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

The appellants are the workmen of the Bombay Port Trust, who are and have been represented in this dispute by the Bombay Port Trust Employees Union. The respondents to this appeal are the trustees of the Port of Bombay. The reference was made on a joint application of the parties and the matter in dispute was stated tothe existing system of work of the shore crew of the Princes and Victoria Docks under which each shift consists of 8 hours normal duty, 2 hours variable recess and 2 hours overtime needs anyTribunal, by the award impugned here, held that the Union was not able to establish that the existing system of work needed any modification.2. The Port Trust had under its control several docks. Reference in this judgment will be made to the Princes and Victoria Docks, the Alexandra Docks, Butcher Island and the Flotilla Crew. These represent different areas of work where different groups of workmen were employed. From the facts appearing on the record it appears that the Trustees first introduced a two-shift system of work in the Alexandra Docks on 30-6-1953 and the same system was extended to the Princes and Victoria Docks on 15-12-1953,. Previously, the shore crew at all these places worked in a single shift and were liable to be called out at any hour of the day or night. When the two shift system began, each shift of 12 hours was broken up into 8 hours duty. 2 hours variable recess and 2 hours overtime. The hours of rest were kept variable as they depended on the tides. In 1956 the workmen, who were then represented by the Port Trust General Workers Union, made a demand for a fixed recess of two hours. The Trustees apprehended that this was a device to get 4 hours overtime and rejected the demand. The General Workers Union was informed that if the demand was pressed a three-shift system would be introduced. The workmen then retraced their steps and accepted a 2 hours variable recess but requested that it should be as near the middle of the shift as possible. The Trustees agreed to accept the hours of rest at fixed hours in the Alexandra Docks but at the Princes and Victoria Docks they kept it variable agreeing to fix it as near the middle of the duty hours as possible. Under this arrangement the shore crew working at the Princes and Victoria Docks were informed each day what the period of rest would be on the following day. In explanation of this difference it may be pointed out that the Alexandra Docks work on a system of lock gates which enables the depth of water at the docks to be maintained from day-to-day except in the monsoon months when they work only at high tide. It was thus possible to fix rest hours at the Alexandra Docks for half the crew different from the rest hours of the other half so that a part of the crew was always available on hand. As the lock gates control the depth of water in the Alexandra Docks, fixed hours of rest could be maintained from day-to-day except in the monsoon months when the storm gates had some time to be closed. During these months recess time at the Alexandra Docks was also variable and was made to coincide with the closure of the storm gates. The workmen at the Alexandra Docks seems to have accepted a variable recess of two hours but the Port Trust gave a notice under S. 9-A of the Industrial Disputes Act on 25-6-1960 announcing the introduction of variable recess although in the months other than the monsoon months recess was actually at fixed hours. The workmen opposed the change from fixed to variable recess. Meanwhile studies were being made an it was found that the work hours at the different Docks were not equal; they were heavier at the Alexandra Docks than at the other docks. The Trustees, therefore, resolved that the shore crew at the Alexandra Docks should work for 8 hours and that there should be a variable recess of one hour and overtime of three hours should be paid. Thus the 12 hours shift at the Alexandra Docks was 8 hours of duty, 3 hours overtime and one hour variable recess. This system was, however, not extended to the Princes and Victoria Docks and Butcher Island. At these docks 8 hours duty 2 hours rest at variable times and 2 hours overtime were prescribed. The claim of the shore crew at the Princes and Victoria Docks and Butcher Island for reducing the hours of rest and increasing overtime to three hours was not accepted because the amount of work in the opinion of the Trustees did not justify the change. The Union contended that this division of 12 hours shift into 8 hours work, 2 hours rest and 2 hours overtime violated the provisions of the Minimum Wages Act and the so-called period of rest was illusory since, being variable, it was sometimes given right at the commencement of the shift and sometimes at the end, depending on the tides or the exigencies of the work. The Union claimed that a 12 hours shift should be divided into 8 hours work and 4 hours overtime as was the case with the Flotilla Crew. This claim was opposed by the Trustees. According to them, there was no breach of the provisions of the Minimum Wages Act. They contended that, regard being had to the number of actual work hours, the case of shore crew at the Princes and Victoria Docks and the Butcher Island could not be compared with that of the crew at the Alexandra Docks or the Flotilla Crew. The Tribunal accepted the entire case part forward on behalf of the Trustees and the Union has appealed to this Court.

