Research › Browse › Judgment

Bombay High Court · body

1986 DIGILAW 23 (BOM)

DIRECTOR OF THE NATIONAL CADET CROPS v. NANU JHA

1986-01-17

PENDSE

body1986
JUDGMENT : Pendse, J.—By this petition filed under Article 226 of the Constitution of India, the petitioners are challenging the legality of three orders dated September 23, 983, June 19, 1984, and November 26, 1984, passed by the Presiding Officer, Central Government Tribunal-cum-Labour Court No. 1 at Bombay. The three orders were passed by the Presiding Officer in the proceedings adopted by respondent No. 1 u/s 33-C(2) of the Industrial Disputes Act, 1947. 2. The claim of respondent No. 1 was that he joined the service as Chowkidar in Air Force Depot Cotton Green, Bombay on March 2, 1961. He was transferred from time to time and was posted in the office of the Directorate of National Cadet Corps, Colaba, Bombay, on December 2, 1963. The wages drawn by respondent No. 1 at the relevant time was Rs. 456.10 per month. Respondent No. 1 claimed that for some years he was required to perform duty for 24 hours at a stretch and he was not given holidays or Sunday, nor he was allowed any other paid holidays in view of the fact that there was no other Chowkidar working in the Directorate. Respondent No. 1 claimed that he was not paid any overtime wages for extra duty hours and made a claim of Rs. 57,954.65. The petitioners resisted the claim by filing written statement on April 16, 1981 and it was claimed that the application was not maintainable. The petitioners also claimed that the N.C.C. is not an industry and therefore it is not open for the respondent No. 1 to approach the Industrial Court. The petitioners also disputed the claim that respondent No. 1 was required to perform overtime duties. The petitioners claimed that as and when respondent No. 1 was working overtime, he was paid excess wages as prescribed by the Rules. The petitioners also claimed that respondent No. 1 had enjoyed holidays and his claim was not maintainable. 3. The Presiding Officer framed the preliminary issue as to whether N.C.C. is an industry and answered in favour of the workman by order dated Sept. 23, 1983. The petitioners also claimed that respondent No. 1 had enjoyed holidays and his claim was not maintainable. 3. The Presiding Officer framed the preliminary issue as to whether N.C.C. is an industry and answered in favour of the workman by order dated Sept. 23, 1983. The Presiding Officer thereafter heard the application on merits and came to the conclusion on the evidence led by the parties that the duty hours of respondent No. 1 were eight hours per day and he was required to perform duty beyond those hours and therefore he is entitled to the payment of overtime allowance. The finding was recorded by the order dated June 19, 1984 and the petitioners were directed to calculate the amount of overtime payable to the workman. Thereafter the calculations were prepared by respondent No. 1 and the Directorate of N.C.C. before the Presiding Officer accepted the correctness of the same and thereupon the petitioners were directed to pay sum of Rs. 71,255/- to respondent No. 1 within six weeks from November 26, 1984, the date of the last order. These three orders are now under challenge in this petition. 4. Shri Shah, learned counsel appearing on behalf of the petitioners, submitted that the finding recorded by the Presiding Officer on the preliminary issue holding that the National Cadet Corps is an industry is entirely wrong. The learned counsel urged that the National Cadet Corps is not a training institute or that it does not impart training study in the schools in Maharashtra, but is only an administrative and controlling office and therefore does not answer the tests laid down for declaring the establishment as an industry. The submission of the learned counsel cannot be accepted. The Presiding Officer has pointed out that the workman called upon the petitioners to produce five different documents but the petitioners declined to produce any one of them on the spacious ground that the documents are not relevant for deciding the issue involved. The workman thereafter produced three documents in support of his claim and on production of the documents the petitioners requested that the workman should be made available for cross-examination. Accordingly when the workman presented himself for cross-examination, the petitioners declined to cross-examine him and proceeded to argue the matter on the documents produced by the workman. The workman thereafter produced three documents in support of his claim and on production of the documents the petitioners requested that the workman should be made available for cross-examination. Accordingly when the workman presented himself for cross-examination, the petitioners declined to cross-examine him and proceeded to argue the matter on the documents produced by the