1. This application raises an interesting point of considerable importance and the facts out of which it arises may be briefly stated as follows.
2. The petitioner is a local authority, being the Municipal Corporation of Greater Bombay and respondents 2 to 144 (hereinafter referred to as the respondents) are clerks employed in its different departments. The last general elections to the State Legislative Assembly and the House of the People were held on 25 February, 1962 which happened to be a Sunday. Prior to those elections the Collector of Bombay wrote to the municipal commissioner on 26 December, 1960 requesting him.
'to spare the maximum possible number from the staff in various branches of the corporation to work as presiding officers.'
3. The request was made under S. 159 of the Representation of the People Act, 1951. By the same letter the Collector requested the municipal commissioner to supply
'an exhaustive list of the maximum number of persons that could be mustered from all the branches of the corporation,'
showing their grades of pay, etc. On receipt of the letter the municipal commissioner directed the heads of the different departments to furnish directly to the Collector the information asked for by him and the information asked was accordingly furnished. Further information such as residential addresses, designations, etc., of those who could be spared, was thereafter asked for on 20 March, 1961 and was supplied in due course.
4. To those members of the staff whose names were thus communicated, the Collector issued orders of appointment and forwarded them along with his letter dated 6 January, 1962 to the municipal commissioner for being handed over to the persons concerned. The Collector also requested the municipal commissioner to instruct those persons to attend training classes and rehearsals and not to sanction leave to any of them on those dates. A further request to send the names of persons who could be appointed as substitutes for those who might be required to remain absent on account of unavoidable circumstances, was made by the same letter and this information also was supplied by the municipal commissioner in due course. The orders of appointment were handed over to the persons concerned and the respondents are some of the municipal employees who were thus appointed by the Collector for election duty.
5. Respondent 145 is a trade union of subordinate municipal staff of the petitioner corporation of which respondents 2 to 144 are members. On 31 January, 1962 the general secretary of this union wrote to the municipal commissioner saying :
'The employees covered by the membership of the union are without any exception covered by the provisions of the Minimum Wages Act, 1948, and the rules framed thereunder.
Rule 33 of the Bombay Minimum Wages Rules, 1951, provides for the weekly holidays. The awards in reference I.T. No. 176 of 1960 by the learned tribunal, Sri S. Taki Bilgrami, has given the benefit of one and a half times wages for working on a weekly off along with the substitute holiday.
The work which the clerical and allied staff shall be called upon to perform on 25 February, 1962 does not fall under the scope and limits to be performed by the employees of the municipal corporation. The work on that day either shall have to be treated as work on foreign deputation or shall amount to working on weekly offs. Without clarification on this point it shall not be possible to the union to give clear instructions regarding working on that day to its members.
I shall, therefore, request your to please clarify the position as early as possible. In the event of your silence on the point the union shall treat the work as overtime work on a weekly off and shall proceed to collect the wages in accordance with the Act and the award. However, the undersigned is willing to meet you to discuss this matter without any commitment on either side.'
6. In reply to this letter the municipal commissioner wrote on 7 February, 1962 saying :
'Election duty for which appointments of staff have been made under S. 26 of the Representation of the People Act, 1951, is neither municipal work nor work on foreign service (deputation) as contemplated under the Municipal Service Regulations. Provisions of S. 159 of the above Act, which run as under, are mandatory giving no choice to the local authorities.'
7. After quoting S. 159 of the Representation of the People Act, 1951, he added :
'Thus duty performed at the elections does not constitute overtime work for the municipality for which overtime payment under the award or the Minimum Wages Act would ordinarily accrue. Such being the position, you will appreciate that the municipal administration will not be in a position to pay any overtime. The Collector has informed me that some remuneration will be paid to the persons drawn from election duty.'
8. After the above correspondence the representatives of the union had an interview with the municipal commissioner at which the question was discussed between them and on 16 February, 1962 the municipal commissioner again wrote to the honorary general secretary of the union saying :
'In continuation of the letter dated 7 February, 1962 and in confirmation of the views expressed in my interview, I have to confirm the statement that the provisions of the Minimum Wages Act and the rules framed thereunder, and the award of the industrial tribunal, Sri Bilgrami, have no application to this case and it is S. 159 of the Representation of the People Act that is applicable under which it is incumbent on the local authority to make available for election work such staff as may be required, in pursuance of which services of municipal staff have been requisitioned and made available for election work.
