S. Obul Reddi, C.J.
1. The short and interesting question that arises for consideration in this petition is whether a 'worker' as defined under the Factories Act, 1948, (hereinafter referred to as 'the Act') is entitled to extra wages, under Section 59 of the Act and Regulation 55 of the Gujarat State Transport Employees' Service Regulations (hereinafter referred to as 'the, Regulations') even when the worker is absent on tour on duty and receives travelling and daily allowances.
2. The relevant facts necessary for determination of the question involved are these. The respondent worker is employed as a Helper in the antral Stores of the petitioner. Director of Stores, Gujarat State Road Transport Corporation and is working in that capacity for over eleven years. The respondent-worker was directed to proceed to Depodi-Poona for official work under the order of the Controller of Stores of the Corporation dated April 30,1974 with a direction to return to the headquarters after the completion of the work entusted to him. The work entrusted to him was to deliver cylinder heads at the Poona Workshop. The respondent travelled in a vehicle provided by the petitioner for transport of the goods. He was paid in accordance with the Regulations a daily allowance of Rs. 5/- per day. It is the case of the Corporation that performing journey from the depot headquarters at Ahmedabad to the Poona workshop is a part of the Helper's normal or routine duty for collection or exchange of stores and as such no overtime wages are required to be paid to the respondent. The respondent demanded overtime wages on the ground that taking cylinder heads from the Stores at the headquarters to Poona is not one of his normal duties or incidental to the functions or duties of a Helper. The respondent, therefore, made an Application No. 2974 of. 1974 before the Labour Court at Ahmedabad under, Section 33C of the Industrial Disputes Act claiming overtime wages for the period between April 30, 19.74 and May 3, 1974 when he was on duty at Poona. He claimed overtime wages for sixteen hours. The Labour Court by its order dated July 7, 1976 directed the Corporation to pay Rs. 36-48 ps. to respondent as overtime wages. It is this order that is now assailed in this petition under Article 226 of the Constitution.
3. The case of the 'respondent, as may be seen from the written arguments submitted through the Secretary of the Union is, that overtime ages were being paid by the (Corporation for such-work done by the Helpers till it was stopped by the Corporation under Circular dated July 4, 1973. This stoppage of wages for overtime work, is contrary to tie settlement arrived at between the Union and the Corporation on May 10, 1974. It is also the case of the respondent that Section 59 of Act as well as Regulation 55 of the Regulations abundantly make it clear that when a worker is called for work beyond his normal working hours he would be eligible for overtime payment at the rates fixed by the Corporation from time to time.
4. Mr. V.B. Patel, Learned Counsel appearing for the Corporation, contended that the Labour Court was in error in construing Section 59 that provision entitles a worker even when he is absent on tour to payment of extra wages as if it were overtime work. As the respondent is represented by the Secretary of the Union and as the Secretary of the Union was unable to address arguments but handed over a sheet of paper containing written arguments in Gujarati, we requested Mr. J.R. Nanavati, Assistant Government Pleader, to assist us as Amicus Curiae and we must express our indebtedness to Mr. J.R. Nanavati for accepting to appear and assist the Court as Amicus Curiae.
5. Mr. Nanavati relying upon Regulation 55 strongly contended that this Regulation is applicable where a workman is called for work beyond his normal working hours irrespective of the fact whether he is called to work at the factory or elsewhere outside his headquarters. According to Mr. Nanavati, the principal requirement of Regulation 55, to be eligible for overtime payment to a worker is, that he should be called for work beyond his normal working hours and that condition is satisfied herd as the workman was sent out of station on tour on duty and, therefore, his absence from the headquarters so long as he was on duty is really immaterial or of no consequence.
6. To appreciate the relative contentions put forth by the Learned Counsel, it is necessary to refer to the relevant provisions of the Act 'and the Regulations to which our attention has been invited. Section 59 deals with extra wages for overtime and this section, to the extent material for our discussions, reads-
59.(1) Where a worker works in a factory for more than nine hours in any day of for more than forty-eight hours in any week he shall, in respect of over time work be entitled to wages at the rate of twice his ordinary rate of wages..
The following definitions in the Regulations may also be noticed before we refer to Regulation 55 on which reliance has been placed by Mr. Nanavati and Regulation 125 on which reliance has been placed by. Mr. Patel.
