Workmen of The Bombay Port Trust Vs.
Trustees of Port of Bombay [1961] INSC 298 (10 October 1961)
GUPTA, K.C. DAS WANCHOO, K.N.
SHAH, J.C.
CITATION: 1962 AIR 481 1962 SCR Supl. (1) 36
ACT:
Industrial Dispute-Wages-if payable for
Sunday, the "Weekly off" day on which no work was done and for Sunday
on which work was done without compensatory off day-Rate-Weekly holiday,
meaning of-Minimum Wages Act, 1948 (XI of 1948), s.l3- Minimum Wages Rules, r.
23.
HEADNOTE:
The Minimum Wages Act, 1948, and the Minimum
Wages Rules, framed there under, laid down the principle that the Government
should provide for a day of 1 est. to the workers for every period of 7 days
and also to make provisions for making some payment in connection therewith.
The dispute between the workers and employers of the present case related to
(a) arrears of wages for Sunday, the "weekly off" day on which no
work was done and (b) arrears of wages for work 37 done on Sundays which should
have been given as a weekly off day but was not so given and no compensatory
day was given in lieu thereof as contemplated under the Minimum Wages Rules. As
regards arrears of wages for Sundays on which no work was done the workmen's
case was that they were entitled to payment for each such Sunday amounts equal
to their average daily wages during the preceding week, that for the work done
on Sundays without the compensatory "off day" they were entitled to
three times the ordinary rate.
The respondent's case was that on a proper
interpretation of r. 23 of the Minimum (Wages Central) Rules, 1960, the Workmen
were not entitled to payment for Sundays on which no work was done and that in
any case they had been constructively paid for Sundays inasmuch as the daily
wages were fixed at I/26th of the monthly wages. The Industrial Tribunal
rejected all the claims of the workmen. On appeal by special leave.
^ Held, that contravention of r. 23 of the
Minimum Wages Rules was punishable under the Minimum Wages Act but the
Industrial Tribunal had no authority to impose penalty in the shape of making
the employer pay in respect of work done on Sundays something more than what he
would have otherwise 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 workmen therefore cannot get three times
the ordinary rate.
The phrase "for which" in r. 23
referred to the weekly holiday whether it was on a Sunday or on any other day
of the week as permitted under the Rules. No distinction was made between the
holiday on the first day of the week and holiday on one of the five days
immediately before or after the said day. The scheme was for one holiday in the
week and it was for that holiday that payment was provided.
Trustees of the Port of Bombay v. Authority
under the Payment of Wages Act, (1957) I L.L.J.
627, A. C. C. v. Labour Inspector, (1960) 1
L. L. J. 192 and Jaswani Sugar Mills v. Sub-divisional Magistrate, (1960) 2 L.
L. J. 373, approved.
The Central Government clearly intended under
the Minimum Wages Rules that for work on a holiday something more than what was
actually paid for six days of the week should be paid. This could not be
defeated by a statement that in form six days wages were paid, but in fact and
in substance seven days wages were paid.
The plea of constructive payment must fail.
The argument that r. 23 did not apply to the
workmen of the present case after the introduction of the piece rate scheme
introduced in this case must be rejected 38
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 529/1959.
Appeal by special leave from the Award dated
February 28, 1958, of the Central Government Industrial Tribunal Calcutta, in
reference No. Of 1957.
H. R. Gokhale, Yeshwant Chitale, Ratna Rao
and K. R. Choudhri, for the appellants.
S. T. Desai, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain, for respondent No. 1.
1961. October 10. The Judgment of the Court
was delivered by DAS GUPTA, J.-This appeal by special leave is against an award
of the Central Government Industrial Tribunal at Calcutta in a dispute referred
to that Tribunal by the Central Government under s.10 of the Industrial
Disputes Act between the workmen of the Bombay Port Trust, who are the
appellants before US and the Trustees of the Port of Bombay, the respondents in
the appeal. The workmen concerned in the dispute as referred are shore workers
belonging to "A" category, "B" category and casual
category. These three categories came into existence under the scheme adopted
by the Bombay Port Trust in April 1948 for direct employment of shore workers
in place of the system previously in force under which such labourers used to
be supplied by contractors known as Toliwallas. The matters in dispute were
specified thus in the letter of reference to the Tribunal:- "Arrears due
to the shore workers belonging to the "A" category, "B"
category and casual category in respect of (i) weekly off with pay for the
period 15th March, 1951 to 2nd March, 1956;
(ii) work on weekly off days during the
period 15th March, 1951 to 2nd March, 1956, without a compensatory day off in
lieu; and 39 (iii) average daily wages for the weekly off days after the
introduction of the piece- rate scheme with effect from 3rd March, 1956, when
the average fluctuated from week to week." It became clear at the hearing
before the Tribunal that of the period mentioned in Item (i) and Item (ii),
viz., the 15th March, 1951 to 2nd March, 1956, no "weekly off" was
given at all from the 15th March 1951 to October 1953 but workmen were made to
work generally for all the 7 days of the week, and further that from October
1953 to 2nd March, 1956, Sunday was given as the "weekly off" and no
work was taken on that day. The real dispute therefore as regards Item (i) and
Item (ii) was in respect of (a) arrears of wages for Sunday the weekly off on
which no work was done from October, 1953 to March 2 1956, and (b) arrears of
wages for work done during the period 15th March, 1951 to October, 1953 on
Sundays which should have been given as a weekly off day but was not, though no
compensatory day was given in lieu thereof.