In view of this, I have to reiterate you that the staff is not entitled to claim any weekly off or overtime wages from the municipal corporation. You will, however, be entitled to receive and keep such remuneration as may be paid for such election work. I also confirm that I have agreed to grant two hours' rest on 26th instant to the members of the municipal staff who had been on election duty.'
9. The general secretary of the union on the other hand wrote to the municipal commissioner on 17/19 February, 1962 reiterating the point of view of the union and saying :
'The vice-president of the union had at the time of the interview drawn your pointed attention to the fact that the work on the election day can be only at your instance and not otherwise. You also agreed to make that position clear in writing to the union and hence the letter dated the 16th instant from you.
With due respect to your contentions in Para. 2 of this letter under reply I submit that it can be only at your instance that the municipal staff shall work on the weekly off. You have stated in your reply that it is incumbent upon you to make your staff available for election work and that the services of the municipal staff have been requisitioned and made available for election.
Thus it is at your instance that the municipal staff is made available for election work. It is my humble submission that you could not made the services of the municipal staff available to any one on the weekly off day as on that day you have municipal staff to make available. You are thus making our services available by making us work on a weekly off and this position cannot escape the provisions of the Acts and awards.
I have thus to inform you that I am directing the members of the union, whose services are made available to you on the election day to attend to the election duty and that the clerical staff shall attend to that duty without prejudice to any of their claims for substitute off and/or overtime payments as in law you are the employer and hence responsible for all the benefits accruing to us under any labour legislation or award.
I shall, therefore, take such steps as are advised at the proper time, which please may be noted.'
10. The correspondence between the union and the municipal commissioner ended with a letter dated 24 February, 1962 from the municipal commissioner which was a reply to the union's letter of 17/19 February 1962. In that letter the municipal commissioner again reiterated his point of view saying that he had fully explained the same to the representatives of the union at the interview on 10 February, 1962 and stated :
'As regards the contentions raised in Paras. 3 to 6 of your letter, it may be stated that under the provisions of the Minimum Wages Act and the rules framed thereunder, the award of the industrial tribunal, Sri Bilgrami, have no application to this case. In view of the said provisions, I have to inform you that the municipal staff is not entitled to claim any weekly off or overtime wages. As lead down in S. 159 of the Representation of the People Act, 1951, the local authority is required to make available such staff as may be necessary with the general elections. In this connexion I may invite your attention particularly to S. 134 of the Representation of the People Act, 1951, which provides penal clause for breach of official duty in connexion with the elections. As already stated, I agreed to grant two hours' rest to the members of the municipal staff who had been on election duty.'
11. We have set out above the contents of the correspondence between the parties at some length to show that before the day of the election each party clearly understood the stand of the other and there was no question of any misunderstanding or misapprehension.
12. After the aforesaid correspondence the members of the municipal staff who had been appointed by the Collector for election duty worked on 25 February, 1962 and were allowed two hours' rest the next day as agreed to by the municipal commissioner. They also received and retained the amounts (Rs. 8 for each presiding officer and Rs. 5.50 for each polling officer) paid to them by Government for the election work done by them. Respondents 2 to 144 thereafter filed separate applications purporting to be under S. 33C(2) of the Industrial Disputes Act, 1947, before the first labour court at Bombay alleging that they were entitled to the benefit of payment of one and a half times wages whenever called on work on weekly off days along with a substitute weekly off under the award in reference I.T. No. 176 of 1960 and to payment of one and a half times wages for any overtime work put in by them over and above the regular hours of work on any day under the award in reference I.T. No. 87 of 1951, that on 25 February, 1962 which was a weekly off for them they were required to work for the general elections for twelve hours from 7 a.m. to 7 p.m. that they were not given any substitute weekly off and that, therefore, they were entitled to benefit of payment at one and a half times their wages for 19 1/2 hours in all. They alleged that their employer, that is the municipal commissioner, had not granted to them the said benefit which was capable of being computed in terms of money and prayed that it be computed and the amount payable to them be determined and recovered under S. 33C(2) of the Industrial Disputes Act, 1947.
