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State Bank of India Vs. V. Venkatachalam and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1970)IILLJ118Mad; (1971)IIMLJ208
AppellantState Bank of India
RespondentV. Venkatachalam and ors.
Excerpt:
- - even the alleged rest is cot real rest as the applicant had to sleep in front of the strong room door or as near to it as practicable in the bank's premises and has to wake up at odd hours in order to take the duty in turn. in the counter-statement filed by the petitioner it was contended, with reference to the duties of watchmen, like the first respondent in the respective writ petitions, as follows: he will also examine the strong-room door and all the safes in the office and see that these are locked. the watchman/guard on duty will always be awake and alert and patrol the bank premises in such a way that he will not be out of sight of the strong-room for longer periods than are necessary and must not leave his beat until relieved. when off watch they will sleep in front of the.....ismail, j.1. these writ petitions arise out of a common order passed by the second respondent herein, the central government labour court, madras, on petitions filed by the respective first respondent in these writ petitions under section 33c(2) of industrial disputes act, 1947 (hereinafter referred to as the act), the facts are not really in controversy. the question for determination also lies in a very narrow compass. however, source of rights and obligations of the parties was sought to be traced with reference to several awards passed, pursuant to provisions contained in the act. the first respondent in the respective writ petitions filed petitions under section 33c(2) of the act claiming overtime wages from the dates on which they were entertained by the petitioner bank as watchmen.....
Judgment:

Ismail, J.

1. These writ petitions arise out of a common order passed by the second respondent herein, the Central Government Labour Court, Madras, on petitions filed by the respective first respondent in these writ petitions under Section 33C(2) of Industrial Disputes Act, 1947 (hereinafter referred to as the Act), The facts are not really in controversy. The question for determination also lies in a very narrow compass. However, source of rights and obligations of the parties was sought to be traced with reference to several awards passed, pursuant to provisions contained in the Act. The first respondent in the respective writ petitions filed petitions under Section 33C(2) of the Act claiming overtime wages from the dates on which they were entertained by the petitioner bank as watchmen in several branch offices. The basis on which the claim was made, as contained in the respective claim statements, can be realised from the following passage occurring in the claim statements:

The applicant has to remain in the bank's premises throughout the night and on alternate days he has to remain in the banks premises till 8 or 9 o'clock in the morning when the messenger reports for work. So that the applicant had to work 12 hours per day and 14 hours per day on alternate days in the week. Even the alleged rest is cot real rest as the applicant had to sleep in front of the strong room door or as near to it as practicable in the bank's premises and has to wake up at odd hours in order to take the duty in turn. Hence the applicant has to remain on duty, even while purporting to take rest, for 12 hours and on some days for full 14 hours. The applicant is a person employed and governed by the Madras Shops and Establishments Act which provides that the periods of work of a person employed in any establishment shall not exceed with internals for rest for more than 12 hours in any day. The provision of Sastry Award as modified by the Labour Appellate Tribunal, and Desai Award also state that hours of work for a watchman chowkidar should not exceed a shift of 8 hours in 24 hours.

In the counter-statement filed by the petitioner it was contended, with reference to the duties of watchmen, like the first respondent in the respective writ petitions, as follows:

They have to come to duty fully dressed in their uniforms, punch the telltale dial every 15 minutes and also go around the bank premises and patrol the same. In the event of any untoward incident, the watchman on duty is required immediately to arouse the other watchman who is off duty and asleep on the premises, and, if necessary, one of them should go to the police and or the agent of the branch. Both the watchmen report for duty at 6 p. m. and the hours are so arranged that each watchman is on duty in convenient shifts of 2 to 3 hours provided, however, that the total number of hours for which the watchman is required to be on duty do not exceed 8 hours in any day. It is true that the watchman who is not on duty is required to sleep on the premises, but it is submitted that at the time he is sleeping on the premises he is not disharging the duties of a watchman enumerated above and therefore the period during which he is asleep cannot be said to be a period of duty. In fact, each time that a watchman goes off duty, he enters the same in the duty book register maintained for the purpose. Even in the petition, it is admitted that the watchman who is sleeping has to wake up at odd hours, 'in order to take duty in turn.' It is submitted that the watchman can be on duty and discharge the duties he is required to carry out only when he is awake. It is further submitted that there is no substance or justification in the attempt of the petitioner to include the period in which he is asleep as a period of duty and on that basis claim overtime.' This case of the petitioner, put forward in the counter-statement filed before the second respondent herein, is fully in accord with exhibits P-1 and R-1 filed before the second respondent. Exhibit P-1 is the memorandum of instructions detailing the duties of the bank's watchmen guards. Exhibit R-1 is an extract of para 59, Chapter VIII of bank's book of instructions. It deals with the list of duties of watchmen. In exhibit P-1 it is stated:

Both the watchmen/guards will report for duty at 6 p.m. every day fully dressed and must not divest themselves of their uniforms or accoutrements at any time during their period of duty and the watchman/guard last on duty will continue to remain until the arrival of the messenger on duty in the morning. Either watchman/guard should be continuously on watch duty and the watchman-guard who is off duty will sleep in front of the strongroom door or as near to it as practicable.

The hours of duty will be divided between the two watchmen/guards but it should be ensured that either watchman/guard is not on duty during the same hours on consecutive nights.

3. Before going on watch, each watchman/guard will take charge of all the bank's property and initial in the duty book maintained. He will examine all the doors, windows and locks on the premises and satisfy himself that they are properly secured. He will also examine the strong-room door and all the safes in the office and see that these are locked. He will report to the agent at once if he finds any irregularity in this regard. The watchman/guard on duty will always be awake and alert and patrol the bank premises in such a way that he will not be out of sight of the strong-room for longer periods than are necessary and must not leave his beat until relieved. The lever of the tell-tale clock must be pulled by the watchman/guard on duty regularly at intervals of fifteen minutes.

4. In the event of any untoward incident occurring, the watchman/guard on duty will immediately arouse the other watchman/guard and will, if necessary, contact the police over the office telephone. He will also send word to the agent, head cashier and/or head clerk, whoever is easily accessible. He will safeguard the bank's property until help arrives.

Exhibit R-1 is fully in accord with exhibit P-1 and that is as follows:

In drafting orders for sepoy guards, agents will be guided by the following general rules, the details of which may be altered to meet local conditions.

1. The guard will come on duty fully dressed and must not divest themselves of their uniform or accoutrements at any time during their period of duty, which will ordinarily be from 6 p.m. to 9 a.m. When off watch they will sleep in front of the strong-room door or as near to it as practicable.

2. Before going on watch, each watchman will examine all doors, windows and locks and satisfy himself that they are properly secured. He will also examine the strongroom door and all safes in the office and see that these are locked.

3. The watchman on duty will patrol the bank premises in such a way that he will not be out of sight of the strongroom for longer periods than are necessary and he must not leave his beat until relieved. Where advisable a tell-tale clock should be employed.

4. In case of any untoward incident the watchman on duty will immediately arouse the remainder of the guard and will, if necessary, send one of them to the police and/or the agent.

5. The agent or other supervising official will inspect the guard at irregular intervals to see that proper watch is being maintained. An inspection book must be kept in which the date and time of each inspection will be recorded.

If possible, agents should arrange for a local police sergeant to look in at the bank on his rounds and to report any slackness on the part of guard.

2. With reference to the pleadings, the point of controversy raised by the parties was, whether the period when the watchman is 'off-watch' can be said to be 'period of duty' so that that time may be counted for the purpose of finding out whether he worked overtime or not. With reference to this controversy, the second respondent was called upon to give a preliminary finding. By order dated 14th July, 1966, it gave a finding in favour of the first respondent in the respective writ petitions and thereafter the second respondent called upon the petitioner herein to file a work-sheet showing the amounts to which the first respondent in the respective writ petitions would be entitled, on the basis of the decision of the second respondent in favour of the first respondent on the preliminary point. After the worksheet was submitted by the petitioner herein on 21st December, 1966, the second respondent passed the impugned order in favour of the first respondent in the respective writ petitions. It is to quash these orders that these writ petitions have been filed by the petitioner.

3. I may straightaway point out that the controversy between the parties here is in relation to the conclusion of the second respondent on the preliminary point. Once that conclusion of the second respondent on the preliminary point is found to be proper and does not warrant any interference by that court, there is no further argument advanced with regard to the final order passed by the second respondent on 21st December, 1966, with reference to the actual overtime wages to which the first respondent in each of these writ petitions is entitled.