workman. The Presiding Officer has rightly pointed out that the three documents produced by the workman clearly establish that though the N.C.C. does not prepare cadets for any specific career, nevertheless, the all round training imparted to them develops qualities of leadership and discipline in them, a prerequisite for any successful man. The Presiding Officer took into consideration the dictum laid down by the Supreme Court in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, and came to the conclusion that the N.C.C. is an industry. In my judgment, there is no infirmity whatsoever in the conclusion recorded by the Presiding Officer on the strength of the material produced by the workman. It is difficult to appreciate why the petitioners chose not to produce any material before the Presiding Officer. In the data available, the finding of the Presiding Officer cannot be disputed. 5. Shri Shah then urged that the N.C.C. Directorate carries a duty of sovereign function and therefore should not be considered as an industry. It is impossible to accede to this submission. In the first instance no material has been brought on record to establish that running of National Cadet Corps is a sovereign function. Secondly, even assuming it to be so, it is difficult to understand how the N.C.C. Directorate can refuse to pay overtime wages to the Chowkidar who has no connection whatsoever in imparting training to the students and in colleges and schools and which is a dominant function of the cadre. In my judgment, the finding recorded by the Presiding Officer on the preliminary issue is correct and deserves acceptance. 6. Shri Shah then urged that the Presiding Officer was in error in holding that the workman had established that his duty hours were eight hours per day and he was required to do overtime and for which no payment was made. This submission is also without any merit. 6. Shri Shah then urged that the Presiding Officer was in error in holding that the workman had established that his duty hours were eight hours per day and he was required to do overtime and for which no payment was made. This submission is also without any merit. The petitioners produced a departmental circular dated November 14, 1971 which clearly indicates that the duty hours of the Chowkidar were not fixed for the period between 1963 and 1969. Indeed this circular refers to the grievance that the working hours of the Chowkidar are not fixed by the authorities and they vary from 48 hours to 75 hours. The petitioners were called upon to produce the muster roll, but the petitioners declined to do so. The Presiding Officer therefore was right in drawing adverse inference against the petitioners. On the material produced by the workman, the Presiding Officer came to the conclusion that the worker was required to carry out duties beyond his duty hours and the overtime wages were not paid to the worker and this finding is in consonance with the material on record and requires no interference in this writ jurisdiction. 7. Finally Shri Shah submitted that the calculations prepared by the workman and produced before the Presiding Officer was not correct and therefore the Presiding Officer was in error in directing payment of Rs. 71,255/-. Shri Shah urged that the claim made by the workman in the application was for Rs. 57,954.65 and therefore the Tribunal was in error in awarding higher amount. The submission has no merit whatsoever. The proceedings u/s 33-C(2) of the Industrial Disputes Act are in the nature of execution proceedings. The petitioners did not make calculations but left it to the workman and when the workman prepared the calculations the Directorate of N.C.C. admitted correctness of the same before the Presiding Officer. The mere fact that in the original application a lesser amount was claimed is no answer to urge that the due amount should not have been ordered by the Presiding Officer. Shri Shah made a faint attempt to urge that the statement of calculations filed by the workman was not accurate, but the learned counsel was unable to point out any infirmity in the said calculations. In my judgment, the challenge to the three orders passed by the Presiding Officer is without any merit and deserves to be repelled. Shri Shah made a faint attempt to urge that the statement of calculations filed by the workman was not accurate, but the learned counsel was unable to point out any infirmity in the said calculations. In my judgment, the challenge to the three orders passed by the Presiding Officer is without any merit and deserves to be repelled. 8. Accordingly, petition fails and the rule is discharged with costs. The petitioners have deposited the amount ordered to be paid by the Presiding Officer in this Court. The Prothonotary & Senior Master is directed to pay the said amount to respondent No. 1 forthwith. Prothonotary & Senior Master to act on the minutes.