IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8826 of 1999 to SPECIAL CIVIL APPLICATIONNo 8868 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : YES -------------------------------------------------------------- GUJARAT WATER SUPPLY AND SEWERAGE BOARD Versus KETANBHAI DINKARRAY PANDYA -------------------------------------------------------------- Appearance: MR HS MUNSHAW for Petitioners MR PH PATHAK for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: /2000 CAV JUDGMENT Learned advocate Mr. Muhshaw is appearing for the petitioners in this group of petitions and Learned [ advocate Mr. Pathak is appearing for the respondent workman in each petition. Rule. Learned advocate Mr. P.H.Pathak appearing for the respondent woakman in each petition has waived service of rule. On the facts and in the circumstances of the case, all these petitions have been taken up for final hearing today itself. In this group of petitions, this Court (Coram : R.M.Doshit,J.) issued notice to the respondents returnable on 17th December, 1999 and meanwhile, ad interim relief in terms of para 8(C) has been granted. In the present petitions, the petitioner Board has challenged the order passed by the labour court, Amreli in Recovery Applications Nos. 318 of 1998 to 360 of 1998 (Old Nos. 866 of 1995 to 980 of 1995). The labour Court has passed a common order in the said group of recovery applications under section 33(C)(2) of the Industrial Disputes Act, 1947 ("the ID Act" for short). The facts of the present petitions, in short, are that the respondent workmen are working with the petitioner Board as a Diesel Operator, Electrical Operator, Attendant, Watchman, Attendant-Filter Plant, Lineman, Lineman cum Chowkidar, Store watchman, Storeman, etc. That all the respondent - workmen had filed the aforesaid recovery applications on the ground that according to the rules of the petitioner Board and under the provisions of the Minimum Wages Act, the respondent workmen are required to work eight hours in a day, meaning thereby, their working hours are eight hours in a day. However, the petitioner board has taken work of 12 hours in a day and the wages for the over time work which has been performed by the respondent workmen has not been paid by the petitioner board and, therefore, the workmen concerned had approached the labour court, Amreli by filing the aforesaid recovery applications inter alia raising demand for over time wages from the petitioner board. However, at that time, the concerned Officer had given threat for terminating their services and, therefore, immediately, no proceedings were filed by the respondent workman. That each respondent workman has given details at annexure "A" to the application wherein the date of joining, working hours, rate of wages, claim of over time wages and difference of salary etc. The demand was for payment of the legitimate dues with 18 % of interest. According to the respondent workmen, in fact, they had worked for over time and inspite of that, the amount of wages for over time work performed by them have not been paid to them. The claim of the respondent workmen is based on the provisions of the Minimum Wages Act and the Rules framed thereunder and, therefore, it was a pre-existing right of the respondent workmen to claim the over time wages from the petitioner board. The petitioner Board had contested the claim by filing common written statement at Exh. 7 before the labour court and has disputed the averments made by the respondents in their applications. According to the petitioner board, the work was taken from the respondent workmen according to the policy of the petitioner board and that there was no breach of the provisions of the Minimum Wages Act or the Rules framed thereunder; that the respondent workmen are not the permanent employees of the petitioner board and that the respondents had not worked for over time as alleged. It is also disputed by the petitioner board that the respondent workmen had worked for 12 hours as alleged and, therefore, there is no need to pay the over time wages to the respondent workmen. The labour Court had consolidated all the said applications with the consent of the parties and after filing of the reply by the petitioner board, the respondent workmen had produced the documents vide Exh. 18. Daily Register of the working hours of the Operator has been produced where the working hours have been mentioned and the same has also been certified by the concerned officer. With the consent of the petitioner board, said document has been exhibited as Exh. 28. The petitioner board has also produced the documents vide Exh. 20 which are Government Resolutions dated 17th October, 1988 and 10th November, 1988. Said documents were objected by the advocate for the respondents and, therefore, they were not exhibited. Affidavit was filed by one of the workmen namely Shri Ketanbhai Dinkarbhai Pandya vide Exh. 16 and he has given details of nature of work, working hours etc. He has also given details in respect of other 42 workmen who are working with him. His evidence was cross examined by the advocate for the petitioner board on 19.1.1999 and thereafter, on behalf of the petitioner board, one S.M.Chauhan, Deputy Executive Engineer was examined vide Exh.27 and his evidence was cross examined by the advocate for the respondent workmen. Thereafter, written arguments were submitted by both the sides and thereafter, the labour court has considered the oral evidence, documentary evidence and the written arguments submitted by the parties and, thereafter, has passed the impugned orders. The labour court came to the conclusion that the respondent workmen has proved 12 hours working in each day and are entitled for wages for the same as claimed in the recovery applications and the respondents had proved the pre existing right to receive the over time wages from the petitioner board under the provisions of the Minimum Wages Act. The labour court has come to the conclusion that it has jurisdiction under section 33(C)(2) of the ID Act and therefore, the labour court has allowed all the recovery applications and has rejected the claim of interest by passing award on 26.7.1999 and has also granted costs of Rs.501.00 to each respondent workmen. I have heard the learned advocates for the parties. Mr. Munshaw, the learned advocate appearing for the petitioner board has submitted that the labour