IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 429 of 2000 in SPECIAL CIVIL APPLICATION No 8826 of 1999 with LETTERS PATENT APPEAL Nos 430 to 471 of 2000 with SPECIAL CIVIL APPLICATION No 2327 of 1984 with SPECIAL CIVIL APPLICAITON Nos 3946 to 3950 of 1985 with SPECIAL CIVIL APPLICATION Nos 3966 to 3969 of 1985 with SPECIAL CIVIL APPLICATION No 3116 of 1984 with SPECIAL CIVIL APPLICATION Nos 1945 to 1952 of 1987 with CIVIL APPLICATON Nos 6632 to 6674 of 2000 in LETTERS PATENT APPEAL Nos 429 to 471 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE B.J.SHETHNA and Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 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 : NO 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 concerned : YES Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GUJARAT WATER SUPPLY AND SEWERAGE BOARD Versus KETANBHAI DINKARRAY PANDYA -------------------------------------------------------------- APPEARANCE : MR JR NANAVATI for MR HS MUNSHAW for the Appellants MR PH PATHAK for the Respondents (IN ALL THE LPAs & CAs) MR JR NANAVATI for Petitioner MR NR SAHANI for MR MANOJ POPAT for respondents (IN ALL THE WRIT PETITIONS) ------------------------------------------------------------- CORAM : MR. JUSTICE B.J.SHETHNA and MR. JUSTICE A.L.DAVE Date of Judgment : 16.06.2003 C.A.V.JUDGMENT PER : MR. JUSTICE B.J.SHETHNA #. Common question that arises to be addressed to by us in this judgment is, Whether Labour Court was right in entertaining claim of workman, while exercising powers under Section 33C(2) of the Industrial Disputes Act, in absence of formal adjudication by competent court or authority when the claim was not admitted by the other side ? #. All the Letters Patent Appeals are disposed of by this common judgment as they are arising out of the common judgment and order dated 9.5.2000 passed by the learned Single Judge of this court (Coram : H.K.Rathod, J.) dismissing all the writ petitions filed by the appellants-Gujarat Water Supply and Sewerage Board (for short "the Board"). #. All the aforesaid writ petitions i.e. Special Civil Application Nos.2327, 3116, 2327, 3116 of 1994, Special Civil Application Nos.3946 to 3950 of 1985 and 3966 to 3969 of 1985, Special Civil Application Nos.1945 to 1952 of 1987 are also disposed of by this common judgment as the same were referred to the Division Bench by learned Brother D.H.Waghela, J. by his common order dated 10.10.2000 in view of the pendency of the above appeals before this court arising out of the aforesaid common judgment and order dated 9.5.2000 passed by learned Brother H.K.Rathod, J. dismissing all the writ petitions filed by the Gujarat Water Supply and Sewerage Board against the order passed by the Labour Court, which was direct in conflict with the judgment and order dated 4.12.1996 passed by another learned Single Judge of this court (Coram : S.K.Keshote, J.) in Special Civil Application No.3117 to 3119 of 1994 whereby it was held that direct writ petitions filed by the workmen without prior adjudication before the Labour Court were not maintainable. #. Learned counsel Shri J.R.Nanavati appeared for Shri Munshaw for the appellant-Gujarat Water Supply and Sewerage Board in all the writ petitions and also appeared in Jamnagar Municipal Corporation. Shri P.H.Pathak appeared for the respondent-workmen in all the Letters Patent Appeals and Shri N.R.Sahani for Shri Manoj Popat for respondent-workman in all the writ petitions. #. As such, all these matters were argued and heard together and are decided by this common judgment. #. 43 workmen working on different posts like Diesel Operator, Electrical Operator, Electrical Operator, Attendant, Chowkidar, Diesel Operator, Electrical Operator, Line Man, Store Man, Store Chowkidar, Heavy Truck Driver, Pump Operator etc. with "the Board" straightaway approached Labour Court, Amreli in 1995 for recovery of over time wages from "the Board" by way of Separate Recovery application Nos.866 to 908 of 1995, which are now given new Nos.318 to 360 of 1998. The same were allowed by Labour Court, Amreli by its common judgment and award dated 26.7.1999. #. The aforesaid impugned common judgment and award dated 26.7.1999 passed by the Labour Court, Amreli was challenged by "The Board" before this court by way of separate writ petitions i.e. Special Civil Application Nos.8826 to 8868 of 1999. The same were initially placed before learned Single Judge of this court (Coram : Ms.R.M.Doshit, J.). While issuing notice on all these writ petitions and making it returnable on 17.12.1999 Her Lordship stayed the execution and operation of the impugned common judgment and award passed by the Labour Court in favour of the respondent-workmen. However, for some or the other reason the matters