JUDGMENT Nishita Mhatre, J.
1. These writ petitions challenge the order of the Labour Court passed while dealing with the applications under section 33-C(2) of the Industrial Disputes Act (hereinafter referred to as 'the said Act'). These applications were filed by the workmen for overtime during the half period at outstations. These writ petitions are being disposed of together by this common judgment as they challenge the same order.
2. Writ Petition No. 581 of 1999 has been filed by the Union of India through the General Manager, Western Railway (hereinafter referred to as 'the employer') against an individual workman-Rampal Singh. Writ Petition No. 573 of 1999 is a cross petition by the workman. Writ Petition No. 1375 of 1999 is a petition filed by 16 workmen against the employer challenging the same order of the Labour Court.
3. The facts giving rise to these petitions are as follows :
The workmen were appointed as first class coach attendants but asked to work in air-conditioned coaches on long distance trains. The workmen were not paid overtime wages which they were entitled to for the period that they were halting at outstations while on duty. They had already claimed overtime for the halt period for an earlier period which had been allowed by the Labour Court in such cases. Despite such orders being passed by the Labour Court and being confirmed by this Court, the employer did not care to abide by the orders and refused to pay overtime wages for the half at outstations. The workmen, therefore, filed applications under section 33-C(2) of the said Act and averred in the said applications that they were entitled to overtime wages in accordance with the Railway Board's letter dated 11-6-1974. Each workman in his application mentioned the period for which he had claimed overtime wages i.e., between the period January, 1980 to December, 1995. The employer resisted these claims of the workmen by contending inter alia, that Railways are not an industry and that the application under section 33-C(2) of the said Act is not maintainable as there was no existing right in favour of the applicant workmen to claim overtime wages; that in view of the Railway Board's letter dated 27-6-1985 regarding computation in duty hours of air-conditioned coach attendants, the workmen were not entitled to the paid overtime; that the record pertaining to the period claimed was destroyed by the employer and, therefore, the employer was not in a position to verify the claims of the workmen and that the claims were barred by delay and laches.
4. A rejoinder was filed by the workmen refuting the contentions and allegations made in the written statement. The workmen pleaded that the Railway Board's letter dated 27-6-1985 was in respect of first-class air-conditioned coach in-charge and air-conditioned coach attendants and, therefore, was not applicable to the workmen; that all except one-Rampal Singh had claimed overtime from sign-on to sign-off and in case of Rampal Singh, he had claimed overtime for the half period.
5. Evidence was led on behalf of the workmen by examining Rampal Singh. The employer did not choose to lead any evidence at all. The Labour Court by a common order rejected all the applications except in the case of Rampal Singh and held that he was entitled to overtime for the halt period from 27-12-1993 to 31-12-1995. The Labour Court came to the conclusion that the claim suffers from laches and, therefore, was not maintainable. On the question of maintainability of the applications in view of the contention raised by the employer that it was not an industry, the Labour Court held that it was well established that the railways are an industry and, also that the applicants are workmen under the said Act. The Labour Court was of the opinion that the workmen had an existing right to claim overtime wages and, therefore, the applications under section 33-C(2) were maintainable. However, the Labour Court was of the view that since the applications were filed after a long period, there was a delay on the part of the workmen in approaching the Labour Court and, therefore, the claims would have to be disallowed. However, on merits, the Labour Court observed that the letter dated 27-6-1995 had no relevance to the claims of the workmen since they were not appointed as air-conditioned coach attendants. All the workmen were appointed as first-class coach attendants and were required to work in air-conditioned coaches. The Labour Court on the basis of the evidence before it, came to the conclusion that the workmen were all appointed as first-class coach attendants and the letter dated 27-6-1985 did not govern the payment of overtime of these workmen but instead, they were entitled to the computation of the overtime at the rate prescribed in the letter of the Railway Board dated 11-6-1974.
