Case: Workmen Of The Bombay Port Trust Vs. Trustees Of Port Of Bombay

the wage for 30 days. Thus, it is said, the total receipts for the 26 days, if no separate payment is made for the rest days will be 26 x 1/26th of 30 days wage, that is, 30 days wage. The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government in making these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days. 15. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 1956. 16. With effect from March 3, 1956 the Piece-rate Scheme was introduced for the shore workers belonging to the "A" category and "B" category. The essentials of this scheme are that a datum line was fixed for the different kinds of work and the piece rate wage would vary with the proportion which the outturn of the gang bears to the datum line in the following manner:-"For a shift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) shall rise uniformly from Rs. 3-1-0 at 76 per cent to Rs. 4-5-0 at 100 per cent to Rs. 8 at 150 per cent of the datum line. The piece rate wage earned after 150 per cent of the datum line shall be processed at double the daily wage that is to say the piece rate wage will rise uniformly from Rs. 8 at 150 per cent to Rs. 12 at 200 per cent of the datum line." The scheme further provided that :-"Rs. 3-1-0 (comprised of Rs. 1/8/- basic wage including allowances and Rs. 1/9/-dearness allowance) shall be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earning plus idle time payment and/or other earning under this appendix fall short of the said minimum, the Port Trust shall make up the difference that day." "Rs. 3-7-0 (comprised of Rs. 1/14/basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given employment." 17. On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives varies from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhales argument is that average daily wages during the preceding week means average of the total earnings per day during the Preceding week and so there can be no difficulty in ascertaining for every worker his average daily wages during any week. 18. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working overtime. So also, in our opinion; the term daily wages as ordinarily understood does not include over-time earnings. If it does not include over-time earnings, can it reasonably be said that it includes the high additional earnings that a worker may receive by increasing his output above the minimum fixed? We do not think that to be a reasonable interpretation of the words "daily wages". At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to this workmen after the introduction of the piece rate scheme must therefore be rejected. 19. its regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26. For the reasons for which this argument was rejected in respect of the period October, 1953 to March 2, 1956, we reject this plea of constructive payment. 20. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage. 21. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. We may state at once that the dispute as regards arrears due to workers belonging to "casual" category has not been pressed before its and does not therefore require consideration in this appeal. The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already been awarded for this period to Morphias) does not also merit serious consideration, as the learned counsel for the appellant was unable to show any legal basis for such a claim.The Minimum ages Act 1948 itself contains provisions for contravention of the provisions of the Act or Rules or Orders made thereunder. Section 22 provides for punishment inter alia for contravention of rules or orders under section 13. Section 22A provides for punishment with fine (which may extend to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention. The Minimum wages Rules were made by the Central Government in exercise of the powers conferred by section 30 of the Minimum Wages Act, 1948 (Act XI of 1948)and so contravention of Rule 23 of these rules is punishable under section 22A of the Act. Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay Neither the Minimum Wages Act nor the Rules contain any provision for such additional payment over and above what would be payable for overtime work as such. The workmens claim for further payment in respect of work done on Sundays during the period March 15, 1951 to October 1953 has therefore been rightly rejected7. The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals-ordinarily once in every 7 days but in no case at intervals of more than 10 days. This was clearly in accordance with the principle laid down in section 13 of the Minimum Wages Act that the Government may provide for a day of rest for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 which covers many other matters other than the matters mentioned in section 13) no reference has been made to section 13 at allIt seems to us unreasonable to impute the rule-making authority an intention that while if the weekly rest is given "on the said day" that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day."For, if that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore that in using the words "for which" after the words the said day" the rule-making authority did not intend to confine the word "which to this "said day" but intended to relate this "which" to any of the days on which rest is given. In other words, "for which" was used as short for "and on such holiday whether on the said day or not". We do not think the rules of grammar stand in the way of this interpretationThat will however be to re-write the sentence in a manner for which we can find no justification. It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made. It will be unreasonable to ascribe such an intention to the legislature11. Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday-whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day-that under the proviso could be substituted by another day. The scheme clearly is for one holiday, generally, once in a week and it is for this one holiday that payment is provided. In our opinion, the view taken by the Allahabad High Court is correct13. On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and B were entitled to receive payment "equal to the average wages during the preceding week" in respect of the period October 1953 to March 2, 1956The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government in making these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days15. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 195618. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working overtime. So also, in our opinion; the term daily wages as ordinarily understood does not include over-time earningsWe do not think that to be a reasonable interpretation of the words "daily wages". At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to this workmen after the introduction of the piece rate scheme must therefore be rejectedFor the reasons for which this argument was rejected in respect of the period October, 1953 to March 2, 1956, we reject this plea of constructive payment20. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage21. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23.