ivil Appeal No 325 of 1965
Appeal by special leave from the Award dated September 20 1963 of the Central Government Industrial Tribunal Bombay in Reference CG IT 25 of 1962
section V Gupte Solicitor General M Rajagopalan and K R Choudhuri for the appellants
C B Agarwala J B Dadachanji O C Mathur and Ravinder Narain for the respondents
The Judgment of the Court was delivered by Hidayatullah J
This is an appeal by special leave against an award dated September 20 1963 made by the Presiding Officer of the Central Government Industrial Tribunal Bombay in a reference made by the Government of India under section 102 of the 
The appellants are the workmen of the Bombay Port Trust who are and have been represented in this dispute by the Bombay Port Trust Employees  Union
The respondents to this appeal are the trustees of the Port of Bombay
The reference was made on a joint application of the parties
and the matter in dispute was stated to be  Whether the existing system of work of the shore crew of the Prince s and Victoria Docks under which each shift consists of 8 hours  normal duty 2 hours  variable recess and 12 hours  overtime needs any modification The Tribunal by the award impugned here held that the Union was not able to establish that the existing system of work needed any modification
The Port Trust had under its control several docks
Reference in this judgment will be made to the Prince s and Victoria Docks the Alexandra Docks Butcher Island and the Flotilla Crew
These represent different areas of work where different groups of workmen were employed
From the facts appearing on the record it appears that the Trustees first introduced a two shift system of work in the Alexandra Docks on June 30 1953 and the same system was extended to the Prince s and Victoria Docks on December 15 1953
Previously the shore crew at all these places worked in a single shift and were liable to be called out at 634 any hour of the day or night
When the two shift system began each shift of 12 hours was broken up into 8 hours  duty 2 hours  variable recess and 2 hours  overtime
The hours of rest were kept variable as they depended on the tides
In 1956 the workmen who were then represented by the Port Trust General Workers  Union made a demand for a fixed recess of two hours
The Trustees apprehended that this was a device to get 4 hours  overtime and rejected the demand
The General Workers Union was informed that if the demand was pressed a three shift system would be introduced
The workmen then retraced their steps and accepted a 2 hours  variable recess but requested that it should be as near the middle of the shift as possible
The Trustees agreed to accept the hours of rest at fixed hours in the Alexandra Docks but at the Prince s and Victoria Docks they kept it variable agreeing to fix it as near the middle of the duty hours as possible
Under this arrangement the shore crew working at the Prince s and Victoria Docks were informed each day what the period of rest would be on the following day
In explanation of this difference it may be pointed out that the Alexandra Docks work on a system of lock gates which enables the depth of water at the docks to be artificially regulated but the Prince s and Victoria Docks being tidal work only at high tide
It was thus possible to fix rest hours at the Alexandra Docks for half the crew different from the rest hours of the other half so that a part of the crew was always available on hand
As the lock gates control the depth of water in the Alexandra Docks fixed hours of rest could be maintained from day to day except in the monsoon months when the storm gates had some time to be closed
During these months recess time at the Alexandra Docks was also variable and was made to coincide with the closure of the storm gates
The workmen at the Alexandra Docks seemed to have accepted a variable recess of two hours but the Port Trust gave a notice under section 9A of the on June 25 1960 announcing the introduction of variable recess although in the months other than the monsoon months recess was actually at fixed hours
The workmen opposed the change from fixed to variable recess
Meanwhile studies were being made and it was found that the work hours at the different Docks were not equal they were heavier at the Alexandra Docks than at the other docks
The Trustees therefore resolved that the shore crew at the Alexandra Docks should work for 8 hours and that there should be a variable recess of one hour and overtime of three hours should be paid
Thus the 12 hours  shift at the Alexandra Docks was 8 hours  of duty 3 hours  overtime and one hour variable recess
This system was however 635 not extended to the prince s and Victoria Docks and Butcher Island
At these docks 8 hours  duty 2 hours  rest at variable times and 2 hours  overtime were prescribed
The claim of the shore crew at the Prince s and Victoria Docks and Butcher Island for reducing the hours of rest and increasing overtime to three hours was not accepted because the amount of work in the opinion of the Trustees did not justify the change
The Union contended that this division of 12 hours  shift into 8 hours  work 2 hours  rest and 2 hours  overtime violated the provisions of the and that the so called period of rest was illusory since being variable it was some times given right at the commencement of the shift and some times at the end depending on the tides or the exigencies of the work
