Railway Employees' Co-oprative Bank, Ltd. vs Labour Court and Others

P.V. Rajamannar, C.J.—This is an appeal against the judgment of Rajagopala Ayyangar, J., disposing of W.P. No. 648 of 1959, which was

a petition filed under Article 226 of the Constitution of India by the Railway Employees'' Co-operative Bank, Ltd., Park Town, Madras, for the

issue of a writ of prohibition prohibiting the presiding officer, labour court, Madras, from proceeding further with the hearing of a claim petition No.

160 of 1959 on its file. That petition was filed by one Jayaraman, who was a workman employed by the bank purporting to be u/s 33C(2) of the

Industrial Disputes Act, 1947. Before we refer to the allegations in this petition it is necessary to refer to an application made earlier by the Railway

Employees'' Co-operative Bank Staff Union, members of which were employees of the bank u/s 51 of the Madras Shops and Establishments Act,

1947, for a declaration that the normal hours of work for the employees of the bank shall be 334 hours a week and that the employees are entitled

to overtime wages in respect of overtime work beyond 33� hours per week. The bank''s case was that the hours of work for the employees

were not fixed and that they were allowed to leave office at about 4-30 p.m. if they had finished the work, but if they did not, they had to remain

even after 4-30 p.m. to complete their work. The Commissioner of Labour who is the authority to hear and dispose of applications under this

section held that the normal hours of work prior to 1 April 1948 were only 33� hours per week. As regards the question of overtime wages, he

held that the employees were not entitled to any protection u/s 50 of the Madras Shops and Establishments Act, 1947, in respect of overtime

wages for hours in excess of 33� hours. It is subsequent to this order which was passed on 31 December 1958 that the petition of Jayaraman

above referred to was filed on 7 April 1959.

The petitioner alleged that under the orders of the Commissioner of Labour above-mentioned, under Sections 50 and 51 of the Madras Shops

and Establishments Act, 1947, the privilege of normal hours of work was protected at 33� hours per week and hence he was entitled to be

remunerated for the extra hours of work that is, the overtime beyond 33� hours per week, at double the wages which he estimated at Rs.

653.17 as per the particulars given by him. He prayed that the labour court may be pleased to compute the value of the benefit of overtime

allowance of Rs. 653.17 u/s 33C(2) of the. Industrial Disputes Act and grant him appropriate relief.

The bank filed a counter-statement raising inter alia the objection that the petition was mot sustainable u/s 33C(2) of the Industrial Disputes Act

as the claim made by the petitioner Jayaraman was not a benefit which he will be entitled to within the meaning of that provision. The bank further

referred to the order of the Labour Commissioner and relied on it in so far as it held that the employees were not entitled to overtime payment as

one of the privileges u/s 50 of the Madras Shops and Establishments Act, 1947, it was expressly pleaded that the said order of the Commissioner

of Labour had become final and the appellant was therefore precluded from agitating the question of overtime payment in respect of less than 48

hours of work in a week. Having filed this counter-statement, the bank thereafter filed the petition under Article 226, W.P. No. 648 of 1959, out

of which this appeal arises for the issue of a writ of prohibition on the ground that the industrial tribunal had no jurisdiction to entertain the petition.

Rajagopala Ayyangrar, J., held on a construction of Section 33C(2) that that sub-section indicated that the legislature intended it a wider scope

so as to comprehend all claims which arise between the employer and workmen in their character of employer and workmen. As regards the point

whether in view of the decision of the Labour Commissioner u/s 51 of the Shops and Establishments Act, there can be any claim for overtime

wages, the learned Judge took the view that the order of the Labour Commissioner u/s 51 would be binding upon the labour court. Nevertheless

the learned Judge considered that the claim of the workers might be based either on Section 31 of the Madras Shops and Establishments Act, that

1b, for work beyond the 48 hours specified in the section, or on the basis of an agreement between the parties for the payment of overtime wages.

It appears to have been submitted to the learned Judge by the learned Counsel for the workmen that it was the case of the workers that at the time

when the normal hours of work were increased there was an undertaking or an assurance that they would be paid overtime wages. The learned

Judge thought that if this was established the workers would be entitled to the benefit of such arrangement and its monetary value could be

evaluated the labour court u/s 33C(2) of the Industrial Disputes Act. In the result the learned Judge held that the labour court had jurisdiction to

entertain the claim and dismissed the writ petition. Hence this appeal.

There is considerable force in the contention of Mr. Vasantha Pal for the bank (appellant) that Section 33C(2) of the Industrial Disputes Act

would have no application to the facts of this case and it was not intended to provide for a claim such as we have in this case. But we do not think

it is necessary to pronounce finally on this point because in our opinion the appeal can be disposed of on another short ground which is confined to

the claim made by the respondent Jayaraman in his petition. We should not however be understood as accepting the view of Rajagopala

Ayyangar, J., on the point.

A perusal of the petition filed by the respondent Jayaraman makes it abundantly clear that the claim for overtime wages was made merely on the

order of the Commissioner of Labour u/s 51 of the Madras Shops and Establishments Act, in and by which he decided that the employees were

entitled to the privilege of 33� hours of work per week. There is no other averment which could furnish the basis of the claim for overtime

wages, like for instance, a specific contract between the workmen and the management, subsequent to the coming into force of the Madras Shops

and Establishments Act. With respect to the learned Judge we are unable to agree with him that the petition could be sustained on the basis of an

agreement between the parties for the payment of overtime wages. Such an agreement was nowhere pleaded in the claim petition of the

respondent. We may also add that it was not the case of the respondent that he had worked for more than than 48 hours and, therefore, was

entitled to overtime wages u/s 31 of the Madras Shops and Establishments Act. On the allegations contained in the petition there can be no doubt

that the respondent Jayaraman was not entitled to receive any benefit as and by way of overtime wages, even assuming that Section 33C(2) of the

Industrial Disputes Act could be construed be widely as to include any and every claim by a workman against his employer. This is a case in which

prima facie and on the averments made by the petitioner himself his petition is not sustainable.

The learned Counsel for the contesting respondent said that he may amend his petition and make the necessary averments as regards the

subsequent agreement. The fact remains, however, that no such amendment was made. We are therefore constrained to allow the appeal. The

order of Rajagopala Aygangar, J., is set aside and the petition filed by the appellant bank for a writ of prohibition is allowed. There will be a writ

prohibiting the labour court, Madras, from proceeding with the petition filed by the contesting respondent Jayaraman (viz., C.P. No. 160 of 1959

on its file).

This of course will not prevent the contesting respondent from making any further application such as he may be advised in the matter. No order

as to costs.