court has erred in granting the recovery applications. According to him, there is no policy of the board which would prove the existing right of the respondent workmen. It is also contended that the petitioner board has no source of income and it is dependent upon the grant received from the State Government and it is completely aided by the State Government. He has further submitted that the labour court has no jurisdiction to entertain the applications. He has further submitted that there is no provisions for payment of over time wages and the labour court has erred in not appreciating this aspect. He has submitted that there was delay in filing the applications before the labour court. He has submitted that only one witness namely Shri Ketanbhai Pandya was examined on behalf of all the respondent workmen and no other workmen were examined. He has further submitted that the labour court has ignored the oral evidence of Shri SUreshbhai Chauhan. He has further submitted that the findings of the labour court are baseless and perverse. He has read over the entire findings of the labour court and the written arguments submitted by the petitioner board before the labour court. He has submitted that it amounts to adjudication under section 10(1) of the ID Act and while exercising the powers under section 33(C)(2) of the ID Act, the labour court has no power of adjudication. He has relied upon the following decisions of the apex court and the High Court : (1) Naranji Peraji Transport Co. v/s. Ramnikbhai B. Vaghela, [1998-2 GLR 984] (2) Municipal Corporation of Delhi versus Ganesh Razak and Anr. [JT 1994 (7) SC 476] (3) Chief Superintendent, Government Livestock Farm, Hissar versus Ramesh Kumar [1998 SCC (L & S) 150] (4) Tara and others versus Director, Social Welfare and others [1998 (2) LLJ 632] (5) State Bank of Bikaner and Jaipur versus RL Khandelwal [1968 Company Cases Vol.38 pg. 400] (6) Central Inland Water Transport Corporation Ltd. versus The Workmen and anr. [1975(1) SCR pg.153. (7) Chief Mining Engineer East India Coal Co.Ltd. versus Rameshwar and Ors. [(1968) 1 SCR pg.140] (8) AIR 1964 pg.743 and 753 On the other hand, Mr. Pathak, the learned advocate appearing for the respondent workmen has submitted that the right to recover the over time wages is a statutory right under section 13 and 14 of the Minimum Wages Act and Rule 25 of the Rules framed thereunder and the Minimum Wages Act is applicable to the petitioner board which fact has not been disputed by the petitioner board and the petitioner board is covered under rule 25(ii) which provides for over time wages in relation to any other scheduled employment at double the ordinary rate of wages. According to Mr. Pathak, it is the pre-existing right of the workmen and the labour court was right in deciding so. He has further submitted that the 12 hours' work of the workmen has not been disputed by the petitioner during the course of oral evidence. He has submitted that the worksheet has been produced by the respondent wherein a signature of the concerned officer was there and the 12 hours working including over time wages has been certified by the concerned Officer. He has submitted that the over time work has been proved by the nature of duties, demand of the work and the necessity. He has submitted that though Mr. Pandya was examined on behalf of the respondent workmen, but each workman had also submitted separate statement of their working hours. He has submitted that there is no limitation provided under section 33(C)(2) of the ID Act and, therefore, there was no question of delay in filing the applications and that question has been examined by this Court in the decision reported in 1998 (2) GLH 996. According to him, the labour court has jurisdiction to decide even incidental question under the recovery application and merely because the claim of the workman has been disputed by the employer, that itself will not oust the jurisdiction of the labour court. He has submitted that section 33(C)(1) and (2) both are independent sections. He has submitted that section 33(C)(2) is wide enough to cover the claim based on any statutory provisions. He has submitted that the labour court has given the findings which are based on the evidence on record and no jurisdictional error has been pointed out. He has further submitted that there is no infirmity in the impugned orders passed by the labour court and the orders of the labour court are based on the legal evidence and, therefore, this court should not interfere with the same while exercising the powers under Article 226 and/or 227 of the Constitution of India. Mr. Pathak has relied upon the decisions of the apex court in case of Ishwarbhai Prahladbhai Patel and others reported in 1983-I SCC 403; AIR 1964 page 743 and 1998(2) GLH 996; AIR 1968 page 218. I have perused the entire award passed by the labour court. I have also considered the submissions made by both the learned advocates for the respective parties. Before dealing with the contentions raised by both the learned advocoates, it is necessary to consider the relevant provisions of section 33 (C)(2) of the ID Act as also the relevant provisions of the Minimum Wages Act. Section 33C relates to recovery of money due from an employer. It reads as under: "33C. Recovery of money due from an employer : (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B, the workman himself or any other person authorized by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrears of land revenue. Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer. Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then, the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as maybe specified in this behalf by the appropriate Government within period not exceeding three months. Provided that where the presiding officer of a labour court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit. (3) For the purposes of computing the money value of a benefit, the labour court may, if it appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the labour court and the labour court shall determine the amount after considering the report of the commissioner and other circumstances of the case. (4) The decision of the labour court shall be forwarded by it to the appropriate Government and any amount found due by the labour court may be recovered in the manner provided in sub sec.