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Rivers Steam Navigation Co. Ltd. and Anr. Vs. Inland Steam Navigation Workers' Union (19.04.1962 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 212 of 1958
Judge
Reported inAIR1963Cal114,[1964(9)FLR225]
ActsIndustrial Disputes Act, 1947 - Section 36A; ;Code of Civil Procedure (CPC) , 1908 - Section 9
AppellantRivers Steam Navigation Co. Ltd. and Anr.
Respondentinland Steam Navigation Workers' Union
Appellant AdvocateA.C. Mitter and ;Purnendu Narayan Biswas, Advs.
Respondent AdvocateAmiyalal Chatterjee (Sr.), Adv.
DispositionAppeal allowed
Excerpt:
- .....less than half an hour. for works after midnight overtime allowance shall be paid at double the normal hourly rate.2. for working on sundays and holidays, i think that a substituted holiday for each sunday or holiday worked is sufficient compensation to the employees. the central pay commission has discouraged extra payment for sundays and holidays except where there is special strain or prolonged employment during night where such employment is frequent. those who are employed on sundays and holidays very frequently shall get double of their normal pay (that is one extra) for sundays and holidays worked without any substituted holidays. those who are employed on three sundays or holidays or more in a month shall be deemed to have been employed frequently during sundays and.....
Judgment:

P.N. Mookerjee, J.

1. The appellant companies were the defendants in a suit, brought by the Respondent Union, for a declaration that, under an award of the Industrial Tribunal, the workers, that is, the working staff of the aforesaid companies, who constituted the above Union were entitled to double of their daily wages for working on Sundays and other holidays, exclusive of or in addition to their monthly salaries, and for a permanent injunction restraining the defendant companies from making compulsory deductions from the salaries of the employees concerned in terms of their circular, dated August 10, 1957. The suit was instituted on August 26, 1957, and it was eventually decreed by the learned Subordinate Judge on contest on March 22, 1958. Against this decree, the present appeal was filed on May 1958.

2. The material facts lie within a short compass and the material events, which led to the institution of the instant suit may in the context of the relevant facts, be set out as follows:

3. By two orders, dated February 18, 1948, and June 4, 1948, of the Government of West Bengal, the industrial dispute between the appellant companies and their workmen in West Bengal as represented by the respondent Union, were referred to the Industrial Tribunal, consisting of Sri Ashutosh Das Gupta, Additional District Judge. On August 30, 1949, the said Tribunal gave its award, which was duly published on September 17, 1949, and given effect from 1st January, 1949.

4. One of the aforesaid disputes related to overtime allowances. It consisted of two parts, one concerning week days and the other Sundays and holidays. In the employees' charter of demands overtime allowance was claimed, so far as week days were concerned, at one and half day's pay in addition to usual pay and in regard to holidays at double the day's pay in addition to usual pay.

5. The award on this point was as follows:

'1. If any clerk or a member of the subordinate staff mentioned above is detained beyond the scheduled hours under order of the departmental heads, he shall receive extra payment at 1.25 times the normal rate of wages calculated pet hour. Half an hour or part of an hour over half an hour shall be taken as one full hour and part of an hour less than half an hour shall be ignored. It follows that no employee shall be entitled to any overtime for less than half an hour. For works after midnight overtime allowance shall be paid at double the normal hourly rate.

2. For working on Sundays and holidays, I think that a substituted holiday for each Sunday or holiday worked is sufficient compensation to the employees. The Central Pay Commission has discouraged extra payment for Sundays and holidays except where there is special strain or prolonged employment during night where such employment is frequent. Those who are employed on Sundays and holidays very frequently shall get double of their normal pay (that is one extra) for Sundays and holidays worked without any substituted holidays. Those who are employed on three Sundays or holidays or more in a month shall be deemed to have been employed frequently during Sundays and holidays.

5. Motor Drivers: The works of the Motor Drivers shall be distributed in such a way that they are not actually detained for more than 8 hours a day on each of the week days -- Monday to Friday and 4 hours on Saturday. If their services are not required during any interval, they should be permitted to leave the office. Such intervals shall be scheduled on the Notice Board of the Companies at least 24 hours and if possible 48 hours in advance. If he is detained beyond the aforesaid hours he should receive extra payment at 1.25 times the normal rate of their wages per hour. Part of an hour less than half an hour in a day shall be ignored and half an hour and more shall be treated as one full hour. For Sundays and holidays overtime work shall be paid at double the normal hourly rates.'

The summary annexed to the award, so far as this part is concerned runs as follows:

'Overtime allowance for works on Sundays and holidays: Clerks shall get generally substituted holidays for Sundays and holidays worked. If they are frequently employed on Sundays and holidays (i. e., on three days or more) they shall get overtime allowance at double the normal rate of pay for all where overtime is payable on week days -- overtime shall be paid at 1.25 the hourly rate.

On Sundays and holidays -- Workman shall be paid at double rates.'

6. In terms of the above award, the workers of the Statistical and Audit departments received overtime and extra allowances at the above rates, that is at 1.25 times normal hourly pay for week days and double the normal pay for the 4 years from 1952 to 1956. Thereafter, however, when the workers of the Calcutta Ghat Establishment, in their turn, submitted similar bills for overtime work the defendant Companies declined to pay at double the rate, as aforesaid in addition to the normal pay for Sundays and holidays on the ground that, for such work each day, the award provided for only one extra payment at the normal rate and not two days' salary in addition to the normal pay and, eventually, by the aforesaid circular, dated August 19, 1957, the companies concerned expressed their intention to deduct excess payments previously made on the above account from the monthly salaries of the employees concerned from August 1957. The present suit then came as a sequel to the above on August 26, 1957.

