Bombay High Court
Maharashtra State Electricity ... vs Shivaji Tukaram Kumawat on 28 November, 2023
2023:BHC-AUG:24909
1 924.WP-11248-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11248 OF 2022
1. Maharashtra State Electricity Transmission
Co. Ltd. (MSETCL), Auda Project & Sanvasu Parimandal,
rd
3 Floor, Old Saikheda Road, Raka Plot,
Near Durga Mata Mandir, Jail Road,
Nashik Road, Nashik.
Through its Chief Engineer.
2. Superintending Engineer,
Maharashtra State Electricity Transmission
Co. Ltd. 400 KV Sub-station, PO Khadka,
Tq. Bhusawal, Dist: Jalgaon.
3. Executive Engineer,
Maharashtra State Electricity Transmission
Co.Ltd., 132 KV Sub-station, Dhule,
Mumbai Agra Road, Tq. & Dist. Dhule. ...Petitioners
Versus
Shivaji Tukaram Kumawat
Age : 61 years, Occ.: Retired;
R/o : Surva Park, Plot No.2, Karanjgao Road,
Chalisgaon, Tq. Chalisgaon, Dist. Jalgaon. ...Respondent
****
Advocate for Petitioners : Mr. S. V. Adwant
Advocate for Respondent : Mr. B. R. Kedar
****
::: Uploaded on - 28/11/2023 ::: Downloaded on - 28/02/2024 04:09:25 :::
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CORAM : SHAILESH P. BRAHME, J.
rd
RESERVED ON : 3 NOVEMBER 2023
th
PRONOUNCED ON : 28 NOVEMBER 2023
JUDGMENT :
1. Rule. Rule is made returnable forthwith with the consent of the
parties. Heard learned Counsel for both the sides.
2. The petitioners are challenging judgment and order dated
18.05.2022 passed by the learned Judge Labour Court Jalgaon in IDA
application No.6/2018, awarding an amount of Rs.1,60,860/- with interest
at the rate of 10% from 01.11.2014 to the respondent. The respondent
is the original applicant in proceedings under Section 33C(2) of Industrial
Dispute Act (hereinafter referred to as Act).
3. The respondent was working as Senior Operator with the
petitioner from 03.04.1979 till 31.05.2015 i.e. age of superannuation.
The grievance of the respondent is that he has not been paid the over
time remuneration for the period April, 2014 to October 2014 for the
period of 303 hrs. He therefore claimed Rs. 1,60,860/- under Section
33C(2) of the Act. The proposal for the over time remuneration was
forwarded by the petitioner no.2. But it was not considered. It is the
case of the respondent that previously also he was awarded the
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remuneration for the overtime work. The action of the petitioners was
stated to be arbitrary and against the Factories Act and the Industrial
Disputes Act.
4. The claim is contested by the petitioners contending that the
respondent is not entitled for the overtime payment. There is a ceiling of
75 hours for three months as stipulated by Circular dated 26.06.2000.
From time to time, the instructions have been issued to the Sub-ordinate
Officers not to forward the proposals of claims which are contrary to the
Circular. The claim of the respondent was disputed and therefore it was
not within purview of Section 33C(2) of the Act.
5. The learned Judge of the Labour Court considered the
documentary evidence and oral evidence led before her. It is held that
previously the respondent was awarded the overtime remuneration from
July 2008 to September 2008 which was exceeding 75 hours. Despite
the Circular 26.06.2000, the selfsame respondent was awarded overtime
wages exceeding 75 hrs. No alternate arrangements have been made
by the petitioners and extracted the services of the respondent, therefore
petitioners were held to be liable to pay the remuneration.
6. The learned Counsel for the petitioners submits that there is no
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legal right or the vested right of the respondent to claim overtime wages
contrary to the provision of the Circular dated 26.06.2000. The
respondent's claim is exceeding the ceiling of 75 hrs. quarterly. The
petitioners have disputed actually rendering of overtime work.