The Union claimed that a 12 hours  shift should be divided into 8 hours  work and 4 hours  overtime as was the case with the Flotilla Crew
This claim was opposed by the Trustees
According to them there was no breach of the provisions of the 
They contended that regard being had to the number of actual work hours the case of shore crew at the Prince s and Victoria Docks and the Butcher Island could not be compared with that of the crew at the Alexandra Docks or the Flotilla Crew
The Tribunal accepted the entire case put forward on behalf of the Trustees and the Union has appealed to this Court
On behalf of the Union the learned Solicitor General has argued the case almost entirely from the legal stand point and has attempted to establish that the break up of a 12 hours  shift into 8 hours  duty 2 hours  rest and 2 hours  overtime offends the 
He has in addition submitted that the system of variable recess does not satisfy the requirements of rest which is the basis for fixing statutorily the hours of work in relation to wages
The was enacted to enable Government to fix minimum rates of wages in certain employments
Since fixation of minimum wages must take into account the work load also provision must not only be made for prescribing the minimum wage but to correlate it to a specified amount of work
Any extra work beyond the specified work load must be paid for at a higher or what is known as overtime rate
Similarly intervals of rest must punctuate suitably the hours of work and they must also be provided for in a scheme of the work day of a workman
The makes provision for all these matters either by itself or through Rules
The Central Government has framed the Minimum Wages Central Rules 1950
The Act and the 636 Rules between them provide not only for fixation of minimum wages but also for the work load in relation to which the minimum wages are to be prescribed
They provide on the one hand for minimum wages lay down the procedure for fixing or revising them and prescribe the rules in accordance with which the wages must be paid
On the other hand the Act and the Rules fix the number of hours of work payment of overtime and for hours of rest in the work day of the workman
The provisions of the Act and of the Rules are applicable to some employments only and they are shown in a Schedule appended to the Act
It is admitted that the present workmen come under the Schedule
The hours of work and the payment of overtime are therefore governed by the provisions of the and the Minimum Wages Central Rules 1950 and the controversy in this case must be appreciated and resolved in accordance with them
We shall now turn to these provisions
We are concerned with two sections and two rules
The sections are Nos 13 and 14 and the rules Nos 24 and 25
The whole of the matter in dispute admittedly is governed by these four provisions
We shall begin by setting out the relevant parts of these provisions  13
Fixing hours for a normal working day etc
1 In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act the appropriate Government may a fix the number of hours of work which shall constitute a normal working day inclusive of one or more specified intervals b provide for a day of rest in every period Of seven days which shall be allowed to all employees or to any specified class of em ployees and for the payment of remuneration in respect of such days of rest c provide for payment of work on a day of rest at a rate not less than the overtime rate
2 The provisions of sub section 1 shall in relation to the following classes of employees apply only to such extent and subject to such conditions as may be prescribed a      637 b      c employees whose employment is essentially intermittent d      e      3 For the purposes of clause c of sub section 2 employment of an employee is essentially intermittent when it is declared to be so by the appropriate Governmen t on the ground that the daily hours of duty of the employee or if there be no daily hours of duty as such for the employee the hours of duty normally include periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention
 14 Overtime
1 Where an employee whose minimum rate of wages is fixed under this Act by the hour by the day or by such a longer wage period as may be prescribed works on any day in excess of the number of hours constituting a normal working day the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force whichever is higher
2 Nothing in this Act shall prejudice the operation of the provisions of section 59 of the in any case where those provisions are applicable
 Rule 24
Number of hours of work which shall constitute a normal working day 1 The number of hours which shall constitute a normal working day shall be a in the case of an adult 9 hours b in the case of a child 41 hours
2 The working day of an adult worker shall be so arranged that inclusive of the intervals for rest if any it shall not spread over more than twelve hours on any day
638 3 The number of hours of work in the case of an adolescent shall be the same as that of an adult or a child according as he is certified to work as an adult or a child by a competent medical practitioner approved by the Central Government
4      4 A No Child shall be employed or permitted to work for more than 4 12 hours on any day
