State Bank of India v. State Bank of India Staff — 1974 DIGILAW 199 (MAD)

Judgment :- Varadarajan, J. There is an observation of a Division Bench of this Court in Railway Employees' Co-operative Bank v. Labour Court, that it was not the case of the workman that he had worked for more than 48 hours and, therefore, was entitled to overtime wages under S.31 of the Tamil Nadu Shops and Establishments Act, 1947. Another Division Bench of this Court has observed in K. P. V. Sheik Mohammed Rowther & Co. v. K. S. Narayanan,: "So far as the overtime wages are concerned, the learned Judge has found that the workman in W.A. No. 402 of 1960 has worked beyond the normal working hours. That finding appears to be correct. In view of it, he will be entitled to overtime wages" * . K. N. Mudaliyar, J., before whom these writ petitions came, felt that there was conflict in the reasoning in these two Division Bench decisions and that the matter must, therefore, go before a Division Bench. That is how the matter has come up before this Bench. 2. Selvaraj Daniel, Parangusam and Damodaran, who are respectively the first respondent in W.P. Nos. 1006 to 1008 of 1971, filed Claim Petitions Nos. 19, 21 and 20 of 1964 under S. 33C-2 of the Industrial Disputes Act, 1947. The petitioners in those petitions (hereinafter referred to as the workmen) claimed to be employees in the commercial establishment of the petitioner in these petitions (hereinafter referred to as the management) and to be governed by the Tamil Nadu Shops and Establishments Act, 1047. The workmen alleged that the State Government has, by a notification dated 16-1-1961 made under S.6 of the Tamil Nadu Shops and Establishments Act, exempted the management's branches in this State from the operation of the provisions of that Act except Ss. 31, 41, 43, 50 and 51. Section 31 provides that where any person employed in any establishment is required to work overtime, he shall be entitled, in respect of such overtime work, to wages at twice the ordinary rate of wages. "Overtime work" which is not defined in that Act, in the ordinary sense, means work done beyond the normal working hours in force in the establishment either by contract, settlement or award. "Overtime work" which is not defined in that Act, in the ordinary sense, means work done beyond the normal working hours in force in the establishment either by contract, settlement or award. Under paragraph 10.46(1) of the Desai Award, working hours for members other than subordinate staff of the various bank exclusive of the recess period on week days are fixed at 6 1/2 hours a day. That provision is not compulsory, but enables the employer to fix the working hours as not exceeding 6 1/2 hours a day on all week days except Saturday, on which it may not be exceeding 4 hours. Paragraph 10.46(14) of that Award provides for the rate of payment for overtime work and says that where payment is required to be made by any enactment at a higher rate, it shall be paid at such higher rate, and sub-cl. (17) of that paragraph states that the directions given in paragraph 10.46 shall be subject to the provisions made by any enactment applicable to the establishment concerned. The workmen understand that as per the practice prevailing in the management's establishment, since 1-4-1948, any employee working beyond the normal working hours, namely, 6 1/2 hours per day on week days and 4 hours on Saturdays was paid overtime wages at twice the rate of ordinary wages. That was the practice until the Desai Award came into force even after the earlier Sastri Award had stated that overtime wages shall be paid at 1 1/2 times the ordinary rate. But the management is paying over-time wages only at 1/2 times the ordinary rate after the Desai Award was made applicable to the establishment of the management form 1-6-1963, apparently under the impression that the rate of overtime wages prescribed in S.31 of the Shops and Establishments Act would apply only to overtime work done beyond 8 hours per day. The workmen are entitled to wages at twice the ordinary rate even for overtime work done beyond 6 1/2 hours and within 8 hours on week days and beyond 4 hours on Saturdays under paragraph 10.46(1), (14) and (17) of the Desai Award read with S.31 of the Shops and Establishments Act, 1947. The workmen are entitled to wages at twice the ordinary rate even for overtime work done beyond 6 1/2 hours and within 8 hours on week days and beyond 4 hours on Saturdays under paragraph 10.46(1), (14) and (17) of the Desai Award read with S.31 of the Shops and Establishments Act, 1947. The workmen, therefore, filed the petitions under S.33C(2) of the Industrial Disputes Act for computation of the benefit to which they are entitled, namely, difference between wages at twice and 1 1/2 times the ordinary rate of wages for overtime work done by them beyond 6 1/2 hours per day on week days and beyond 4 hours on Saturdays from 1-6-1963. 3. The management contended in the counter-statements filed before the Labour Court that the expression "overtime work" in S.31 of the Shops and Establishments Act should be construed to mean work done beyond the working hours prescribed under S.14 of that Act. The period referred to in paragraph 10.46(14) of the Desai Award means the period of work done beyond the working hours prescribed in S.14 of the Shops and Establishments Act. The reference to payment of overtime wages at twice the ordinary rate before the Desai Award came into force is irrelevant and extraneous to the question, though under certain circumstances overtime wages are paid at more than 1 1/2 times the ordinary rate. The claim petitions are unsustainable, and the Labour Court's jurisdiction under S.33C(2) of the Industrial Disputes Act cannot be invoked to enforce the workmen's claim. 