could not be heard on the returnable date and adjourned from time to time before different Hon'ble Judges of this court. #. When all the writ petitions were placed before H.K.Rathod, J. on 9.5.2000 His Lordship was pleased to admit all the writ petitions by issuing 'Rule' on it and Shri P.H.Pathak, learned counsel appearing for the respondents-workmen waived notice of 'Rule' and on the facts and circumstances of the case all the writ petitions were taken up for final hearing by His Lordship on that very day and after hearing the learned counsel for the parties at great length and considering number of judgments of the Hon'ble Supreme Court as well as this court His Lordship dismissed all the writ petitions on the same day i.e. 9.5.2000 by his common judgment and order running into as many as 40 typed pages. While dismissing all the writ petitions His Lordship also directed "the Board" to implement the impugned common judgment and award passed by Labour Court, Amreli within two months from the date of receipt of the certified copy of his common judgment and order. #. "The Board" has challenged the common judgment and order dated 9.5.2000 passed by the learned Single Judge by way of above Letters Patent Appeals with Civil Applications for stay against common judgment and award passed by the Labour Court and the common judgment and order passed by learned Brother H.K.Rathod, J. ##. Initially, all the appeals were placed before the Division Bench of this court (Coram : D.M.Dharmadhikari, CJ & J.M.Panchal, J.) on 9.8.2000. Their Lordships were pleased to admit all the appeals and ordered to place it for final disposal in the month of September, 2000 and also stayed the common judgment and order dated 9.5.2000 passed by the learned Single Judge dismissing the writ petitions filed by "the Board" and the impugned common judgment and award passed by the Labour Court on 26.7.1999. However, for some or the other reasons the appeals could not be heard till 8.5.2003. On 8.5.2003, which was a day for final hearing, the hearing of all the matters commenced before us and it was over on the next day i.e. 9.5.2003, which was last working day before Summer Vacation. All the learned counsel for the parties were heard at great length. ##. The respondents - workmen in appeals are working with "the Board" in their different capacity like Diesel Operator, Electrical Operator, Attendant, Watchmen, Line man, Chowkidar, Store Watchmen, Store man, Heavy Truck Driver etc. The deta..R --------------------------------------------------------- Recovery Name of Applicant Date of Amount Appln. & Designation Joining in Rs. --------------------------------------------------------- 318/98 Ketan Pandya 09.11.91 54306.15 Diesel Operator 319/98 Bharatbhai Dave 01.11.90 61176.60 Electrical Operator 320/98 Bharatbhai Mehta 10.05.91 59663.30 Electrical Operator 321/98 Yashvantray Gohil 01.05.91 49431.00 Attendant 322/98 Rafikbhai Parmar 01.04.90 52839.35 Attendant 323/98 Nagjibhai Dhandhal 11.05.91 49186.35 Chowkidar 324/98 Paresh Pandya 31.01.92 50199.45 Diesel Operator 325/98 Kanubhai Vala 01.09.91 45062.00 Chowkidar 326/98 Himatbhai Makwana -- 40054.20 327/98 Ashokkumar Pandya 26.11.91 42610.50 Attendant 328/98 Rameshbhai Makwana 11.05.90 57193.20 Electrical Operator 329/98 Arvindbhai Balva 13.02.91 60183.45 Electrical Operator 330/98 Jodhabhai Jigrana 31.02.92 41441.10 Attendant 331/98 Bhupatbhai Vaghela 01.02.92 42074.55 Chowkidar 332/98 Osman Chauhan 10.04.92 39907.55 Chowkidar 333/98 Gokulbhai Singal 31.01.90 50910.00 Line Man 334/98 Bhawan Parmar 05.02.91 50109.15 Line Man 335/98 Bhabhlubhai Lila 06.01.92 42690.85 Lineman 336/98 Valjibhai Panaliya 23.03.89 72445.47 Lineman 337/98 Balabhai Bar 01.01.91 51082.20 Lineman 338/98 Gordhan Mavani 30.07.90 54665.60 Line man 339/98 Mansukhbhai Parnaliya 28.10.90 31293.60 Line man 340/98 Parsottam Mevada 11.02.91 31293.60 Line man 341/98 Ashokkumar Trivedi 01.02.91 61425.15 Line man 342/98 Nagbhai Kadcha 18.02.91 50363.55 Line man 343/98 Karbhai Adedra 18.02.91 50154.60 Line man 344/98 Merubhai Adedara 26.04.91 48213.90 Line man 345/98 Dhirubhai Gangadiya 15.09.91 81471.18 Office Chowkidar 346/98 Premjibhai Gohil 01.11.91 44903.35 Store Chowkidar 347/98 Rajnikant Rathod 25.02.89 95055.85 Heavy Truck Driver 348/98 Prembhai Vaniya 30.01.90 60154.35 Line man 349/98 Muljibhai Vaniya 30.01.90 59522.20 Line man 350/98 Rajesh Sisodiya 10.07.91 57507.60 Electrical Operator 351/98 Jaga Megha 10.08.91 62485.80 Line man 352/98 Karimbhai Jamalbhai 02.02.91 62475.80 Pump Operator 353/98 Mohan Chauhan 05.03.92 22090.20 Electrical Pump Operator 354/98 Kanji Mevada 30.01.90 60061.35 Line man 355/98 Jayantilal Savaliya 11.02.91 51899.85 Storeman 356/98 Hardevsinh Hemubhai 28.01.91 44247.00 Chowkidar 357/98 Laljibhai