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TMI Blog1985 (3) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... s and 8 hours on Friday. Thus the total working hours per week remained constant at 39. The company also introduced the rate of overtime payment at 1-1/2 time the ordinary wages for work done over and above the maximum number of working hours per week as well as for working on holidays. This rate was admissible for overtime work done beyond 39 hours per week but this was subject to an important condition that whenever the total working hours exceed either 8 hours per day or 48 hours per week, the employees were entitled to overtime at twice the ordinary wages as mandated by Sec. 31 of the Act. (3) State Bank of India ( Bank for short), the appellant in the second batch of appeals, paid overtime allowance at the rate as awarded by the National Industrial Tribunal (Bank Disputes) popularly known as Desai Award. The Tribunal fixed the working hours not exceeding 6-1/2 hours a day from Monday to Friday and not excluding 4 hours a day on Saturday. After thus fixing working hours at 36-1/2 per week, the Tribunal proceeded to give direction about rate of overtime allowance admissible to the employees governed by award. Modifying the rates as awarded by the Shastri Award, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se at 1-1/2 times the ordinary wages and what became payable as per the Courts order was directed to be paid to each employee. (8) The Bank and the company filed in all five writ petitions questioning the correctness of the two common orders made by the two Labour Courts, under Art. 226 of the Constitution in the High Court of Judicature at Madras. All the five writ petitions came up before a learned Single Judge of the Madras High Court who was of the opinion that there was a conflict in the matter of interpretation of Secs. 14 and 31 of the Act in two decisions of the same court being (i) Railway Employees Co. v. Labour Court (1960) II LLJ 215 and (ii) K.P.V. Shaik Mohd. Rowther Co. v. KS. Narayanan (1972) 11 LLJ 385 and therefore he referred the petitions to a Division Bench. All the writ petitions were accordingly heard by a Division Bench of the same High Court. (9) The High Court took notice of the t act that the Act does not define overtime work which according to the High Court means work done beyond the normal working hours in any establishment to which the Act applies. The High Court then proceeded to observe that the proviso to Sec. 14(1) only lays down that ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he establishments of the employer in each case situated in Tamil Nadu State for overtime work done in excess of the prescribed number of working hours by the employer and up to the number of working hours statutorily permitted. Tn other words, what ought to be the rate of overtime allowance for the work done in excess of 39 hours per week in the case of the company and 36 1/2 G hours per week in the case of the Bank and up to 48 hours per week in each case. (11) At the outset let us notice the relevant provisions of the Act. Sec. 14 provides for daily and weekly hours of work. It reads as under: 14. Daily and weekly hours of work-(I) Subject to the provisions of this Act, no person employed in any establishment shall be required or allowed to work for more than eight hours in any day and forty-eight hours in any week: Provided that any such person may be allowed to work in such establishment for any period in excess of the limit fixed under this sub-section subject to payment of overtime wages, if the period of work, including overtime work, does not exceed ten hours in any day and in the aggregate fifty-four hours in any week. Sec. 31 prescribes rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... week would constitute normal working hours. Anything in excess of 8 hours a day but not exceeding 10 hours a day and 48 hours a week and not exceeding 54 hours a week will constitute overtime work. This becomes clear from the language used in the proviso when it says that the bar imposed by sub-s. (1) of Sec. 14 may be breached to the extent provided in the proviso. The expression used is that no such person meaning thereby that person, who would be required to work 8 hours a day or 48 hours a week, may be allowed to work in excess of that limit subject to payment of overtime wages. 8 hours a day and 48 hours a week constitute normal time of work at ordinary wages and any work in excess of the time prescribed for work would attract the liability to pay overtime wages. Undoubtedly, the High Court was right in saying that the expression overtime is not defined in the Act but when Sec. 14(1) prescribes permissible hours of work both daily and weekly and makes it obligatory to pay overtime wages for work in excess of the permissible hours of work, the expression overtime renders itself easy of understanding. Overtime work attracts the liability of paying overtime wages. (13) O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic provision simultaneously carving out an exception to Sec. 14(1). The proviso first permits work in excess of the prescribed number of the hours but it is hedged in with the condition to pay overtime wages. The expression such person in the proviso refers to person who is required to work for eight hours a day and forty-eight hours a week. The expression such establishment in the proviso would indicate that establishment which has prescribed the working hours as set out in the main part of the section namely, 8 hours a day and 48 hours in a week. In such an establishment overtime work for such a person would only be that work which would be done in excess of either 8 hours a day or 48 hours a week. Such overtime work has to be compensated at the rate prescribed in Section 31 which provides that there any person employed in an establishment is required to work overtime, he shall be entitled in respect of such overtime work to wages at twice the ordinary rate of wages. The expression such overtime can refer to one contemplated by the proviso to Sec. 14(1) and no other. Reading sections 14 and 31 together, a scheme emerges. The statute first puts an embargo on the power of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understood and interpreted in the light of the provision contained in Sec. 14(1) r read with its proviso. (17) By reference to the statutory provisions and unhampered by precedents, it becomes clear that when normal working hours as permitted by Sec. 14(1) are prescribed by an employer for his employees working in the establishment to which the Act applies, wages for work in excess of such prescribed hours of work will have to be paid at the rate prescribed in Sec. 31. The framers of the statute provided the whole scheme by first putting an embargo on the maximum number of working hours payable at ordinary rates and then permitting overtime work up to the ceiling, simultaneously making it obligatory to pay overtime wages at the rate F prescribed in the very statute. (18) The next question then is: where the employer prescribes working hours less than the maximum permissible in the statute, does he incur the obligation to pay overtime wages at the rates prescribed in the statute ? If the employer were to contend that even though it has prescribed normal working hours less than that permitted by the statute, and therefore, it would not be liable to pay any overtime wages for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied upon. But as the employer has prescribed total working hours at 39 hours per week, any work taken in excess of the prescribed hours of work would be overtime work and that if as contended by the employer, that it was entitled to take any such overtime work at ordinary rate of wages, it would be paying no extra compensation at all for the work done beyond the prescribed hours of work and the company would be in that case indirectly increasing the hours of work and consequently alter its conditions of work. This extreme argument was rejected and the Court upheld the award of the Tribunal that for the period in excess of the prescribed working hours and up to the ceiling of 48 hours. the employer would be liable to pay overtime wages at the rate of 11/2 times the ordinary wages and dearness allowance payable to them. Let it be noted that court did not interfere with the award by saying that once overtime work is taken irrespective of maximum fixed in the statute, the statutory rate would be attracted. Undoubtedly, therefore, this decision supports the submission that where the employer prescribed working hours per day or total number of hours of work per week less than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such permissible hours of work and also makes it obligatory to pay overtime wages and prescribes rates, it can only mean work in excess of the maximum hours of work permissible under the statute which alone would attract the rate of payment for overtime work. Such overtime work in Section 31 would and could only mean overtime as understood in the proviso to Section l4(1) which has reference to maximum hours of work permitted by Section 14(1). This is how the statute has to be read as a whole. (21) We must not be understood to say that where the statute prescribes maximum number of daily and weekly hours of work and the employer prescribes less than the permissible hours of work, work taken in excess of such prescribed number of hours will not be over-time work, or that the employer would not be liable to pay wages for such work at a rate higher than the ordinary wages. An attempt to so contend was made before this Court in Indian Oxygen Ltd. vs. Their Workmen. That contention was repelled and this Court held; If the company ware asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours, but not exceeding 48 hours a week, it would be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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