Workmen of Bombay Port Trust Vs. The
Trust of The Port of Bombay [1965] INSC 252 (18 November 1965)
18/11/1965 HIDAYATULLAH, M.
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION: 1966 AIR 1201 1966 SCR (2) 632
ACT:
Minimum Wages Act (11 of 1948), ss. 13 and 14
and Minimum Wages (Central) Rules, 1950, rr. 24 and 25--Scope of.
HEADNOTE:
The respondent had under its control several
docks. The trustees Of the respondent introduced a two shift system of work and
that resulted in the crew working in some docks getting 4 hours of overtime in
some docks 3 hours of overtime and in others 2 hours of overtime only. In the
last category the 12 hours shift wag divided in-to 8 hours of work, 2 hours of
rest and 2 hours of overtime. The 2 hours period of rest was variable depending
on the tides or the exigencies of the work, though the crew were informed each
day what the, period of rest would be on the following day. The appellants, who
belonged to this category, complained that the breakup of the 12 hours shift
into 8 hours of duty, 2 hours of rest and 2 hours of overtime offended the Minimum
Wages Act, 1948, and that the system of variable recess did not satisfy the
requirements of rest which is the basis for fixing statutorily the hours of
work in relation to wages. The Industrial Tribunal held that the appellants
were not able to establish that the existing system of work needed any modification.
In appeal to this Court,
HELD: There was no breach of the provision of
the Minimum Wages Act and the case of the appellants could not be compared with
that of the crew working at the other docks, because, there wag no parallel in
the work of the three different sets of crew. [643 H] If an employer takes
actual work for 8 hours per day on 6 days in a week he complies with the
relevant provisions of the Act and the Rules, namely ss. 13 and 14 of the Act
and rr. 24 and 25 of the Minimum Wages (Central) Rules 1950, 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 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 predetermined periods of inaction during which the
workman is neither called upon nor expected to display physical activity or
sustained attention.[641 B-D] In the present cage the total number of hours of
work in a week was 48 (8 hours per day for 6 days). Therefore overtime was
payable beyond the period of 8 hours, for that hour or part of an hour during
which the workman was either made to work or the interval of rest was not
specified. The respondent can say that it will not take more that two hours
extra work on any day and specify the remaining two hours as the intervals for
rest; and the Trustees would not be guilty of infraction of the Act by keeping
the recess variable so long as they specify 633 in advance the recess on any
particular day. The Trustees could not be compelled to break up the hours of
work by interposing intervals for rest. [641 G-H; 643 B-C, D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 325 of 1965.
Appeal by special leave from the Award dated
September 20, 1963 of the Central Government Industrial Tribunal, Bombay in
Reference CG IT-25 of 1962.
S. V. Gupte, Solicitor-General, M.
Rajagopalan and K. R. Choudhuri, for the appellants.
C. B. Agarwala, J. B. Dadachanji, O. C.
Mathur and Ravinder Narain, for the respondents.
The Judgment of the Court was delivered by
Hidayatullah J. This is an appeal by special leave against an award dated
September 20, 1963 made by the Presiding Officer of the Central Government
Industrial Tribunal, Bombay in a reference made by the Government of India
under s. 10(2) of the Industrial Disputes Act, 1947.
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 to be :
"Whether the existing system of work of
the shore crew of the Prince's and Victoria Docks under which each shift
consists of 8 hours' normal duty, 2 hours' variable recess and 12 hours'
overtime needs any modification? The Tribunal, by the award impugned here, held
that the Union was not able to establish that the existing system of work
needed any modification.
The Port Trust had under its control several
docks.
Reference in this judgment will be made to
the Prince's 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 June 30, 1953 and the same system was extended to the Prince's and
Victoria Docks on December 15, 1953.
Previously, the shore crew at all these
places worked in a single shift and were liable to be called out at 634 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 Prince's 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
Prince's 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 artificially regulated but the
Prince's and Victoria Docks, being tidal, 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 seemed to have accepted a variable recess of two hours but the Port Trust
gave a notice under s. 9A of the Industrial Disputes Act on June 25, 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 and
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, 635 not extended to the prince's 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 Prince's
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 that 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 Prince's 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 put forward on behalf of the Trustees and the Union has appealed to
this Court.