5 Nothing in this rule shall be deemed to affect the provisions of the 
Rule 25Extra wages for overtime 1 When a worker works in an employment for more than nine hours on any day or for more than forty eight hours in any week he shall in respect of overtime work be entitled to wages a in the case of employment in Agriculture at one and a half time the ordinary rate of wages b in the case of any other scheduled employment at double the ordinary rate of wages
Explanation The expression ordinary rate of wages means the basic wage plus such allowances including the cash equivalent of the advantages accruing through the concessional sale to the person employed of foodgrains and other articles as the person employed is for the time being entitled to but does not include a bonus
2 A register showing overtime payment shall be kept in form IV
3 Nothing in this rule shall be deemed to affect the provisions of the  The controversy in the present case is a narrow one
It is whether the fixing of a two hours  rest and two hours  overtime involves a breach of the two sections of the Act and the two rules quoted here  The workmen claim that under a scheme of 12hour shifts with 8 hours  work overtime should be at least 3 hours if not 4 and by fixing only two hours  overtime the Trustee are B guilty of the breach of the Act and the Rules
Unfortunately the provisions of the and the Minimum Wages 639 Central Rules 1950 are not as clear as the corresponding provisions of the and they have led to long arguments before us
We shall refer to the provisions of the later because for the present we must consider the provisions of the Act and the Rules without drawing any assistance from the 
Section 13 of the Act does not itself fix the hours of work or rest or overtime
That is done by the Rules
Section 13 only authorises Government to fix the number of hours which shall constitute a normal working day inclusive of on 
or more specified intervals
The normal working day thus includes a hours of actual duty and b one or more specified intervals
There may be one interval of rest or there may be more intervals but whatever their number they must be specified
By interval under section 13 is obviously meant interval of rest and this is clear from Rule 242
There is no definition of interval either in the Act or the Rules but the provisions of section 13 2 c read with section 13 3 give us an indication of what is meant by an interval of rest
It means a break in the work during which a workman though present on duty is not called upon to display either physical activity or sustained attention
But it is not a period of more inaction because there is no work for him
If it is the latter it is counted as actual work period if the former it is counted as a period of rest provided the period is specified beforehand and the workman is neither called upon to work nor expected to work
Having thus distinguished between period of work and interval of rest we may now turn to Rule 24 which prescribes the number of hours of work which is to constitute a normal working day
Sub rule 1 a provides that the number of hours constituting a normal working day for an adult shall be 9
As the heading of the Rule shows these are the hours of work
Sub rule 2 then lays down that the working day of an adult shall be so arranged that inclusive of intervals for rest it shall not spread over more than twelve hours on any day
The distinction between intervals of rest and hours of work is thus made clear
From this it follows that on any single day the number of hours of work must not exceed 9 and together with the hours of rest the total period of work and rest should not go beyond 12 hours
It is wrong to contend that the period of 9 hours must always include intervals of rest
It may or it may not
There is no provision in the Act and the Rules corresponding to section 55 of the Factories 640 Act to which reference will be made hereafter
In a 12 hour shift the nine hours of work on any day can be spread over 12 hours and the extra hours will necessarily be hours of rest
The contention of the workmen is that section 13 fixes the number of hours in a normal working day and this number is inclusive of one or more specified intervals
They read Rule 24 which prescribes a normal working day of 9 hours as including within the 9 hours one or more intervals of rest
We do not think this is a correct reading either of section 13 or of Rule 24
There is clear antinomy between hours of work and intervals of rest in sub rules 1 and 2 of Rule 24 and the phrase inclusive of one or more specified intervals  governs the normal working day and not the number of hours of work
Under sub rule 2 of Rule 24 the working day of an adult can be so arranged that inclusive of intervals of rest it does not exceed 12 hours on any day
A working day may extend to 12 hours but the number of hours of work cannot exceed 9
A working day of 12 hours is thus made up of hours of work and hours of rest and the number of hours of work which cannot exceed 9 is part of the normal working day which may also include one or more specified intervals of rest
This determines what is a normal working day and what is meant by an interval of rest
We now come to the question of overtime
If work on any day is taken which goes beyond 9 hours the provisions of section 14 apply
