BABOO HUSAIN Vs. N P NOPANY

JUDGEMENT

(1.) Does a worker who is otherwise entitled to the protection of Payment of Wages Act forfeit the protection of the Act if he works overtime and claims overtime Wages in case his contractual wages along with the claim for overtime exceed the statutory limit and will the Act cease to apply to him in that event ? That is the question which has climbed to the top in this petition under Article 227 of the Constitution of India invoked by a Boiler Attendant who was attending to the boiler installed in a factory belonging to the respondent at Jamnagar known as Bajrang Mills and Fertiliser Co. during all the three shifts every day. He has challenged the impugned order passed by the learned Assistant Judge of Jamnagar exercising appellate powers under sec. 17 of the Payment of Wages Act of 1936 hereafter called the Act where by the learned Assistant Judge has set aside the award for Rs. 14850.00 made by the Payment of Wages Authority in favour of the petitioner and rejected the application made by the petitioner in toto. The learned appellate Judge has rejected the application of the petitioner inter alia on the ground as regards the applicability of the Act itself though such a ground was not urged before the Payment of Wages Authority in the initial proceedings at any time and even though it involved a decision on a mixed question of facts and law. The view taken by the learned appellate Judge is that the Payment of Wages Act does not apply to the petitioner in view of sec. 1(6) of the Act which provides that nothing in the Act shall apply to wages payable in respect of a wage-period which over such wage-period average four hundred rupees a month or more. As observed earlier no such contention was urged on behalf of the respondent-employer before the Authority in the course of the original proceedings. Whether or not the wages of the petitioner for the relevant wage-period would average four hundred rupees a month or more is a question of fact depending on the wages earned by the workman concerned. Unless a contention is pleaded in the original proceeding and a pointed issue is raised it would not be necessary for the employee to lead evidence in order to establish that his wages for the wage-period in question did not exceed four hundred rupees at the material time. It was therefore not open to the appellate Judge to proceed to decide this mixed question of facts and law for the first time when the attention of the parties was not focussed on this aspect and when the employer had not raised any such plea in the original proceedings.

(2.) Besides the learned appellate Judge has misinterpreted sec. 1(6) of the Act and has determined the issue against the petitioner on the basis of a basic misconception. The learned appellate Judge has proceeded on the premise that the expression wages occurring in sub-sec. (6) of sec. 1 of the Act would include overtime wages in respect of the period to which the complaint regarding non-payment or delayed payment related. The relevant provision as it then stood deserves to be quoted:

(3.) The conclusion is therefore inevitable that the Payment of Wages Authority was right in proceeding to determine the claim of the petitioner on merits. There however remains one stumbling block in the way of the petitioner. On an appreciation of evidence the Payment of Wages Authority came to the conclusion that the petitioner had successfully made out his claim by reason of the fact that the factory was admittedly working three shifts a day throughout the 24 hours and that the Company had not employed any other Boiler-Attendant apart from the petitioner. Admittedly the petitioner alone was a qualified Boiler Attendant employed by the respondent. The learned appellate Judge misread the evidence and came to the conclusion that it was not possible to believe that the petitioner would have been working for all the 24 hours round the clock. The learned appellate Judge observed that it would be humanly impossible for an individual to do so. What the learned appellate Judge failed to realise was that according to the petitioner he alone was engaged as a Boiler Attendant in order to discharge his duties as such for all the three shifts and that he had to be at the beck and call of the employer throughout this period What was meant was that he was to be available whenever a need arose apart from the fact that every day he was being called upon to work for several hours beyond the duty hours by way of overtime work. The witnesses examined by the employer have supported the stand of the petitioner to some extent as is evident from the following passage extracted from the judgement:-