4. The Labour Court enquired into the matter and accepted the workmen's claims as prayed for by them. The management challenged those orders in Writ Petitions Nos. 536, 662 and 663 of 1968. Ismail, J. who disposed of those writ petitions and quashed the order of the Labour Court, and remanded the claim petitions for fresh disposal, observed in his judgment "Learned Counsel for the petitioner contends that S. 50 was not relied on in the claim statements preferred by the first respondent and, therefore, the petitioner had no opportunity to meet case. Ismail, J. who disposed of those writ petitions and quashed the order of the Labour Court, and remanded the claim petitions for fresh disposal, observed in his judgment "Learned Counsel for the petitioner contends that S. 50 was not relied on in the claim statements preferred by the first respondent and, therefore, the petitioner had no opportunity to meet case. Further, the learned counsel contends that S. 50 will apply only if the Labour Court records a finding that on the date when the Act came in to force, the employees were enjoying this privilege twice the normal rate of wages for the overtime work they did and, in this particular case, no such finding has been recorded and as a matter of fact even in the claim statements what was put forward by the respective first respondents was that even since 1-4-1948 the petitioner had been paying twice the normal rate of wages from 1-4-1948 is not to find that on the date when the Act came into force the employees were entitled to that right or privilege and consequently the conclusion of the Labour Court in that behalf us plainly erroneous ...... learned counsel for the first respondents in these three petitions does not support the order of the Labour Court on this ground. On the other hand, learned counsel contends that their claim was principally based upon S.31 of Madras Shops and Establishments Act, 1947, and that question had not been considered by the Labour Court at all. In view of this concession on the applicability of S.50 of the Act, the order of the Labour Court cannot stand and has to be quashed" * 5. After the remand, the Labour Court found in Claim Petitions Nos. 19 to 21 of 1964 that the normal working hours in the establishment of the management are 6 1/2 hours per day from Monday to Friday and 4 hours on Saturday and that any work done on those days in excess of those hours would be overtime work. The management contended before the Labour Court, relying upon S.14 of the Shops and Establishments Act and some observations made in the Desai Award, that the workmen would be entitled to claim wages only at 1 1/2 times the normal wages for overtime work. The management contended before the Labour Court, relying upon S.14 of the Shops and Establishments Act and some observations made in the Desai Award, that the workmen would be entitled to claim wages only at 1 1/2 times the normal wages for overtime work. But the workmen contended, relying upon S.31 of the Shops and Establishments Act, that they are entitled to wages at twice the ordinary rate of wages for overtime work. The Labour Court found that the establishment of the management is exempted from the operation of S.14 of the Shops and Establishments Act, that S.31 of that Act, which provides for payment at twice the ordinary rate of wages, applies, that the Desai Award, while holding that bank employees should be paid overtime wages at 1 1/2 times the ordinary rate of wages, has provided that if any enactment prescribes a higher rate of payment, the higher rate will prevail and that the Desai Award cannot, therefore, affect the workmen's right to claim overtime wages at twice the ordinary rate as provided for in S.31 of the Shops and Establishments Act. Section50 of that Act also says that nothing contained therein shall affect any rights or privileges which any person employed in any establishment is entitled to on the date on which it came into operation in respect of such establishment, under any other law, contract, custom or usage applicable to such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under the Act. The Labour Court observed that there is no evidence on either side to show the rate at which overtime ages were paid when the Shops and Establishments Act came into force in 1947, and opined that the inference to be drawn from the exemption of the establishment of this management from the operation of S.14 of that Act would mean that the Legislature intended that the employees of this establishment should get overtime wages at double the ordinary rate. In the end the Labour Court found that the workmen are entitled to claim overtime wages at twice the ordinary rate for work done beyond 6 1/2 hours per day on week days and 4 hours on Saturday and computed the money value of the benefit at Rs. 219.85, Rs. 216.37 and Rs. 275.29 in C.P. Nos. 19, 20 and 21 of 1964 respectively. 219.85, Rs. 216.37 and Rs. 275.29 in C.P. Nos. 19, 20 and 21 of 1964 respectively. These are the very same amounts at which the benefits, to which the workmen were entitled, were computed earlier in these three claim petitions by a common order dated 18-4-1966, which was quashed by Ismail, J. by his said judgment dated 5-12-1969 in W.P. Nos. 536, 662 and 663 of 1969. Ismail, J., in that judgment observed that the Labour Court would have to determine the claims of the workmen with reference to S.31 of the Shops and Establishments Act, on which reliance was placed in the claim statements as well as during the arguments before that Court. 6. Writ Petitions Nos. 2827 and 2828 of 1972 have been filed by Messrs. Philips India Limited under Art. 226 of the Constitution for quashing the common order dated 1-9-1972 passed by the Labour Court, Madras in Claim Petitions Nos. 306 and 329 of 1971 filed against that management by two sets of its workmen under S.33C(2) of the Industrial Disputes Act, 1947. One set of nine workmen are petitioners in C.P. No. 306 of 1971. Another set of 11 workmen are petitioners in C.P. No. 329 of 1971. The management in these two writ petitions will be referred to as the management (P) and the workmen as the workmen (P). 7. The workmen (P) alleged in their claim petitions that the management (P) is a commercial establishment. According to the conditions of service governing the employee normal working hours are 39 hours per week. The total normal working hours were spread over six days in a week until 28-3-1965 and over 5 days in a week after that date. The workmen (P) had done overtime work beyond 39 hours per week. The management (P) has not paid them overtime wages as per the statute. Under S.31 of the Tamil Nadu Shops and Establishments Act, the workmen (P) are entitled to claim twice the ordinary rate of wages for overtime work done on holidays, namely, Saturdays, Sundays and festival holidays, but have been paid only at the normal rate. They have furnished the particulars of overtime work in the annexures to the claim petitions and are entitled to have the money value of the benefit computed under S.33C(2) of the Industrial Disputes Act. 8. They have furnished the particulars of overtime work in the annexures to the claim petitions and are entitled to have the money value of the benefit computed under S.33C(2) of the Industrial Disputes Act. 8. The management (P) admitted in its counter-statement that the normal working hours were 39 hours per week both before 28-3-1965, when the working days were six days in week, and after that date when the working days, became five days in the week, and put the workmen (P) to proof of