1. This petition has been filed by 118 workmen employed by respondent 1, the Bombay Gas Company, Ltd. The petitioners seek to challenge under Arts. 226 and 227 of the Constitution a decision given by the Bombay Small Cause Court as the appellate authority under the Payment of Wages Act.
2. The facts leading to this petition are these : Petitioners 1 to 14 are employed by the respondent-company as syphon pumpers. Petitioners 15 to 8o are the workers of the mains department of the respondent-company. These petitioners (petitioners 1 to 80) filed applications for the payment of overtime wages to the authority under the payment of Wages Act. The applications were heard and disposed of by the additional authority under that Act. Petitioners 81 to 118 are workers of the mains, heating appliances and fittings department of the of the respondent-company. They filed applications for payment of wages for weekly off days to the authority under the Payment of Wages Act these applications were heard and disposed of by the third additional authority. In both the groups of cases the claims of the workers were based on the provisions of the Bombay Shops and Establishments Act, 1948. In both the groups of cases the respondent-company contended that the workers were not covered by the Bombay Shops and Establishments Act and also that the claims made by them were barred on account of an award which was made on a reference under the Industrial Disputes Act by the industrial tribunal (Sri I. G. Thakore) on 30 March, 1950. In the cases of petitioners 1 to 80, who had applied for overtime wages, the additional authority held that the claims for overtime wages were not barred by the award, but that the applicants were not covered by the Shops and Establishments Act as claimed by them. The additional authority, therefore, rejected all the applications. Appeals were filed by these petitioners to the Bombay Small Cause Court from this order of the additional authority. In the applications filed by petitioners 81 to 118 for the payment of wages for weekly offdays, the third additional authority held that the claims were not barred by the award and that the workers could claim the rights conferred by the Bombay Shops and Establishments Act. The third additional authority, therefore, allowed the application and gave directions for certain amounts being paid to the applicants. An appeal from this order was preferred by the respondent-company to the Bombay Small Cause Court.
3. The Bombay Small Cause Court consolidated these appeals and disposed them of by a common judgment. The Court held that the petitioners were employed in a 'commercial establishment' as defined by the Shops and Establishments Act and could claim the benefit of the provisions of that Act. The Court, however, further held that the claim for overtime wages of petitioners 1 to 80 as well as the claim for wages for weekly off days of petitioners 81 to 118 were both barred by the award. Accordingly the Court allowed the appeal filed by the respondent-company and dismissed all the applications filed by the petitioners.
4. The finding of the Small Cause Court that the petitioners are employed in a commercial establishment as defined by the Bombay Shops and Establishments Act and are entitled to the benefit of the provisions of that Act was not challenged before us on behalf of the respondent-company. Sri Mistree for the respondent-company Sri Mistree told us that this finding was not challenged by him, because he believes that it is not open to the respondent-company to challenge this finding in the present petition. The only question, therefore, which we have to decide in this petition is whether the Small Cause Court committed a patent error of law in coming to the conclusion that the demand of petitioners 1 to 80 for overtime wages and the demand of petitioners 81 to 118 for wages for weekly off days are barred by virtue of the award.
5. Sri Bhandare for the petitioners told us that petitioners 91 to 96 and 98 and 99 have since been paid the wages for weekly off days claimed by them and that their grievance does not survive.
6. We will first consider whether the demand for wages for weekly off days made by petitioners 81 to 118 was barred by the award. The Small Cause court rejected this demand for a rather curious reason. After examining the relevant contents of the award, the Court observed :
'Thus the claim of the workers of the mains, services and fittings departments for wages for weekly off days was specifically considered and allowed by the tribunal in the said award, and they cannot now be permitted to re-agitate the same claim by making an application under the Payment of Wages Act. That award is still in force. It is not suggested for the workmen that there has been any changes of circumstance since the tribunal gave that award.'
7. It is common ground that petitioners 81 to 118 belong to the mains, services and fittings departments of the respondent-company. It was urged before the Small Cause Court on behalf of the petitioners that the award applied to only those workers of the mains, services and fittings departments who were in the employment of the company since before 1948, that the petitioners 81 to 118 were employed by the company after 1948, and that therefore the award did not apply to them so as to prevent them from claiming wages for weekly off days under S. 18(3) of the Shops and Establishments Act. This contention was rejected by the Court by observing :
'There does not appear to be any force in this contention, for under S. 18(3)(d) of the Industrial Disputes Act the award would be binding on all workmen who subsequently became employed in the said departments of the company.'
8. Now, what is curious about this decision of the Small Cause Court is that the wages for weekly off days which have been granted under the award to the workers of the mains, services and fittings departments are exactly at the same rate at which wages for weekly off days were allowed by the third additional authority to petitioners 81 to 118 under Sub-sec.(3) of S. 18 of the Bombay Shops and Establishments Act. That the scale of wages for weekly off days is the same under the award as well as under S. 18(3) of the Shops and Establishments Act was expressly conceded before us on behalf of the respondent-company. Under the circumstances, the proper course for the Court to adopt was to give a finding that the claim of the workers was sustainable under the terms of the award and not under the provisions of the Bombay Shops and Establishments Act, and to confirm the directions given by the third additional authority for payment to the petitioners. The Court was clearly in error in allowing the appeal of the respondent-company and setting aside the orders of the third additional authority.