On behalf of the Union the learned Solicitor
General has argued the case almost entirely from the legal standpoint and has
attempted to establish that the break-up of a 12 hours' shift into 8 hours'
duty, 2 hours' rest and 2 hours' overtime offends the Minimum Wages Act. He,
has in addition submitted that the system of variable recess does not satisfy
the requirements of rest which is the basis for fixing statutorily the hours of
work in relation to wages.
The Minimum Wages Act was enacted to enable
Government to fix minimum rates of wages in certain employments. Since fixation
of minimum wages must take into account the workload also, provision must not
only be made for prescribing the minimum wage but to correlate it to a
specified amount of work. Any extra work beyond the specified work-load must be
paid for at a higher or what is known as "overtime" rate.
Similarly, intervals of rest must punctuate
suitably the hours of work and they must also be provided for in a scheme of
the work-day of a workman. The Minimum Wages Act makes provision for all these
matters either by itself or through Rules. The Central Government has framed
the Minimum Wages (Central) Rules, 1950. The Act and the 636 Rules between them
provide not only for fixation of minimum wages but also for the work-load in
relation to which the minimum wages are to be prescribed. They provide on the
one hand for minimum wages, lay down the procedure for fixing or revising them
and prescribe the rules in accordance with which the wages must be paid. On the
other hand, the Act and the Rules fix the number of hours of work, payment of
overtime and for hours of rest in the work-day of the workman. The provisions
of the Act and of the Rules are applicable to some employments only and they
are shown in a Schedule appended to the Act. It is admitted that the present
workmen come under the Schedule. The hours of work and the payment of overtime
are, therefore, governed by the provisions of the Minimum Wages Act and the
Minimum Wages (Central) Rules, 1950 and the controversy in this case must be
appreciated and resolved in accordance with them. We shall now turn to these
provisions.
We are concerned with two sections and two
rules. The sections are Nos. 13 and 14 and the rules Nos. 24 and 25.
The whole of the matter in dispute admittedly
is governed by these, four provisions. We shall begin by setting out the
relevant parts of these provisions :"13. Fixing hours for a normal working
day, etc.
(1) In regard to any scheduled employment
minimum rates of wages in respect of which have been fixed under this Act, the
appropriate Government may(a) fix the number of hours of work which shall constitute
a normal working day, inclusive of one or more specified intervals;
(b) provide for a day of rest in every period
Of seven days which shall be allowed to all employees or to any specified class
of employees and for the payment of remuneration in respect of such days of
rest;
(c) provide for payment of work on a day of
rest at a rate not less than the overtime rate.
(2) The provisions of sub-section (1) shall,
in relation to the following classes of employees, apply only to such extent
and subject to such conditions as may be prescribed:(a)...............................
637 (b)................................
(c) employees whose employment is essentially
intermittent;
(d)................................
(e)................................
(3) For the purposes of clause (c) of
sub-section (2), employment of an employee is essentially intermittent when it
is declared to be so by the appropriate Government on the ground that the daily
hours of duty of the employee, or if there be no daily hours of duty as such
for the employee, the hours of duty, normally include, periods of inaction
during which the employee may be on duty but is not called upon to display
either physical activity or sustained attention." 14. Overtime.
(1) Where an employee, whose minimum rate of
wages is fixed under this Act by the hour, by the day or by such a longer wage period
as may be prescribed, works on any day in excess of the number of hours
constituting a normal working day, the employer shall pay him for every hour or
for part of an hour so worked in excess at the overtime rate fixed under this
Act or under any law of the appropriate Government for the time being in force,
whichever is higher.
(2) Nothing in this Act shall prejudice the
operation of the provisions of section 59 of the Factories Act, 1948 in any
case where those provisions are applicable." Rule 24. "Number of
hours of work which shall constitute a normal working day(1) The number of
hours which shall constitute a normal working day shall be:(a) in the case of
an adult, 9 hours, (b) in the case of a child, 41 hours.