the particulars furnished in the annexure to the Claim petitions and contended that whenever any workman is called upon to work beyond 39 hours per week, it was the practice to pay him wages at 1 1/2 times the ordinary rate of wages for work done on holidays and at the ordinary rate for the work done on Saturday. The conditions of service obtaining in this establishment provided for payment at these rates. Whenever overtime work was done beyond 48 hours per week he was paid at twice the ordinary rate of wages as provided for in the Shops and Establishments Act, which came into force in February, 1948. That Act protected the right of workmen to receive additional wages as per the said practice for overtime work done beyond 39 hours per week, but stated that the workman are entitled to wages at twice the ordinary rate, if the overtime work was done beyond 48 hours per week. Section14 of that Act prescribes the working hours for establishment covered by it at 8 hours in any day and 48 hours in any week. The proviso to that section enables employers to require a person employed to work for any period in excess of the working hours fixed by that section subject to payment of overtime wages of the period of work including overtime work does not exceed 10 hours in any day and 54 hours in any week. Wherever overtime work is referred to in that Act it should be construed to mean only such work as is done in excess of the hours prescribed by S. 14. Overtime wages prescribed at twice the ordinary rate in S.31 of that Act is for work done in excess of the hours prescribed by S. 14. Wherever overtime work is referred to in that Act it should be construed to mean only such work as is done in excess of the hours prescribed by S. 14. Overtime wages prescribed at twice the ordinary rate in S.31 of that Act is for work done in excess of the hours prescribed by S. 14. Therefore, the claim for overtime wages at twice the ordinary rate for overtime work done beyond 39 hours but not beyond 48 hours is untenable in law and cannot be allowed. The workmen (P) cannot be allowed to choose the working hours prescribed by the management, leaving aside the rate of overtime wages fixed by it and invoke S.31 of the Shops and Establishments Act for claiming overtime wages at twice the ordinary rate for overtime work done beyond 39 hours but not beyond 48 hours per week. The management (P) thus opposed the claims made in these two claim petitions. 9. The Labour Court observed that S.14 of the Shops and Establishments Act does not deal with the rate of overtime wages or limit the powers of any establishment to fix its own limit of normal working hours, though the maximum limit of the normal working hours must not exceed 8 hours in any day and 48 hours in any week. It is admitted that in this establishment of the management (P), the normal working hours are 39 hours per week. Learned Counsel for the management (P) conceded before the Labour Court that it is bound to pay overtime wages for work done exceeding 39 hours per week. The Labour Court rejected the case that under S. 14 the management (P) is entitled to pay overtime wages at less than twice the rate of ordinary rate of wages for overtime work done beyond 39 hours but not beyond 48 hours per week, and relying upon the decision in Indian Oxygen v. Their Workmen, it held that the workmen (P) are entitled to claim overtime wages at twice the ordinary rate for all overtime work done beyond 39 hours per week. That Court opined that the work done during holidays, which the workmen are entitled to enjoy under the law, cannot be taken into account in arriving at the wage period under the Tamil Nadu Shops and Establishments Rules. That Court opined that the work done during holidays, which the workmen are entitled to enjoy under the law, cannot be taken into account in arriving at the wage period under the Tamil Nadu Shops and Establishments Rules. On this basis, the Labour Court computed the money value of the benefit to which the workmen (P) are entitled for overtime work done beyond 39 hours by its order dated 1-9-1972. 10. Aggrieved by that order the management (P) filed W.P. Nos. 2827 and 2828 of 1972 under Art. 226 of the Constitution for a writ of certiorari quashing that order. The contentions raised in the counter-statements filed in the claim petition and during the arguments before the Labour Court are reiterated in the affidavit of one V. T. R. Chandran, the Regional Manager of the company, filed in support of the writ petitions. The management (P) has admitted in that affidavit that Saturady is not a working day in the establishment and further contended that in October, 1969, the union raised a demand for payment of overtime wages at twice the ordinary rate for overtime work done beyond 39 hours, but not beyond 48 hours per week. The demand not having been acceptable to the management (P) and the conciliation proceedings having failed, the dispute has been referred to the Industrial Tribunal, Madras, in G.O. Rt. No. 1021 dated 22-4-1972. The claim petitions have been filed in June, 1971 when the dispute was pending before the Conciliation Officer. The basis of the claim made in that industrial dispute is exactly the same as the one made in the claim petitions. Therefore, the question before the Labour Court was whether the workmen (P) were entitled to claim something more than what was being paid to them by the employer in the absence of any contract, award or settlement. Section31 of the Shops and Establishments Act cannot help the employees to claim overtime wages at twice the ordinary rate of wages. Therefore, the question before the Labour Court was whether the workmen (P) were entitled to claim something more than what was being paid to them by the employer in the absence of any contract, award or settlement. Section31 of the Shops and Establishments Act cannot help the employees to claim overtime wages at twice the ordinary rate of wages. The Labour Court failed to see that the claim for overtime wages at twice the ordinary rate of wages is not maintainable in the absence of an award of a competent Tribunal The management (P) further contended in the affidavit that the payment of overtime wages for work done beyond 39 hours but not beyond 48 hours per week was not under the Shops and Establishments Act, but outside the provisions of that Act and in pursuance of a practice that was in force from 29-3-1965. The workmen (P) had not proved that they had worked for more than 39 hours per week in the relevant period. As a matter of fact they worked for periods much less than 39 hours per week. The Labour Court's order is based on a wrong assumption that the particulars given in the annexure to the claim statements are true, and is, therefore, incorrect and liable to be set aside. The interpretation of Rule 10 by the Labour Court in computing the wage period by omitting the holidays is incorrect. 