1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.534 OF 1997 N.N.Sardesai & Ors. .. Petitioners V/s Union of India & Anr. .. Respondents Mr.V.R.Rege for the petitioners. Ms.Fransisca Philip i/by M/s.Singhania & Partners for Respondent Nos. 1 to 3. CORAM: R.G.KETKAR, J. DATE: 21th October, 2011. P.C.: 1. Heard Mr.Rege, learned counsel for the petitioner and Ms.Philip learned counsel for Respondent Nos.1 to 3 at length. 2. By this petition, the petitioners are challenging the judgment and order dated 16.02.1995 passed by the learned Presiding Officer, Central Government Labour Court No.2, Bombay (for short “the Labour Court) in the applications filed by the petitioners under section 33-C(2) of the Industrial Disputes Act, 1947 (for short “the Act”). By the impugned order, the Labour Court dismissed the applications filed by the petitioners. The petitioners claiming to be the workmen of India Securities Press, Nashik, filed applications claiming overtime at double the rate of ordinary rate 2 of wages. Some of the petitioners were working on the post of Junior Accounts Officers/ Head Accountants and others were working on the post of Sectional Officers. They claimed overtime for the period ranging from 1986 to 1990. 3. In support of this petition, Mr.Rege submitted that earlier some of the petitioners had filed applications under section 33C(2) of the Act claiming overtime on account of having worked beyond 48 hours. At that time, the positions held by them were that of Accountants, Head Accountants, Office Superintendents, General Cashiers etc. They claimed that they are the workmen as defined under Section 2 (s) of the Act. The Respondent in that case relied upon the Notification No.1008 to contend that the Office Superintendents, Head Accountants, Accountants and General Cashiers at Item No.21 to 24 and Non-Gazetted Class II category, were described as persons holding the position of supervision or management or employed in the confidential capacity. The contention was therefore raised that these persons are exempted under section 64 of the Factories Act, 1948 read with Rule 100 of the Maharashtra Factories Rules, 1963. The said contention was repelled by the Labour Court by holding that the said Notification 3 merely reproduces the words of Section 64 and Rule 100 and it was therefore not clear that the exemption is on account of their position as supervisory or on account of their duties concerned with the management or on account of they being employed in a confidential position. The Labour Court also considered the list of duties. 4. After considering the evidence on record, the Labour Court held that all the applicants before it holding the positions of Accountants, Head Accountants, Office Superintendents and General Cashiers are workmen. Taking a overall view of the matter and considering the entire material on record, the Labour Court came to the conclusion that the Office Superintendents, Section Officers as also the Accountants and Head Accountants must be held as workmen as defined under section 2(s) of the Act. The order passed by the Labour Court dated 05.03.1984 as also the Part II Award was challenged by the Respondents by filing the writ petition in this Court. Mr.Rege submitted that the said writ petition was dismissed on 26.07.1985 and this Court upheld the finding recorded by the Labour Court. 5. Mr.Rege thereafter invited my attention to the order dated 4 03.06.1985. In this case also some of the petitioners had filed applications under Section 33-C (2) of the Act before the Labour Court claiming that they are workmen in the Security Press, Nashik Road and by virtue of section 70 of the Bombay Shops and Establishment Act, 1948 read with Section 59 of the Factories Act, 1948 as they have worked beyond 48 hours in a week, they are entitled to claim overtime at double the rate of ordinary rate of wages. 6. The Respondents herein resisted the claim by contending that the applicants are not workmen within the meaning of section 2(s) of the Act as they are serving as Sectional Officers, Office Superintendents, Accountants and General Cashiers discharging their duties of purely supervisory nature and drawing wages exceeding Rs.500 p.m. It was further contended that the workmen are working in a place which is a separate commercial establishment and therefore the provisions of the Bombay Shops and Establishment Act, 1948 would apply to the exclusion of the Factories Act, 1948. It was also contended that under section 63 of the Bombay Shops and Establishment Act, the applicants are not entitled to any reliefs. 