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Panambur Vishnumurti Narayan Upadhyaya Vs. C.P. Fernandes and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2724 of 1955
Judge
Reported inAIR1957Bom64; (1956)58BOMLR799; ILR1956Bom98
ActsBombay Shops and Establishments Act, 1948 - Sections 4, 10, 11, 13, 14, 14(2), 14(3), 15, 16, 17, 18, 21, 24, 63, 63(1), 63(2) and 70; Factories Act - Sections 59
AppellantPanambur Vishnumurti Narayan Upadhyaya
RespondentC.P. Fernandes and anr.
Advocates:D.S. Nargolkar, Adv.
Excerpt:
.....therein is removed as regards delivery men:--;that if the employee established that he had worked overtime in any particular week, he was entitled to overtime wages as provided in section 63 of the act.;the limit of work for the purpose of section 14 of the bombay shops and establishments act, 1948, is entirely different from the limit of work laid down for the purpose of section 63 of the act. whereas the limit, of work for the purpose of section 14 is laid down in order to prohibit the employer from requiring an employee to make him work beyond the limit, the limit of work laid down for the purpose of section 63 5s purely for the purpose of computing overtime wages. - - 1. the petitioner is the general secretary of' the hotel mazdoor sabha, and one of the members of this..........of overtime wages would only arise when there is no prohibition against requiring a worker to work overtime, and therefore inasmuch as section 63 applies to the case of a bakery and applies to the case of the employee with whom we are dealing in this application, there does not seem to be any answer that the employer can give to his employee with regard to the payment of overtime wages when the employer has required the employee to work more than 48 hours a week.3. the reasoning of the authority in the judgment in application no. 7311 of 1955 is that'according to the explanation to section 63 the limit of the hours of work shall mean, in the case of the employees in shops and commercial establishments, nine hours in any day and forty-eight hours in any week. delivery men are exempt.....
Judgment:

Chagla, C.J.

1. The petitioner is the General Secretary of' the Hotel Mazdoor Sabha, and one of the members of this Union applied to the Payment of Wages Authority for payment of overtime wages against second opponent in respect of certain wage periods, and the case of this employee was that he had worked more than 48 hours every week and therefore had become entitled to receive wages at one and a half times the rate for such overtime every week, and in the application it was clearly stated that the claim was made under Section 63 of the Bombay Shops and Establishments Act, 1948.

This claim of the employee was rejected by the Authority and in the judgment reference has been made to Section 59 of the Factories Act and Section 70 of the Shops and Establishments Act. It Is clear from the application made by the employee that neither of these two sections had any relevance and Mr. Nar-golkar has stated before us that through some mistake or oversight the arguments advanced in some other case have been incorporated in the judgment relating to this particular period.

Ordinarily we should have sent the matter back to the Authority to consider the claim of the employee under Section 63, but Mr. Nargolkar has drawn our attention to a judgment delivered by the Authority on the 30th September 1955 in another application No. 7311 of 1955 where the question of section 63 was considered and the Authority has come to a particular conclusion, and Mr. Nargolkar wants us to hold that the view taken by the learned Authority with regard to the proper construction of Section 63 is erroneous and that we should hold that it is erroneous, so that the matter may not have to come back before us.

2. Section 63(1) of the Bombay Shops and Establishments Act provides that where an employee in any establishment other than a residential hotel, Restaurant or eating house, is required to work in excess of the limit of hours of work, he shall be entitled, in respect of the overtime work, to wages at the rate of one and a half times his ordinary rate of wages. Sub-section (2) deals with an employee in a residential hotel, restaurant or eating house. There is an explanation to this section which provides:

'For the purposes of this section the expression limit of hours of work' shall mean-- (a) in the case of employees in shops and commercial establishments, nine hours in any day and forty eight hours in any week .....'

