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Peter Gonsalves Vs. Killick Nixon Limited and Another - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpl. C.A. No. 3566 of 1975
Judge
Reported in(1980)IILLJ471Bom; 1980MhLJ658
ActsIndustrial Disputes Act, 1947 - Sections 33C(2); Bombay Shops and Establishments Act, 1948 - Sections 63, 63(1) and 69; Bengal Shops and Establishments Act - Sections 6(2) and 7(2); Tamil Nadu Shops and Establishments Act - Sections 14(1) and 31
AppellantPeter Gonsalves
RespondentKillick Nixon Limited and Another
Excerpt:
.....claimed overtime wages under section 33c (2) in excess of 36 hours a week - labour court stated that petitioner entitled to overtime wages in excess of 48 hours a week - high court stated that employee who works in excess of 9 hours a day or 48 hours a week will be entitled to overtime wages as per section 63 - petitioner had no right to claim overtime wages. - - the essential condition which must, therefore, be satisfied before a claim is made under s. as pointed out earlier the bombay shops act made it a pre-condition to be satisfied before overtime wages can be claimed that the employee must have worked for more than 9 hours a day or 48 hours a week. 8. the petition must, therefore, fail and is, dismissed......there was s. 31 which provided that where any person employed in any establishment is required to work overtime, he shall be entitled, in respect of such overtime work, to wages at twice the ordinary rate or wages. now, if the provisions of s. 14(1) of the tamil nadu shops and establishments at are read with s. 31 of the same act, then it is clear that the scheme contemplated by these two provisions was not the scheme as contemplated by the provisions of s. 63 of the bombay shops act. as pointed out earlier the bombay shops act made it a pre-condition to be satisfied before overtime wages can be claimed that the employee must have worked for more than 9 hours a day or 48 hours a week. the manner in which s. 63 has been worded being entirely different from the relevant provisions.....
Judgment:

Chandurkar, J.

1. The petitioner who is in employment of the respondent No. 1 company made a claim under S. 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'Act'), claiming overtime wages from the employer on the footing that he was entitled to claim overtime wages at the rate of one and a half times the rate of daily wages in respect of the entire number of hours of work in excess of 36 hours per week which constituted his normal working hours in a week. It was not in dispute before the Labour Court that the normal working hours of the petitioner in a week were 36. The Labour Court has taken the view that the petitioner was entitled to overtime wages only for the number of hours in excess of 48 hours a week. On that basis the claim made by the petitioner was granted to a limited extent in respect of 47 hours of overtime work done in November, 1972 and January and March, 1973 only.

2. The petitioner's contention in this petition which is directed at the order of the Labour Court, in so far as it rejects his claim for overtime wages in respect of the hours of work in excess of 36 upto 48 hours, is that the petitioner was entitled to claim overtime wages in respect of any work done by him in excess of 36 hours per week under the very terms of S. 63 of the Bombay Shops and Establishments Act, 1948 (hereafter referred to as 'the Shops Act').

3. Now, there can be no doubt that if the petitioner was able to establish that he had a pre-existing right to claim overtime wages for any period in excess of 36 hours per week, the application properly lay before the Labour Court under S. 33C(2) of the Act. Now, when we say that he has to establish a pre-existing right that right is not automatically created by the fact that he has worked overtime, but that pre-existing right has to be founded on some statute or on some award or on some agreement with the employer. Admittedly the only basis on which such a claim is being made, according to the petitioner's counsel, is that he is entitled to claim overtime wages under S. 63 of the Shops Act.

4. Some reference in the course of arguments was made to the provisions of S. 69 of the Shops Act which is a saving provision. It provides that nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to at the date of the Act coming into force in a local area under any law, contract, custom or usage applicable to such establishment or any award, settlement or agreement binding on the employer and the employee in such employment if such rights privileges are more favourable to him than those to which he would be entitled under the Act. No claim under S. 69 of the Shops Act was canvassed before the labour Court and in any case, it is difficult for us to see how this provision is at all relevant because all that this section does is that if the employee was in a more advantageous position by virtue of certain rights or privileges which are acquired by him prior to coming into force of the Shops Act and if those rights and privileges were more beneficial than those to which the employee will be entitled under the Shops Act, then the earlier rights and privileges have been saved. There is no question of any right or privilege of getting overtime wages under any agreement, settlement or award in the instant case in the reference to S. 69 is, therefore, entirely out of place.