Parmar 20.08/91 46995.60 Line man 358/98 Mukeshbhai Dangar 10.02.92 41431.35 Line man 359/98 Mohan Bagarda 31.01.91 51753.95 i 360/98 Bhikhabhai Saiyed 01.01.91 52497.75 Chowkidar -------------------------------------------------------- ##. From the above, it is clear that all the 43 workmen appointed on the different posts like Diesel Operators, Electrical Operators, Attendant, Watchman, Line Man, Chowkidar, Store Watchman, Storeman, Heavy Truck Driver etc. between 25.2.1989 to 10.4.1992 on different dates. Surprisingly, all of them claimed overtime wages upto 31.5.1995 from their respective dates of appointments by filing recovery applications before the Labour Court on one day i.e. on 9.8.1995. Minimum amount paid to workman Mohanbhai Chauhan, Electrical Pump Operator, Applicant of Recovery Application No.352 of 1998, is Rs.22090.20 ps., whereas the maximum amount of Rs.95055.85 ps. is paid to workman Rajnikant Rathod, Heavy Truck Driver, Applicant of Recovery Application No.347 of 1998. Thus, Labour Court directed "the Board" to make the payment of more than Rs.22 lacs as overtime wages to the respondents workmen upto 31.5.1995 from the date of their initial appointment by its impugned common Judgment and Award dated 26.7.1999. Each workman has stated in his Recovery Application that he is serving with "the Board" since long and that "the Board" is taking work from him on daily wage basis, though it is of a permanent nature and that he is not made permanent in service, so as to deny other benefits of service of a permanent employee, which is unfair labour practice u/s.25(T) of the I.D.Act for which he had approached the High Court. That "the Board" is taking 12 hours work instead of 8 hours per day from him, but not paying wages of overtime of four hours per day. He is dailywager, therefore, he was always under the fear of termination. He is denied the benefits under the Minimum Wages Act and other Laws. ##. It may be stated that undisputedly on behalf of all the 43 workmen only one workmen Shri Ketan Pandya Applicant of Recovery Application No.318 of 1998 was examined. On an application Ex.8, all the Recovery Applications were ordered to be consolidated by the Labour Court as the common question of law was involved in all the matters. It may also be noted that all the workmen claimed their dues upto 31.5.1995 from the date of joining their service with "the Board". Joint reply was filed by the Appellants No. 1 & 2 in all the Recovery Applications wherein they have denied the claim of the workmen made by them in their Applications and stated that their Applications were not true. They have specifically pleaded that the workmen were not entitled for any benefit of a permanent workmen because their appointment was under the Rules framed as per the Report of Dolatbhai Parmar's - Committee. They were dailywagers and their posts are also of dailywagers and no unfair Labour practice is committed by them u/s.25(T) of the I.D.Act as alleged by them. They have specifically stated that the workmen have not to work more than 8 hours. They have stated that no workman was made to work for 12 hours per day, therefore, there was no question of paying overtime wages to any workman. It was specifically contended by "the Board" before the Labour Court that Recovery Application u/s.33C(2) before the Labour Court without pre-adjudication of their claim regarding overtime by the Labour Court u/s.10 of the I.D.Act was not maintainable. Along with their written statement, list Ex.20 of the documents was produced which includes report of Dolatbhai Parmar's Committee dated 10.11.1988, but the same was not exhibited by the Labour Court because of the objection of the Advocate for the workmen. We have perused the copy of oral evidence of parties provided to us by learned Advocate, Shri Pathak. ##. On behalf of all the workmen Shri Ketan Pandya Ex.16, was examined before the Labour Court. He stated that he is serving with "the Board" since last 8 years as dailywagers. He was kept for 5 years as dailywager and thereafter, he is kept in the service on fixed salary. Thus, since last 8 years he is serving without break. He was given employment by the Deputy Executive Engineer on the instruction of the opponent from 9.10.1991 as Operator. At that time Shri J.K.Waghani was Deputy Executive Engineer. He is working as Operator on Pumping Station at village Gufaniya, Tal. Lathi. It is an essential service of a permanent nature and he is discharging his duty from 8.00 p.m. to 8.00 a.m. In the beginning the opponents were taking work for 12 hours per day from him, but paying the wages only for 8 hours and since last 3 years he is paid fixed salary. He is not paid the regular wages and other benefits given to other permanent work-charge