4. Before dealing with the contentions of the parties, with reference to the conclusion of the second respondent on the preliminary point, it is necessary to refer briefly to the history of the earlier proceedings that have taken place in relation to the emoluments and other service conditions of the bank employees. On 5th January, 1952, the Central Government, in exercise of its powers under Section 7 of the Act, constituted the Tribunal, which is popularly known as the 'Sastri Tribunal', since it was presided over by Sri S. Panchapagesa Sastry, a former Judge of this court, for the purpose of going into the disputes which arose between the banks and the bank employees. That tribunal gave its award and the same was published on 20th April, 1953, and the award is popularly known as the 'Sastry Award'. Chapter XIV of this award deals with the working hours and overtime. In paragraph 304 occurring in Chapter XIV, the award gave certain directions as to the number of working hours of the staff, and. while doing so, in Clause (8) of paragraph 304, the award stated:

Part-time employees, as well as watch and ward staff, bank employees engaged in domestic service, gardeners, sweepers, godown keepers engaged solely for that work are excluded from the scope of these directions.

In addition to that, Clause (9) stated:

The provisions of the local Shops and Establishments Acts in force in various States which are or may be made applicable to banks subject to such exemptions as have been provided for therein shall, of course, govern the parties to this reference, if the above directions as given by us come into conflict with any such provisions or are repugnant to the same, then to the extent of such repugnancy or inconsistency with statutory provisions and to that extent only these directions must give place to the statutory provisions.

Clause (4) of paragraph 304 also provided the quantum of overtime wages that will be paid and it is stated:

For the first half an hour of overtime work there shall be no payment and for every completed 15 minutes work thereafter the workmen will be paid at the rates to be laid down by us.

These rates were laid down by the tribunal in paragraph 305, where the award stated:

We fix accordingly payment at the rate of one and a half times the emoluments made up of basic pay, special allowances provided for higher or special types of work, officiating allowance and dearness allowance. It was contended before us that where the initial cushioning period of half an hour is exceeded and the first period of 15 minutes' overtime work therefore is completed, the payment should be made for the entire period inclusive of the initial cushioning of half an hour. We think that there should be no payment for work during the first half hour immediately after the close of the normal working hours for reasons stated above. Overtime payment will therefore be only for every completed period of 15 minutes after the first half hour is over. With a view to discouraging excessive overwork, we direct that payment for overtime work for every quarter hour beyond the first four quarter hours, after the initial half hour cushioning period, shall be at the rate of one and a half times as aforesaid together with an additional 20 per cent for work during such extra period.

Against the Sastry Award, both the employers as well as the employees preferred appeals. A Special Bench of the Labour Appellate Tribunal gave its decision on 28th April, 1951 As far as the present point is concerned, that tribunal modified the Sastry Award, and we are here concerned only with the modification in respect of watch and ward staff. Paragraph 195 of the decision of the Labour Appellate Tribunal deals with this aspect and the relevant portion of that paragraph is:

A chowkidar may be employed to guard the bank's premises. In such cases he is one of the several chowkidars and he is kept on duty for a period of time, generally about 8 hours. Otherwise, he may be chowkidar in an upcountry place where there are one or two godowns to be protected. He would be expected in such cases to visit these godowns once or twice during the day and again at night and to keep a general watch over the godowns during the rest of the time. It is only in the former case that hours of work can be prescribed. The period should riot in this case exceed a shift of 8 hours in 24 hours. We make a direction accordingly.

Thus, it will be seen that the Labour Appellate Tribunal modified the Sastry Award to the extent to which the Sastry Award totally excluded the watch and ward staff from the direction in relation to the hours of work. With regard to a chowkidar employed to guard the bank's premises, if he happens to be one of the chowkidars kept on duty for a period of time, generally 8 hours, the direction given by the Labour Appellate Tribunal was that the period should not exceed a shift of 8 hours in 24 hours. Barring this modification in this respect, in relation to the rate of overtime wages and the applicability of the enactments, such as the Shops and Establishments Act, the other portions of the Sastry Award were not interfered with by the Labour Appellate Tribunal.

5. Even after the decision of the Labour Appellate Tribunal, there was a dispute between the parties and the same was referred to another tribunal, consisting of Mr. Justice Desai of the Gujarat High Court (and then the Chief Justice of that High Court) and the award made by Mr. Justice Desai, generally known as tae 'Desai Award', was directed to be published by the Government of India notification dated 13th Jane, 1962. Chapter X of this award deals with the hours of work and overtime. Paragraph 10-15 of the award stated:

As regards the members of the watch and ward staff and godown keepers, their case had been fully considered by the previous tribunals. Having regard to the nature of the duties which they have to perform and the expense involved in making other arrangements, it is difficult to improve upon the provisions made with regard to them under the award of the Sastry Tribunal as modified by the Labour Appellate Tribunal's decision.