11. In the counter-statement of the workman Krishnamurthi filed in the writ petitions it is stated that the reference made to the Industrial Tribunal in G.O. Rt. No. 1021 dated 22-4-1972 does not cover the period for which the claims have been made in C.P. Nos. 306 and 329 of 1971. He contended that the company's counsel conceded before the Labour Court that the particulars of overtime work given in the annexure to the claim statements were correct, when it was pointed out that the acquittance registers for wages paid could not have been destroyed and that the overtime registers produced in the Labour Court had been fabricated. The claimants in C.P. Nos. 306 and 329 of 1971 submitted calculations as per the directions of the Labour Court. The management (P) did not challenge those figures although copies thereof were furnished in advance. Therefore, there was no need for any oral evidence to prove the particulars annexured to the claim statement. The claimants in C.P. Nos. 306 and 329 of 1971 submitted calculations as per the directions of the Labour Court. The management (P) did not challenge those figures although copies thereof were furnished in advance. Therefore, there was no need for any oral evidence to prove the particulars annexured to the claim statement. The interpretation of Rule 10 by the Labour Court is proper and the Court was justified in excluding festival holidays while arriving at the wage period. 12. There is no dispute that the normal working hours in the establishment of the management are 36 1/2 hours per week and that the normal working hours in the establishment of the management (P) are 39 hours per week. The workmen have alleged in their claim statements filed before the Labour Court in C.P. Nos. 19 to 1964 that, according to their information, the practice prevailing in the management's establishment since 1-4-1948 was that if any employee worked beyond the normal working hours, namely, 6 1/2 hours per day on week days and 4 hours on Saturdays, overtime wages were paid at twice the ordinary rate of wages and that was the practice until the Desai Award came into force and even after the earlier Sastri Award which stated that overtime shall be paid at 1 1/2 times the ordinary rate. The management has contended in the counter-statement filed before the Labour Court in those claim petitions that reference to payment of overtime wages at twice the ordinary rate before the Desai Award came into force is irrelevant and extraneous to the question and that under certain circumstances overtime wages are paid at more than 1 1/2 times the ordinary rate. The Sastri Award came into force on 1-4-1953 and was followed by the Desai Award, which came into force on 1-6-1963. The Sastri Award came into force on 1-4-1953 and was followed by the Desai Award, which came into force on 1-6-1963. The learned counsel for the management has admitted before us that the Imperial Bank of India, the predecessor of the management, paid overtime wages at twice the ordinary rate for work done beyond 36 1/2 hours per week during the period from 1-4-1948 to 30-5-1963 and that overtime wages are payable for work done beyond 36 1/2 hours but not beyond 48 hours, thought he would say that for the work done beyond 36 1/2 hours but not beyond 48 hours overtime wages are payable at the existing 1 1/2 times the ordinary rate of wages and that it is payable at twice the ordinary rate of wages only for work done beyond 48 hours per week. The workmen (P) alleged in their claim statements filed in C.P. Nos. 306 and 329 of 1971 that they are entitled to wages at twice the ordinary rate of wages for overtime work done beyond 39 hours per week and that they have not been paid at the statutory rate. The management (P) does not dispute its liability to pay overtime wages for work done beyond 39 hours but not beyond 48 hours but has contended that its practice is to pay at 1 1/2 times the ordinary rate of wages for overtime work done on Mondays to Fridays and only the ordinary rate of wages for overtime work done on Saturdays and that the workmen (P) are entitled to wages at twice the ordinary rate only it the overtime work done was beyond 48 hours per week. Both the managements have contended that the normal hours of work of these establishments which are governed by the Tamil Nadu Shops and Establishments Act, 1947 are fixed in S.14 of that Act (sic) can be claimed only for work done beyond the normal hours of work which, according to them, has been fixed in S.14 of that Act. 13. Article 246(2) of the Constitution says that notwithstanding anything in cl. (3) Parliament, and, subject to cl. (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule in the Constitution referred to as the Concurrent List. 13. Article 246(2) of the Constitution says that notwithstanding anything in cl. (3) Parliament, and, subject to cl. (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule in the Constitution referred to as the Concurrent List. In the Seventh Schedule List III, item 22 relates to "trade union, industrial an labour disputes" and item 24 relates to "welfare of labour including conditions of work ......" Therefore, the State Government has power to make laws with reference to the normal working hours, overtime work and overtime wages, which relate to welfare of the labour including their conditions of work. The Tamil Nadu Shops and Establishments Act, 1947, is a State enactment relating to the welfare of labour including conditions of work. That was enacted before the Constitution of India and has received the assent of the Governor General. The vires of this Act is not questioned. 14. Section 14(1), 31, 50 and 51 of the Tamil Nadu Shops and Establishments Act are relevant for the present purpose, and they read : "14(1). Subject to the provisions of this Act, no person employed in any Establishment shall be required or allowed to work for more than eight hours in any day and forty-eight hours in any week; Provided that any such person may be allowed to work to work in such establishment for any period in excess of the limit fixed under this sub-section subject to payment of overtime wages. If the period of work, including overtime work, does not exceed ten hours in any day and in the aggregate fifty-four hours in any week". " 31. Where any person employed in any establishment is required to work overtime, he shall be entitled, in respect of such overtime work, to wages at twice the ordinary rate of wages" * .Explanation :- For the purpose of this section, the expression 'ordinary rate of wages' shall mean such rate of wages as may be calculated in the manner prescribed. "50. "50. Nothing contained in this Act shall affect any rights, or privileges which any person employed in any establishment is entitled to on date on which this Act comes into operation in respect of such establishment, under any other law, contract, custom or usage applicable to such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act". " 51. If any question arises whether all or any of the provisions of this Act apply to any establishment or to a person employed therein or whether S. 50 applies to any case or not, it shall be decided by the Commissioner of Labour, and his decision thereon shall be final and shall not be liable to be questioned in any Court of law" * . 