employees, though he is doing the same work. He was threatened by the opponents and their subordinates of termination from service if such demand is made. Similar threat was given to other workmen also. Since 9.10.1991 the respondents are taking work for 12 hours per day from him, but paying wages for only 8 hours and thereby the opponents have committed breach of the provisions of the Minimum Wages Act. He was also not given any holiday or off day and the opponents were taking the work from him for 30 days and paying the salary of 29 days. However, since last 3 years he is given all public holidays, but no wages are paid for the overtime. Along with him 42 other workmen are working as Pump Operator, Line man, Chowkidar, etc. From them also the opponents are taking work for 12 hours per day, but paid wages for only 8 hours. They have also filed separate Recovery Applications before the Labour Court. He has claimed Rs.54,606.15 ps. towards overtime work for the period from 9.10.1991 to 31.5.1995. There is no written order of his appointment. He was appointed by an oral order. Totally false and vague reply is filed to his Recovery Application by the opponents. His services is an essential service of supplying water for which the presence of workmen is required for 24 hours. There is only one reliever to relieve him from work and he has to work for 12 hours per day. Earlier also he was working for 12 hours in a day and presently also he is working for 12 hours in a day. There were no shifts in the past. By committing the breach of the provisions of Minimum Wages Act he is paid the salary for only 8 hours per day, therefore, he has filed Recovery Application and claimed wages for overtime. He was cross examined by Advocate Shri Gandhi for "the Board". In his cross he denied that the work of supplying water in villages continued only for 2 to 3 hours in a day and work of filling tanks is of 5 to 7 hours. However, he admitted that he had not made any Application in writing "the Board" about any such threat of dismissal from service given to him by the opponents. From his cross it appears that he is working as Pump Operator supplying the water to the villages and the said work must be of 2 hours in a day and work of filling tanks must be of 5 to 6 hours in a day. It is clear from his admission that he never made any complaint in writing to anyone about taking work for 12 hours of him. Therefore, it is not possible to believe that he had made oral complaint to the then Executive Engineer about taking work of 12 hours per day. He has not named the officer, who gave him threat. No other details like place, time and date, etc. are also given by him regarding such so called threat. ##. From the perusal of the averments made in all the 43 applications one thing is clear that all the 43 workmen claimed that right from the day one of joining their services the opponent Board was taking 12 hours work in a day from them, irrespective of the fact whether they joined service in 1989, 1990, 1991 or 1992 till 31.5.1995 and no wages for overtime were paid to them. One can understand that a person in service may not complain for some time but it is not possible that all would not make complaint in writing for so many years only because threat of termination. Unfortunately, neither the Labour Court nor the learned Single Judge of this Court considered this aspect as well as the evidence and the Labour Court has wrongly jumped to the conclusion that all the workmen were working 12 hours per day, but paid the salary for only 8 hours per day, therefore, they were entitled for overtime of 4 hours per day. ##. In the instant case, on behalf of the Board, Shri Suresh Chauhan, Deputy Executive Engineer was examined at Ex.27. He stated in his evidence that because of the power failure some hours are wasted and some time the workmen had to work more for supplying the water as the supplying of water is an essential service and, therefore, the workmen had to work little more on that particular day. But, that does not mean that he admitted in his evidence that they were taking 12 hours work everyday from the workmen as held by the Labour Court. He has specifically stated in his evidence that duty of Valveman is only for 3 hours for the same purpose. Some time water is supplied for 4 hours and some time for 5 hours but it is not necessary that the duty hours of Valveman and Lineman are of 8 hours. The post of Chowkidar is at the Headquarter, Dam site and village and at all the 3 places Chowkidars were there and they have to discharge different duties during day and night time and Pumping Stations were working during 2 shifts and dailywager were not entitled for benefit of holidays. Unfortunately, the Labour Court has completely misread