Further, in paragraph 10.20, the Awardagain stated:

In the result all the provisions of the Sastry Award as modified in connection wan hours of work will remain unaltered and will be applicable to all the banks which are before me and their workmen. The directions regarding the working hours shall be subject to the provisions of Shops and Establishments Acts and of any other enactments in this connection applicable to banks.

For the purpose of appreciating the full effect of the provisions contained in paragraph 10.15 as well as paragraph 10 20 it is necessary to refer to a contention put forward on behalf of the All India State Bank of India Staff Federation, contained in paragraph 10.19 of the award itself. That contention was that 'duty hours not exceeding eight hours should be fixed for drivers, domestic servants and 'malis'. However, the award stated that the drivers are not exempted from the provisions of the Sastry Award regarding hours of work unless it could be said that they are engaged in 'domestic service', as regards others, the work performed by a large number of these employees is not of continuous nature and does not lend itself to standardisation: their cases have been duly considered by the previous Tribunals: 'In the present state of the record before me, I cannot see my way to lay down fixed duly hours for them.

6. From this, it will be apparent that the Desai Award did not make material changes regarding the watch and ward staff as emerged from the decision of the Labour Appellate Tribunal, modifying Sastry Award. In paragraph 10.21 the award further pointed out mat the Sastry Tribunal excluded from the scope of its directions relating to overtime, part time employees as well as watch and ward staff, bank employees engaged in domestic service, gardeners, sweepers and godown keepers engaged solely for that work. With reference to the present controversy, in these cases, it is interesting to note that an argument directly in point was advanced by the State B ink of India before Mr. Justice Desai and that is referred to in paragraph 10.32. That paragraph states:

The State Bank of India and its subsidiaries while dealing with item No. 21 in Schedule II to the order of reference has pleaded that the present overtime restriction should not be retained and that it should be left to them to pay overtime for work in excess of hours of work fixed in consultation with the Governments concerned and that the rule for overtime should be fixed similarly. They have further claimed that the employees who are employed as watchmen and armed guards and who are permitted to live and sleep on premises of the bank should not be entitled to overtime.

(italics are mine)

7. The ultimate directions were contained in paragraph 10.46. Clause (1) dealt with the working hours of workman, other than the members of the subordinate stiff. Clause (2) dealt with the working hours of the members of the subordinate staff. Clause (3) dealt with the recess for lunch. Clause (4) stated:

The banks will be at liberty to fix at their discretion the actual timing for work provided the maximum number of hours of work fixed by this award are being observed.

8. Clause (5) is important and it is as follows:

Part-time employees as well as members of the watch and ward staff, bank employees engaged in domestic service, gardeners, sweepers, godown keepers engaged solely for that work other than those required to remain in attendance at the bank during office hours are excluded from the scope of the aforesaid directions. The provisions contained in Clause (9) below equally will not apply to them.

9. Hence, it will be necessary to see what exactly Clause (9) provided. Clause (9) dealt vita the total period of work including overtime that a workman will be and can be called upon to do. Clause (6) is also important and that is:

The hours of work for the persons excluded as above will be governed by the provisions, if any, of any enactments in connection with hours of work applicable to the banks concerned.

Clause (7) is:

As regards a chowkidar employed to guard the bank's premises, when he is one of several chowkidars and is kept on duty only for a period of time (generally about 8 hours), the hours of work however should not exceed a shift of 8 hours in 24 hours.

10. It can be seen that Clause (5) did not deal with the watch and ward staff alone, but also dealt with other employees, like gardeners, sweepers, godown keepers and persons employed in domestic service. Clause (6) covers all those employees referred to in Clause (5). On the other hand, Clause (7) applies only to chowkidars employed to guard the bank's premises. Logically speaking, Clause (6) being general in relation to excluded employees and Clause (7) being special with regard to chowkidars alone, if there is any conflict or inconsistency between the consequences flowing from Clause (6) and Clauses (7), it is the consequence flowing from Clause (7) which will prevail in relation to chowkidars employed to guard the bank's premises. As far as Clause (7) is concerned, it will be again seen that it merely reiterated the position that emerged as a result of the decision of the Labour Appellate Tribunal, amending or modifying the Sastry Award Clause (4) of this paragraph dealt with overtime wages and this clause really corresponds to, and does not differ in any way from, paragraph 306 of the Sastry Award. There is one other clause in this paragraph, to which I must make reference, since very strong reliance has been placed on that. That clause is Clause (17) which runs;

The directions hereinbefore given shall be subject to the provisions made by or under any enactment applicable to the establishment concerned.

