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Deep Chand Vs. Labour Court, Delhi - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 864 of 1971
Judge
Reported in1983(5)DRJ83; 1983(2)SLJ529(Delhi)
ActsMinimum Wages Act, 1948 - Sections 3
AppellantDeep Chand
RespondentLabour Court, Delhi
Advocates: D.K. Aggarwal and; M.N. Sharma, Advs
Cases ReferredBombay Port Trust v. Trustees of
Excerpt:
.....when the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their..........9 hours ; (b) in the case of a child 41 hours. rule 25. extra wages for overtime.-(1) when a worker works in' an employment for more than nine hours on any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be. entitled to wages,- (a) in the case of employment in agriculture, at one and a half time the ordinary rates of wages ; (b) in the case of any other scheduled employment, at double the ordinary rate of wages.(8) the act, as is clear from its preamble, aims at making provision for fixing minimum rates of wages in certain employments. the purpose is to alleviate the chances of exploitation of labour. the aim is to do social justice to workmen employed in scheduled industries. to achieve this object, section 3 enables-rather imposes an.....
Judgment:

G.C. Jain, J.

(1) This writ petition, under Article 226 of the Constitution of India, is directed against the order of the Labour Court Delhi dated November 20,1970.

(2) Deep Chand, Petitioner, is admittedly in the employment of Municipal Corporation of Delhi, respondent No. 2, as a Chowkidar. In the year 1969, he filed an application under section 33-C(2) of the Industrial Disputes Act, 1947 for computation of certain benefits. He claimed a sum of Rs.71,929.00 -Rs. 800.00 towards arrears of pay, Rs. 129.00 on account of washing allowance, Rs. 1,000'- cost of liveries and Rs. 70,000- overtime allowance for the period January 1,1954 to February 27, 1969. The claim for overtime allowance, which only is subject matter of dispute in this petition was based on the averments that his normal duty hours were eight hours per day or forty-eight hours per week and he was entitled to weekly rests and eighteen Gazetted holidays per year. He, however, had been performing duty for twenty-four hours a day and had not been allowed any weekly rests or Gazetted holidays and had not been paid any overtime. He had not even been allowed any residential accommodation. These averments were denied by the respondents-corporation. It was also pleaded that the category of'Chowkidar had been declared intermittent by the appropriate Government and the petitioner thereforee was not entitled to any overtime wages.

(3) The Labour Court vide its impugned order held that the petitioner was entitled to Rs. 93.00 towards washing allowance besides costs of certain articles of liveries mentioned in the order and their stiching charges. The claim for arrears of pay and overtime allowance was negatived, Overtime allowance was not allowed on the ground that in exercise of the powers conferred by sub-section (3) of section 13 of the Minimum Wages Act, 1948 (for short 'the Act') the Delhi Administration, by means of notifications dated November 24, 1960 and June 1966 had declared Chowkidars employed by any local authority in the Union Territory of Delhi as employment was essentially intermittent for the purposes of clause (c) of sub-section 13 of the Act and, thereforee, the petitioner who was admittedly a Chowkidar was not entitled to overtime wages.

(4) The finding of the learned Labour Court regarding arrears of pay, washing allowance and cost of liveries has not been assailed. This petition, however, assails the finding regarding overtime wages.

(5) It has been averred that the appropriate Government had not made any order under section 13(1) of the Act. The petitioner was entitled to overtime wages under rules 24 and 25 of the Minimum Wages (Central) Rules, 1950 (for short 'the Rules') framed under section 30(2) of the Act. The provisions contained in section 13(2) were applicable to orders made under section 13(1) and were not applicable to the rules framed by the appropriate Government under section 30(2) of the Act and did not bar the claim of the petitioner for overtime wages.

(6) On behalf of the Corporation, counter-affidavit was filed by Mr. J.M. Puri, Assistant Engineer (Works). It was averred that the petitioner was a Chowkidar. Chowkidars had been declared intermittent employee and were paid intermittent allowance. Overtime was neither admissible nor payable to them. The order of the Labour Court was in accordance with law, It had exercised the jurisdiction vested in it.