5 7. Upon considering the material on record as also the provisions of the Bombay Shops and Establishment Act and the Factories Act, 1948, the Labour Court came to the conclusion that the applicants before it were not connected with the manufacturing process and therefore they cannot be termed as workers under the Factories Act, although they have proved to be the workmen under the Act and still being the employees of the factory, can claim benefit of Section 59 of the Factories Act read with section 70 of the Bombay Shops and Establishments Act, 1948 and accordingly held that they are entitled to overtime in excess of 48 hours at double the rate. 8. Mr.Rege submitted that the Respondents did not challenge the order dated 03.06.1985 and accepted the correctness thereof. He further invited my attention to the order dated 28.02.1990 passed by the Labour Court in applications filed under section 33C(2) of the Act. Even before the Labour Court some of the petitioners were the applicants. In that case the applicants were holding the positions as sectional officers, head accountant (Junior Account Officers), Accountants and General Cashiers. The claim was resisted on the ground that the persons employed in these 6 categories were officers discharging supervisory duties and were drawing monthly salary of Rs.1600/- p.m.or more and consequently they are not the workmen within the meaning of Section 2(s) of the Act. On the basis of material on record, the Labour Court came to the conclusion that the applicants therein were the workers in factory and as such are entitled to overtime wages at double the rate of their ordinary rate of wages in case they worked for more than 48 hours in a week. Mr.Rege submitted that the Respondents did not challenge the order dated 28.02.1990 passed by the Labour Court and in compliance of that order, paid the wages accordingly. 9. Mr.Rege invited my attention to the provisions of sections, 59 and 64 of the Factories Act, 1948 as also Rule 100 of the Maharashtra Factories Rules, 1963. He also invited my attention to the unamended and amended section 70 of the Bombay Shops and Establishment Act, 1948. He submitted that in the present case the parties filed purshis in the Labour Court expressing their desire not to lead any oral evidence and they relied upon the documents that were produced on record by both sides. The Labour Court in Paragraph No.13 of the impugned order held that the petitioners 7 have based their claim in the light of the Apex Court Judgment in the case of Union of India & Another v/s.G.M.Kokil, Civil Appeal No.2736 (NL) of 1972 decided on 21.03.1984. They have not led any evidence to show that they are engaged in the manufacturing process on the shop floor of the factory of the Respondents herein. There is no such evidence to that effect. They cannot be called as workers within the meaning of the Factories Act and eventually they would not be entitled to overtime allowance in terms of section 59 of the Factories Act. The Labour Court was also of the view that in view amendment to section 70 of the Bombay Shops & Establishsment Act, of 27th June, 1986 the petitioners are not entitled to claim overtime at double the rate. Mr.Rege submitted that the approach of the Labour Court was perverse. In view of the earlier decisions rendered by the Labour Court, the only conclusion could have been drawn is that the petitioners are workmen and are entitled to the over time allowance. 10.On the other hand, learned counsel for the Respondents invited my attention to the written statement filed by them in the Labour Court as also the annexures to the written statement. Annexure A 8 is the press order dated 02.01.1987 that prescribes the normal working hours of the office staff and Annexure B is the duty list of Office Superintendents, Sectional Officers and Head Accountants (Junior Accounts Officers). She submitted that the petitioners are working in a supervisory capacity and are drawing wages exceeding Rs.1600/- per month. She further submitted that the petitioners have not led any evidence to substantiate their contention that they are workmen and consequently are not entitled to claim overtime allowance. She invited my attention to the reply affidavit filed in this petition and in particular Annexure 2 thereof. Annexure 2 is a notice No.7 dated 18.06.1994. The Respondents have notified Sectional Officers, Junior Accounts Officers, Head Accountant and Junior Accounts Officers, as persons employed in a confidential position. Relying upon this notice, she submitted that the persons employed in the confidential positions in terms of section 64 of the Factories Act, read with Rule 100 of the Maharashtra Factories Rules, 1963 have been exempted from the provisions of the Factories Act, 1948. She therefore submitted that the petitioners are not workmen under the Act, as also they are exempted under Section 64 read 9 with Rule 100 from the provisions of the Factories Act. In view thereof, she submitted that the petitioners are not entitled to claim overtime allowance. 11.I have considered the rival submissions made by learned counsel appearing for the parties. In the written statement filed by the Respondents before the Labour Court, it was contended that the duty list of sectional officers and the Junior Accounts officers indicates that they are holding position of supervision or management and hence they cannot be considered as workmen under section 2(s) (iii) and (iv) of the Act. Reliance was placed on unamended and the amended Section 70 of the Bombay Shops and Establishments Act, 1948 to contend that the extended definition of workmen given under section 70 has ceased to exist. As per the definition, the persons who do not work on the floor of the factory and who do not strictly fall within the definition, do not qualify as workers. It was therefore submitted that the petitioners are also not workers under section 2(l) of the Factories Act and consequently cannot claim overtime under section 59 of the Factories Act. Lastly it was submitted that in so far as one of the petitioners Sardesai is concerned, he has crossed the limit 10 of monthly basic pay of Rs.2250/- in the revised scale of Junior Accounts Officer and is therefore not entitled to claim overtime allowance as per the letter dated 21.12.1988. It was also submitted that said Mr.Sardesai was receiving Rs.600/- as special allowance in lieu of overtime allowance during the period of claim in the application. 