5. Now, coming to the relevant provisions of S. 63 of the Shops Act, they read as follows :

'63. (1) 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 time his ordinary rate of wages.

(2)'.

On a bare reading of sub-s. (1) of S. 63 of the Shops Act it is clear that a right to claim over time wages is created only if an employee is required to work in excess of the limit of hours of work. The rate of overtime wages is fixed under the section at one and a half times the ordinary rate of wages. The essential condition which must, therefore, be satisfied before a claim is made under S. 63(1) is that the employee must have worked in excess of the limit of hours of work. What is the limit of hours of work referred to in S. 63(1) and in excess of which the employee must be required to work before he can validly make a claim for overtime wages is to be found in the Explanation. We are concerned only with cl. (1) of the Explanation and the limit of hours of work in cl. (a) of the Explanation is 9 hours on any day and 48 hours in any week. Now, if the provisions of sub-s. (1) are read with the Explanation, it appears to us to be plain and beyond any controversy whatsoever that only an employee who works in excess of 9 hours a day or 48 hours a week will be entitled to claim overtime wages. By simple process of reasoning you have to substitute the words 'nine hours in any day' or 'forty-eight hours in any week' in place of the words 'the limit of hours of work' in S. 63(1) and then the meaning of the section becomes absolutely clear. The section will then indicate that where an employee in any establishment is required to work in excess of 9 hours in any day or 48 hours in any week, he shall be entitled in respect of overtime work to wages at the rate of one and a half times his ordinary rate of wages. It is rather difficult, therefore, to follow the argument of the learned counsel for the petitioner when it is contended before us that notwithstanding the limit of hours of work specified for the purposes of S. 63(1), even for the hours in excess of 36 and below 48 hours a claim for overtime wages can be made under S. 63. On the plain reading of the section the claim appears to us to be entirely unfounded.

6. It was surprising that the learned counsel for the petitioner wanted to spell out a claim on the basis of certain decisions. It passes our comprehension how a claim which can be made only if there is a pre-existing right can be canvassed on the basis of certain decisions which turned on the construction of the appropriate provisions which were in force in different States. In Carew & Co. Ltd. v. Sailaja Kanti Chatterji 1972 XI L.L.J. 359, a learned single Judge of the Calcutta High Court on a construction of the provisions of Ss. 6(2) and 7(2) of the Bengal Shops and Establishments Act took the view that in any establishment where a person enjoys the benefit of lesser number of hours of work than what is provided in Ss. 6(2) and 7(2) of the West Bengal Shops and Establishments Act, the person so employed should be entitled to overtime wages as provided for under S. 13 for the period of work beyond the normal hours of work applicable to his case. The decision does not show that a provision similar to the one made positively in S. 63 of the Shops Act was present in the Calcutta case. The other case relied on was a decision of the Madras High Court in Messrs Philips India Ltd. v. Labour Court, Madras, 1974 I L.L.J. 393. There also the provisions were slightly different and work in excess of the limit of normal hours of work for the purposes of entitling an employee to claim overtime wages was not made condition precedent in the provision creating a right to claim overtime wages. Section 14(1) of the Tamil Nadu Shops and Establishments Act provided that subject to the provisions of that Act, no person employed in any establishment would be required or allowed to work for more than eight hours in any day and forty-eight hours in any. week. Then there was S. 31 which provided that where any person employed in any establishment is required to work overtime, he shall be entitled, in respect of such overtime work, to wages at twice the ordinary rate or wages. Now, if the provisions of S. 14(1) of the Tamil Nadu Shops and Establishments At are read with S. 31 of the same Act, then it is clear that the scheme contemplated by these two provisions was not the scheme as contemplated by the provisions of S. 63 of the Bombay Shops Act. As pointed out earlier the Bombay Shops Act made it a pre-condition to be satisfied before overtime wages can be claimed that the employee must have worked for more than 9 hours a day or 48 hours a week. The manner in which S. 63 has been worded being entirely different from the relevant provisions involved in the Calcutta and the Madras decisions, these decisions do not serve as any guide or any valid precedent for the construction of S. 63 of the Bombay shops Act.

7. In our view, the petitioner had no right to claim overtime wages under S. 63 of the, Shops Act in respect of the work in excess of 36 and upto 48 hours a week. The Labour Court, in our view, was justified in rejecting a part of the claim of the petitioner.

8. The petition must, therefore, fail and is, dismissed. Rule discharged. However, there will be no order as to costs.


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