(2) The working day of an adult worker shall
be so arranged that inclusive of the intervals for rest, if any, it shall not
spread over more than twelve hours on any day.
638 (3) The number of hours of work in the
case of an adolescent shall be the same as that of an adult or a child
according as he is certified to work as an adult or a child by a competent
medical practitioner approved by the Central Government.
(4)....................................
(4-A) No Child shall be employed or permitted
to work for more than 4-1/2 hours on any day.
(5) Nothing in this rule shall be deemed to
affect the provisions of the Factories Act, 1948".
Rule 25.Extra wages for overtime-(1) When a
worker works in an employment for more than nine hours on any day or for more
than forty-eight hours in any week, he shall, in respect of overtime work, be
entitled to wages, (a) in the case of employment in Agriculture, at one and a
half time the ordinary rate of wages;
(b) in the case of any other scheduled
employment, at double the ordinary rate of wages.
Explanation-The expression "ordinary
rate of wages" means the basic wage plus such allowances including the
cash equivalent of the advantages accruing through the concessional sale to the
person employed of foodgrains and other articles as the person employed is for
the time being entitled to but does not include a bonus.
(2) A register showing overtime payment shall
be kept in form IV.
(3) Nothing in this rule shall be deemed to
affect the provisions of the Factories Act, 1948." The controversy in the
present case is a narrow one.
It is whether the fixing of a two hours' rest
and two hours' overtime involves a breach of the two sections of the Act and
the two rules quoted here ? The workmen claim that under a scheme of 12hour
shifts with 8 hours' work, overtime should be at least 3 hours, if not 4, and
by fixing only two hours' overtime the Trustee are B guilty of the breach of
the Act and the Rules. Unfortunately the provisions of the Minimum Wages Act
and the Minimum Wages 639 (Central) Rules, 1950, are not as clear as the
corresponding provisions of the Factories Act, 1948 and they have led to long
arguments before us. We shall refer to the provisions of the Factories Act
later because for the present we must consider the provisions of the Act and
the Rules without drawing any assistance from the Factories Act.
Section 13 of the Act does not itself fix the
hours of work or 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
on,-. 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 Rule 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 it is not a period of more 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 workman is neither called upon to work
nor expected to work.
Having thus distinguished between period of
work and interval of rest we may now turn to Rule 24 which prescribes the
number of hours of work which is to constitute a normal working day. Sub-rule
(1) (a) provides that the number of hours constituting a normal working day for
an adult shall be 9. As the heading of the Rule shows these are the hours of
work. Sub-rule (2) then lays down that the working day of an adult shall be so
arranged that inclusive of intervals for rest it shall not spread over more
than twelve hours on any day. The distinction between intervals of rest and
hours of work is thus made clear. From this it follows that on any single day
the number of hours of work must not exceed 9 and together with the hours of
rest the total period of work and rest should not go beyond 12 hours. It is
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 640 Act to which reference will be made
hereafter. 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 a normal
working day and this number is inclusive of one or more specified intervals.
They read Rule 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 Rule 24. There is clear
antinomy between hours of work and intervals of rest in sub-rules (1) and (2)
of Rule 24 and the phrase 'inclusive of one or more specified intervals'
governs the normal working day and not the number of hours of work.
Under sub-rule (2) of Rule 24 the working day
of an adult can be so arranged that inclusive of intervals of rest it does not
exceed 12 hours on any day. A working day may extend to 12 hours but the number
of hours of work cannot exceed 9. A working day of 12 hours is thus made up of
hours of work and hours of rest and the number of hours of work (which cannot
exceed 9) is part of the normal working day which may also include one or more
specified intervals of rest. This determines what is a normal working day and
what is meant by an interval of rest. We now come to the question of overtime.
If work on any day is taken which goes beyond
9 hours the provisions of s. 14 apply. That action speaks of overtime. Overtime
is payable for work in excess of the number of hours constituting a normal
working day. From s.
