Orissa High Court
Shive Shankar Singh And Others vs Union Of India And Others on 8 March, 2018
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
OJC No. 14056 of 1997
In the matter of an application under Article 226 of the
Constitution of India.
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Shive Shankar Singh
and others .... Petitioners
AFR
-Versus-
Union of India and others .... Opp. Parties
For petitioners : Mr. Debendra Mohanta, Advocate
For opp. parties : M/s. B.N. Mohanty and S.N. Sharma,
Advocates
[O.Ps. No. 2 and 3]
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PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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Decided on : 08.03.2018
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DR.B.R.SARANGI,J. The petitioners are working under
Mahanadi Coal Fields Limited in supervisory capacity in
different mines. The nature of work discharged by the
petitioners indicates that after the work, most of the
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times they have done overtime in order to achieve the
required output. Consequentially, they are entitled
overtime wages in terms of Section 33(1) of the Mines Act,
1952, but they have been paid at a flat rate since 1987.
Since the petitioners are entitled to be paid balance
differential amount of what has been paid to them than
what they are entitled to in terms of Section 33(1) of the
Act, and the same having not been complied with, the
petitioners have filed the present application claiming for
such benefit in compliance of Section 33(1) of the Mines
Act, 1952 and Rules framed thereunder.
2. Mr. D. Mohanta, learned counsel for the
petitioners contended that in view of the provisions
contained under Section 33(1) of the Mines Act, 1952 the
petitioners are entitled to double the wages for the period
of overtime work, but for some reasons best left
unexplained, the petitioners are not being paid their
overtime wages in terms of the Mines Act, 1952 but are
being paid at a consolidated rate despite the petitioners'
several representations and personal approaches to
different authorities. It is further contended that as per
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the provisions contained under National Coal Wages
Agreement-iv wherein under Chapter-xi in paragraph-
xi(3) payment of wages has been provided. In spite of
such provisions, they are not being paid their legitimate
claims. Therefore, they have approached this Court by
filing this application claiming such benefit as due and
admissible to them in accordance with law.
3. Mr. B.N. Moahnty, learned counsel appearing
for opposite parties no. 2 and 3 argued with vehemence
stating inter alia that the petitioners, who are working in
supervisory capacity, are being paid overtime wages as
per the decision taken in National Coal Wage Agreement
(NCWA), which has been finalized by the Joint Bipartite
Committee for the Coal Industry (JBCCI), formulated at
Coal India Level. The provision for payment of overtime to
all employees including the confidential and supervisory
staff has been formulated in NCWA-IV and NCWA-V, as
contemplated under Section 33 of the Mines Act, 1952
and as per the schedule under 9.0.3699 dated 22nd
November, 1965, i.e., Central Government Gazettee
notification dated 27.11.1965 under Section 83(1) of the
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Mines Act, 1952, for the benefit of the employees working
in the coal industry. It is further contended that in
Clause-11.3 of the NCWA-IV it was agreed that all the
categories of workers, who were entitled for overtime
payment, will continue to get the payment of overtime
work in different establishments, units and offices. In
Clause 11.4.2 (b & c) a ceiling of basic pay, i.e. Rs.1630/-
was fixed for confidential and supervisory staff for
calculation of overtime wages. As per Clause 11.4.2, it
was agreed to raise the ceiling of basic pay from
Rs.1080/- to Rs.1630/- for calculation of overtime wages
in respect of confidential and supervisory staff. The
matter of ceiling in basic pay for calculation of overtime
wages in respect of confidential and supervisory staff is
being discussed in JECCI since NCWA-I. On the basis of
JBCCI negotiation this ceiling is being fixed and the
confidential and supervisory staff are being paid overtime
wages. Therefore, the petitioners are not being deprived of
payment of overtime wages. As such, the petitioners are
entitled to get the benefit in terms of NCWA, as the same
is binding on them.
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4. We have heard Mr. D. Mohanta, learned
counsel for the petitioners and Mr. B.N. Mohanty, learned
counsel for opposite parties no.2 and 3. Pleadings having
been exchanged between the parties and with the consent
of the learned counsel for the parties, this petition is
being disposed of finally at the stage of admission.
