Executive Engineer (Training), ... vs Regional Labour Commissioner And ...
2002 Latest Caselaw 138 Del

JUDGMENT

Snajay Kishan Kaul, J.

1. Rule.

2. With consent of learned counsel for the parties the petition is taken up for final disposal.

3. This writ petition has been filed under Article 226 of the Constitution of India seeking a writ in the nature of certiorari for quashing the order dated 17.6.2000 passed by the Regional Labour Commissioner, New Delhi, an authority under the Minimum Wages Act, 1948 (hereinafter referred to as the said Act).

4. Respondent No. 2 was appointed as Chowkidar with CPWD on 16th May, 1981. A circular was issued on 19.9.1986 in respect of provision of overtime allowance of chowkidars. The said circular is as under :

"Chowkidars engaged in the field offices of the C.P.W.D. falling under the schedule employment as listed in the Minimum Wages Act, 1948 were declared entitled for extra wages of Overtime Allowance under Rule 25 of the M.W.

(Central) Rules 1950, with effect from 1.1.83 vide Ministry of Works & Housing (now Urban Development) letter No. 28015 (24)/77/EW.4 dated 6.7.83 and circulated to all CEs/SEs/Ees etc., in CPWD under Memorandum No. 3/14/70-EC (V) dated 9.9.83.

Under Rule 25 of the M.W. (Central) Rules, 1960 worker is entitled of extra wages of overtime when he is employed for more than 9 hours on any day or 48 hours in any week.

Accordingly, all the Executive Engineers etc. are hereby instructed to make payment of Overtime Allowance to Chowkidars in filed offices; where they have performed the in excess of the prescribed limits mentioned above for the period from 1.1.83 till date. It has also been decided the 50% of the amount of arrears will be credited to the G.P.F. Accounts of the Chowkidars concerned and the remaining 50% paid through cheques.

These orders will not apply to the chowkidars employed for looking after the inspection/ dak Bungalows. There orders will not also apply to the Chowkidars posted in the Chief Engineer's offices. However, these orders will apply in the chowkidars posted in the offices of the Superintending Engineers/Executive Engineers."

5. The claim of respondent No. 2 filed under Section 20 (2) of the said Act claiming over time has been allowed by the impugned order. The Regional Labour Commissioner has proceeded vide the impugned order to uphold the contention or respondent No. 2 on the basis of a decisions of the Central Administrative Tribunal in OA 2452/1991 and OA 2112/1988 in view of the observations stated to have been made in these order to the effect that chowkidars of CPWD are covered under Rule 25 of the Minimum Wages Act and they come under Item 7 part I of the Schedule.

6. Mr. S.S. Gandhi, learned senior counsel for the petitioner contends that the Regional Labour Commissioner has completely misread the judgment passed by the Central Administrative Tribunal and has invited my attention to the said judgment (Annexure P6). In the said judgment the office order of Directorate General of Works dated 19.9.1986 has been quoted in which it is state that order concerned will not apply to chowkidar employed for looking after inspection/Dak Bungalows, in the Chief Engineer Offices but would apply to chowkidars posted in the office of the Superintending Engineers/Executive Engineers. It is further stated in para 3 of the judgment of the Tribunal that it is not disputed that the applicants are employed as Chowkidars on the field offices as defined in DG (W)'s circular dated 19.9.1986 and are not detailed to look after the inspector/Dak Bungalows, nor are they posted in the Chief Engineer's office. Mr. Gandhi, thus contends that it was in these circumstances that the relief was granted to the applicants in the said O.M. Mr. Gandhi, learned senior counsel also refers to the judgment of the Supreme Court in Municipal Council, Hatta v. Bhagat Singh and Ors., (1998) 2 Supreme Court Cases 443 to contend that the provisions of the Act would apply only in the case of scheduled employment within the meaning of the Act and minimum wages have been fixed under the said Act. It is thus contended that both these requirements are necessary before the Act applies. The Supreme Court in the said judgment has observed that :

"4. There is also an amendment to Section 14 by addition of Sub-section (1-a) under the Minimum Wages (Madhya Pradesh Amendment and Validation) Act, 1961 being act 23 of 1961. Sub-section (1-a) which is inserted in section 14 entitles the State Government by notification to fix the limit for overtime work in a scheduled employment. This provision is not directly relevant. To claim overtime under Section 14, the following conditions must be fulfillled by an employee (1) the minimum rate of wages should be fixed under the Minimum Wages Act, 1948; and (2) such an employee should work on any day in excess of the number of hours instituting a norma working day.