There is one other paragraph in Mr. Justice Desai's Award, to which reference has to be made and that is Clause (14) of paragraph 23.32. The heading of this clause is 'Weekly offs and holidays to Armed Guards and Chowkidars.' That clause reads:

Demands hare been made in connection with weekly offs and holidays to armed guards and chowkidars. I have in dealing with the question of hours of work and overtime by paragraph 10.46 of this award provided that members of the watch and ward staff are excluded from the provisions relating to the hours of work and overtime. Save as otherwise expressly provided in this award, I give no directions in connection with these demands.

At this stage it is necessary to refer to the resultant position emerging from the Sastry Award, the decision of the Labour Appellate Tribunal and Desai Award, with regard to the question of overtime wages in relation to the watch and ward staff, to which category the first respondent in the respective writ petitions belongs. The first position is that if he is one of several chowkidars and is kept on duty only for a period of time (generally about 8 hours), the hours of work should not exceed a shift of 8 hours in 24 hours. The second is that the directions given by the Sastry Award as well as the Desai Award shall be subject to the provisions made by or under any enactment applicable to the establishment concerned. The third position is with reference to the quantum of overtime wages, which was dealt with in paragraph 305 of the Sastry Award, and Clause (14) of paragraph 10.46 of the Desai Award, according to which the payment in respect of overtime work done shall be made at the rate of 1 times the emoluments made up of basic pay, special allowance, if any, officiating allowance, if any, and dearness allowance for every quarter of an hour of overtime work done for which payment has to be made. Payment in respect of overtime for work done for every quarter hour beyond the first four quarter hours, which have to be paid for, shall however be at the aforesaid rate of l times the emoluments with an additional 20 per cent, that is, it shall be at the rate of 1.70 per cent of such emoluments; in those cases where payment for overtime is required to be made under any enactment at a higher Tate, it shall be paid at such higher rate for the period for which it is obligatory to pay the same at such higher rate. If the matter had stood there, the position, in relation to the present cases, will be that the first respondents in these writ petitions are to be available on the bank's premises for 12 hours or 14 hours on alternate days, but out of 12 hours or 14 hours, they are 'on watch' for a period not exceeding 8 hours only and for the rest of the hours, they are 'oft watch'. The real question for consideration is, whether the time when they are 'off watch' (I am deliberately using the expression 'off watch', because that is the expression used in exhibit R-1 as against the expression 'off duty' that was used in the course of arguments before me), should be included as part of the time when they were doing their work:, so as to contend that they were working all the 12 hours or all the 14 hours, as the case may be. This simple question has been complicated, because of Clause (14) of paragraph 23.32 of the Desai Award. I can immediately confess that that paragraph is inaccurate and does not correctly represent the provisions' that had been made by Mr. Justice Desai in the earlier parts of the award. I have already referred to the fact that Clause (5) of paragraph 10.46 dealt with the category of persons, which included part time employees, watch and ward staff, gardeners, sweepers, godown keepers, etc. On the other hand, Clause (14) of paragraph 23.32 merely refers to armed guards and chowkidars. As far as I have been able to see, there has been no special provision made in paragraph 10.46 with regard to armed guards and chowkidars, except what I have already referred to in Clause (1) of paragraph 10.46, where also the expression used is merely 'Chowkidar', when he happens to be one of several chowkidars. Further, the categories of employees enumerated in Clause (5) of paragraph 10.46 have been excluded only from the directions contained in Clauses (1) to (4) and (9) and not from the rest of the clauses in the same paragraph. Consequently, the general statement contained in Clause (14) of paragraph 23.32 that in dealing with question of hours of work and overtime, by paragraph 10-46 of the award, Mr. Justice Desai provided that the members of the watch and ward staff are excluded from the provisions relating to the hours of work and overtime, is not accurate. On the other hand, I have already indicated the resulting position, with reference to paragraph 10.46. The only saving feature is the last sentence occurring in Clause (14) of paragraph 23.32 which states:

Save as otherwise expressly provided in this award, I give no directions in connection with these demands.' In view of this sentence, I do not propose to assume, and it will not be fair for me to hold, that Mr. Justice Desai was contradicting himself when he made such a statement in Clause (14) of paragraph 23.32, as contrasted with the actual directions contained in paragraph 10.46, with the result that the three features, which I have referred to as resulting from the Sastry Award, the decision of the Labour Appellate Tribunal and Desai Award, must be held to hold the field, notwithstanding the inaccuracy that is found in Clause (14) of paragraph 23.32 of the Desai Award.

11. This conclusion of mine immediately takes me to the question as to whether there are any enactments in the State, dealing with the hours of work and overtime wages. It is admitted before me that the Madras Shops and Establishments Act, 1947 (hereinafter referred to as the State Act) will apply to the case of banks, like the petitioner. However, it is contended, that by virtue of two notifications of the Government made in pursuance of Section 6 of the State Act, which enables the Government to exempt by notification, either permanently or for any specified period, any establishment or class of establishments, or person or class of persons, from all or any of the provisions of the Act, subject to such conditions as the State Government deem fit, the State Act does not apply. In exercise of the powers conferred by this section the Government by G.O. No, 4393, Development, dated 29th August, 1949, exempted persons employed as watchmen from the applicability of chapters II and III of the Act. Section 14(1) of the State Act states that no person employed in any establishment shall be required or allowed to work for more than eight hours in any day and forty-eight hours in any week provided that any such person may be allowed to work in such establishment for any period in excess of the limit fixed under this Sub-section subject to payment of overtime wages, if the period of work, including overtime work, does not exceed ten hours in any day and in the aggregate fifty-four in any week. Section 15 of the Act provides that the periods of work of a person employed in an establishment shall be so arranged that along with his intervals for rest, they shall rot spread over more than twelve hours in any day. These two sections occur in Chapter III of the State Act. Therefore, by virtue of the exemption referred to above, it will follow that so long as that exemption was in operation, Sections 14 and 15 did not apply to watchmen. If these two sections did not apply, what really applied would be the Sastry Award, as modified by the decision of the Labour Appellate Tribunal, to which I have already made reference. However, in 1961, the Government issued a fresh notification in G.O. Ms. No. 5453, Industries, Labour and Co-operation (Labour), dated 9th September. 1961. to the following effect:

In exercise of the powers conferred by Section 6 of the Madras Shops and Establishments Act, 1947 (Madras Act XXXVI of 1947) and in supersession of late Development Department Notification No. 870 dated the 29th August, 1949, published at page 1427 of Part I of the Fort. St. George Gazette dated the 6th September, 1949, the Governor of Madras hereby exempts the watchmen and messengers employed in establishments from the provisions of Sections 9, 10, 14 and 15 of the said Act subject to the following conditions namely:

(1) The spread over shall not exceed 16 hours on any day and an interval of not less than 30 minutes shall be allowed for meals.

(2) Exemption from the provisions of Sub-section (1) of Section 9 and Sub-section (1) of Section 14 of the said Act shall apply only in the case of a person who works during night provided that work shall be given by turn and that overtime wages at twice the ordinary rate of wages shall be paid in accordance with the provisions of Section 31 of the said Act.

