Case: Oil &amp; Natural Gas Commission Vs. The Workmen

1. This is an appeal by special leave from the Award of the National Industrial Tribunal, New Delhi dated November 18, 1971. While granting special leave on February 24, 1972, this Court directed that costs of the respondents should in any event be paid by the appellant(1) Whether the demand of the workmen that the Oil and Natural Gas Commission, Baroda, should stop the extra hours of work which is being taken from the office/administrative staff in workshop and fix their working hours on the lines of those of the office staff of the Commission is justified ?(2) Whether the demand that the Commission should pay compensation to the administrative staff for the extra hours of work taken from them from June, 1965 at the overtime rate or pay factory allowance at the rate of 20 per cent of the pay to the office/administrative staff, who have been asked to work for 8 hours from June, 1965 is justified ?(3) If so, to what reliefs are the workmen entitled ?As a result of the retirement of Shri Kamal Sahai, the Central Government on December 10, 1970 referred the said dispute to the Tribunal presided over by Mr. Justice N. Chandra. On the pleadings of the parties the learned Tribunal settled the following issues for determination :"(1) Whether the demand of the workmen that the Oil and Natural Gas Commission, Baroda should stop the extra hours of work which is being taken from the office/administrative staff in workshop and fix their working hours on the lines of those of the office staff of the Commission is justified ?(2) Whether the demand that the Commission should pay compensation to the administrative staff for the extra hours of work taken from them from June, 1965, at the overtime rate or pay factory allowance at the rate of 20 per cent of the pay to the office/administrative staff who have been asked to work for 8 hours from June 1965 is justified ?(3) If so, to what reliefs are the workmen entitled ?(4) Was there a valid and binding settlement between the parties on 20th January, 1968 as alleged ? If so, is the reference beyond the jurisdiction of this Tribunal ?(5) Are the demands of the staff working in Purchase, P and D and Accounts sections and Stores Department not covered by the present Reference and beyond the jurisdiction of this Tribunal ?" Issues 4 and 5 were not pressed before us by the learned Attorney General. The principal controversy in this Court is thus confined to issues Nos. 1 to 33. The appellant, the Oil and Natural Gas Commission, has several Projects and workshops in the country. At Baroda it has a central workshop which controls all the workshops in the western region. The workmen are liable to be transferred for exigencies of service from one workshop to another as also from one region to another. At Baroda, when the workshop was under construction and there was insufficient accommodation at the site of the workshop, the office/administrative staff used to work in a shed at a distance of about 2 k.m. from the workshop. At that time the working hours of the administrative staff were from 10 a.m. to 5 p.m. with an interval of half an hour. These working hours lasted from Dec., 1964 to June 1965, when on completion of the construction at the site of the workshop the administrative staff shifted there. With this shifting of the office to the site of the factory the working hours of the administrative staff were fixed from 8 a.m. to 5 p.m. with an interval of one hour. These facts are not in dispute. The workmen claimed that working hours of the administrative staff should have continued to be 61/2 hours per day and complained that fixation of 8 hours per day with effect from June, 1965 was violative of Section 9-A of the Industrial Disputes Act (hereinafter called the Act.) It was further complained that the fixation of 8 hours per day was not justified from the point of view of convenience and was also at variance with the practice uniformly prevailing in other administrative offices of the workshops of the Oil and Natural Gas Commission4. The Tribunal, came to the conclusion that there was nothing to show that it was a condition of service of the employees in the administrative office to work only for 61/2 hours per day. There was no term to that effect in the appointment letters of employees. The contention that since the workmen had as a matter of fact been working from December 1964 till June 1965 for only 61/2 hours a day, it had become a condition of their service was also repelled. The Tribunal observed that the mere fact that while the workshop was under construction and there was not enough accommodation for the office/administrative staff in the workshop building at the site, they were accommodated in another building which worked there along with other clerks for only 61/2 hours a day for a period of six months does not mean that 61/2 hours a day was a condition of their service. The tribunal was also not satisfied that the administrative staff in all the projects of the Oil and Natural Gas Commission worked only for 61/2 hours per day. It was pointed out that in the Jammu project three persons of the administrative staff worked for 9 hours including one hours rest interval and two persons for 81/2 hours including half-an hours rest interval. In the headquarters central auto-workshop, Dehra Dun, three persons of office staff worked for 21/2 hours. Including half an hours rest interval. In the Cauvery project some clerks work for 81/2 hours including half an hours rest interval. In other projects of the Oil and Natural Gas Commission, the administrative staff is working 61/2 hours or less than 8 hours excluding rest interval. After referring to these instances the Tribunal observed that there was no uniform practice of working either for 61/2 hours only or for 8 hours, excluding rest intervals for office staff, at all places. In the opinion of the Tribunal, therefore, there was no presumption of there being any condition of service either way. On this reasoning Section 9-A of the Act was held inapplicable to the case of the workmen at Baroda5. The Tribunal next dealt with the contention that the change in the hours of work was not justified from the point of view of convenience and that the workmen being transferable all over the country and the pay scales being similar, hours of work in the Baroda workshop should not have been changed from 61/2 hours, including half an hour rest interval to 9 hours, including rest interval for one hour. It was successfully contended by the workmen that though under the Factories Act the workmen may be asked to work for 48 hours a week or 8 hours a day, it does not necessarily follow that the clerical staff should also be made to work 8 hours a day when they had been working for only 61/2 hours a day from December 1964 to June 1965. Emphasis was laid on behalf of the workmen on the submission that industrial law recognises the distinction between workers in factories and workers in offices. This approach found favour with the Tribunal. The workmen further contended that the management had wrongly claimed that work in the factory would suffer by reducing the working hours of the clerical staff from 8 hours to 61/2 hours. The Tribunal also agreed with this submission, basing its conclusion on the evidence of Shri S. Hassan (M. W. 1). In the case of time-keepers and the store-keepers, however, the Tribunal felt that reducing the working hours in their case would prejudicially affect the working of the factory. The contention on behalf of the management that change in the working hours of the clerical staff from 8 hours to 61/2 hours is likely to give rise to dissatisfaction among other workers was repelled on the ground that in case of two projects, namely. Cambay and Navagaon, the working hours of the clerical staff were less than those of the technical staff. According to the Tribunal the technical staff generally works for 8 hours a day while the clerical staff in many projects of the workshop itself work only for 61/2 hours a day6. Dealing with issue No. 2 the Tribunal observed that compensation at the rate of 10 % of pay to the office administrative staff (excluding time-keepers and store-keepers) was justified for the period for which they were made to work for 8 hours a day.