13 read with Rule 24 we know that the number
of hours constituting a normal working day is 9. We shall now read into S. 14
this number leaving out those provisions which have no bearing upon the matter.
The section so read lays down :"Where an employee........... works on any
day in excess of 9 hours, the employer shall pay him for every hour or for part
of an hour so worked in excess at the overtime rate........... " Under
Rule 25 (1) (b) this overtime rate is double the ordinary rate of wages.
Therefore, an employer can take actual work on any day upto 9 hours in a
12-hour shift, but he must pay a double rate for any hour or part of an hour of
actual work in excess of 9 hours. He need not, however, pay for any interval of
rest provided it is specified beforehand. These provisions are subject to 641
one more check which we may now mention. The check is found in the latter part
of Rule 25(1) which says that the maximum number of hours of work in a week
shall not exceed 48 and for any work in excess of 48 hours a week overtime
shall be payable. As there is a prescribed day of rest in a week we get a
working week of six days with a maximum of 48 hours' work. Average duration 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 twelvehour 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
sustained attention.
We have seen that an employer having a
12-hour shift can fix 48 hours of work per week of six days at 8 hours per day.
He is not compelled to give overtime for the remaining four hours unless he
takes work during those hours, provided he has specified those hours as
intervals of rest. If he takes work during the extra 4 hours or fails to
specify the hours of rest he must pay overtime. He can spread 8 hours with
intervals of rest to 9, 10, 11 or 12 hours as he likes.
For the hours of rest he is not required to
pay overtime but he must specify those hours. Overtime under s. 14 is only
payable when the workman works in excess of the number of hours constituting a
normal working day. That number is 9 hours for any day and work up to 9 hours
on any day can be taken without paying overtime if the total number of hours in
the week does not exceed 48. As in the present case the total number of hours
of work in a week is 48 (8 hours per day for 6 days) overtime is payable for
that hour or part of an hour beyond the 8 hours in which the workman is either
made to work or the interval is not specified. The Port Trust can say that it
will not take more than two hours extra work on any day and specify the
remaining two hours as the intervals for rest. It is, not compelled to fix only
one interval or to make the interval of one hour only. It can fix two or three
or even four without in any way going against the provisions of s. 13 or Rule
24.
642 At this stage it is instructive to look
into the provisions of the Factories Act, 1948 dealing with the daily hours of
work, intervals for rest and spread over of the working time. Sections 54, 55
and 56 are the relevant provisions. Omitting the portions not necessary for the
purpose of comparison, these sections read "54. Daily hours.
"54.Daily hours Subject to the
provisions of section 51, no adult worker shall be required or allowed to work
in a factory for more than nine hours in any day Provided..................
"55. Intervals for rest.
(1) The periods of work of adult workers in a
factory each day shall be so fixed that no period shall exceed five hours and
that no worker shall work for more than five hours before he has had an
interval for rest of at least half an hour.
(2)........................
"56. Spread over.
The periods of work of an adult worker in a
factory shall be so arranged that inclusive of his intervals for rest under
section 55 they shall not spread over more than ten and a half hours in any
day:
Provided that the Chief Inspector may, for
reasons to be specified in writing, increase the spread over to twelve
hours." Almost the same provisions are to be found in some other Acts of
the State Legislatures controlling shops, establishments etc.
It will be noticed that the arrangement of
these sections is almost the same as the cognate provisions of the Minimum
Wages Act. Here too, the hours of work cannot be more than 9 in a day and taken
with the intervals for rest these 9 hours may be spread over 10-1/2 hours. The
only difference is that a worker must not be made to work for more than 5 hours
at a stretch before he has had an interval for rest of half an hour at the
least. There is 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 643 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 Prince's 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 Prince's
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 Prince's and
Victoria Docks there is 2 hours' overtime only. They claim equal treatment.
This is not possible. The crew at the Prince's 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 644 respect of the Flotilla
Crew. We hold, therefore, that the decision of the Central Government
Industrial Tribunal is right in a circumstances of this case. The appeal must
therefore fail. It will be but in the circumstances of the case we make no
order about costs.
Appeal dismissed.
Back