That action speaks of overtime
Overtime is payable for work in excess of the number of hours constituting a normal working day
From section 13 read with Rule 24 we know that the number of hours constituting a normal working day is 9
We shall now read into section 14 this number leaving out those provisions which have no bearing upon the matter
The section so read lays down  Where an employee   works on any day in excess of 9 hours the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate    Under Rule 25 1 b this overtime rate is double the ordinary rate of wages
Therefore an employer can take actual work on any day upto 9 hours in a 12 hour shift but he must pay a double rate for any hour or part of an hour of actual work in excess of 9 hours
He need not however pay for any interval of rest provided it is specified beforehand
These provisions are subject to 641 one more check which we may now mention
The check is found in the latter part of Rule 251 which says that the maximum number of hours of work in a week shall not exceed 48 and for any work in excess of 48 hours a week overtime shall be payable
As there is a prescribed day of rest in a week we get a working week of six days with a maximum of 48 hours  work
Average duration of actual work payable at ordinary rate of wages per day thus comes to 8 hours
Thus if an employer takes actual work for 8 hours per day on 6 days in a week he complies with all the provisions and need not pay overtime
He may go up to 9 hours on any day without paying any overtime provided he does not exceed 48 hours in the week
He can specify the intervals of rest and spread the 8 hours or 9 hours as the case may be together with intervals of rest over 12 hours in a twelvehour shift
These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him but they must be pre determined periods of inaction during which the workman is neither called upon nor expected to display physical activity or sustained attention
We have seen that an employer having a 12 hour shift can fix 48 hours of work per week of six days at 8 hours per day
He is not compelled to give overtime for the remaining four hours unless he takes work during those hours provided he has specified those hours as intervals of rest
If he takes work during the extra 4 hours or fails to specify the hours of rest he must pay overtime
He can spread 8 hours with intervals of rest to 9 10 11 or 12 hours as he likes
For the hours of rest he is not required to pay overtime but he must specify those hours
Overtime under section 14 is only payable when the workman works in excess of the number of hours constituting a normal working day
That number is 9 hours for any day and work up to 9 hours on any day can be taken without paying overtime if the total number of hours in the week does not exceed 48
As in the present case the total number of hours of work in a week is 48 8 hours per day for 6 days overtime is payable for that hour or part of an hour beyond the 8 hours in which the workman is either made to work or the interval is not specified
The Port Trust can say that it will not take more than two hours extra work on any day and specify the remaining two hours as the intervals for rest
It is not compelled to fix only one interval or to make the interval of one hour only
It can fix two or three or even four without in any way going against the provisions of section 13 or Rule 24
642 At this stage it is instructive to look into the provisions of the dealing with the daily hours of work intervals for rest and spread over of the working time
Sections 54 55 and 56 are the relevant provisions
Omitting the portions not necessary for the purpose of comparison these sections read 54
Daily hours
54Daily hours Subject to the provisions of section 51 no adult worker shall be required or allowed to work in a factory for more than nine hours in any day Provided   55
Intervals for rest
1 The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour
2    56
Spread over
The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55 they shall not spread over more than ten and a half hours in any day Provided that the Chief Inspector may for reasons to be specified in writing increase the spread over to twelve hours
 Almost the same provisions are to be found in some other Acts of the State Legislatures controlling shops establishments etc
It will be noticed that the arrangement of these sections is almost the same as the cognate provisions of the 
Here too the hours of work cannot be more than 9 in a day and taken with the intervals for rest these 9 hours may be spread over 10 12 hours
The only difference is that a worker must not be made to work for more than 5 hours at a stretch before he has had an interval for rest of half an hour at the least
There is no provision in the which breaks up the hours of work by interposing a compulsory period of rest as is done by the latter part of section 55 of the 
The reason perhaps is that in some employments time for work depends on some 643 extraneous factors and hours of rest cannot always be fixed to break up those hours
It is proverbial that time and tide do not wait for any man
Workers at a tidal dock must work when the tide is in and take their rest when the tide is out
It is for this reason that a variable recess is in force at the Prince s and Victoria Docks and due