(7) Sections 3, 13, 14 and 30 of the Act and rules 24 and 25 of the Rule relevant for the purposes of disposal of this case read as under :-- Fixing of minimum rates of wages : - (1) The appropriate Government shall, in the manner hereinafter provided,- (a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part Ii of the Schedule and in an employment added to either part by notification under section 27 : ' 13. Fixing hours for a normal working day, etc.- (1) In regard to any schedule employment the minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may - (a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals; (b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for payment of remuneration in respect of such days of rest ; (c) provide for payment for work oft a day of rest at a rate not less than the overtime rate. (I) The provisions of sub-section (1) shall, in relation to the following classes of employees, apply only to such extent and subject to such conditions as may be prescribed :- (c) employees whose employment is essentially intermittent ; (3) For the purposes of clause (c) of sub-section (2), employment of an employee is essentially intermittent when it is declared to be so by the appropriate Government or by an officer not below the rank of a Deputy Commissioner of Labour especially authorised by the State Government in this behalf on the ground that the daily hours of the duty of the employee or it there be no daily hours of duty as such for the employee; the hours of duty, normally include period of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention. 14. Overtime.-(1) Where an employee, whose minimum rates of wages is fixed under this Act by the hour, by the day or by such a longer wage period, as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or part of an hour so worked in excess, at the overtime rate so fixed under this Act or under any law of the appropriate Government for the time being in force, which ever is higher. 30 Power of appropriate Government to make rules.- (1) The appropriate Government may, subject to the condition of previous publication by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may- (a) to (f) (g) prescribe the number of hours of work which shall constitute a normal working day ;. ''Rule 24. Number of hours of work which shall constitute a normal working day.- (1) The number of hours which shall constitute a normal working: day shall be- (a) in the case of an adult, 9 hours ; (b) in the case of a child 41 hours. Rule 25. Extra wages for overtime.-(1) When a worker works in' an employment for more than nine hours on any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be. entitled to wages,- (a) in the case of employment in agriculture, at one and a half time the ordinary rates of wages ; (b) in the case of any other scheduled employment, at double the ordinary rate of wages.

(8) The Act, as is clear from its preamble, aims at making provision for fixing minimum rates of wages in certain employments. The purpose is to alleviate the chances of exploitation of labour. The aim is to do social justice to workmen employed in scheduled industries. To achieve this object, section 3 enables-rather imposes an obligation on the appropriate Government to fix the minimum rate of wages payable to employees in an employment specified in Parts I and Ii of the Schedule, etc.

(9) 'WAGES' as defined in section 2(h) of the Act means all remuneration capable of being expressed in terms of money which would if the terms of the contract of employment, express or implied Were fulfillled be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance, but does not include the value of any house accommodation, supply of light, water, medical attendance, etc. Under this definition fulfillment of the terms of the contract of employment is a condition precedent for the payment of wages. Fixing of minimum wages, thereforee, may not bring the desired result. The contract of employment may provide for unreasonable number of hours of work constituting a normal working day and for that reason the purpose sought to be achieved by fixing the rates of minimum wages may be frustrated. Minimum wages fixed under the Act, thierefore, must co-relate to the load of work. Section 13(1) of the Act has been enacted with this object in view. It empowers the appropriate Government to (a) fix the number of hours of work which shall constitute a normal working day, (b) provide for a day of rest in every period of seven days and (c) provide for payment for work on a day of rest at a rate not less than the overtime rate.

(10) SUB-SECTION (2), however, is an exception to sub-section (1) of section 13. An order under sub-section (1) of section 13 shall apply to the five categories of employees mentioned in sub-section (2) only to such extent and subject to such conditions as may be prescribed. These categories include employees whose employment is essentially intermittent (clause (c) ). Under sub-section 13 the employment of an employee is essentially intermittent when so declared by the appropriate Government on the ground that the daily hours of the duty of the employee or if there be no daily hours of duty as such for the employee ; the hours of duty, normally include period of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention.

(11) In exercise of the powers contained in sub-section (3) of section 13, the appropriate Government has admittedly issued a notification dated June 22, 1966 (copy annexure 'D') declaring, inter alia, Chowkidars employed by any local authority in the Union Territory of Delhi as employees whose employment is essentially intermittent for the purposes of clause (c) of subsection (1) of section 13 of the Act. The validity of this notification has not been challenged in this writ petition.

