1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.3490 of 2007 Pineer Embroideries Ltd. Petitioner Vs. Prithvi Singh & ors. Respondents Mr.Abhay Kulkarni for petitioner. Ms.Bhavana Shah for Resp.nos.24, 69, 89, 150 and 232. CORAM: B.H.MARLAPALLE, J. January 14, 2008 P.C. 1. Heard the learned counsel for the petitioner - company. 2. 279 workmen of the petitioner - company approached the Labour Court by filing an application under Section 33C(2) of the Industrial Disputes Act, 1947 for recovery of the overtime wages. They contended that from 23/8/1998 to 14/10/2003 every one of them was required to work four hours extra every day as against the eight hours working under the Factories Act, 1948 and, therefore, they were entitled for overtime for the extra four hours per day. The employer - factory filed its reply to the said application and opposed it and stated that the application was not maintainable, that none of them 2 had worked for extra hours beyond eight hours on any day and the claim made was false and fabricated. 3. The company filed an application to decide a preliminary issue regarding the maintainability of the application filed under Section 33C (2) for recovery of overtime wages and after hearing the parties the learned Judge of the Labour Court at Dadra and Nagar Haveli at Silvassa dismissed the application and held that the application for recovery of overtime wages is maintainable and hence this petition. Though it is claimed to be under Article 226 of the Constitution, it is being treated to be a petition under Article 227 of the Constitution as it impugns an interlocutory order passed by the Labour Court in an application filed under the Industrial Disputes Act, 1947. 4. The learned counsel for the petitioner - company relied upon the judgment of the Supreme Court in the case of Municipal Corporation of Delhi vs. Ganesh Razak & anr. [1995 I CLR 170] [1995 I CLR 170] [1995 I CLR 170]. He also relied upon the judgment of the Gujarat High Court (D.B.)in the case of Gujarat Water Supply and Sewerage Board & anr. v. Kantanbhai Dinkarray 3 Pandya, Amreli [2003 III CLR 316] [2003 III CLR 316] [2003 III CLR 316] as well as another judgment of this Court (D.B.) in the case of Tata Consulting Engineers & Associates Staff Union v. Tata Consulting Engineers & ors. [1996 I CLR 1038] [1996 I CLR 1038] [1996 I CLR 1038]. As per the learned counsel the right of overtime has not been adjudicated and unless such adjudication is done so as to show a pre-existing right available to the applicants, the application filed under Section 33C(2) of the I.D. Act was not maintainable and, therefore, the Labour Court fell in gross errors in passing the impugned order rejecting the preliminary point. 5. In the case of Gujarat Water Supply and Sewerage Board (Supra) the claimants were not employed in a factory within the meaning of the Factories Act, 1948. In the case of Tata Consulting Engineers & Associates Staff Union (Supra), there was a settlement signed with the Union on 27/2/1985 providing for a five days’ week with 38 3/4 hours working in a week. The claimants before the Labour Court in their application stated that every day they were required to work for 15 to 30 minutes beyond eight hours and, therefore, they were entitled for overtime wages. This Court held that so long as the 4 terms of settlement were binding on the workmen and the said settlement was not challenged by the claimants, there was no right adjudicated upon for claiming overtime for such extra hours on every working day which were only five in a week. Both these judgments are, therefore, not applicable in the instant case. In the case of Municipal Corporation of Delhi (Supra), a three-Judge Bench of the Supreme Court has laid down the law regarding the powers of the Labour Court while deciding an application under Section 33C(2) of the I.D. Act. 6. Section 51 of the Factories Act, 1948 describes weekly hours of work in a factory and states that no adult worker shall be required or allowed to work for more than forty-eight hours in any week. Section 54 of the said Act prescribes daily hours and states that 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 a day. Provided that subject to the previous approval of the Chief Inspector, the daily maximum hours specified in the sanction may be exceeded in order to facilitate the change of shifts. Section 59 of the Factories Act provides for extra wages for 5 work and the said Section, to the extent relevant, is reproduced as under, "59. "59. "59. Extra wages for overtime. - Extra wages for overtime. - Extra wages for overtime. - (1) Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages. (2) For the purposes of sub-section (1) "ordinary rate of wages" means the basic wages plus such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, but does not include a bonus and wages for overtime work. (3) Where any workers in a factory are paid on a piecerate basis, the time rate shall be deemed to be equivalent to the daily average of their full-time earnings for the days on which they actually worked on the same or identical job during the month immediately 6 preceding the calendar month during which the overtime work was done, and such time rates shall be deemed to be ordinary rates of wages of those workers: Provided that in the case of a worker who has not worked in the immediately preceding calendar month on the same or identical job, the time rate shall be deemed to be equivalent to the daily average of the earning of the worker for the days on which he actually worked in the week in which the overtime work was done. Explanation- For the purposes of this sub-section in computing the earnings for the days on which the worker actually worked such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, shall be included but any bonus or wages for overtime work payable in relation to the period with reference to which the earnings are being computed shall be 7 excluded. . As per sub-section (1) of Section 59 every worker who works in a factory 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 at the rate of twice his ordinary rate of wages. It is thus clear that every worker who works for more than nine hours on any day or more than forty-eight hours in any week is, as a matter of right, entitled to claim overtime wages for such extra hours and, therefore, his right to receive extra wages is a right under the Factories Act and it cannot be accepted that such a right requires to be adjudicated upon by any other authority under the Minimum Wages Act or under some other statutory provision. 7. The petitioners claim that none of the applicants had worked for overtime and it was a false claim. This is a matter which requires to be proved by the petitioner by leading evidence viz. submission of muster rolls, wage registers, notices displayed regarding the working hours, inspection report made by the Factory Inspector and so on and so 8 forth in addition to the oral evidence that the respective parties may adduce before the Labour Court. The claim of the overtime wages is recognised under the Factories Act and, therefore, it cannot be said that an application for claiming recovery of overtime wages made by the workers working in a factory registered under the Factories Act, 1948 is not maintainable. The Labour Court has rightly decided the preliminary issue and held that the application is maintainable. Whether the respondents would be in fact entitled to any wages by way of overtime work is a subject matter which has to be decided on the basis of the evidence to be adduced by the parties and more particularly the petitioner - employer. Hence the reasoning set out by the learned Judge of the Labour Court and impugned in this petition cannot be termed as perverse or patently erroneous so as to cause interference under the supervisory powers of this Court under Article 227 of the Constitution. 8. Hence the petition is rejected summarily. (B.H.MARL