15. Rule 10 of the Tamil Nadu Shops and Establishments Rules, 1948, provides for the manner of calculating ordinary rate of wages and reads : "10. For the purpose of the Explanation to S. 31, ordinary rate of wages per hour shall be calculated by dividing the total wages payable to a person employed for the hours actually worked by him during the wage period by the number of such hours in the wage period : Provided that hours worked by a person employed in excess of the normal daily hours during the wage period shall be excluded in calculating the number of hours actually worked by him" * 16. Section31 of the Tamil Nadu Shops and Establishments Act provides for payment of wages at twice the ordinary rate of wages for overtime work. Section50 of that Act protects the rights of employees and provides for the employees continuing to enjoy those rights notwithstanding anything contained in the Act if they were enjoying any rights or privileges under any other law, contract, custom or usage applicable to the establishment when the Act came into force, and such rights or privileges were more favourable to them than those to which they were entitled under the Act. Section50 of the Act is not attracted as the workmen in these cases do not claim overtime wages at more then twice the rate of ordinary wages.They claim only at twice the rate as per S.31 of the Act. 17. Section50 of the Act is not attracted as the workmen in these cases do not claim overtime wages at more then twice the rate of ordinary wages.They claim only at twice the rate as per S.31 of the Act. 17. In paragraph 10.46 in Chapter X of the Desai Award relating to hours of work and overtime, general directions in connection with hours of work hours of work and overtime have been given. Clause (14) of paragraph 10.46 says : "(14). Payment in respect of overtime work done shall be made at the rate of 1 1/2 times the emoluments made up of basic pay, special allowance, if any, officiating allowance, for every quarter of an hour of overtime work done for which payment has to be made. Payment in respect of overtime work done for every quarter hour beyond the first four quarter hours which have to be paid for, shall, however, be at the aforesaid rate of 1 1/2 times the emoluments with an additional 20 per cent, i.e., it shall be at the rate of 1.70 per cent of such emoluments. In those cases where payment for overtime is required to be made under any enactment at a higher rate, it shall be paid at such higher rate for the period for which it is obligatory to pay the same at such higher rate" * . There is provision in this clause making it obligatory on the management to pay overtime wages at a rate higher than the rate fixed in this clause in case where payment for overtime is required to be made under any other enactment at a higher rate. Clause (17) of paragraph 10.46 of the Desai Award says that the directions hereinbefore given shall be subject to the provisions made by or under any enactment applicable to the establishment concerned. Thus, the Desai Award also protects the rights of the employees who might have been getting overtime wages at a rate higher than the one fixed in the award under any enactment if that rate was higher than the one fixed in the award. The award is applicable to the management which is item 54 of Schedule I of the order of the Government of India, Ministry of Labour and Employment, dated 21st March, 1960 (S.O. 705). 18. The award is applicable to the management which is item 54 of Schedule I of the order of the Government of India, Ministry of Labour and Employment, dated 21st March, 1960 (S.O. 705). 18. The Tamil Nadu Shops and Establishments Act does not define "overtime work" which ordinarily means work done beyond the normal working hours in any establishment to which the Act applies. Learned counsel for the managements invited our attention to G.O. Ms. No. 289, Industries, Labour and Co-operation (Labour) dated 18-1-1961 and contended that the management has been exempted from all the provisions of the Shops and Establishments Act except Ss. 31, 41, 43, 50 and 51, subject to the conditions mentioned in that order, only for a period of one year and that the observation of the Labour Court that the management was excluded from the operation of S.14 of that Act even in the relevant period is not correct. That Government order exempts the management from the operation of all the provisions of that Act except those five sections subject to the conditions mentioned in that order only for a period of one year. The overtime wages claimed in C.P. Nos. 19 to 21 of 1964 are for the period subsequent to 1-6-1963. The learned counsel for the workmen stated before us that he does not want to support the award of the Labour Court on any basis that the management is exempt from the operation of S.14 of the Shops and Establishments Act. Therefore, the management as well as the management (P) are establishments governed by the Tamil Nadu Shops and Establishments Act, 1947, in its entirety. This is not in dispute. 