Reasoning:
Section13 of the Act does not itself fix the hours of work of rest or overtime. That is done by the Rules. Section 13 only authorises Government to fix the number of hours which shall constitute a normal working day, inclusive of one or more specified intervals. The normal working day thus includes (a) hours of actual duty, and (b) one or more specified intervals. There may be one interval of rest or there may be more intervals but whatever their number, they must be specified. By interval under S. 13 is obviously meant interval of rest and this is clear from R. 24 (2). There is no definition of interval either in the Act or the Rules but the provisions of S. 13 (2) (c) read with S. 13 (3) give us an indication of what is meant by an interval of rest. It means a break in the work during which a workman, though present on duty, is not called upon to display either physical activity or sustained attention. But is not a period of mere inaction because there is no work for him. If it is the latter it is counted as actual work period: if the former, it is counted as a period of rest, provided the period is specified beforehand, and the workmen is neither called upon to work nor expected tois wrong to contend that the period of 9 hours must always include intervals of rest. It may or it may not. There is no provision in the Act and the Rules corresponding to S. 55 of the Factories Act to which reference will be made thereafter. In a 12-hour shift, the nine hours of work on any day can be spread over 12 hours and the extra hours will necessarily be hours of rest. The contention of the workmen is that S. 13 fixes the number of hours in normal working day and this number is inclusive of one or more specified intervals. They read R. 24, which prescribes a normal working day of 9 hours, as including within the 9 hours one or more intervals of rest. We do not think this is a correct reading either of S. 13 or of R. 24. There is clear antinomy between hours of work and intervals of rest in sub-rr. (1) and (2) of R. 24 and the phrase inclusive of one or more specified intervals govern the normal working day and not the number of hours ofduration of actual work payable at ordinary rate of wages per day thus comes to 8 hours. Thus if an employer takes actual work for 8 hours per day on 6 days in a week he complies with all the provisions and need not pay overtime. He may go up to 9 hours on any day without paying any overtime provided he does not exceed 48 hours in the week. He can specify the intervals of rest and spread the 8 hours or 9 hours, as the case may be, together with intervals of rest over 12 hours in a twelve-hour shift. These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him, but they must be pre-determined periods of inaction during which the workman is neither called upon nor expected to display physical activity or sustainedis no provision in the Minimum Wages Act which breaks up the hours of work by interposing a compulsory period of rest as is done by the latter part of S. 55 of the Factories Act. The reason perhaps, is that in some employments time for work depends on some extraneous factors and hours of rest cannot always be fixed to break up those hours. It is proverbial that time and tide do not wait for any man. Workers at a tidal dock must work when the tide is in and take their rest when the tide is out. It is for this reason that a variable recess is in force at the Princes and Victoria Docks and due notice of the interval is given by specifying a day in advance the hours of rest. We do not think that the Trustees are guilty of infraction of the Minimum Wages Act by keeping the recess variable so long as they specify in advance the recess on any particular day. It will also be noticed that the scheme of the Minimum Wages Act compels the inclusion of an hour of rest in a normal working day. This is achieved by prescribing that the hours of work in a six-day week shall not exceed 48, although on any particular day the hours of work in a day may go up to 9. In this indirect way one hour of rest is included in a normal working day because the total number of work hours in a six-day week cannot go beyond 48. What has not been done by the Act or the Rules is to specify that the interval for rest shall break up the hours of work. The Trustees cannot be compelled to break up the hours of work by interposing intervals for rest, if owing to the nature of the work there is difficulty in giving the intervals for rest in that manner on any particular day. According to their resolution the recess is fixed as near the middle of the work as possible, depending on the tides.The workmen compared the case of the Princes and Victoria Docks with the cases of the Alexandra Docks and the Flotilla Crew. They point out that in the former there is 3 hours overtime and in the latter there is 4 hours of overtime in the 12-hour shifts, but at the Princes and Victoria Docks there is 2 hours overtime only. They claim equal treatment. This is not possible. The crew at the Princes and Victoria Docks work in a different way and their case cannot be compared with that of the Flotilla crew or the crew at the Alexandra Docks. The Flotilla crew has to remain on duty for full 12 hours and they work as and when they are required. Although their hours of duty are only 8 they are entitled, if present for work, for overtime up to four hours. The crew at the Alexandra Docks get a specified interval of one hour for rest and this makes up their 9 hours which is 8 hours work and one hour interval for rest. They are, therefore, entitled to three hours overtime if required to work beyond the 9 hours on any day. There is no parallel in the work of the three different crew and we are satisfied that no conclusion can be based upon the practice existing at the Alexandra Docks or in respect of the Flotilla crew.