5. The basic question falls for consideration in the
present context is whether the petitioners, who are
working under the supervisory capacity in the various
mines of Mahanadi Coal Fields Limited, are entitled to get
extra wages for overtime work as per the provisions of the
Mines Act, 1952 and rules framed thereunder.
6. The Indian Mines Act, which relates to
regulation and inspection of mines, was passed in 1923.
Although it has since been amended in certain respects,
the general framework has remained unchanged.
Experience of the working of the Act revealed a number of
defects and deficiencies which hampered effective
administration. Some of these necessitate new forms of
control while others require the tightening up of the
existing legal provisions. Therefore, it has been
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considered necessary to thoroughly overhaul the existing
Act of 1923. In order to fulfill the lacunas, the legislation
in its wisdom enacted Mines Act, 1952, where one of the
reasons for such enactment has specifically mentioned
that Indian Mines Act, 1923 does not specify the rate of
payment of overtime work. Consequentially, the Mines
Act, 1952 has taken care of the rates of over time work
fixed at 1½ times the ordinary rate of wages in the case of
surface workers and at twice the ordinary rate of
underground workers. The working hours for all workers,
both surface and underground, have been reduced to 48
per week and no worker is to be allowed to work for more
than 9 hours a day above ground and 8 hours a day
below ground. The provisions of Indian Mines Act, 1923
permits the workers on the surface to work for 54 hours a
week or 10 hours a day and workers underground for 9
hours a day.
7. This being one of the conditions of enactment of
Mines Act, 1952, accordingly the legislature has
incorporated such benefits admissible to a person
working in the mine by incorporating the provisions
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contained in Section 33(1), which has been substituted
by Act of 62 of 1959 under Section 17 for sub-Section (1)
giving effect from 16.01.1960. The relevant provisions of
Section 33(1) read as follows:
"33. Extra wages for overtime - (1) Where
in a mine a person works above ground for
more than nine hours in any day, or works
below ground for more than eight hours in any
day or works for more than forty-eight hours in
any week whether above ground or below
ground, he shall in respect of such overtime
work be entitled to wages at the rate of twice
his ordinary rate of wages, the period of
overtime work being calculated on a daily
basis or weekly basis, whichever is more
favourable to him."
8. In order to give effect to the provisions
contained under Section 33(1) of the Mines Act, 1952
itself, the Central Government framed a rule in exercise
of power conferred by Section 58 of the Mines Act, 1952
and published as required by sub-section (1) of Section
59 of the said Act. Rule 60 of the Mines Rules, 1955
reads as follows:
"60. Extra wages for overtime - (1) For the
purpose of section 33, overtimes shall be paid at
the end of each wage-period.
(2) In calculating overtime on any day a fraction
of an hour less than 30 minutes shall be ignored
and a fraction of 30 minutes or more shall be
counted as one hour.
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(3) In calculating the ordinary rate of wages or
earnings in the case of a person paid by the
month, the daily wages shall be 1/26th of his
monthly rate of wages and in the case of any
other person it shall be the ordinary rate of his
daily wages or earnings as the case may be."
9. On perusal of the aforementioned provisions of
law, there is no iota of doubt to the extent that where in a
mine a person works above ground for more than 9 hours
in any day and works below ground for more than 8
hours in any day or works more than 48 hours in any
week whether above ground or below ground, he is
entitled to get extra wages for over time at the rate
prescribed under Section 33(1) of the Mines Act, 1952
read with Rule 60 of the Mines Rules, 1955. As per the
decision taken by the JBCCI a National Coal Wage
Agreement (NCWA) has been executed, pursuant to which
the overtime wages are being paid to the petitioners. As
per such agreement under Chapter-XI in paragraph-XI (3)
of the NCWA-IV it has been specifically stated with regard
to payment of overtime, which reads as follows:
"xi(3). Payment of over-time:
It is agreed that all the categories of workers
who are entitled to receive overtime payment
will continue to get the payment of overtime
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work in different establishment, units and
offices."