7. The learned Counsel for the petitioners submits that just because
on previous occasion he was awarded payment for 88 hrs. cannot
operate as a promissory estoppel. The respondent can have no
legitimate expectation to claim overtime wages. He would further submit
that already there was a policy operating in the field and the instructions
were issued to the Sub-ordinate Officers not to forward the proposals.
Despite that proposal was forwarded which is illegal and arbitrary. The
impugned order is without jurisdiction considering provisions of the
Second Schedule of the Act.
8. It is submitted that in the absence of any adjudication of
entitlement of the respondent, Labour Court had no jurisdiction to award
disputed claim. The Labour Court arrogated to itself the jurisdiction of
adjudication on the purported right of the respondent and computing the
benefits. It is further submitted that the overtime dues ought to have
been decided by the Competent Authority under Minimum Wages Act
and under Section 10 of the Act.
5 924.WP-11248-2022.doc
9. The learned Counsel for the petitioners has relied upon the
following judgments :
(i) P.K. Maitra and Others Vs. Board of Trustees of Calcutta Port
Trust and Others
(ii) Bombay Chemicals Industries Vs. Deputy Labour Commissioner
and Anr. (2022)5 SCC 629
(iii) Rai Bahadur Narainsingh Sugar Mills Ltd. Vs. Mangey Ram,
(2019) 9 SCC 365
(iv) Nagar Council Rajpura Vs. Tajinder Singh & Ors.,
(2012)12 SCC 273.
(v) State of UP and Another Vs. Brijpal Singh, (2005)8 SCC 58
(vi) State Bank of India Vs. Ram Chandra Dubey, (2001) 1 SCC 73
(vii) Sahrjerao Janardhan Hande and Others Vs. Maharashtra State
Co-operative Marketing Federation Ltd., 2013(2) Mh.L.J. 204
(viii) Getwell Board & Paper Pvt. Ltd. Vs. Fakruddin S. Lokhandwala &
Ors., 2007(1) Mh.LJ. 246.
10. The submissions of the petitioners have been repelled by the
respondent. The learned Counsel for the respondent submits that the
learned Judge has only calculated the amount which is executory in
nature and within purview of Section 33C(2). He would submit that there
was no dispute over the rate, hours and the amount to be disbursed,
hence the impugned order is rightly passed. It is further submitted that
6 924.WP-11248-2022.doc
previously also the respondent was awarded the remuneration for the 88
hours despite Circular dated 26.06.2000.
11. Learned Counsel submits that it is not that respondent voluntarily
rendered services for the overtime hours. He was compelled to render
the services because there were vacancies and short of hands to
discharge the work. The respondent could not have refused the work
otherwise disciplinary action would have been taken against him. Hence
after extracting the work it is not permissible for the petitioners to deny
the wages for the work rendered. Learned Counsel invited my attention
to the proposal forwarded by the petitioner no.2 to petitioner no.1.
12. The learned Counsel for the respondent submits that the right of
overtime is recognized under Section 59 of the Factories Act. It is a
statutory right which cannot be denied to the respondent. The action of
the petitioners was found to be arbitrary and therefore rightly considered
by the Lower Court. The learned Counsel submits that the judgments
cited by the petitioners are not applicable to the present case. He
therefore would urge to dismiss the petition.
13. I have considered the rival submissions canvassed by the parties
and case law cited by them.
7 924.WP-11248-2022.doc
14. There are few relevant and admitted facts in the matter. A circular
dated 26.06.2000 is issued to restrict the overtime hours up to 75 hours
for three months. The respondent was awarded the overtime wages for
88 hours, exceeding the ceiling for the period July, 2008 to September,
2008. The proposal for the overtime wages of the respondent for 303
hours from April, 2004 to October, 2014 was forwarded by the petitioner
no.2 to the petitioner no.1 with necessary details which are placed on
record at Exhibit-R1. There was correspondence between the deputy
Executive Engineer, Chalisgaon and Executive Engineer, Dhule
indicating that few posts are vacant in the substation.