As regards arrears of wages for Sundays on
which no work was done the workmen’s case is that they were entitled to receive
payment for each such Sunday amounts equal to their average daily wages during the
preceding week. But admittedly no payment was made for these Sundays. The
respondent's case however is that on a proper interpretation of Rules 23 of the
Minimum Wages (Central) Rules, 1960, the workmen were not entitled to payment
for Sundays on which no work was done by them and further that in any case they
have been constructively paid for the Sundays also inasmuch as the daily wages
were fixed at I/26th of the monthly wage.
The Tribunal accepted these contentions
raised on behalf of the employer and held that there were no arrears of wages
in respect of Sundays 40 for which no work was done. With regard to the period
March 15, 1951 to October, 1953 it appears the workmen except morphias were
paid at twice J the. Ordinary rate inclusive of all allowances, for all work
done on Sundays; Morphias were paid one and a half time the normal rates of
wages. The workers' case is that for the work done on Sundays during this
period they were entitled to three time. the ordinary rate. This claim was also
rejected by the Tribunal which however held that the Morphias were entitled to
double their wages inclusive of all allowances and so directed that they shall
be paid for work done by them on weekly rest days from 15th March, 1951 to
October 1953 the difference between double their wages inclusive of all
allowances and that they have been paid.
We may state at once that the dispute as
regards arrears due to workers belonging to "casual" category has not
been pressed before US 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. He tried to persuade to
that as Rule 23 of the Minimum Wages (Central) Rules required the employer to
give a weekly holiday on Sunday (unless this is given on some other day
instead) it is not right that when the employer does not comply with that
requirement he should get off with paying nothing more than what he would have
paid for such work done on any day of the week because of the Rules in respect
of extra payment for over-time work. The Minimum Wages Act, 1948 itself
contains provisions for contravention of the provisions of the Act or Rules or
orders made there under. Section 22 provides for punishment inter alia for
contravention of rules or orders under section 13. Section 22A provides for
punishment with fine 41 (which may extend to five hundred to five hundred
rupees) for contravention of any provision of the Act or of any rule or order
made there under 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 s. 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 At nor the Rules
contain any provision for such additional payment over and above what would be
payable for overtime work as such. The workmen's claim for further payment in respect
of work done on Sunday during, the period March 15, 1951 to October 1953 has
therefore been rightly rejected.
In respect of the claim for pay on Sundays
during the period October 1953 to March 2, 1956, on which no work was done we
have first to decide on the correct interpretation of the words "for
which" in Rule 23, as it stood before it was amended by a Notification GSR
918 dated the 29th July, 1960. The Rule as it stood before the amendment ran
thus:- "23. Weekly Holidays-(1) Unless otherwise permitted by the Central
Government, no worker shall be required or allowed to work in a scheduled
employment, on the first day of the week (hereinafter referred to as the said
day) except 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 which he shall receive
payment equal to his average daily wages during the preceding week.
42 Provided that the weekly holidays may be
substituted by another day:
Provided further that no substitution shall
be made which will result in any worker working for more than ten days
consecutively without a holiday for a whole day." We are not concerned
with cl. 2 of Rule 23.
The Explanation to the Rule is in the
following words:- Explanation-For the purpose of this rule "week"
shall mean a period of seven days beginning at midnight on Saturday
night." 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 8. 13 of the Minimum Wages Act that the
Government may provide for a day of rent 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 8.13) no reference has been made to
section 13 at all. In giving effect to this policy of providing for a day of rest-ordinarily
once in 7 days but in no case at intervals of more than 10 days-the rule making
authority has thought fit also to make provision for making some payment in
connection with this. Difficulty has however been caused by the unfortunate complexity
of the sentence, in which the main provision as regards the day of rest and
also the subsidiary provision for payment have been combined.
The dispute is about the meaning of the words
"for which". If one remembers the rule of grammar that what the grammarians
call the "antecedent" (that is the noun or pronoun to which a
relative pronoun relates) should be used as near as possible to the relative
pronoun, one is tempted to think that "which" relates to the word
"day" of the "said 43 day" immediately preceding the
preceding the preposition "for". Breaking up this last portion of the
rule, the rule thus analysed would be equivalent to "and for the said day
he shall receive payment equal to his average daily wages during the preceding
week". That will be however only A grammarian's construction. In the
Courts however while we have to remember the rules of grammar, because such
rules are ordinarily observed by people in expressing their intentions, we have
to look a little more closely to understand the: real intention expressed. It
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 the has or will have a holiday for the whole day
on one of the five days immediately before or after the said day." For, it
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 continue 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 interpretation.