19. As mentioned already, it is admitted that the normal working hours in the establishment of the management are 36 1/2 hours per week and the normal working hours in the establishment of the management (P) are 39 hours per week. We do not agree with the learned counsel for the managements that S.14 of the Shops and Establishments Act fixes the hours of work in any establishment. We agree with the Labour Court, which disposed of C.P. Nos. We do not agree with the learned counsel for the managements that S.14 of the Shops and Establishments Act fixes the hours of work in any establishment. We agree with the Labour Court, which disposed of C.P. Nos. 306 and 329 of 1971, that S. 14 does not limit the power of any establishment to fix its own normal working hours for its employees and that it only prohibits any establishment requiring or allowing to work any person employed in that establishment for more than 8 hours in any day and 48 hours in any week. The proviso to S. 14(1), (in our opinion), only lays down that overtime wages should be paid for the work done in excess of the normal working hours and that even when overtime wages are paid, no person should be allowed to work for more than 10 hours in any day and in the for more then 10 hours in any day and in the aggregate 54 hours in any week. The Supreme Court has observed in Parry & Co. Ltd. v. Commercial Employees' Union, Madras: "Section14(1) of the Act sets a statutory limitation upon the working hours and lays down -" * Subject to the other provisions of the Act, no person employed in any establishment shall be required or allowed to work for more than 8 hours in any day and 48 hours in any week ". A proviso is attached to the sub-section which, by way of exception to the rule enunciated therein, allows employment of a person in any establishment for any period in excess of this statutory limit subject to payment of overtime wages, provided the period of work including overtime work does not exceed 10 hours any day, and in the aggregate 54 hours in any week". Section 31 provides - " Where any person employed in any establishment is required to work overtime, he shall be entitled, in respect of such overtime work to wages at twice the rate of ordinary rate of wages" * Section 50 preserves the existing rights and privileges of an employee in any establishment if these rights and privileges are more favourable to him than those created by the Act. 20. Learned counsel for the managements relied upon the decision in Railway Employees' Co-operative Bank v. Labour Court, to which one of us was a party. 20. Learned counsel for the managements relied upon the decision in Railway Employees' Co-operative Bank v. Labour Court, to which one of us was a party. In that case, one Jayaraman, who was a workman employed in the Railway Employees' Co-operative Bank, Madras, had filed Claim Petition No. 160 of 1969 before the Labour Court, Madras, under S.33C(2) of the Industrial Disputes Act. Earlier, the Railway Employees' Co-operative Bank Staff Union, members of which were employees of the bank, had filed an application under S.51 of the Madras Shops and Establishments Act, 1947, before the Commissioner of Labour, for a declaration that the normal hours of work for the employees of the bank shall be 33 1/2 hours a week and that the employees are entitled to overtime wages in respect of overtime work beyond 33 1/2 . hours per week. The Commissioner of Labour, who is the authority to hear and dispose of applications under this section, held that the normal hours of work prior to 1st April, 1948 were only 33 1/2 hours per week, and as regards the question of overtime wages, he held in his order dated 31-12-1958 that the employees were not entitled to any protection under S.50 of the Madras Shops and Establishments Act, 1947, in respect of overtime wages for hours in excess of 33 1/2 hours. Jayaraman filed his claim petition subsequent to that order on 7th April, 1959, claiming overtime wages at double the ordinary rate of wages for overtime work beyond 33 1/2 hours per week, and requesting computation of the money value of the benefit under S.33C(2) of the Industrial Disputes Act. The bank contended that the petition under S. 33C(2) was not sustainable on the ground that the claim made by Jayaraman was not a benefit to which he would be entitled within the meaning of that provision. The management file a writ petition for the issue of a Writ of Prohibition on the ground that the Labour Court had no jurisdiction to entertain that petition. The management file a writ petition for the issue of a Writ of Prohibition on the ground that the Labour Court had no jurisdiction to entertain that petition. The writ petition was disposed of by Rajagopala Ayyangar, J. The Bench, which heard the appeal filed against the judgment in that writ petition, has observed : "Rajagopala Ayyangar, J., held on a construction of S. 33C(2) that that sub-section indicated that the Legislature intended it a wider scope so as to comprehend all claims which arise between the employer and workmen in their character of employer and workmen. As regards the point whether in view of the decision of the Labour Commissioner under S.51 of the shops and Establishments Act, there can be any claim for overtime wages, the learned Judge took the view that the order of the Labour Commissioner under S. 51 would be binding upon the Labour Court. Nevertheless the learned Judge considered that the claim of the workers might be based either on S.51 of Madras shops and Establishments Act that is, for work beyond the 48 hours specified in the section, or on the basis of an agreement between the parties, for the payment of overtime wages. It appears to have been submitted to the learned Judge by the learned counsel for the workmen that it was the case of the workers that at the time when the normal hours of work were increased there was an undertaking or an assurance that they would be paid overtime wages. The learned Judge thought that if this was established the workers would be entitled to the benefit of such arrangement and its monetary value could be evaluated by the Labour Court under S.33C(2) of the Industrial Disputes Act. In the result, the learned Judge held that the Labour Court had jurisdiction to entertain the claim and dismissed the writ petitions. Hence this appeal.There is considerable force in the contention of Mr. Vasantha Pai for the bank (Appellant) that S.33C(2) of the Industrial Disputes Act would have no application to the facts of this case and it was not intended to provide for a claim such as we have in this case. Hence this appeal.There is considerable force in the contention of Mr. Vasantha Pai for the bank (Appellant) that S.33C(2) of the Industrial Disputes Act would have no application to the facts of this case and it was not intended to provide for a claim such as we have in this case. But we do not think it is necessary to pronounce finally on this point because in our opinion the appeal can be disposed of on another short ground which is confined to the claim made by the respondent Jayaraman in his petition. We should not, however, be understood as accepting the view of Rajagopala Ayyangar, J., on the point. A perusal of the petition filed by the respondent Jayaraman makes it abundantly clear that the claim for overtime wages was made merely on the order of the Commissioner of Labour under S.51 of the Madras shops and Establishments Act, in and by which he decided that the employees