12.In so far as the affidavit in reply in the present petition is concerned, in Paragraph No.23 thereof it is specifically admitted by the Respondents that there has been no change in the duties of the petitioners either prior to 21.10.1986 or after 21.10.1986 i.e. the date of amendment of Section 70 of the Bombay Shops and Establishments Act. It was further clarified that “in other words prior to and/or after the date of said amendment, the nature of duties of the petitioners remained same” though it was qualified to be of supervisory nature. 13.As noted earlier, it is not in dispute that some of the petitioners had instituted proceedings under Section 33-C (2) of the Act before the Labour Court. At that time, the applicants before the Labour Court were holding the position of Accountants, Head Accountants, Office Superintendents, General Cashiers. Opposing 11 those applications, it was contended on behalf of the Respondents that the applicants were not workmen within the meaning of Section 2 (s) of the Act and the posts they were holding were of supervisory or managerial nature and that they were employed in the confidential capacity as provided under the Factories Act. The Respondents also relied upon the Notification No.1008 which provided that the Office Superintendents, Head Accountants, Accountants and General Cashiers, Item Nos.21 to 24 non- gazetted Class III category were described as persons ‘holding the position of supervision or management or employed in a confidential capacity. 14.The parties led oral as well as documentary evidence before the Labour Court. Even the duty lists in respect of various posts in question were produced. After considering the entire material on record, by a detailed order the Labour Court came to the conclusion that the Office Superintendents, Section Officers as also the Accountants and Head Accountants were held to be workmen within the meaning of Section 2(s) of the Act. The said order was challenged by the Respondents by filing the writ petition in this Court. The said writ petition was dismissed on 12 26.07.1985. 15.It is also not in dispute that subsequently some of the petitioners filed applications under section 33-C (2) of the Act before the Labour Court. Those applications were decided on 03.06.1985. That time the applicants were serving as Section officers, Office Superintendents, Head Accountants, Accountants and General Cashiers. Once again the applications were resisted by the Respondents contending that they are not workmen as defined under section 2(s) of the Act as they were employed in supervisory category. 16.It was further contended that the applicants were not employees of the factory, but serving in the commercial establishment of the Central Government, though situate in the building of the Press and therefore cannot claim the benefit under section 59 of the Factories Act, as also of section 63 of the Bombay Shops & Establishment Act. After considering the material on record, the Labour Court came to the conclusion that since the applicants were not connected with manufacturing process, they cannot be termed as workers under the Factories Act, although they have proved to be the workmen under the Act and still being the 13 employees of the factory can claim the benefit of section 59 of the Factories Act read with section 70 of the Bombay Shops & Establishment Act. Mr.Rege submitted that from the perusal of the said judgment and order dated 03.06.1985, it indicates that no oral evidence was led by the parties. He further submitted that this order was also not challenged by the Respondents and they accepted the correctness thereof. 17.Some of the petitioners again filed applications under section 33C (2) of the Act claiming overtime. They were holding the positions of Section Officers, Head Accountants (Junior Accounts Officers),Accountants and General Cashiers. The Respondents resisted the applications contending that these three categories of officers were discharging the supervisory duties and were drawing monthly salary of Rs.1600/- or more and as such they were not workmen within the meaning of Section 2(s) of the Act. The parties led evidence and also produced duty lists of the officers in the said categories. The Labour Court came to the conclusion that the applicants were workmen within the meaning of section 2(s) of the Act and accordingly their applications were allowed. The said order was also not challenged by the 14 Respondents. Thus some of the petitioners had filed applications under section 33C (2) of the Act prior to the amendment of section 70 of the Bombay Shops and Establishments Act and those applications were allowed by the Labour Court firstly on 05.03.1984 and subsequently on 03.06.1985. Even after amendment to Section 70 of the Bombay Shops and Establishments Act, some of the petitioners had instituted proceedings under section 33C (2) of the Act and those proceedings were allowed on 28.02.1990. 