establishment was governed by the Bihar Shops and Establishments Act, which permits maximum number of hours of work at 48 hours per week and provides for double the rate of ordinary wages for the work done beyond 48 hours per week, it was not liable to pay any overtime wages at a rate higher than ordinary wages for the excess work taken beyond 39 hours per week and up to the ceiling of 48 hours per week. This Court negatived this submission and held that once the employer fixed hours of work less than the maximum prescribed in the statute, the provisions both as to maximum hours as well as rate of overtime allowance beyond the maximum hours prescribed by the statute has no relevance and cannot be relied upon. But as (1) (1969) 1 SCR 550 505 the employer has prescribed total working hours at 39 hours per week, any work taken in excess of the prescribed hours of work would be overtime work and that if as contended by the employer, that it was entitled to take any such overtime work at ordinary rate of wages, it would be paying no extra compensation at all for the work done beyond the prescribed hours of work and the company would be in that case indirectly increasing the hours of work and consequently alter its conditions of work. This extreme argument was rejected and the Court upheld the award of the Tribunal that for the `period in excess of the prescribed working hours and up to the ceiling of 48 hours. the employer would be liable to pay overtime wages at the rate of 11/2 times the ordinary wages and dearness allowance payable to them. Let it be noted that court did not interfere with the award by saying that once overtime work is taken irrespective of maximum fixed in the statute, the statutory rate would be attracted. Undoubtedly, therefore, this decision supports the submission that where the employer prescribed 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 overtime work and the employer would be liable to pay some compensation but not necessarily the statutory compensation which would be attracted only when the employer takes work in excess of the maximum hours of work prescribed by the statute.
(19) Learned counsel for the respondent contended that the trend of decisions is in favour of holding that the rate of payment for overtime work prescribed by the statute would be admissible even where the employer prescribed total number of working hours less than the maximum permissible under the statute. Reliance was placed on A.K. Basu v. I.C.I. (India) Pvt. Ltd. and Ors.(l) wherein a Division Bench of the Calcutta High Court after referring to the provisions of the West Bengal Shops and Establishments, 1963 held that once the employer prescribed total number of working hours at 36 per week and the statute permitted total number of working hours at 48 hours a week, according to the dictionary meaning, the employee has worked overtime. Once he was called (1) (19 75) I LLJ 239 506 upon to work beyond 36 hours, the rate of overtime payment would be as prescribed in the statute. In reaching this conclusion, reliance was placed on the decision of the Indian Oxygen Ltd.(l) We have already explained the ratio of the decision of this Court in the case of Indian Oxygen Ltd. and it does not bear out the observations of the High Court. Reliance was also placed on M/s Carew & Co. Ltd. v. Sailaja Kanti Chatterjee and Anr.A learned Single Judge of the Calcutta High Court has taken the same view after distinguishing the decision in the case of Indian Oxygen Ltd. The reasons which appealed to the learned Judge to distinguish the ratio of the decision in the case of the Indian Oxygen Ltd. failed to impress us. In fact, the decision in that case clearly rules that the statutory rate of overtime wages has relation only to the maximum number of hours of work permissible under the statute and any work in excess thereof.
(20) Reverting to the facts of both the cases, it is undoubtedly true that Section 14(1) does not prescribe normal hours of work but merely puts an embargo on the employer's right to prescribe daily and weekly hours of work beyond permissible under the Statute. But where the statute itself prescribes such permissible hours of work and also makes it obligatory to pay overtime wages and prescribes rates, it can only mean work in excess of the maximum hours of work permissible under the statute which alone would attract the rate of payment for overtime work. 'Such overtime work' in Section 31 would and could only mean overtime as understood in the proviso to Section l4(1) which has reference to maximum hours of work permitted by Section 14(1). This is how the statute has to be read as a whole.
(21) We must not be understood to say that where the statute prescribes maximum number of daily and weekly hours of work and the employer prescribes less than the permissible hours of work, work taken in excess of such prescribed number of hours will not be over- (6) (1972) II LLJ 359.
507time work, or that the employer would not be liable to pay wages for such work at a rate higher than the ordinary wages. An attempt to so contend was made before this Court in Indian Oxygen Ltd. vs. Their Workmen. That contention was repelled and this Court held;
"If the company ware asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours, but not exceeding 48 hours a week, it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service."
The only question in such a situation would be as to what D ought to be the rate of wages payable. Such a rate must be the subject matter of agreement between the parties or an award by industrial adjudication. Any work taken for a period in excess of the maximum permissible under the Statute would indisputedly attract the statutory rate of overtime of wages, (22) Both the employers have prescribed the rate of overtime wages at 11/2 times the ordinary wages for overtime work in excess of its prescribed hours of work and up to the maximum permissible under Section 14(1). Therefore, they cannot be accused of indirectly extending their working hours. Both employers conceded that for at work for a period in excess of the maximum permissible hours of work under the statute must be paid for and is being paid for at the rate prescribed in the statute. In our opinion, therefore, the High Court was in error in directing the employers to pay for overtime work in excess of the prescribed hours of work and up to the maximum permissible under Sec. 14(1) at double the ordinary wages by invoking Sec. 31. For these reasons, both these sets of appeals will have to be allowed and the common Judgment of the High Court governing all the five writ petitions as well as the common orders of both the Labour Courts will have to be quashed and set aside and the applications made by the employees under Sec. 33-C(2) of the I.D, Act will have to the dismissed.
508(23) Accordingly, all the appeals in both the batches succeed and are allowed and the judgment of the High Court from which these appeals arise is quashed and set aside as also the applications made by various employees under Sec. 33-C(2) of the I.D. Act are dismissed.
(24) While granting leave this Court directed that the appellants irrespective of the decision in these appeals will have to pay costs to the respondents in one set only. In accordance with this direction, the appellants shall pay costs to the respondents in one set only.
S.R. Appeal allowed.
509