PANAMBUR VISHNUMURTI NARAYAN UPADHYAYA Vs. C P FERNANDES

JUDGEMENT

(1.) THE petitioner is the General Secretary of' the Hotel Mazdoor Sabha, and one of the members of this Union applied to the Payment of Wages Authority for payment of overtime wages against second opponent in respect of certain wage periods, and the case of this employee was that he had worked more than 48 hours every week and therefore had become entitled to receive wages at one and a half times the rate for such overtime every week, and in the application it was clearly stated that the claim was made under Section 63 of the Bombay Shops and Establishments Act, 1948. This claim of the employee was rejected by the Authority and in the judgment reference has been made to Section 59 of the Factories Act and Section 70 of the Shops and Establishments Act. It Is clear from the application made by the employee that neither of these two sections had any relevance and Mr. Nar-golkar has stated before us that through some mistake or oversight the arguments advanced in some other case have been incorporated in the judgment relating to this particular period. Ordinarily we should have sent the matter back to the Authority to consider the claim of the employee under Section 63, but Mr. Nargolkar has drawn our attention to a judgment delivered by the Authority on the 30th September 1955 in another application No. 7311 of 1955 where the question of section 63 was considered and the Authority has come to a particular conclusion, and Mr. Nargolkar wants us to hold that the view taken by the learned Authority with regard to the proper construction of Section 63 is erroneous and that we should hold that it is erroneous, so that the matter may not have to come back before us.

(2.) SECTION 63 (1) of the Bombay Shops and Establishments Act provides that where an employee in any establishment other than a residential hotel, Restaurant or eating house, is required to work in excess of the limit of hours of work, he shall be entitled, in respect of the overtime work, to wages at the rate of one and a half times his ordinary rate of wages. Sub-section (2) deals with an employee in a residential hotel, restaurant or eating house. There is an explanation to this section which provides:

(3.) THE reasoning of the Authority in the judgment in application No. 7311 of 1955 is that "according to the explanation to Section 63 the limit of the hours of work shall mean, in the case of the employees in shops and commercial establishments, nine hours in any day and forty-eight hours in any week. Delivery men are exempt from the provisions of Section 14, that is to say, there is no limit of hours of work for such class of employees and if there is no limit of hours of work for such class of employees, it cannot be said that such employees are required to work in excess of the limit of the hours of the work. " with respect, the fallacy underlying this argument is that the limit of hours of the work laid down in Section 63 is for the purpose of that section, without any reference to Section 14, and the limit of hours are laid down in order to determine what is the overtime and what wages are to be paid to the employee. It is erroneous to assume that because an establishment is exempted from the provisions of Section 14 and because there is no limit of work laid down with regard to that establishment under Section 14, therefore there is no limit of hours of work applying to that establishment as far as the Section 63 is concerned. . The limit of work for the purpose of Section 14 is entirely different from the limit of work laid down by the Legislature for the purpose of Section 63. Whereas the limit of work for the purpose of Section 14 is laid down in order to prohibit the employer from requiring an employee to make him work beyond the limit, the limit of work laid down for the purpose of Section 63 is purely for the purpose of computing overtime wages, and the error into which the Authority has fallen is to have taken the view that because there was no limit of work with regard to a particular establishment under Section 14, therefore there would be no limit of work under Section 63 and the establishment could make an employee work for any length of time without paying him overtime wages. In our opinion, therefore, if the employee in this case establishes that he has worked overtime in any particular week, he would be entitled to overtime wages as provided by Section 63. Whether in fact he has so worked has not yet been decided by the Autho rity.