10. In view of the aforementioned provisions of
NCWA-IV, the same is in adherence to the statutory
provisions contained in Section 33(1) of the Mines Act,
1952 read with Rule 60 of the Mines Rules, 1955. But
under Clause 11.4.2 (b) and (c) a ceiling has been fixed to
pay Rs.1630/- for confidential and supervisory staff for
calculation of overtime wages and on the basis of the
JBCCI negotiation the ceiling is being fixed and the
confidential and supervisory staff are being paid overtime
wages accordingly. In view of such Clause 11.4.2 of the
NCWA-IV, fixing a ceiling for payment of extra wages for
overtime is contrary to the provisions contained in Section
33(1) of the Mines Act, 1952 read with Rule 60 of the
Mines Rules, 1955.
11. Mr. Mohanty, learned counsel appearing for
opposite parties no.2 and 3 contended that since a
bipartite agreement has been executed and it is purely
contractual in nature the same is binding on the
petitioners and they cannot claim the benefit beyond the
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agreement so executed by way of filing the present
application. To examine such contention, it is seen that
such condition stipulated for fixation of ceiling for
payment of extra wages for overtime is contrary to the
provisions contained in Section 33(1) of the Mines Act,
1952 read with Rule 60 of the Mines Rules, 1955.
Therefore, any condition stipulated in the agreement de
horse the statutory provisions cannot sustain in the eye of
law.
12. It is no doubt true that the provisions
contained in Section 33(1) of the Mines Act, 1952 read
with Rule 60 of the Mines Rules, 1955 are to be read by
applying the rule of literal construction giving natural and
grammatical meaning to it, in view the law laid down in
Corporation of the City of Victoria v. Bishop of
Vancouver Island, AIR 1921 PC 240 and also Nagendra
Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165
wherein it has been held that the words of a statute are
first understood in their natural, ordinary or popular
sense and phrases and sentences are construed according
to their grammatical meaning, unless that leads to some
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absurdity or unless there is something in the context, or
in the object of the statute to suggest the contrary. The
said view of the Privy Council has been reiterated by the
apex Court time and again in Jugalkishore Saraf v.
Raw Cotton Co. Ltd., AIR 1955 SC 376; Madanlal Fakir
Chand Dudhediya v. Shri Changdeo Sugar Mills Ltd.,
AIR 1962 SC 1543; Mohammad Ali Khan v.
Commissioner of Wealth Tax, AIR 1997 SC 1165;
Colgate Palmolive (India) Ltd. v. M.R.T.P. Commission,
AIR 2003 SC 317; and State of Rajasthan v. Babu
Ram, AIR 2007 SC 2018
13. In Nokes v. Doncaster Amalgamated
Collieries Ltd., (1940) 3 All ER 549 it was held that the
golden rule is that the words of a statute must prima facie
be given their ordinary meaning.
14. In Suthendram v. Immigration Appeal
Tribunal, (1976) 3 All ER 611 the speech of LORD
SIMON OF GLAISDALE has been referred to as follows:
"Parliament is prima facie to be credited with
meaning what is said in an Act of Parliament. The
drafting of statutes, so important to a people who
hope to live under the rule of law, will never be
satisfactory unless courts seek whenever possible
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to apply 'the golden rule' of construction, that is to
read the statutory language, grammatically and
terminologically, in the ordinary and primary sense
which it bears in its context, without omission or
addition. Of course, Parliament is to be credited
with good sense; so that when such an approach
produces injustice, absurdity, contradiction or
stultification of statutory objective the language
may be modified sufficiently to avoid such
disadvantage, though no further".
15. In view of the aforesaid facts and
circumstances and applying the law discussed above, in
our considered opinion if the provisions of Section 33(1) of
the Mines Act, 1952 read with Rule 60 of Mines Rules,
1955 prescribe for payment of extra wages for overtime
and also its modalities, the same should be adhered to as
there is no ambiguity in the same. Therefore, adherence
to any of the conditions stipulated in the NCWA fixing a
ceiling for payment of extra wages for overtime de horse
such statutory provisions cannot sustain in the eye of
law. Accordingly, we direct the opposite parties to pay the
differential amount of overtime wages in consonance with
the provisions contained under Section 33(1) of the Mines
Act, 1952 and Rule 60 of the Mines Rules, 1955 from the
date of filing of this application before this Court, i.e.,
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29.09.1997agitating such benefits in conformity with the said provisions.
16. The writ application thus stands allowed.
No order as to costs.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 8th March, 2018, GDS/Ajaya True Copy Sr. Steno