15. The respondent made representation to the petitioners claiming
overtime remuneration for the relevant period vide various application
from 2014 to 2018. The proposal of the claim of overtime wages was
prepared by the Additional Executive Engineer substation, Chalisgaon
and forwarded to Executive Engineer, Dhule on 17.05.2018 with
necessary details which are at page nos.74 to 76. The petitioners have
not raised any doubt or dispute regarding the claim made by the
respondent more specifically the numbers of overtime hours, the duration
and the rate. It was the sub-ordinate Officer of the petitioners who
forwarded and recommended for the overtime remuneration. The
petitioners have for the first time when matter reached Labour Court
8 924.WP-11248-2022.doc
disputed the entitlement of the respondent.
16. Another glaring fact which has surfaced from the correspondence
of the petitioners with their sub-ordinates is that there were vacancies in
the substation. The extra work was required to be done from the
employees rendering the services. The letters dated 06.06.2014 and
01.11.2014 which are produced on record indicate this particular
scenario. In this situation, the submission of the respondent that there
was no man power and he was required to render the overtime duties
and he had no choice to be accepted. If an employee under compelling
circumstances has discharged overtime work then he cannot be deprived
of the wages for the work done.
17. The petitioners have unable to satisfy this Court that there was
sufficient strength of the staff, the respondent was not required to render
the overtime duties, it was respondent without any requirement
discharged the overtime duties. If there is a short of hands and the
existing employees are required to render the overtime work then the
respondent is justified in saying that refusal to render the work might
have incurred disciplinary action. These are the compelling
circumstances for exceeding the overtime hours. I do not find that the
respondent is responsible for that. Respondent cannot be deprived of
9 924.WP-11248-2022.doc
his legitimate right of wages for the work done.
18. The learned Counsel for the petitioners has vehemently argued
that there is no pre-existing right. My attention is invited by the
respondent to the provisions of the Factories Act. Section 59 is as
follows.
59. Extra wages for overtime___
(1) Where a worker works in a factory for more than nine hours in any day or for more
than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to
wages at the rate of twice his ordinary rate of wages.
(2) For the purposes of sub-section (1), "ordinary rate of wages " means the basic wages
plus such allowances, including the cash equivalent of the advantage accruing through the
concessional sale to workers of foodgrains and other articles, as the worker is for the time
being entitled to, but does not include a bonus and wages for overtime work.
(3) Where any workers in a factory are paid on a piece rate basis, the time rate shall be
deemed to be equivalent to the daily average of their full-time earnings for the days on
which they actually worked on the same or identical job during the month immediately
preceding the calendar month during which the overtime work was done, and such time
rates shall be deemed to be ordinary rates of wages of those workers :
Provided that in the case of a worker who has not worked in the immediately preceding
calendar month on the same or identical job, the time rate shall be deemed to be equivalent
to the daily average of the earning of the worker for the days on which he actually worked
in the week in which the overtime work was done.
19. In view of the statutory provision referred above as well as in view
of the circular dated 26.06.2000 which is a policy of the petitioners it
cannot be said that the overtime wages is not a pre-existing right. It is
10 924.WP-11248-2022.doc
recognized by the petitioners. There is a statutory sanction for the
same. Once the petitioners extract services from the employee they are
bound to pay for the services. In the present matter, I am of the
considered view that there is pre-existing right as well entitlement of the
respondent.
20. The submission of the petitioners is that there is no adjudication or
determination by the Competent Authority regarding entitlement of the
respondent or his pre-existing right and therefore Section 33C(2) cannot
be invoked. I have already recorded my finding that there is a pre-
existing right under the statutory provisions. No determination as such
for the entitlement of the respondent is required. The petitioners
themselves have recognized the overtime work rendered by the
respondent by forwarding the proposal to the higher Authorities.
Therefore the claim of the respondent is well within the purview of
Section 33C(2).