Mr. Desai's argument on behalf of the
respondent is that '"which" relates to the word holiday and that
accordingly it is only when the workman has or will have a holiday on one of
the five days immediately before or after the said day, that he Shall receive
payment. According to him, the two phrases for the whole day" and
"one of the five days immediately before or after the said day" are
adverbial phrases modifying the verb "has" and "will have"
and no part of these phrases can have any connection with the words for
which". Leaving of these out, the rule properly analysed is, he says, in
really two portions: the first being "no worker shall be required or
allowed to work in a scheduled employment, on the first day of week";
the second being except when he has or will
have a holiday for which he shall receive payment equal to his average daily
wages during the preceding week". That 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 legislature.
The Tribunal was so impressed by the
unreasonableness of such a consequence that it came to the conclusion that no
payment will be receivable by the workmen whether the weekly rest day is given
on the first day of the week or on one of the five days immediately before or
after the said day.
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.
45 Our attention was drawn to the view taken
by the Bombay High Court in Trustees of the Port of Bombay v. Authority under
the payment of Wages Act(1) which was followed by the Madras High Court in
A.C.C. v. Labour Inspector(2) that the proper construction of the word
"for which" is to relate to word "holiday" preceding the
word" "for the whole day". In Jaswant Sugar Mills v. Sub-
Divisional Magistrate (3) the Allahabad High Court took the view that for
which" refers to the weekly holiday whether it is on a Sunday or on any
other days of the week as permitted under the Rules. In our opinion, the view
taken by the Allahabad High Court correct.
On a proper construction of the rule it must,
in our opinion, be held that the workmen of categories A and were entitled to
receive payment equal to the average wages during the preceding week" in
respect of the period October 1963 to March 2, 1956.
This brings us to the employer's claim that
there has been constructive payment for the Sundays during this period, viz.,
October 1953 to March 2, 1956. The argument is that the daily wage for these
workmen was fixed by dividing all the Components of the monthly scale of pay
and allowances by 26 so that what, a workman receives as daily wage is really
1/26th of the wage for 30 days. Thus, it is said, the total receipts for the 26
days, if no seperate payment is made for the rest days will be 26 x1/26th 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 making in
these Minimum Wages Rules made this provision for payment on a holiday it
clearly (1)1957 (1) L. L. J. 627. (2) 1960(I) L. L. J.
(3) 1960 (II) L. L. J. 373.
46 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, fieven days wages were being paid. By no
stretch of imagination can payment for six days be equated to payment for seven
days.
We have therefore come to the conclusion that
the workmen of the A and categories are entitled to arrears of wages in respect
of Sundays during the period October 1953 to March 2, 1956.
With effect from March 3, 1856 the piece-rate
scheme was introduced the shore woIkers belonging to the A" category and
B' category. Tbe essentials of this scheme are that a datum line was fixed for
the different kinds of u.ork and tl piece-rate would vary with the proportion
which the out turn of the gang bears to the datum line in the following
manner:- "For a hilt fully occupied in doing piece rate work the piece
rate wage of the basic gang worker (inclusive of basic pay and the allowance above
mentioned) shall rise uniformly from Rs. 3-1-O at 76% to Rs. 4-5-O at lOO% to
Rs 8 at 150% of the datum line.
The piece rate wage earned after 150% 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% to Rs.
12 at to at to 200% of the datum line."
The scheme further provided that:- "Rs. 3-1-0 (comprised of Rs. 1-8-3
basic was including allowances and Rs. 1-9 O dearne6s allowance) shall be the
mirlimum guar&nteed wage perday on which a gang worker is given employment;
if on any day the piece work earnings plus idle time payment andlor other
earnings under this appendix fall short of the said minimum, 47 Port Trust
shall make up the difference that day." "Rs. 3-7-0 (comprised of Rs.
1-14-0 basic wage including allowances and Rs. 1-9-0 dearness allowanance)
shall be the minimum guaranteed wage per day on which a, morpia is given
employment." 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. Gokhale's 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 his worker his
average daily wages during any week.
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 over- time. So also, in our opinion, the term daily wages as ordinarily
understood does not include over-time earnings. If it does not include overtime
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 48 per day should not be considered his daily
wages.
The piece rate system introduced for these
work-As men 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
these workmen after the introduction of the piece rate Scheme must therefore be
rejected .
As regards this period also (that is, the
period from March 3, 1956 onwards) Mr. Desai con.
tended 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, l956, we reject this plea of
constructive payment.
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.
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.
The appeal is accordingly allowed in part. In
the circumstances, the parties will bear their own costs in this Court.
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