13. The petitioner-corporation contested the applications, the principal contention raised by it being that the respondents were not entitled to claim from the corporation any remuneration or benefit for the work done by them on 25 February, 1962 in connexion with the general elections. They were appointed to do that work by the Collector of Bombay by his order dated 30 December, 1961 and remuneration at the rate of Rs. 8 for each presiding officer and Rs. 5.50 for each polling officer had been paid to them by the Collector for that work. On that particular day the respondents were requisitioned by the Government of Maharashtra as per order of the Collector of Bombay and were, therefore, to any benefits under the awards mentioned in their applications. They were not required to work on 25 February, 1962 for and on behalf of the corporation nor were they working on that day under the conditions of service of the petitioner corporation. Under S. 159 of the Representation of the People Act, 1951, it was obligatory on the corporation to make the necessary staff available for performing duties in connexion with the election and by acceptance of the orders from the Collector of Bombay and by the operation of law in that behalf the respondents established direct contract with the State Government. Under the said orders they were for all intents and purposes servants of the State of Maharashtra at all times material to their claims. The liability, if any, will be that of the State of Maharashtra and the State of Maharashtra was, therefore, a necessary party to the applications. Some other technical contentions were also raised but we are not now concerned with them.
14. The learned presiding officer, first labour court, Bombay, consolidated all the applications and heard them together. He rejected the contentions of the petitioner-corporation, determined Rs. 5,516.19 as the total amount due to the respondents along with Rs. 250 as costs of the proceeding and issued certificate under S. 33C(1) of the Industrial Disputes Act, 1947, for recovery of the same. The petitioner-corporation has, therefore, come to this High Court under Arts. 226 and 227 for a writ of certiorari to quash and set aside that decision and certificate.
15. The main contention urged before us by Sri Phadke, the learned counsel for the petitioner-corporation, is that on the day of the elections the relationship of master and servant between the corporation and the respondents had ceased to exist. The respondents were the servants of the State on that day and hence the corporation was not liable to pay overtime wages to them for work done by them on that day. He based his argument on the undisputable fact that in the discharge of their duties in connexion with the elections, the respondents were entirely under the control of the election authorities both as regards the work to be done and the manner of doing it. The corporation had nothing whatsoever to do with that work. In support of his argument Sri Phadke relies on Donayan v. Laing, Wharton and Down Construction Syndicate, Ltd. (1892) 1 Q.B. 629; Mersy Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. 1947 A.C. 1; D. C. Dewan Mohiddin Sahib & Sons v. United Bidi Workers' Union, Salem 1964 II L.L.J. 633 and Shivnandam Sharma v. Punjab National Bank, Ltd. : (1955)ILLJ688SC .
16. Sri Desai for the respondents on the other hand contended that direct relationship as in a contract of service between the respondents and the Government could come into existence only by agreement or perhaps by compulsion under a statute. There had been no contract between the Government and the respondent in this case to serve for any consideration and there is no provision in law binding the respondents to serve when asked by the Collector or other election authority. They worked because they were ordered to work by the municipal commissioner. He also argued that election work was municipal work created by statute and that the test of control of the manner of doing work was not decisive for determining the existence of relationship of master and servant. For this latter apart of this argument he relied on Kirloskar Oil Engines, Ltd. v. Hanumant Laxman Bibawe : (1963)ILLJ126SC .
17. In our opinion neither of these rival contentions can be wholly accepted. There is no warrant for saying that because the respondents were working under the control of the election authorities on 25 February, 1962 the relationship of master and servant between the corporation and the respondents had ceased to exist on that day. Similarly from the mere fact that the relationship of master and servant had not ceased to exist it is not possible to infer that the work they were doing on that day was municipal work or that they were working for and on behalf of the corporation or at the bidding of the municipal commissioner.
18. The authorities relied on by the learned counsel for the parties are also of no assistance as they are cases in torts or under the industrial law and the question regarding liability for the payment of wages in the circumstances in which it arises in the present case had not arisen in any of them.
19. The decision of the present case must depend on the correct interpretation of the provisions of S. 159 of the Representation of the People Act, 1951. That section reads :
'Staff of every local authority to be made available for election work :
Every local authority in a State shall, when so requested by a Regional Commissioner appointed under Clause (4) of Art. 324 or the Chief Electoral Officer of the State, make available to any Returning Officer such staff as may be necessary for the performance of any duties in connexion with an election.'
20. The question is what exactly is meant by the expression 'shall . . . make available.' Does it mean that the local authority is required to 'lend' the service of members of its staff and place them at the disposal of the Returning Officer as services of municipal servants or does it mean that it has merely to 'spare' the necessary members of its staff and relieve them temporarily from their normal duties so that they may be available to the Returning Officer for being appointed and employed by him for election work. In the former case they would evidently be working for and on behalf of the local authority under its orders and would be entitled to receive from it wages for working on a weekly off or any overtime work put in by them in connexion with the election while in the latter case it would be equally clear that the local authority would not be responsible for making any payment to them for that work.