21. The learned Counsel for the petitioners has vehemently argued by
relying upon various judgments that there is a dispute to the entitlement
of the respondent and the Labour Court under Section 33C(2) has no
jurisdiction to adjudicate the dispute of the entitlement on the basis of
the claim of the workmen. No doubt, while contesting the application
11 924.WP-11248-2022.doc
filed by the respondent, the petitioners have filed reply and contested
claim. This particular dispute or the contest is for the first time raised
when matter reached Labour Court. At the cost of reputation, I am
constrained to hold that the petitioners themselves have recognized the
claim of the respondent. The material particulars of the claim of the
respondent have not been disputed. Before reaching the matter to the
Labour Court there was no communication or indication by the
petitioners raising challenge to the entitlement. Therefore the petitioners
are raising an ostensible dispute for the entitlement of the respondent.
22. The endeavour of the petitioners is to deprive the respondent
from monetary benefits. Their defence to entitlement of the respondent
is illusory. I am of the considered view that the present case does not
fall under Section 10(1) of the Act or under the provisions of Minimum
Wages Act. It is not a case where provision of Section 18 and 19 of the
Act are attracted. I have carefully considered the law laid down by the
various Courts indicating the scope of Section 33C(2), as cited by the
petitioners. The Labour Court has rightly exercised the jurisdiction.
23. The petitioners have heavily relied upon the Circular dated
26.06.2000 and objected the claim as it is exceeding 75 hours. Despite
the ceiling on the overtime hours, the petitioners and their sub-ordinates
12 924.WP-11248-2022.doc
have extracted work from the respondent. Under compelling
circumstances, the respondent is required to render work exceeding 75
hours. The instructions following from Circular dated 26.06.2000 are for
the officers of the petitioners. Once the work is extracted, the workman
is bound to receive the wages for the same. This has been aptly
appreciated by the impugned order by observing that the respondent is
entitled to the claim.
24. The learned Counsel for the petitioners has relied upon the
various judgments. Those are in respect of the scope of Section 33C(2).
Those principles are undisputed and guiding but in the present matter, I
have already recorded that an ostensible dispute is raised by the
petitioners to the claim of overtime wages. I am of the view that the
claim of the respondent falls within the purview of Section 33C(2) and
Labour Court has rightly exercised the jurisdiction.
25. The overtime wages is a right of an employee is held by the
Supreme Court in the matter of The Workmen of the Calcutta Electric
Supply Corporation Ltd. Vs. Calcutta Electric Supply Corporation, AIR
1973 SC 2143. Paragraph No.4 and 5 are helpful in the present matter.
26. The petitioners have also pressed into service the principles of
13 924.WP-11248-2022.doc
promissory estoppel. Just because on previous occasion, the
respondent was paid the wages for exceeding 75 hours cannot be a
ground to claim similar relief. Though the learned Labour Court has
considered the previous payment made to the respondent as a ground to
allow the claim of the respondent, that is not a sole ground. I have
already recorded my finding that the respondent was compelled to
render the overtime duties, the petitioners were not having sufficient staff
to manage the work and the petitioners themselves have forwarded the
proposal of the claim of the respondent.
27. For the reasons assigned above, I do not find any merit in the
petition. The writ petition is dismissed. Rule is discharged.
[SHAILESH P. BRAHME, J.]
28. After the pronouncement of the judgment, learned Counsel for the
petitioners requests to stay the operation of this order for sometime to
approach the Higher Forum. The request is opposed by the learned
Counsel for the respondent. He submits that no amount has been
deposited by the petitioners and the order is in the form of money
decree.
29. An interim relief is in operation till this date staying the
14 924.WP-11248-2022.doc
disbursement of the amount to the respondent. I do not find that any
prejudice would be caused to continue the stay to the disbursement for
further period of four weeks. There shall be stay to the disbursement for
further period of four weeks and thereafter it shall stand automatically
vacated.
[SHAILESH P. BRAHME, J.]
NAJEEB//