9. When this position was brought to the notice of Sri Mistree, he virtually gave up the contention that petitioners 81 to 118 are covered by the award and argued, adopting the arguments which were advanced on behalf of these petitioners in the Small Cause Court, that the provisions in the award with regard to wages for weekly off days do not apply to these petitioners because they were appointed by the company after 1948. If we were to accept this contention of Sri Mistree, however, the result would be that the petitioners would be entitled to claim payment for weekly off days under S. 18(3) of the Shops and Establishments Act and the directions given by the third additional authority would have to be confirmed on that account. It seems obvious that the company has been making inconsistent pleas with regard to the claim of these petitioners. When the petitioners make the claim under the provisions of the award, the claim is resisted by the company on the ground that the petitioners were employed after 1948 and are therefore not covered by the award. When the claim is made by these petitioners under S. 18(3) of the Shops and Establishments Act, it is resisted on the ground that these petitioners are covered by the award and are not entitled to make the claim under the said Act. It is clear that, in any case, the petitioners are entitled to wages for weekly offdays; it makes no difference to them whether their claim is sustained under the terms of the award or under the provisions of S. 18(3) of the Shops and Establishments Act.
10. At the instance of Sri Mistree, however, we have gone through the relevant paragraphs of the award and we agree with the Small Cause Court that petitioners 81 to 118 are entitled to get wages for weekly off days under the terms of the award.
11. The topic of wages for weekly off days is covered by Paras. 113 to 118 of the award. In dealing with this topic the tribunal made a distinction between workers of the mains, services and district fittings departments and lamp-repairers on the one hand and other employees on the other. In the case of the other workers the tribunal pointed out that they were given a weekly offday from 1946, and that at about the same time the company and the workers' union entered into an agreement as regards the wage-scales of various categories of workers. All the workers of the company are daily-rated. The tribunal assumed that when the wage-scales of workers were fixed in 1946 'the wages must have been fixed on the basis of what their monthly income would be for 26 working days.' However, in the case of workers of the mains, services and district fittings departments and in the case of lamp-repairers, the workers of these categories continued to work for seven days a week even after the scales of wages were fixed in June 1946. It was in the years 1948 and 1949 that the weekly off was enforced in the case of these workers. Since their daily-rate was fixed on the basis of a working month of thirty days, the weekly off which was given to them was obviously a holiday without pay. It could not be said in the case of these workers that their daily-rates of wages were fixed with reference to a month of 26 working days. The tribunal, therefore, concluded :
'The demand in respect of workers of the mains, services and district fittings departments and lamp-repairers and others who were till 1948 required to work on Sundays and in respect of whom a weekly day off was introduced thereafter without any corresponding increase in their wages is granted. In respect of the rest the demand is rejected.'
12. Now, according to the stand taken before us by the respondent-company, the only reason why petitioners 81 to 118 are not entitled to payment for weekly off days under the award is that they were employed by the company for the first time after 1948. It is contended by the company that the demand for payment of weekly off days was awarded only in the case of those workers employed in the mains, services and district fittings departments who were in their employment in 1948, and not in the case of workers in the same categories of service who were appointed after 1948. We cannot accept this interpretation. It appears to us clear from Paras. 114 and 115 of the award that the tribunal allowed payment for weekly offdays, not exclusively to those individual workmen who were employed prior to 1948, but to all workmen in those categories of service where work for seven days in a week was being done till 1948 or thereafter. In this context, it is significant that the tribunal itself has used the expression 'classes of workers' in Para. 115 and 'categories of workers' in Para. 116 of the award. In the case of workmen doing the same type of work in the same department, the tribunal had no reason to allow payment for weekly off to workers employed before 1948 and deny the same payment to workers employed thereafter. Sri Mistree referred to us a supplementary award given by the tribunal on 5 July, 1951, a copy of which has been produced at Ex. C to the petition. There is nothing in the supplementary award which runs counter to what we have stated above. On the contrary, the supplementary award also says that the paid weekly off was given in the main award
'to certain categories because until recently they used to work on all the seven days in the week and earn wages for all the days.'
13. We, therefore, agree with the Small Cause Court that petitioners 81 to 118 are entitled 81 to 118 are entitled to claim payment for weekly off days on the basis of the award. That finding, as explained earlier, must lead us to set aside the decision of the Small Cause Court as far as the aggrieved petitioners are concerned and to restore the orders made in their favour by the third additional authority.
14. Turning to the effect of the award on the claim for overtime wages made by petitioners 1 to 80, we find that the tribunal has dealt with the demand for overtime wages in Paras. 119 to 126 of the award. The demand of the workers which was referred to the tribunal was that
'all work extending beyond the scheduled hours of work should be paid for at overtime rates (i.e.) double the rate of wages.'