(1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. Explanation.- In this section, 'labour court' includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State. " Section 13, 14 and 15 of the Minimum Wages Act are relevant for the purpose of deciding this petition. Section 13 of the Minimum Wages Act reads as under: "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 employees and for the payment of remuneration in respect of such days of rest. (c) provide for payment for work on a day of rest at a rate not less than the over time rate. (2) The provisions of sub sec.(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) employees engaged on urgent work, or in any emergency which could not have been foreseen or prevented; (b) employees engaged in work in the nature of preparatory or complementary work which must necessarily be carried on out side limits laid down for the general working in the employment concerned. (c) employees whose employment is essentially intermittent; (d) employees engaged in any work which for technical reasons has to be completed before the duty is over; (e) employees engaged in a work which could not be carried on, except at times dependent on the irregular action of natural forces. (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 Government on the ground that the duty 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 period of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention." Section 14 of the Minimum Wages Act reads as under: "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 Factories Act,1948,in any case where those provisions are applicable." Section 15 of the Act reads as under: "15. Wages of worker who works for less than normal working day.- If an employee whose minimum rate of wages has been fixed under this Act by the day works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall, save as otherwise hereinafter provided, be entitled to receive wages in respect of work done by him on that day as if he had worked for a full normal working day. Provided however, that he shall not be entitled to receive wages for a full normal working day.- (i) in any case where his failure to work is caused by his unwillingness to work and not by the omission of the employer to provide him work, and (ii) in such other cases and circumstances as may be prescribed." Sec.20(1) of the Act is also relelvant for the purpose. It reads as under: "20. Claims. (1) The appropriate Government may, by notification in the Official Gazette, appoint any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a labour commissioner for any region,or any officer of the State Government not below the rank of labour commissioner or any other officer with experience as a Judge of a Civil Court or as stipendiary Judicial Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub section(1) of section 13 or of wages at the over time rate under section 14 to employees employed or paid in that area." Now Rule 25 of the Rules framed under the Minimum Wages Act relates to extra wages for over time. Rule 25(1) is relevant for the purpose. It reads as under: "25. Extra wages for overtime.- (1) When a worker works in an employment for more than nine hours on any day or in any employment other than an employment in public motor transport for more than forty eight hours in any work or for more than the hours of work notified under sub rule (6) of rule 24, as the case may be, in respect of overtime work, be entitled to wages.-" The Industrial Disputes Act, 1947 as originally enacted does not provide any speedy remedy to the individual workmen enabling them to enforce their existing rights. This provision, to certain extent, fill up the lacuna which was discovered. It purported to supply a speedy remedy to an individual workman after an award was made to implement or execute the relief given to him under the award. Sub section (1) of the section provided that if money was due to an employee from his employer under an award or decision of the Industrial Tribunal, it may be recovered as an arrears of land revenue. Sub section (2) of sec. 33C deals with the cases where any workman was entitled to receive from the employer any benefit under an award or decision of an industrial tribunal which was capable of being computed in terms of money and it provided that the amount of which the said benefit could be computed may be determined subject to the Rules and the amount to determine could be recovered as provided. Sec. 33C provides both a forum and procedure for computing both monetary as well as non-monetory benefits in terms of money and further provides machinery for recovery of such claims. I have considered three decisions of the apex court in case of Punjab National Bank Ltd. versus Kharbanda (KL) [1962] 1 LLJ 234 SC; in case of Central Bank of India Ltd. v. P.S.Rajagopalan [1963] II LLJ 89 SC; and in case of Bombay Gas Co. Ltd. v. Gopal Bhiva [1963] I LLJ 608 (SC). The legislative history indicates that the legislature, after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognized the need of individual workmen of a speedy remedy to enforce their existing individual rights and, therefore, inserted sec.33A in 1950 and S.33C in the year 1956. These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to S.10(1) and without having to depend on their union to espouse their case. In view of the history two considerations are relevant while construing the scope of S. 33C Where industrial disputes arise between workmen acting collectively and their employees, such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance, under S> 10(1) But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights, it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen. Therefore, though in determining the scope of S> 33C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance, under S. 10(1) cannot be brought under S. 33C. Further, Section 33C which is in terms similar to those in S. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950, is a provision in the nature of an executing provision. Section 33C(1) applies to cases where money is due to a workman under an award or settlement or under Chapter V-A of the Act already calculated and ascertained and, therefore, there is no dispute about its computation. But sub-section (2) applies both to non-monatory as well as monetary benefits. IN the case of monetary benefit it applies where such benefit though due is