this evidence and came to a perverse finding that it is proved from the evidence of workman-Ketan Pandya and Dy. Executive Engineer, Shri Chauhan that the workmen were working for 12 hours per day instead of 8 hours per day and paid salary for 8 hours, therefore, they were entitled for overtime of 4 hours per day. ##. It may be stated that before approaching the Labour Court by way of Application u/s.33C(2) of the I.D.Act they had first approached this Court by way of writ petition for regularization in service and also against their apprehended termination from service, but the said petition was withdrawn and, thereafter, they approached the Labour Court by way of Application u/s.33C(2) of the I.D.Act instead of raising dispute before the Labour Court by way of reference under Section 10 of the I.D Act. ##. Before the Labour Court it was submitted by the "Board" that it had no jurisdiction to straightaway entertain the applications under Section 33C(2) of the I.D.Act without pre-adjudication of their claim regarding over time wages. It was also submitted that out of 43 workmen only one workmen, Shri Ketan Pandya, working as Pump Operator was examined and his evidence was wholly unreliable. As against that there was an evidence of Shri Suresh Chauhan, Deputy Executive Engineer of "the Board", who has clearly stated that "the Board" was not taking over time work from any of the workmen. It was, therefore, submitted before the Labour Court by "the Board" that even if the Labour Court comes to a conclusion that application under Section 33C(2) filed by the workmen regarding the claim of over time wages are maintainable without pre-adjudication of their claim even then there is no reliable evidence led by the workmen to show that they had worked over time for several years. ##. However, the Labour Court by its impugned common judgment and award came to the conclusion that direct applications under section 33C(2) of the Industrial Dispute Act filed by the workmen without pre-adjudication of their claim regarding over time wages, were maintainable and it has further held that the work was of essential nature and it was proved from the evidence of workmen, Shri Ketan Pandya that all 43 workmen were working 12 hours instead of 8 hours per day, therefore, there was no reason to deny the relief claimed by them regarding over time wages of 4 hours per day for the period during which they had worked. The Labour Court also held that the workmen had pre-existing right and that they had worked over time for which no wages were paid for which they were entitled under the Minimum Wages Act. Therefore, there was no need of prior adjudication of claim in their cases. ##. Before the learned Single Judge it was contended by the learned counsel for "the Board" that the Labour Court had no jurisdiction to straightaway entertain applications under Section 33C(2) of the Industrial Dispute Act without pre-adjudication of their claim by the competent authority or the court. It was also submitted that even if the court comes to a conclusion that the applications under Section 33C(2) were maintainable without pre-adjudication of their claim then also there was no reliable evidence on which the Labour Court could have passed the award in favour of the workmen as except Pump Operator, Shri Ketan Pandya no one was examined on behalf of other 42 workmen. It was also contended before the learned Single Judge that the Labour Court had completely ignored the evidence of Shri Suresh Chauhan, Deputy Executive Engineer of "the Board", who has in clear terms stated that none of the workmen worked overtime. It was also submitted that the finding recorded by the Labour Court that the workmen worked for 12 hours instead of 8 hours per day and paid salary of 8 hours is absolutely perverse. ##. However, on behalf of respondents-workmen Shri Pathak, learned counsel submitted before the learned Single Judge that the right of the workmen to recover overtime wages was statutory right under sections 13 and 14 of the Minimum Wages Act and Rule 25 of the Rules. He also submitted that the workmen had pre-existing right, therefore, without pre-adjudication of their claim the Labour Court was right in entertaining direct applications under Section 33C(2) of "the Act" and decided it in favour of the workmen as there was sufficient evidence in the form of evidence of workman-Shri Ketan Pandya. Shri Pathak had also submitted before the learned Single Judge that there was no delay on the part of the workmen in approaching Labour Court under Section 33C(2) of "the Act". In support of his submission he had relied upon the judgment of this court reported in 1998(2) GLH 996. Shri Pathak further contended before the learned Single Judge that under Section 33C(2) of