were entitled to the privilege 33 1/2 hours of work per week. There is on other averment which could furnish the basis of the claim for overtime wages, like for instance, a specific contract between the workmen and the management, subsequent to the coming into the force of the Madras Shops and Establishments Act. With respect to the learned Judge we are unable to agree with him that the petition could be sustained on the basis of an agreement between the parties for the payment of overtime wages. Such an agreement was nowhere pleaded in the claim petition of the respondent. We may also add that it was not the case of the respondent that he had worked for more than 48 hours and, therefore, was entitled to overtime wages under S.31 of the Madras Shops and Establishments Act. On the allegations contained in the petition there can be no doubt that the respondent Jayaraman was not entitled to receive any benefit as and by way of overtime wages, even assuming that S.33C(2) of the Industrial Disputes Act could be construed so widely as to include any and every claim by a workmen against his employer. This is a case in which prima facie and on the averments made by the petitioner himself his petition is not sustainable" 21. This is a case in which prima facie and on the averments made by the petitioner himself his petition is not sustainable" 21. The Supreme Court has observed in Indian Oxygen v. Their Workmen: "As regards the Tribunal's finding on demand 3, counsel for the company raised two contentions; (1) That the company's factory at Jamshedpur having been declared an establishment under the Bihar Shops and Establishments Act, it could be made liable to pay for overtime work at the rate provided in that Act, vice, at double the ordinary rate when a workmen was asked to work beyond 48 hours per week as provided therein. Therefore, the argument ran, the appellant-company could not be asked to pay more than its ordinary rate of wages payable to workmen if they were asked to work beyond 39 hours but not exceeding 48 hours. (2) That the comparative statement (Ex.M) of overtime rates paid by other concerns in Jamshedpur before the Tribunal showed that if the company were made to pay one and half times its ordinary rate of wages it would, in the light of its higher scale of wages, be paying more than the other concerns. In our judgment, both these contentions are unsustainable. Under the conditions of service of the company, the total hours of work per week are 39 hours. Any man asked to work beyond these hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. The Bihar Shops and Establishments Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i.e., 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours.It is not, therefore, as if the provisions of that Act govern overtime payment payable by an employer where maximum hours of work are governed by the conditions of service prevailing in his establishment. Therefore, no reliance can be placed on the provisions of that Act for the company's conditions that it cannot be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. Therefore, no reliance can be placed on the provisions of that Act for the company's conditions that it cannot be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. It is obvious that if the company were asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours a week it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service." * 22. Having regard to this decision of the Supreme Court we are of the opinion that the decision in Railway Employees' Co-operative Bank Ltd. v. Labour Court, would be no longer good law, if it had decided that overtime wages could not be claimed by the employees of an establishment in which the normal working hours are less then 48 hours per week, if they had done overtime work beyond the normal working hours but not beyond 48 hours and that they are entitled to overtime wages only for work done beyond 48 hours per week. In Workmen of Cal. Elec. Supply Corpn. v. Management, 44 FJR 15, the Supreme Court has directed that overtime work has to be paid for at 1 1/2 times the normal rate for all hours of work done beyond the scheduled hours and not merely for hours of work beyond 48 hours in a week. Ismail, J. has observed in T. S. Kailasa Iyar v. K. P. V. Shaik Md. Rowther: "There remains the only other question whether the petitioner in W.P. No. 1775 of 1967 is entitled to any overtime wages or not. The only ground given by the Labour Court for denying this relief to the petitioner was that under S.14 of the Madras Shops and Establishments Act, 1947 the maximum hours of work without payment of overtime wages, an employee can be called upon to do is 48 hours and in this case the petitioner had not done work in excess of 48 hours and, therefore, he is not entitled to any overtime wages. Mr. Mr. N. G. R. Prasad, learned counsel for the petitioner, contended that while the Labour Court relied upon S.14 of the Act, if forgot to bear in mind the other provisions of the Act, particularly S.50 of the Act, since S. 14 says that the provisions of that sectionwould be subject to the other provisions of the Act. Section50 of the Act is : Nothing contained in this Act shall affect any rights or privileges which any person employed in any establishment is entitled to on the date on which this Act comes into operation, in respects of such establishment, under any other such law contract, custom or usage applicable to such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act." * After extracting the relevant observation of the Supreme Court in Indian Oxygen Ltd. v. Their Workmen, mentioned above, Ismail, J., observed : "In view of this position, namely, that according to the terms and conditions of service, the petitioner was required to work at No. 41, Linghi Chetty Street, Madras-1, only for a lesser number of hours per week and admittedly on his transfer to the Dock Office inside the Harbour premises, he was required to work for a larger number of hours per week on the basis of the observation of the Supreme Court referred to above, the petitioner is entitled to overtime wages" * . A. K. Mookerji, J., has taken a similar view in Carew & Co. Ltd. v. Salaja Kanti Chatterjee, 1972 (2) LLJ 399], and has held : "...... in any establishment where a person enjoys the benefits of lesser number of hours of work than what is provided in Ss. A. K. Mookerji, J., has taken a similar view in Carew & Co. Ltd. v. Salaja Kanti Chatterjee, 1972 (2) LLJ 399], and has held : "...... in any establishment where a person enjoys the benefits of lesser number of hours of work than what is provided in Ss. 6(2) and 7(2) of the West Bengal Shops and