15. Duty means service which counts for pay, leave and other emoluments and includes such period of leave on average or half average pay enjoyed by the employee as is admissible under these regulations and excludes any period of suspension awarded as punishment or periods of extraordinary leave without pay.
27. Overtime Payment is remuneration payable for service beyond the normal spell of duty at such rates as may be fixed by the Corporation from time to time.
34. Sphere of Duty means the area to which the normal duties of a State Transport employee are confined or as may be specified by the Competent Authority. '42. Travelling Allowance means an allowance granted to an employee to cover the expenses incurred in travelling for the discharge of his duties.
Regulation 55 is in these terms:
55. Whenever an employee included in Appendix 'A' and declared by the Competent Authority as eligible for overtime payment is called for work beyond his normal working hours, he will be eligible for overtime payment at rates that may be fixed by the Corporation from time to time.
Regulation 125 to the extent relevant reads:
125. Subject to the exceptions provided in Regulations 126 and 127, daily allowance shall be admissible to an employee who is absent on tour on duty from headquarters if he (1) proceeds beyond five miles from his headquarters or beyond municipal limits, whichever is farther, or returns to his headquarters from a similar point, or (2) performs line checking duty requiring him to go to and return from places more than twenty miles from his headquarters;
(i) the stay outside headquarters shall be for more than five consecutive hours.
(ii) an absence from headquarters which does not exceed twenty-four hours shall be reckoned as one day at whatever hours the journey begins or ends, and daily allowance, in such cases, shall be restricted to one day's daily allowance for each such twenty-four hours absence or part thereof.
(iii) in the case of an employee on line checking duty, who, for the purpose of checking, has to perform a part of his journey by rail or by hired conveyance in the midst of a checking beat, the rail fare or hire charges actually paid by him for such journey shall be paid to him in addition to the daily allowance admissible to him.(iv) xxx xxx xxx xxx
Regulation 123 says-
123. An employee of the State Transport is on tour when absent on duty either within or, with proper sanction, beyond his sphere of duty.
We have, therefore, to see the scheme of Section 59 as also the scheme of Regulation 55 and Regulation 125 and determine whether the worker, that is, the respondent in this case, is entitled to overtime wages.
7. The object of Section 59 is to provide for extra wages to a work-man who works for more than the prescribed hours in any day or for more than forty-eight hours in any week. To the same effect is Regulation 55 Section 59 lays down the conditions for eligibility for extra wages for overtime work, the principal condition being that the worker must work in a factory' during the prescribed number of hours in any day. Section 59 is a beneficial provision intended to see that the management of any factory does not extract work from a workman beyond the hours of work prescribed by the statute or the Regulations. In the event of the management requiring a worker to work beyond that prescribed hours of duty in any day, then the management is made liable for payment of extra wages at the rate provided therein. This section does not postulate payment of extra wages for overtime when a worker does not work in the factory beyond the prescribed hours and is absent on tour on duty. Our attention has not been invited to any other provision of the Factories Act or the Rules made thereunder which provide for payment of extra wages to a worker when he is absent on tour on duty on the ground that his absence on tour on duty amounts to overtime work.
8. Mr. Nanavati, however, placed strong reliance upon Regulation 55. The first condition of Regulation 55 that an employee must be included in Appendix 'A' and declared by the Competent Authority a s eligible for overtime payment is satisfied as the respondent was working as 9 helper in a workshop. All workshop staff below head mechanic's grade are shown in Appendix 'A' and that the respondent belongs to the workshop staff is an admitted fact. The controversy here is, whether the other condition that he has been called for work beyond his normal working hours is satisfied so as to entitle him for overtime payment. It is Mr. Nanavati's case that Regulation 55 does not say that a worker should be called for work 'in a factory' beyond his normal working hours and so long as the Regulation does not speak of 'work in a factory', the respondent would be eligible for overtime payment as he is admittedly called for work on duty at Poona beyond his normal working hours. Before the Labour Court the Movement Order was exhibited as Exhibit 8 and it reads
The following Helpers working at Central Stores, Naroda are hereby directed to proceed to Dapodi Poona for official work, on 30-4-74. They shall return to H.Q. after completion of Work.