In this particular case the second opponent is a baakery and therefore the limit of hours of work under Section 63 would be 48 hours a week, and if the employee, who was a delivery man and whose work was to deliver bread and loaves prepared by the bakery to its customers, worked more than 48 hours a week, he would be entitled to overtime wages under the provisions of Section 63(1). Schedule II of the Act, which is enacted under Section 4, exempts certain establishments from certain provisions of the Act, and the establishments and the provisions of the Act from which they are exempted are set out in this schedule and under item No. 8 the establishments are:

'Employees exclusively employed in any establishment in the collection, delivery or conveyance of goods outside the premises of any establishments', -- and undoubtedly the case of the employee before us falls under this item -- and the provisions of the Act which do not apply to this establishment arc Ss. 10, 11, 13 to 18, 21 and 24. Section 14 which is a relevant section provides: '(1) Subject to the provisions of this Act, no employee shall be required or allowed to work in any shop or commercial establishment for more than nine hours in any day and forty-eight hours In any week.'

Then there are certain exceptions to this rule laid down in sub-ss. (2) and (3) with which we are not concerned. It will be noticed that Section 14 contains a prohibition against the employment of any employee beyond a certain number of hours in a week, and it is true that by reason of Schedule II, item 8, this prohibition does not apply to a person whose work is confined to delivering goods and therefore it may be said that there was no prohibition against the second opponent employing the employee for more'than 48 hours every week,

But although the prohibition from being required to work for more than 48 hours is removed S. 63 still applies to the case of the employee. Item No. 8 in Sch. II does not provide that section 63 will not apply to the case of employees exclusively in the collection, delivery or conveyance of goods outside the premises of any establishment. Therefore, if Section 63 has application, then if the employee works for more than 48 hours a week he is entitled to the overtime provided in Section 63.

Therefore, reading Section 14 and Section 63, the position is this. If Section 14 has application then an employer cannot require any employee to work more than 48; hours a week even on payment of overtime wages because such requirement would be illegal. But where the prohibition is removed there is an obligation to pay overtime wages under Section 63. The question of overtime wages would only arise when there is no prohibition against requiring a worker to work overtime, and therefore inasmuch as Section 63 applies to the case of a bakery and applies to the case of the employee with whom we are dealing in this application, there does not seem to be any answer that the employer can give to his employee with regard to the payment of overtime wages when the employer has required the employee to work more than 48 hours a week.

3. The reasoning of the Authority in the judgment in application No. 7311 of 1955 is that

'according to the explanation to Section 63 the limit of the hours of work shall mean, in the case of the employees in shops and commercial establishments, nine hours in any day and forty-eight hours in any week. Delivery men are exempt from the provisions of Section 14, that is to say, there is no limit of hours of work for such class of employees and if there is no limit of hours of work for such class of employees, it cannot be said that such employees are required to work in excess of the limit of the hours of the work.'

With respect, the fallacy underlying this argument is that the limit of hours of the work laid down in Section 63 is for the purpose of that section, without any reference to Section 14, and the limit of hours are laid down in order to determine what is the overtime and what wages are to be paid to the employee. It is erroneous to assume that because an establishment is exempted from the provisions of Section 14 and because there is no limit of work laid down with regard to that establishment under Section 14, therefore there is no limit of hours of work applying to that establishment as far as the Section 63 is concerned. .

The limit of work for the purpose of Section 14 is entirely different from the limit of work laid down by the Legislature for the purpose of Section 63. Whereas the limit of work for the purpose of Section 14 is laid down in order to prohibit the employer from requiring an employee to make him work beyond the limit, the limit of work laid down for the purpose of Section 63 is purely for the purpose of computing overtime wages, and the error into which the Authority has fallen is to have taken the view that because there was no limit of work with regard to a particular establishment under Section 14, therefore there would be no limit of work under Section 63 and the establishment could make an employee work for any length of time without paying him overtime wages.

In our opinion, therefore, if the employee in this case establishes that he has worked overtime in any particular week, he would be entitled to overtime wages as provided by Section 63. Whether in fact he has so worked has not yet been decided by the Authority.

4. Therefore, we will send this matter back tothe Authority with the direction that if the employeeestablishes the fact of working overtime then hisclaim should be allowed as provided by Section 63 of theAct. The petitioner to have the costs of the petitionagainst the second opponent.

5. Order accordingly.


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