Thus, it will be seen that the scope of this exemption is much narrower than the scope of the earlier notification of 1949. The real object of this exemption is that with reference to night watchmen it will not be realistic or practicable to fix this spread over at 12 hours and it has to be fixed at 16 hours. Having come to this conclusion, the Government provided that if the night watchman works by turn and is paid overtime wages at twice the ordinary rate of wages in accordance with the provisions of Section 31 of the State Act, he will be exempt from Section 14(1) of the said Act. The real and practical result of this notification is only to modify S 15 of the State Act, by changing the spread over period from 12 hours to 16 hours. Apart from this, there is no material change in relation to the matter in controversy, brought about by the notification in question, since this also insists on the payment of overtime wages, though at twice the ordinary rate. Here, again, the question for consideration will be, whether the case of the first respondent in the respective writ petitions fell within the scope of condition No. (2) of the notification, and if it falls within condition No. (2), naturally the exemption provision will apply and the provisions of the award which itself had referred to this State enactment will apply, Consequently, we are again thrown back on the original question with which we started, namely, whether the watchman who is 'off watch' can be said to be working so as to enable the hours of 'off watch' to be included in his working hours, entitling him to claim overtime wages. In my opinion, the only conclusion that is possible, with reference to the facts of this case, is that the hours when the watchmen are stated to be 'off watch' must be included in the working hours of the first respondent in the respective writ petitions. With reference to exhibits P-1 and R-1, the position that emerges is (1) that the two watchmen have to report for duty at 6 p.m., (2) they are not at liberty to leave the premises till 8 a.m. or 9 a.m. next morning, as the case may be, till they are relieved by the messenger; (3) during the entire period the watchmen should not divest themselves of their uniform or accoutrements; (4) even though they are on watch in turns, the watchman off watch has to remain on the premises and though allowed to sleep is not permitted to sleep anywhere he likes and he is required to sleep near the strong-room door or as near to it as practicable; and (5) even during this 'off watch' hours, when the watchman is sleeping, he is liable to be awakened by the watchman 'on watch' in case of any emergency. This emergency need not necessarily be an untoward event and may be even a necessity on the part of the watchman on duty to go out even for a short time, when be cannot leave the premises unattended and unwatched, and he will have to wake up the watchman asleep and ask him to keep watch till he returns. With reference to these facts, I am fully satisfied that even a watchman who is allowed to sleep, when he is 'off watch' can be stated to be working and cannot be stated to be 'off duty'. The very important and dominant factor that has to be noticed in this context is, that neither of the watchmen is at liberty to leave the premises, even if he is 'off watch', and whether 'on watch' or 'off watch', he has to remain on the premises and if he fails to do so, certainly he will be guilty of dereliction of his duty. One other expression occurring in exhibit R-1 is significant. I have already extracted paragraph (1) pf exhibit R-1. That paragraph uses the expression 'The guards will come on duty fully dressed and must not divest themselves of their uniform or accoutrements at any time during their period of duty, which will ordinarily be from 6 p.m. to 9 a.m.

(Italics are mine).

Thus, it will be seen that the entire period, 6 p.m. to 9 a.m. is treated by the employers as the period of duty with reference to the watchman Under these circumstances, it is impossible to come to any other conclusion than the one the second respondent has come to in this cases.

12. Before me, the learned Counsel for the petitioner sought to contend that the watch* man is permitted or allowed to sleep in the bank's premises only for his convenience, because the duty hours when the watchman is 'on watch' is of short duration, 2 to 3 hours, and if a person 'off watch' has to go out, it may not be possible for him to come in time, to take over from the man who ii 'on watch'. I am unable to appreciate this argument. If that was the intention, exhibit P-1 or exhibit R-1 will be in different terms. They would have merely provided that the watchman 'off watch' will be at liberty to sleep in the premises, if he considered it desirable or necessary for the purpose of taking over from the other watchman, when his turn comes. What exactly exhibit P-1 or exhibit R-1 does is not to give such liberty to the watchman concerned, but to require the watchman to remain in the premises. He is compelled to remain in the premises, and even when he wants to sleep he can sleep only in front of the strong room door or as near to it as practicable. Consequently it is clear that the petitioner bank itself requires the presence of the watchman 'off watch' to guard the strong-room and it is only for that purpose he is required to remain at the premises and allowed to sleep in front of the strong-room door, or as near to it, with the liability to be awakened at any time by the other watchman 'on watch'. Under these circumstances, I am of the view, that the conclusion of the labour court on the preliminary point is correct and no error of law apparent on the face of the record, or any want of jurisdiction has been made out with reference to the conclusion.

13. One further argument that was advanced before me with reference to the conclusion of the labour court on the preliminary point, is that it is Section 31 of the State Act that will apply and the first' respondent in the respective writ petitions would be entitled to overtime wages at twice the rate of the normal wages. No doubt, that was the case put forward by the first respondent in these writ petitions in the claims preferred by them before the second respondent. But the second respondent ultimately granted them overtime wages at the rates provided in Sastry Award and repeated in Desai Award subsequently. Since no writ petitions have been filed challenging the quantum of the overtime wages determined by the second respondent, it is unnecessary for me to express any opinion, whether Section 31 of the State Act would at all apply with reference to the facts of these cases.

14. For these reasons, I hold that there are no merits in these writ petitions. They are dismissed. There will be no order as to costs, to any of these writ petitions.


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