21. We may made it clear at this stage that we do not accept the contention of Sri Desai that the applicants were in fact ordered by the municipal commissioner to work on 25 February, 1962. No such order has been produced in the case and it is admitted that there is no order in writing. Sri Desai however relies on the commissioner's letter dated 18 July, 1962 to the Collector of Bombay of which a copy is on record. By that letter the commissioner informed the Collector of Bombay that some of the employees of the corporation who had been engaged for the general election duty had filed a test application before the Authority under the Minimum Wages Act and the union wanted to know whether the commissioner would be prepared to apply the decision in that case to all other employees without requiring them to file applications in individuals cases. He pointed out that the liability for overtime if any will have to be borne by Government and requested that the Government's view in the matter may be made known to him. What Sri Desai relies on is the opening sentence in the letter which reads :
'On a request made by you municipal staff was directed to work in connexion with the general election held on 25 February, 1962.'
22. According to Sri Desai, this is an admission that the municipal staff including the respondents was ordered by the commissioner to work on 25 February, 1962. In view of the correspondence exchanged between the union and the municipal commissioner prior to the day of the election to which we have referred in detail already and wherein the commissioner had made his position clear, he could not have intended to convey any such thing by this letter written nearly five months after the election. What he evidently meant was that the orders of appointment and the instructions issued by the Collector to those members of the staff who could be spared, were passed on to them.
23. We need not also decide whether under the law the respondents were bound to serve in connexion with the election when asked by the Collector, as all of them in fact accepted the appointment orders and worked as required by the election authorities.
24. The wording of S. 159 does not indicate that the local authority is required to do anything more than relieving from their normal duties those members of the staff whom the Returning Officer chooses to appoint for election work. The burden of making payment to those members of its staff who are appointed by the Returning Officer for election work for any overtime work which they may have to put in, would in some cases at least be very heavy indeed. Thus in the case of the petitioner-corporation we are told that respondents 2 to 144 are only some of those who were appointed as presiding and polling officers at the general elections held on 25 February, 1962. Two hundred and thirty-two others had filed applications before the Authority under the Minimum Wages Act for similar reliefs and there are yet others who have not filed any applications. We do not find anything in S. 159 of the Representation of the People Act, 1951, to suggest that the legislature intended to throw any such financial burden on local authorities.
25. Section 160 of the Act which empowers the State Government to requisition premises, vehicles, etc., for election purposes, makes provision for payment of compensation to the owners, which shows that all expenses in connexion with the holding of the elections are to be ultimately borne by the Government. If the local authority was expected to bear the burden of paying overtime wages to its employees in the first instance, we should have expected some provision in the Act of compensate it for the same. There is however no such provision.
26. We are accordingly of the opinion that S. 159 of the Representation of the People Act, 1951, requires a local authority merely to spare the necessary number of its staff and relieve them temporarily from their normal duties so that they may be available to the Returning Officer for being appointed and employed by him for election work.
27. The petitioner-corporation is not therefore liable to make payment to the respondents for overtime work put in by them on the day of the general election, i.e., on 25 February, 1962, or to give them a substitute weekly off.
28. In this view of the matter, it is unnecessary for us to deal with the other points urged by Sri Phadke, viz. -
(1) whether wages payable to municipal employees under the Bombay Municipal Corporation Act are payable for election work;
(2) whether the labour court has jurisdiction under S. 33C of the Industrial Disputes Act to make a direction of the kind asked for by respondents;
(3) whether the corporation is not entitled to credit for the payments actually made by the Government to the respondents; and
(4) whether payment, if any, for this overtime work must be on the basis of the minimum wage under the Minimum Wages Act or on the basis of the actual wages earned by them.
29. Although the respondents 2 to 144 had not joined the State as a party to their original applications, the petitioner-Corporation made the State a party (respondent 146) to this special civil application but the stand taken by the State is that by an executive order the Government had paid to the persons employed for election work whatever was thought proper and there is no liability on it to pay anything more the them.
30. The result, therefore, is that the application succeeds and the rule is made absolute. The order of the presiding officer, first labour court, Bombay, and the certificate issued by him are quashed and set aside and the original applications of respondents 2 to 144 are dismissed. In the circumstances of the case there will be no order as to costs throughout.