Establishments Act, the person so employed should be entitled to overtime wages as provided for, under S.13 of the said Act, for the period he works beyond the normal hours of work applicable to his case." * Having regard to the fact that S.14(1) of the Tamil Nadu Shops and Establishment Act does not fix the normal hours of work, but only says that an employee should not be made to work beyond the number of hours mentioned in that section, the fact that the normal hours of work in the establishments of the management and the management (p) are admitted to be only 36 1/2 hours and 39 hours respectively per week, and S.31 of the Shops and Establishments Act provides for payment of double the rate of wages for overtime work, which has not been defined in the Act and ordinary means work done in excess of the normal working hours, and the decision of the Supreme Court in Indian Oxygen Ltd., v. Their Workmen, referred to above, we are of the opinion that the workmen in these two sets of cases are entitled to claim wages at double the ordinary rate of wages for work done beyond 36 1/2 hours in the case of the management and beyond 39 hours in the case of the management (P) although it may not be beyond 48 hours per week. 23. The management has contended in the counter statement filed before the Labour court in C.P. Nos. 19 to 21 of 1964 that the claim petitions are unsustainable and the Labour Court's jurisdiction under S.33C(2) of the Industrial Disputes Act cannot be invoked to enforce the workmen's claim. They have not specifically contended that the Labour court has on jurisdiction to enquire into the matter and compute the money value of the benefit of overtime wages claimed by the workmen. They have not specifically contended that the Labour court has on jurisdiction to enquire into the matter and compute the money value of the benefit of overtime wages claimed by the workmen. As mentioned above, it is admitted that the normal working hours in the establishment of the management are 36 1/2 hours per week and it is also admitted that work done in excess of those hours would be overtime work to which admittedly payment it made at a rate higher than the normal rate of wages, namely, 1 1/2 times. The question is whether the workmen are entitled to claim wage at twice the ordinary rate of wages for overtime work under S.31 of the Tamil Nadu Shops and Establishments Act. The rate of wages are known, and the ascertainment of the money value of the benefit of overtime wages claimed by the workmen, namely, the difference between twice the ordinary rate and 1 1/2 times of ordinary rate, is a matter of arithmetical calculation which could be done by the Labour Court in a petition under S.33C(2) of the Industrial Disputes Act. The Supreme Court has observed in Central Bank of India v. Rajagopalan, regarding the scope of S. 33C(2) thus : "The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the Legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so inserted S.33A in the Act in 1950 and added S. 33C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to S.10(1) of the Act or without having to depend upon their union to espouse their cause. Therefore, in construing S. 33C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of S. 33C cases which would fall under S. 10(1). Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under S. 10(1). These disputes cannot be brought within the purview of S. 33C. Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under S. 10(1). These disputes cannot be brought within the purview of S. 33C. Similarly, having regard to the fact that the policy of the Legislature in enacting S. 33C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. In order words, though in determining the scope of S. 33C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under S.10(1) of the Act for instance, cannot be brought within the scope of S. 33C...... In our opinion, on a fair and reasonable construction of sub-s. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workmen has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is dispute, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him, and it is only if the Labour Court answers this point in favour of the workman that the next question can arise. It seems to us that the opening clause of sub-s. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause 'where any workman is entitled to receive from the employer any benefit' does not mean 'Where such workman is admittedly, or admitted to be entitled to receive such benefit'. The appellant's construction would necessarily introduce the addition of the words 'admittedly, or admitted to be' in that clause, and that clearly is not permissible. The clause 'where any workman is entitled to receive from the employer any benefit' does not mean 'Where such workman is admittedly, or admitted to be entitled to receive such benefit'. The appellant's construction would necessarily introduce the addition of the words 'admittedly, or admitted to be' in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2) because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under S. 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-s. (2) ....... We must accordingly hold that S. 33C(2) takes within its purview cases of workman who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers." * 24. The benefit in the case before us is claimed under S.31 of the Shops and Establishments Act, which fixes the rate of overtime is known. Then ascertainment of overtime wages is a matter of calculation which the Labour Court is competent to do. Having regard to the scope of the dispute between the establishments and the workmen in these cases and this decision of the Supreme Court, we are of the opinion that the Labour Court had jurisdiction to entertain the claim petitions under S.33C(2) of the Industrial Disputes Act. 25. We agree with the Labour Court that in computing the wage period under Rule 10 of the Shops and Establishments Rules, 1948, festival holidays, to which the employees are entitled, have to be excluded. 26. For the reasons mentioned above, we are of the opinion that there is on merit in these writ petition. 25. We agree with the Labour Court that in computing the wage period under Rule 10 of the Shops and Establishments Rules, 1948, festival holidays, to which the employees are entitled, have to be excluded. 26. For the reasons mentioned above, we are of the opinion that there is on merit in these writ petition. The petitions are dismissed with costs of the first respondent in each of the petitions. Advocate's fee Rs. 350 one set in W.P. Nos. 1006 to 1008 of 1971 and one set in W.P. Nos. 2827 and 2828 of 1972.