Court's reasoning:
8. In our opinion, on the facts and circumstances of this case it cannot be said that 61/2 working hours a day was a term of service, for the simple reason that it was only during a period of the first six months. when the factory was being constructed at the site of the workshop that due to shortage of accommodation, the administrative office was, as an interim arrangement, temporarily located in tents at a place about 2 k.m. away, that the staff in this office was not required to work for more than 61/2 hours per day. There is no evidence that 61/2 hours per day was a condition of service : neither is there any such term of service in their letters of appointment, nor is such a term of service otherwise discernible from other materials on the record. As soon as the construction at the site of the factory was complete and the workshop was ready to start its normal and regular working, the administrative office was shifted to its permanent abode at the site of the factory. It was then that the proper regular working of the administrative office and its staff started at the site of the factory with working hours being appropriately fixed at 8 hours per day so as to facilitate efficient functioning of the workshop to the expected capacity12. In our opinion, there is merit in the learned Attorney Generals submission. The management must in our opinion, have full power and discretion in fixing the working hours of the administrative staff within the limits prescribed by the statute. When the change in the working hours is covered by Section 9-A read with the First Schedule of the Act, compliance with the said section would undoubtedly be necessary for its sustenance. In the present case, as already observed. Section 9-A is not attracted. When the administrative office at Baroda was temporarily located about a couple of kilometres away awaiting completion of its permanent abode, the factory was in the process of being constructed and there was no question of fixing the working hours of the administrative office on a permanent basis. Perhaps there was not even enough work for the office staff to keep them occupied for more than 61/2 hours per day. It was only when the factory was completed and the administrative staff attached to it shifted to its own building at the factory site, that the management apparently on an overall assessment of its requirements fixed 8 working hours per day. This, in our opinion, was within the competence of the management. The Tribunal was also, in our view, not right when it observed that the work in the factory would not suffer by reducing the working hours of the clerical staff in the Baroda workshop from 8 hours to 61/2 hours a day. According to the Tribunal itself Shri Hasan had stated that he did not think that working of the factory would be adversely affected if the timings of the general staff and the office staff are changed with the number of working hours remaining the same and that change of half an hour this way or that way is done at times when required. In other words the Tribunal itself did not understand Shri Hasan to refer to the regular reduction of working hours by an hour and a half on a permanent basis13. The Tribunal was also not right in saying that in other projects the working hours of administrative office are 61/2 hours. Working hours in these offices according to the material on the record, vary and there is no uniform practice. But the fact that in some of the other offices, the working hours are 61/2 hours per day, cannot be the determining factor. The office at Baroda being the controlling office its requirements and exigencies of work are such that fixing of 8 hours work a day is, in our opinion, fully justified, and the Tribunal was wrong in reducing its working hours to 61/2 hours a day. The mere fact that the staff at Baroda is liable to transfer to other projects is, in our view, of little importance. Assuming that by transfer to some other projects the employee concerned would have to work for 61/2 hours a day, that would not render the fixation of 8 hours a dayd for the administrative office at Baroda objectionable or open to interference by the Tribunal. The Tribunal has itself already observed that in the other projects the working hours in the administrative offices vary. If that is so then this could not be a cogent ground for reducing the working hours from 8 to 61/2 in the Central Office at Baroda. Once it is found that 8 hours a day has been properly fixed for work in the administrative office there can be no question of payment of any compensation, for working for 8 hours a day in the past14. The respondents learned counsel, Shri Bhandare, has submitted that this Court should not interfere with the conclusions of the Tribunal under Article 136 of the Constitution as those conclusions are based on appreciation of evidence. However erroneous they may be, according to Shri Bhandare, it is not the practice of this Court to interfere with such conclusions.In our view the Tribunal has not only made some contradictory observations about the practice prevailing in the other projects of the Oil and Natural Gas Commission but has also misread the statement of Shri Hasan (M. W. 1). It has indeed wrongly interfered with the appellants decision in fixing the hours of work which was fully within its competence and was not open to any valid objection. The conclusions of the Tribunal are, therefore, tainted with serious infirmity justifying re-appraisal of the evidence by this Court for coming to its own independent conclusion on such re-appraisal.