(1) Shri P.S. Dube...Helper.
(2) Shri S.B. Qureshi....
P.S. Dube is the respondent before us. Admittedly the respondent was sent on duty to Dapodi-Poona from Naroda, Ahmedabad. The duty assigned to him was not the one in the Central Stores at Naroda as Helper but one which he was bound to do as a part of his duties by taking cylinder heads from Naroda Stores to Dapodi Poona. It is thus a case of a respondent being away or absent on tour on duty. When we consider the scope of Regulation 55 we have also to bear in mind the specific provision. Regulation 125, which deals with absence of a workman on duty. It is also to be borne in mind that neither Section 59 nor Regulation 55 provide as to the benefits to be conferred upon a worker when he is directed to go on tour. Section 59 and Regulation 55, therefore, only speak of the benefits available to a workman by way of extra wages for overtime work when he puts in overtime work. It is true that in Regulation 55 the words 'in a factory' which we find in Section 59 are not there. But the legislative intent and object of Section 59 as also the object and intendment of the Corporation which made the Regulations is the same. The question of making a worker eligible for overtime payment arises only when he puts in work 'in a factory' beyond the prescribed limit of eight hours or nine hours, as the case may be. The absence of the words 'in a factory' in Regulation 55, in our opinion, does not make any difference. Regulation 55 does not provide for extra wages to a worker who is absent on tour on duty and therefore a specific provision, Regulation 125, is introduced so as to provide for extra payment to a workman when he is sent on tour on duty. Extra work in a factory is not the same thing as absence on tour on duty from headquarters or from the factory. To meet two different situations, one for the situation of overtime work extracted by the management and the other to meet the situation of sending out a worker on tour on duty, the two provisions Regulations 55 and 125 have been introduced. The workman is not asked to be absent on tour on duty at his own expense. The Corporation provides him with the transport or pays him the travelling allowance and in addition pays him the daily allowance admissible to him under the Regulations. Regulation 123 defines what is meant by 'absent on tour on duty'. He is absent on tour when either he is on duty within or beyond his sphere of duty. In this case the Competent Authority had issued an order directing the respondent to proceed from Ahmedabad to Dapodi-Poona with cylinder heads and provided him with transport and was given daily allowance admissible to him in accordance with the Regulations. When a worker goes out on tour beyond his sphere of duty, he would be entitled to daily allowance and travelling allowance as provided in Regulation 125. When Regulation 55 is read in the context of Regulations 123 and 125, it becomes absolutely clear that Regulation 55 does not cover 'absence of a workman on tour on duty.' The respondent in this case is, therefore, governed by the provisions of Regulation 125 when he is absent on tour on duty from headquarters. He is not entitled to claim extra wages on the strength of either Regulation 35 or Section 59. We, therefore, hold that the Labour Court erred in law in holding that Section 59 of the Act and Regulation 55 of the Regulations applied to the case.
9. The Secretary of the Union invited our attention to paragraph 7 of the settlement dated May 10, 1974 arrived at between the Corporation and the workmen to contend that whatever was payable to a workman prior to the date of the settlement shall be continued. The settlement paragraph 7 only deals with payment of pay and allowances and does not refer to overtime payment. The Corporation issued the circular dated Oct. 4,1973 stopping payment of overtime allowance for those who are sent on tour. There is no reference at all to the Circular in the settlement dated May 10,1974. Therefore, when the Corporation had stopped payment of any extra wages to those who are sent on tour on duty by its circular dated October 4,1973, the question of reintroducing such payment does not arise unless a dispute was raised regarding that and a settlement arrived at. There is no reference at all in the settlement arrived at on May 10,1974 to payment of extra wages to those who go on tour on duty. We, therefore, hold that settlement does not advance the case of the respondent any further. Our attention was also invited to a judgment of a Single Judge of this Court in Special Civil Application No. 672 of 1963 decided on February 6, 1968. But, in that decision the question of payment of extra wages to a worker when he is absent on tour on duty was not raised or considered. Mr. Patel, however, submitted to the Court that the Corporation will not recover the amount paid to the respondent under the orders of the Labour Court.
In the result the order of the Labour Court is quashed. The petition is allowed and the Rule is made absolute. No costs.