PETER GONSALVES Vs. KILLICK NIXON LIMITED

JUDGEMENT

(1.) The petitioner who is in employment of the respondent No. 1 company made a claim under S. 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "Act"), claiming overtime wages from the employer on the footing that he was entitled to claim overtime wages at the rate of one and a half times the rate of daily wages in respect of the entire number of hours of work in excess of 36 hours per week which constituted his normal working hours in a week. It was not in dispute before the Labour Court that the normal working hours of the petitioner in a week were 36. The Labour Court has taken the view that the petitioner was entitled to overtime wages only for the number of hours in excess of 48 hours a week. On that basis the claim made by the petitioner was granted to a limited extent in respect of 47 hours of overtime work done in November, 1972 and January and March, 1973 only.

(2.) The petitioner's contention in this petition which is directed at the order of the Labour Court, in so far as it rejects his claim for overtime wages in respect of the hours of work in excess of 36 upto 48 hours, is that the petitioner was entitled to claim overtime wages in respect of any work done by him in excess of 36 hours per week under the very terms of S. 63 of the Bombay Shops and Establishments Act, 1948 (hereafter referred to as "the Shops Act").

(3.) Now, there can be no doubt that if the petitioner was able to establish that he had a pre-existing right to claim overtime wages for any period in excess of 36 hours per week, the application properly lay before the Labour Court under S. 33C(2) of the Act. Now, when we say that he has to establish a pre-existing right that right is not automatically created by the fact that he has worked overtime, but that pre-existing right has to be founded on some statute or on some award or on some agreement with the employer. Admittedly the only basis on which such a claim is being made, according to the petitioner's counsel, is that he is entitled to claim overtime wages under S. 63 of the Shops Act.