15. In Para. 120 the tribunal observed that there would be no justification in making a distinction between workers covered by the Factories Act and workers not covered by that Act in respect of overtime payment of the workers are doing the same or similar work. The tribunal, however, went on to say that overtime wage a cannot be given indiscriminately for all types of work, 'particularly where the work is of a very intermittent nature.' Then the tribunal observed :
'I do not think, therefore, I would be justified in accepting the demand as framed and it is rejected in the general form.'
16. The tribunal then went on to consider 'several specific categories,' in respect of whom injustice was done according to the workers' union. In Paras. 121 to 123 the tribunal dealt with the demand of overtime wages to booster attendants, and made some provision in favour of that category of workers. Paragraphs 124 and 125 deal with workers of the mains department. We worker told by Sri Bhandare for the petitioners as well as by Sri Mistree for the respondent-company that all petitioners 1 to 80 belong to the mains department. Paragraphs 124 and 125 are as follows :
'124. The union has stated that workers of the mains department are made to work up to 1-30 p.m. on Saturdays while factory workers are let off at 1 p.m. Their grievance is that they were till recently also let off at 1 p.m. The union has submitted that 47 1/2 hours a week has been a very long-standing privilege of the workmen of this company and that if they are required to work for half-hour more on Saturdays they should be paid overtime at double the rate. They have also a further grievance that if the workers are required to work overtime on any working day, they are not paid overtime but let off early the next day.
125. The company has stated that schedule hours of this department have been extended to 1-30 p.m. on Saturdays since 1921 and no change should now be made. The union has failed to show that any recent changes have been made in the working hours. The demand is, therefore, rejected. As regards the other grievance the company has stated that the practice of giving time-off in lieu of overtime in the excess of schedule hours has now been discontinued. No directions in that respect are, therefore, necessary.'
17. It will be noticed that two grievances of mains the workers of the mains department were considered by the tribunal in these paragraphs. One grievance was based on their claim that they were liable to work for for 47 1/2 hours per week and were entitled to overtime wages for work in excess of that period. The tribunal negatived this demand by holding that their normal working week was of 48 hours. The second grievance of these workers was that they were given time-off in lieu of overtime, but this grievance did not survive because the company stated that the practice of giving time-off in lieu of overtime had been discontinued. Thus no decision was given by the tribunal with regard to the rate at which payment for overtime work was to be made to workers of the mains department.
18. It is clear that neither the rejection by the tribunal of the demand of overtime wages made by the union 'in the general form' nor the decision of the tribunal on the two be grievances of the workers of the mains department which have been referred to in Paras. 124 and 125, amounts to a decision of the tribunal on the question of overtime wages that has been raised by petitioners 1 to 80 in the applications which they filed before the authority under the Payment of Wages Act. In support of the decision of the Small Cause Court that this question was barred by the award, Sri Mistree relied on a sentence which occurs in Para. 126 of the award. In that paragraph the tribunal first referred to the grievance of coke supply coolies and motor drivers with regard to overtime work. At the end of the paragraph the tribunal said :
'I however recommend that where overtime work is given to workers not covered by the Factories Act, the rate should at least be the single basic wage plus dearness allowance. I do not however desire to give any general directions without knowing the nature of the work.'
19. Sri Mistree argued that by this observation the tribunal negatived the demand and of all workers not covered by the Factories Act, including the categories to which petitioners 1 to 80 belong, that they should be paid overtime at double the rate of wages. Sri Mistree further argued that the above observation amounts to a direction that such workers shall be paid for overtime their basic wage plus dearness allowance. We do not find any justification for these contentions of Sri Mistree. The observation of the tribunal was a recommendation and not a direction. No direction was given by the tribunal that workers of the company who were not covered by the Factories Act should be paid overtime wages at a particular rate. Even the recommendation was with regard to the minimum which should be paid to the workers for overtime work, and not the maximum which the workers may claim from the company under any enactment. The claim of petitioners 1 to 80 for overtime wages cannot, therefore, be held to be inconsistent with anything decided by the award. It will further be noticed that the claim for overtime wages by these petitioners is made under S. 63 of the Shops and Establishments Act and the petitioners appear to have become entitled to the protection of that Act by virtue of an amendment which was made in S. 70 of the Act in 1961 - long after the award which was made on 30 March, 1950.
20. In the result the impugned decision of the Bombay Small Cause Court is set aside. As stated earlier, petitioners 91 to 96 and 98 and 99 have been paid the wages for weekly off days which they had claimed. The orders passed by the third additional authority in favour of petitioners 81 to 118 except the petitioners mentioned above (petitioners 91 to 96 and 98 and 99) are therefore restored and confirmed. The amount, if any, due to petitioners 1 to 80 for overtime wages was not ascertained by the additional authority which disposed of their applications. Their applications are restored and the authority is directed to ascertain the overtime wages which may be due to these petitioners and pass orders accordingly. The additional authority will dispose of the applications of these petitioners with all possible expedition. The respondent-company will pay to the petitioners the costs of this petition as well as the costs in the Small Cause Court. In calculating the costs of the petitioners in this Court advocate's fees are quantified at Rs. 500.