6. Mr. Sureshkumar, learned Advocate for the employer, submitted that the Labour Court had erred in allowing the claim of Rampal Singh for overtime wages for the halt period between 27-12-1993 and 31-12-1995 on the basis of the Railway Board's letter dated 11-6-1974. He submitted that the workmen were air-conditioned coach attendants and, therefore, the letter of 27-6-1985 was applicable to them. He further submitted that the claims of the workmen being inordinately delayed, the Labour Court had justifiably rejected the claims. For this proposition, he relied on the case of Union of India v. Shri P.S. Pansora & others, decided by this Court (Writ Petition No. 2012 of 1998); Madras Port Trust v. Hymanshu International, reported in 1979(I) S.L.R. 757; Union of India & another v. S.N. Verma, reported in 1979(I) S.L.R. 758; judgment of this Court in Deputy Engineer, Zilla Parishad, Umred & others v. Shantaram Ramaji & others, (Writ Petition Nos. 2547 and 2551 to 2598/1994); Nanoo Ramn v. Mahesh Chandra & another, reported in 1991 S.C.C. (L & S) 648.
7. Mr. Jha, learned Counsel for the workmen in Writ Petition No. 581 of 1999 and 573 of 1999 submitted that there was no question of laches under section 33-C(2) of the said Act. He submitted that there was no period of limitation prescribed under the said Act for filing an application under section 33-C(2) and, therefore, the claims of the workmen should have been allowed by the Labour Court. He further submitted that the earlier claims made by other workmen on the basis of the same letter dated 11-6-1974 had been allowed by the Labour Court. The writ petition filed by the employer was rejected and despite that, the employer had not cared to promptly pay the overtime wages. He submitted that the workmen had hoped that wiser Counsel would prevail and the employer having once been directed to pay overtime wages to the first-class coach attendants, would comply with the orders of the courts and pay the overtime wages at the rate prescribed in the letter of 11-6-1974 to all workmen irrespective of whether they had filed applications under section 33-C(2) of the said Act.
Learned Counsel urges that it was only when the claims for overtime were not satisfied by the employer that the workmen were compelled to approach the Labour Court under section 33-C(2) of the said Act. In the case of Rampal Singh, the overtime wags were directed to be paid when he filed application in 1992 for the period 1980-1989. Despite having succeeded, the amount was not paid to him. He also submits that as there is no question of limitation under 33-C(2), the Labour Court has seriously erred in allowing the claim only for the period from 1990-1995 and not for the earlier period.
8. The learned Counsel for the railways urges that the Labour Court has seriously erred in allowing the claim of Rampal Singh to the extent that he is entitled to overtime for the halt period between 27-12-1993 to 31-12-1995 on the basis of the railway board's letter dated 1-6-1974. He urges that the workman were covered by the letter dated 27-6-1985 and not by letter dated 11-6-1974. He further urges that on the basis of the evidence on record, it was clear that Rampal Singh was employed as air-conditioned coach attendant and the earlier letter of the railway board of June 1974 did not apply to such attendants. He, therefore, submits that there was no existing right to the workman to claim overtime under section 33-C(2) of the said Act.
9. Mr. Ramamurthy, learned Counsel for the petitioners in Writ Petition No. 1375 of 2000, submits that the Labour Court has hopelessly erred in rejecting the applications of the petitioners on the ground that they were delayed. He submits that the question of delay is not an issue under section 33-C(2) of the said Act and benefits available to the workmen cannot be denied to them to this basis. He relies on the judgment of this Court in the case of Jayanti Paul P. & others v. Union of India & others, (Writ Petition No. 1376 of 2000), wherein this Court (S.S. Nijjar, J.) has disapproved of a similar view taken by the Labour Court. He also bases his arguments on the judgment of the Supreme Court in the case of Ajaib Singh v. Sirhind Co-operative Marketing cum Proceedings Service Society Limited & another, reported in 1999 S.C.C. (L & S) 1054, wherein it has been held that the provisions of Articles 105 and 137 of the Limitation Act are not applicable to the proceedings of the said Act.