(12) Petitioner is admittedly employed as a Chowkidar. It was not disputed that he was an employee whose employment was essentially intermittent and was covered by clauss(c) of sub-section (2) of section 13. Mr. D.K. Aggarwal, learned counsel appearing for the petitioner frankly conceded that any order issued by the appropriate Government under subsection (1) of section 13 fixing the number of hours of work constituting a normal working day would not apply to the petitioner because of the provisions contained in sub-section (2) of section 13.

(13) Mr. Aggarwal, however, has raised a very ambitious agreement. He contended that the working hours in this case had been fixed under rule 24 made by the appropriate Government in exercise of the powers conferred on it under section 30(2)(g) of the Act and not under sub-section (1) of section. 13 thereof and, thereforee, the provisions contained in sub-section (2) of section, 13 would not apply and the petitioner would be entitled to overtime wages.

(14) The Legislature often lays down the broad principles and policy in respect of a subject. It may be difficult, rather impracticable, to lay down all the details. There are certain matters in which the end is better secured by delegation of legislative powers. To achieve the object aimed at, the Legislature, thereforee, delegates subsidiary or ancillary powers to another authority.

(15) 'IT is now well established by the decisions of this Court that the power of delegation is a constituent element of the legislative power as a whole, and that in modern times when the Legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their Acts.' (See Vasanlal Maganbhai Sanjanwala v. State of Bombay, : 1978CriLJ1281 , at page 7

(16) ).SECTION 30 is an instance of delegated legislation. Sub-section (1) of section 30 confers powers on the appropriate Government to make rules. for carrying out the purposes of the Act. Sub-section (2) of this section specifies the various subjects in respect of which the appropriate Government may make rules under Act. This specification, however, is without prejudice to the generality of the power conferred on the appropriate Government by sub-section (1). Rule making power is for supplementing the provisions of the statute. Rules cannot be made even on subjects enumerated in sub-section (2) of section 30 independent of the provisions of the statutes. These can be made for achieving the purposes of the Act. A rule made by an authority which has the power to make rules for carrying out the purposes of the Act will be illegal if that rule is not capable of being related to any of the purposes mentioned in the Act. As noticed earlier, the power to fix hours for a normal working day flows from sub-section (!) of section 13. Clause (g) of subsection (2) of section 30, which empowers the appropriate Government to prescribe number of hours for work which shall constitute a normal working day is for carrying out the purposes of the Act. It does not provide for or deal with a subject foreign to the main enactment. These are not separate or independent enactments. The power to make rule under clause (g) of subsection (2) of section 30 is, in my view, an extension of the powers conferred on the appropriate Government under sub-section (1) of section 13 of the Act. This view finds some support from the observations : 'Section 13 of the Act does not itself fix the hours of work or rest or overtime. That is done by the Rules,' made by the Supreme Court in Workmen of the Bombay Port Trust v. Trustees of the Port of Bombay : (1966)ILLJ709SC ). The provisions contained in sub-section (2) of section 13 in my .opinion would. equally apply to rule 24 of the Rules framed under sub-section(2)of section 13. Consequently, the petitioner being an employee whose employment was essentially intermittent was not entitled to overtime wages.

(17) The decision of the Division Bench of the Patna High Court in A. Sattar Salehmohammad and another v. Raghubir Thakur and others : (1963)ILLJ67Pat does not help the petitioner on the question involved in this petition. In the said case it was held that the appropriate Government was competent to fix and provide for special number of hours of work which shall constitute a normal working day etc. under section 13(1). Such an order will govern the conditions of service in the said scheduled employment, but in case no such special order is issued under section 13(1) the general rules framed under section 30 of the Act will govern the conditions of service in respect of any scheduled employment. From this decision it cannot be said that the provisions contained in sub-section (2) of section 13 would not govern the general rules framed under section 30 fixing the hours of work constituting a normal working day.

(18) The petition has no merit and is consequently dismissed. Parties are left to bear their own costs.


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