7. The suit was contested by the appellant companies and their defence inter alia was that the instant suit was not maintainable in law, not in any event, at the instance of the respondent Union, and further that on a proper interpretation of the award, for the extra work on Sundays and holidays the payment was to be at double the normal rate not excluding but including the monthly pay, or in other words, only one extra day's pay, for each such day in addition to the said monthly pay. Other defences are not material for our present purpose.

8. At the trial the first of the above defences, does not appear to have been seriously pressed and the real contest centred round the interpretation of the above relevant part of the award. The learned Subordinate Judge overruled the defences and decreed the suit. The defendants have now come upon appeal.

9. The learned Standing Counsel, who has appeared in support of the appeal, has contended first that the instant suit is not maintainable and the Civil Court has no jurisdiction to entertain it or in other words, that such a suit does not lie. In the second place, he has urged that, in any event, the suit is not maintainable at the instance of the plaintiff Union or in other words, that the said Union has no locus standi to bring or maintain such a suit. Lastly, he has contended that, on the true construction of the disputed award, the extra works on Sundays and holidays were to be paid for at the rate of only a day's normal salary excluding or in addition to the normal pay as claimed by his clients.

10. We proceed to examine the above contentions.

11. In support of the first contention, the learned Counsel has drawn our particular attention to Section 36-A of the Industrial Disputes Act and, incidentally to Section 33-C too. As to the latter, it is enough to say that on its own terms, it cannot bar the present suit. The instant suit is not a suit for recovery of money either directly or by way of computation of any benefit under the Award. It does not, therefore, strictly come within either Sub-section (1) or Sub-section (2) of the above section. Moreover, Sub-section (1) expressly provides that the remedy provided therein was without prejudice to any other mode of recovery and, in its context, Sub-section (2) also should be similarly read. It is clear further, that Sub-section (2) would apply, only where the question involved relates to a benefit capable of being computed in terms of money, or in other words, where the primary thing is a benefit under the award distinct from a money claim or money relief, though such benefit is ultimately reducible to a money value. The instant case is not of that type, in the premises, Section 33-C cannot apply to bar the present suit.

12. The position however, seems to be different when one turns to Section 36-A. By this section, the statute appears to have vested the Government with power to get the award interpreted by the Labour Court, Tribunal or National Tribunal as mentioned therein, and has proceeded to make such interpretation final and binding on the parties. Prima facie, this appears to us to exclude the jurisdiction of the Civil Court to entertain suits for such interpretation unless, at least, recourse is had, in the first instance to the above special Tribunal and, as the instant suit is, in substance, one for the aforesaid purpose and there has as yet been no attempt to have had recourse to Section 36-A it appears to be prima facie barred under the aforesaid section. In this view, the present appeal should be allowed, the trial court's decree should be discharged and the instant suit should be dismissed. It is necessary to observe here that this question of interpretation of the award will be concluded by its final determination by the Special Tribunal under Section 36-A, but if for any reason, the reference thereunder is not or fails to be effective or proves infructuous, it may still be open to the aggrieved party to approach the Civil Court for the purpose of the aforesaid interpretation.

13. The above conclusion renders it unnecessary to consider the other questions, raised before us, but as the point of the Union's locus standi to maintain the present action was argued at length, we would briefly indicate our views on the same. To the award, the Union, representing the workmen, was a party. The disputed term is a matter of collective bargaining and, reading the Industrial Disputes Act and the Trade Union Act. It seems to us that in matters of collective interest of its members, namely the workmen the Union as their representative, can take appropriate action and proceedings. This does not depend on Section 36 of the Industrial Disputes Act, which relates to the workers' representation in proceedings under the said Act, but upon the general scheme of the aforesaid two Acts. On this point, therefore we could have been inclined to hold in favour of the respondent and overrule the appellants' objection to the respondents' locus standi to bring the suit, if it was otherwise maintainable.

14. As to the last question namely, the question of interpretation of the Award, the point is not altogether free from difficulty and as this may go to the special Tribunal, contemplated in Section 36-A, as held above by us, we do not deem it proper to express any opinion upon it. In the circumstances the trial Court's decision also on this point should be set aside, so that the point may remain open for consideration at the appropriate stage and time by the appropriate tribunal in an appropriate proceeding. It is, accordingly left open in these proceedings.

15. We have already indicated that a suit for declaration of the parties' rights under the award, even though it might involve the question of its interpretation, may still lie in the Civil Court but only after steps or attempts under Section 36-A have proved infructuous, either because the Government has chosen not to make the reference or on some other ground. If, as aforesaid, this question of interpretation remains at large, it may well be for the Civil Court to decide it, as save and except an interpretation by the Special Tribunal as aforesaid, nothing not even the Government's view, would bar the Civil Court's jurisdiction.

16. We need only add further that the parties and/or the appropriate Government will be free to proceed under Section 36-A and nothing in this judgment will affect or prejudice in any way their rights, if any, in the said matter.

17. For the reasons given above by us, and subject as aforesaid we would allow this appeal, set aside the decree of the learned Trial Judge and dismiss the plaintiff's suit. The parties, however, are directed to bear their own costs throughout.

18. Before concluding, we may incidentally record the fact that at one stage, we were inclined to stay this appeal pending the above reference under Section 36-A but on further consideration we felt that it would be better, in the interest of all concerned, to dismiss the instant suit subject to the reservations, made hereinbefore, to clear up the grounds and facilitate the above reference and proper adjudication therein and we have done so, accordingly.

Niyogi, J.

19. I agree.


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