10. The Labour Court had totally erred in my view by rejecting the applications on the ground of delay. The Labour Court has held that the claim made by the workmen in 1996 for the period from 1980 of 1989 cannot be made at such a late stage and has come to the conclusion that the applications have to be rejected as the claim is a stale one and no explanation has been given to explain the period. The Labour Court while doing so has lost sight of the fact that earlier applications made on behalf of the workmen for similar demand but for a different period have been allowed by the Labour Court and this order had been upheld by the order of this Court. It is obvious that the workmen were under the impression that wiser Counsel would prevail and the railways would implement the orders of the Court and pay overtime on a regular basis rather than compelling the workmen to make applications every now and then to the Labour Court for claiming their dues. Their hopes having been belied, the workmen approached the Labour Court. The judgment of the Supreme Court in the case of Madras Port Trust (supra) cited by the Labour Court for the railways in fact supports the contention of the workmen. This case dealt with the claim of refund of the amount of wharfage, demurrage and transit charges payable to the appellant under the Madras Port Trust Act. The Port Trust had raised the plea that the appellant was barred by limitation from claiming this amount. The Supreme Court in paragraph 2 of the judgment has observed thus : "2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable"
11. In the present case, it appears that the railways, who are a public authority, have adopted a practice of not paying overtime wages on specious pleas. The contention of the learned Counsel for employer that their records are missing or destroyed and, therefore, they were unable to resist the delayed claim is also not well-founded. From the pleadings, it is seen that the railways have contended in one place that their records are maintained for 10 years whereas in another place, they have submitted that the records maintained by them are only 3 years old. It is surprising that a public authority such as the railways does not maintain its records knowing fully that overtime wages are payable to the employees. The claims of the workmen are for various periods ranging from 1980 to December, 1995. The applications have been filed in 1996. Admittedly, till 27-6-1985 (the letter on which the employer rely), the workmen were governed by the letter dated 11-6-1974. There was no reason why this amount payable under this letter dated 11-6-1974 was not paid to the workmen immediately, when the amount became due and payable to them. No reason has been given by the employer for destroying the record pertaining to that period. Not a single witness has stepped into the witness box for the employer to depose to this effect. It is, therefore, not possible to accept the contention of the employer that as the record is destroyed, it would not be possible for them to produce any documents to show that the workmen are not entitled to the amounts claimed by them.
12. In Ajaib Singh's case (supra), the Apex Court in paragraph 10 of the judgment observed thus :
"...We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under section 33-C of the Act to be adjudicated. It is not the function of the Court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/Boards and Tribunals under the Act."
This obviously means that the scope of section 33-C(2) is not circumscribed by any period of limitation. The Labour Court was therefore, not right in rejecting the claims of the workmen on the ground of delay and laches.
13. The other judgments relied upon by the learned Counsel for the employer merely reiterate the position that if at all there is an inordinate delay, the workmen must satisfactorily explain the delay and the claim under 33-C(2) cannot be rejected solely on the ground of delay. In the present case, I find that the explanation given by the workmen that the claims have been filed after their hopes of getting any amounts for overtime wages for the period from sign-on to sign-off and outstation halts were belied. No prejudice would be caused to the employer if the applications were to be decided on merits by the Labour Court.
14. Mr. Suresh Kumar's contention that the circular dated 27-6-1985 is applicable and not the letter dated 11-6-1974 cannot be accepted. As rightly found by the Labour Court, the workmen were posted as first-class coach attendants and were required to do the work of air-conditioned coach attendants. There is no material on record to show that the workmen were posted/appointed as A/C coach attendants and, therefore, the circular dated 27-6-1985 is not applicable. In view of this, the submission of Mr. Suresh Kumar cannot be accepted.
15. The order of the Labour Court rejecting the applications filed by the workmen on the ground of delay is set aside. The applications are remanded to the Labour Court shall compute the amount payable to the workmen on the basis of the material produced by the parties before it. The workmen as well as the employer may produce such further material as may be required for computation of overtime wages.
16. With these directions, Writ Petition No. 581 of 1999 is rejected and Writ Petition Nos. 573 of 1999 and 1375 of 2000 are allowed accordingly, in the abovestated terms.
Parties to act on an ordinary copy of this order duly authenticated by the Court Associate.