18.By the impugned order the Labour Court rejected the applications on the ground that the petitioners did not lead any evidence in support of their claim. In my opinion, having regard to the orders of the Labour Court in earlier proceedings the Labour Court committed serious error in not considering the fact that the petitioners continued to hold the same positions as was before the Labour Court in the earlier proceedings instituted on three occasions. In the affidavit in reply filed in this petition, the Respondents have in paragraph 23 specifically admitted that there has been no change in the duties of the petitioners either prior to 21.10.1986 or after 21.10.1986 viz.the date of amendment of 15 section 70 of the Bombay Shops & Establishments Act, though it was sought to be contended by the Respondents that it was of supervisory nature. 19.As noted earlier, some of the petitioners had instituted proceedings under Section 33C (2) of the Act, after amendment of Section 70 of the Bombay Shops & Establishments Act, 1948. Those applications were decided by the Labour Court on 28.02.1990. In that case the applicants specifically asserted that they are employed in and in connection with the work of the factory and are governed by the provisions of Section 70 of the Bombay Shops & Establishments Act read with Section 59 of the Factories Act. 20.On behalf of the Respondents written statement was filed, wherein it was admitted that the India Security Press, Nashik Road is a factory managed and run by the Government of India. The applicants were working in the categories of Section Officers, Head Accountants (Junior Accounts Officers), Accountants and General Cashiers. 21.The parties led their oral as well as documentary evidence before the Labour Court. After considering the material on record as also 16 the earlier orders passed by the Labour Court in the applications filed under section 33C (2) of the Act, the Labour Court came to the conclusion that the applicants before it were workmen within the meaning of Section 2 (s) of the Act. Since the applicants belong to the cadre of sections officers, Junior Accounts Officers (Accountants), their nature of work is incidental to or connected with the manufacturing process. The Labour Court therefore came to the conclusion that the applicants are workers within the meaning of Section 2(l) of the Factories Act. Consistent with this finding the Labour Court allowed the claim made by the applicants before it. 22.Even in the present case, the applicants have asserted in their applications under Section 33C (2) of the Act that they are workmen under section 2(s) of the Act as also the workers within the meaning of Section 2(l) of the Factories Act, 1948. They have further asserted that under Section 59(1) of the Factories Act, wherever the worker works in the factory for more than 9 hours in a day, or for more than 48 hours in a week, he shall in respect of overtime work, is entitled to the wages @ double of his ordinary rate of wages. 17 23.Having regard to the material on record and particularly the earlier orders passed by the Labour Court on three occasions, as also the specific stand of the Respondents in their affidavit in reply and in particular, Paragraph 23 thereof, the Labour Court committed serious error in rejecting the applications made by the Petitioners. 24.The learned counsel for the Respondents submitted that at any rate, having regard to the notice dated 18.06.1994 the petitioners are not entitled to claim overtime. By notice dated 18.06.1994 the India Security Press has classified the cadres as under:- Section Officers (Group C Ministerial), Junior Accounts Officers (Head Accountants) (- do -) Junior Accounts Officers (Costs) ( - do - ) 25.Learned counsel for the Respondents therefore submitted that the petitioners are employed in a confidential position. I am unable to accept this submission. As the claim of the petitioners for overtime is for the period ranging from 1986-1990, the notice dated 18.06.1994 is therefore not applicable to the facts of the present case. 26.In the result petition succeeds. The impugned judgment and order dated 16.02.1995 passed by the Labour Court is quashed and set 18 aside. The applications made by the petitioners herein under section 33C (2) of the Act are allowed. Rule is made absolute accordingly. In the circumstances of the case, however, there shall be no order as to costs. 27.At this Mr.Rege submits that the Respondents may be directed to pay the amount of overtime as claimed by the petitioners. Learned counsel for the Respondents states that the Respondents will consider challenging this order before the Superior Court. In view of this, Respondents are directed to pay the amount within three months from today, subject to obtaining suitable order from the Supreme Court. (R.G.KETKAR, J.)