notice of the interval is given by specifying a day in advance the hours of rest
We do not think that the Trustees are guilty of infraction of the by keeping the recess variable so long as they specify in advance the recess on any particular day
It will also be noticed that the scheme of the compels the inclusion of an hour of rest in a normal working day
This is achieved by pres cribing that the hours of work in a six day week shall not exceed 48 although on any particular day the hours of work in a day may go up to 9
In this indirect way one hour of rest is included in a normal working day because the total number of work hours in a six day week cannot go beyond 48
What has not been done by the Act or the Rules is to specify that the interval for rest shall break up the hours of work
The Trustees cannot be compelled to break up the hours of work by interposing intervals for rest if owing to the nature of the work there is difficulty in giving the intervals for rest in that manner on any particular day
According to their resolution the recess is fixed as near the middle of the work as possible depending on the tides
The workmen compared the case of the Prince s and Victoria Docks with the cases of the Alexandra Docks and the Flotilla Crew
They point out that in the former there is 3 hours  overtime and in the latter there is 4 hours of overtime in the 12 hour shifts but at the Prince s and Victoria Docks there is 2 hours  overtime only
They claim equal treatment
This is not possible
The crew at the Prince s and Victoria Docks work in a different way and their case cannot be compared with that of the Flotilla Crew or the crew at the Alexandra Docks
The Flotilla Crew has to remain on duty for full 12 hours and they work as and when they are required
Although their hours of duty are only 8 they are entitled if present for work for overtime up to four hours
The crew at the Alexandra Docks get a specified interval of one hour for rest and this makes up their 9 hours which is 8 hours  work and one hour interval for rest
They are therefore entitled to three hours  overtime if required to work beyond the 9 hours on any day
There is no parallel in the work of the three different crew and we are satisfied that no conclusion can be based upon the practice existing at the Alexandra Docks or in 644 respect of the Flotilla Crew
We hold therefore that the decision of the Central Government Industrial Tribunal is right in a circumstances of this case
The appeal must therefore fail
It will be but in the circumstances of the case we make no order about costs
Appeal dismissed


Summary:
The respondent had under its control several docks
The trustees Of the respondent introduced a two shift system of work and that resulted in the crew working in some docks getting 4 hours of overtime in some docks 3 hours of overtime and in others 2 hours of overtime only
In the last category the 12 hours shift wag divided in to 8 hours of work 2 hours of rest and 2 hours of overtime
The 2 hours period of rest was variable depending on the tides or the exigencies of the work though the crew were informed each day what the period of rest would be on the following day
The appellants who belonged to this category complained that the breakup of the 12 hours shift into 8 hours of duty 2 hours of rest and 2 hours of overtime offended the  and that the system of variable recess did not satisfy the requirements of rest which is the basis for fixing statutorily the hours of work in relation to wages
The Industrial Tribunal held that the appellants were not able to establish that the existing system of work needed any modification
In appeal to this Court HELD There was no breach of the provision of the and the case of the appellants could not be compared with that of the crew working at the other docks because there wag no parallel in the work of the three different sets of crew
643 H If an employer takes actual work for 8 hours per day on 6 days in a week he complies with the relevant provisions of the Act and the Rules namely sections 13 and 14 of the Act and rr
24 and 25 of the Minimum Wages Central Rules 1950 and need not pay overtime
He may go up to 9 hours on any day without paying any overtime provided he does not exceed 48 hours in the week
He can specify the intervals of rest and spread the 8 or 9 hours as the case may be together with intervals of rest over 12 hours in a twelve hour shift
These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him but they must be predetermined periods of inaction during which the workman is neither called upon nor expected to display physical activity or sustained attention641 B D In the present cage the total number of hours of work in a week was 48 8 hours per day for 6 days
Therefore overtime was payable beyond the period of 8 hours for that hour or part of an hour during which the workman was either made to work or the interval of rest was not specified
The respondent can say that it will not take more that two hours extra work on any day and specify the remaining two hours as the intervals for rest and the Trustees would not be guilty of infraction of the Act by keeping the recess variable so long as they specify 633 in advance the recess on any particular day
The Trustees could not be compelled to break up the hours of work by interposing intervals for rest
641 G H 643 B C D E