Therefore, overtime under Section 14 is payable to those employees who are getting a minium rate of wage as prescribed under the Minimum Wages Act, 1948. These are the only employees to whom overtime under Section 14 would become payable. In the present case the respondents cannot be described as employee who are getting a minimum rate of wages fixed under the Minimum Wages Act, 1948. They are getting much more and that too under the Madhya Pradesh Municipal Services (Scales of pay and Allowance) Rules, 1967. therefore, Section 14 has no application to them. We have not been shown any other provision under which they can claim overtime.

5. The application under Section 22 of the Minimum Wages Act, is, therefore, misconceived. The respondents seem to have proceeded on the basis that because employment under any local authority is listed as Item 6 in the Schedule to the Minimum Wages Act, 1948 whey would automatically get overtime under the said Act, Section 14, however, clearly provides for payment of overtime only to those employees who are getting minimum rate of wage under the Minimum Wages Act, 1948. It does not apply to the getting better wages under other statutory rules."

7. Mr. Gandhi, learned senior counsel referred to Section 14(1) of the Act which is as under:

"14. Overtime (1) where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage-period as may be prescribed, works on nay day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher."

8. It is thus contended that in the case of an employee whose minimum rate of wages are fixed under the Act the provision of overtime would apply. It would be relevant to refer to the definition of employer and employee which are as under:

2 (e) "employer" means any person who employs, whether director or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act." 2(i)" employee" means nay person who is employed for hire or reward to do nay work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed."

9. It is thus contended that reference to the two definitions itself makes it clear that both the condition are required for the application.

10. Mr. Kapoor, learned counsel for the respondent No. 2 on the other hand refer to the judgment of the Supreme Court in Patel Ishwerbhai Prahaladbhai etc. v. The Taluka Development Officer and Ors., , to initially contend that once the employment is a scheduled employment ipso facto provisions of the Act come into force. However, reading of such judgment makes it clear that same is based on the two factors aforesaid being satisfied i.e. (i) the employment is admitted to be a scheduled employment and (2) the minimum wages have been fixed under the said Act. This is apparent from para 7 of the judgment where it is stated that "it is not disputed that minimum wages have been fixed by the State Government in respect of Tube Well Operators". At this stage Mr. Kapoor, learned counsel for the respondent No. 2 fairly conceded that in view of this legal position both the requirement would be mandatory i.e. that the employment should be a scheduled employment and the minimum wages should have been fixed under the Act.

11. In vive of the aforesaid position the only issue to be determined is the effect of the officer order of 19.9.1986.

12. Mr. Kapoor, learned counsel for respondent contends that in terms of the O.M. the provision of overtime allowance would apply to all chowkidars and the exception has been made only in the case of chowkidars employed at Inspection/Dak Bungalows and posted in the Chief Engineer Offices. Learned counsel further contended that respondent No. 2 was pressing his claim only for the period when he was posted at R.K. Puram Training Hostel and superintending Engineer Office. CPWD (in respect of which no claim is being pressed by the learned counsel for respondent No. 2) respondent) since for the remaining time admittedly he was posted at Dak Bungalow. Thus the question which arises for consideration is whether the posting of respondent No. 2 at CPWD Training Hostel would entitle him to overtime allowance for the said period.

13. A reading of the officer memorandum dated 19.9.1986 makes it clear the officer memorandum has been made applicable only to chowkidars engaged in the field offices of CPWD under the scheduled employment as listed under the Act. Thus the pre-requisite for being entailed to overtime allowance is the Chowkidar who is in the field offices of the CPWD. The second portion of the office memorandum referred to by the learned counsel for the respondent No. 2 states that order will not apply to chowkidars employed for looking after inspection/Dak Bungalows and Chief Engineer Offices. This portion of the circular clarifies the initial portion of the circular. Therefore, even if a chowkidar is engaged in a field office of the CPWD and that officer happens to be a inspection/Dak Bungalow or a Chief Engineer Office, benefits of the said office memorandum would not be available.

14. Admittedly the posting of respondent No. 2 at the CPWD Training Hostel does not fall within the meaning of a field office and would not thus be covered by the office memorandum. The exception made out in the latter part of the circular would only apply once the initial portion of the circular is applicable.

15. In view of the aforesaid decision, respondent No. 2 cannot be held entitled to overtime allowance.

16. The impugned order passed by the Regional Labour Commissioner, New Delhi, is consequently quashed holding that respondent No. 2 is not entitled to overtime allowance.

17. parties are left to bear their own costs.