Judgment : S. J. MUKHOPADHAYA, J. ( 1 ) THE petitioner has preferred this writ petition against the order, contained in Memo no, 2673 dated December 2, 2004, issued by the 5th respondent, General Manager-cum-Chief engineer, Transmission Zone-1, Ranchi, whereby and whereunder, claim of the petitioner for payment of dues for performing overtime work has been partly rejected on the ground that there is a limitation to take overtime work for more than 50 hours in a quarter of a particular year or maximum 150 hours in the concerned financial year, as per the Boards circular. ( 2 ) FURTHER prayer has been made by the petitioner for a direction on the respondents to prosecute the concerned 2nd to 5th respondents for violating the provisions of Factories Act 1948, in terms with the provisions of Sections 92 and 105 of the Factories Act, 1948. ( 3 ) THE petitioner, who was posted as assistant Controller, Transmission Sub-Division, Jadugora, while performing the duties as such, the State Electricity Board took overtime work on different dates in between january, 1994 and December, 2001 but did not pay him the overtime dues. Being aggrieved, the petitioner had to move before this Court in wp (S) No. 127 of 2002 for a direction on the electricity Board to pay him the amount for taking overtime work. A Bench of this Court vide order dated January 7, 2002 remitted the case to the General Manager-cum-Chief engineer, Area Electricity Board, to determine the claim but decision having not been communicated, the petitioner had to prefer a contempt petition. In the contempt case being contempt Case (C) No. 382 of 2002, the opposite parties brought to the notice of the court a decision communicated vide Impugned memo No. 2673 dated December 2, 2004 and having noticed the same, this Court dropped the proceeding on December 3, 2004. In the aforesaid background, the petitioner had to challenge the impugned order No. 2673 dated december 2, 2004, whereby, part prayer for payment of overtime dues has been rejected and the respondents have allowed and paid the overtime only to the extent of 50 hours per quarter. In the aforesaid background, the petitioner had to challenge the impugned order No. 2673 dated december 2, 2004, whereby, part prayer for payment of overtime dues has been rejected and the respondents have allowed and paid the overtime only to the extent of 50 hours per quarter. ( 4 ) THE petitioner claims the following hours of overtime work beyond the normal working hours, as was taken by the respondents for managing the control room where the petitioner was posted; Year Month Sanctioned over time hours 1994 January 160 1994 August 192 1994 October 224 1994 April 48 1994 May 192 1994 June 176 1995 July 48 1995 September 72 1995 October 112 1995 December 112 1995 January 104 1995 February 88 1995 March 72 1996 June 88 1996 July 152 1996 August 152 1996 September 152 1996 October 160 1996 November 96 1996 December 176 1996 January 88 1996 February 112 1996 March 128 1996 April 240 1996 May 248 1997 June 168 1997 July 200 1997 August 200 1997 September 200 1997 October 232 1997 November 216 1997 December 160 1997 January 240 1997 February 232 1997 March 168 1997 April 200 1997 May 200 1997 June 144 1998 July 40 1998 August 200 1998 September 240 1998 October 264 1998 November 248 1998 December 160 1999 January 176 1999 February 176 1999 March 184 1999 April 40 1999 October 40 1999 November 40 1999 December 12 1999 January 40 1999 February 32 1999 March 8 1999 April 24 2000 May 8 2000 July 16 2000 August 16 2000 October 16 2000 November 40 2000 December 40 2000 January 32 2000 February 32 2000 April 248 2000 May 8 2000 June 8 2001 July 32 2001 August 32 2001 September 16 2001 October 48 2001 November 56 ( 5 ) THE respondents, have not disputed the aforesaid fact that the overtime work to the extent of 8 to 224 hours in a month was also taken from the petitioner In fact, the overtime work for different months, as given by the petitioner, has not been disputed and from the impugned order, it appears that the then general Manager-cum- Chief Engineer, Area electric Supply, also accepted the same and has ordered to make payment, which is evident from the impugned order No. 2673 dated december 2, 2004, as quoted hereunder:"it appears from the claims of the petitioner, sri Nripendra Narayan Sinha that he has made claims of more than 100 hours in many of the months of the years 1994 to 1999. In some of the months such as October 1994, April 1997, may 1997, October 1997, and so on, Sri Sinha has claimed for even more than 200 hours, and in the month of October 1998, he has claimed for 264 hours. Such claims of Sri sinha, inspite of the same having been sanctioned by my predecessor, does not appear to be legal, justified and in accordance with the provisions of the Factories Act, 1948 as well as the Boards Circulars. " ( 6 ) IN the counter-affidavit, the respondents have taken similar plea, as has been taken in the impugned order, contained in memo No. 2673 dated December 2, 2004 that payment of overtime beyond 50 hours quarterly is not permissible and they have relied on office order No. IX/ot-1001/95-451/eb dated january 19, 1995, issued by the then Bihar stare Electricity Board, Patna and office order no. 81/eb dated January 13, 1999 issued by the Bihar State Electricity Board, Patna. ( 7 ) SECTION 59 of the Factories Act, 1948 deals with extra wages for overtime, relevant portion of which is quoted hereunder:"59. Extra wager 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. " ( 8 ) THERE is no prohibition made for payment of overtime wages beyond a i prescribed period. The Bihar State Electricity board, Patna, issued office order No. 451/eb dated January 19, 1995 prohibiting its officers from taking overtime work from the office staff beyond the particular hours, relevant portion of which is quoted hereunder:"in supersession of all previous orders in respect of overtime issued by the Board from time to time, it has now been decided as follows: (i) No overtime work shall be taken from the office staff (i. e. Secretariat. Clerical, accounts, Store Personnel etc.) including class-IV employees posted either at the headquarter of the Board or in the offices subordinate to the Board. In case it comes necessary to take work from such employees on holidays and rest days, compensatory off or holidays should be allowed to them. Such compensatory off or holidays should be allowed to be accumulated be availed in the same calender year after which the same will automatically lapse, (ii) Overtime work shall also not be normally taken from the factory workers. However, exemptions can be taken under the following conditions, and that too very rarely and when the necessity arises : (a) Firstly, when it becomes unavoidable for attending to urgent repairs, breakdown work and to cover absenteeism in shift operations. Leave to the operation staff should be managed in such a manner that no O. T, is required for the shift operation. Strict watch should be kept on habitual Absentees. (b) Secondly, limit of booking workers on overtime work will be limited to 50 hours per quarter after observing the formalities as laid down in Section 64 of the Factories act. 1948. (iii) Overtime return will be scrutinized by the General Manager-cum-Chief Engineers of the Area Board, Power Station and transmission Organization, (iv) In case of great exigency overtime may be allowed upto a limit of 75 hours in a quarter with a written permission from the chief Inspector of Factories, Bihar as per provision of Section 86 of the Factories Act, 1948. The above decision will be adhered to, any deviation from aforesaid instructions by the officers shall be at their own risk and cost and may expose them to disciplinary action. " ( 9 ) SUBSEQUENTLY, by office order No, 81/eb dated April 13, 1999 it was ordered to implement office order No. 451/eb dated january 19, 1995 in respect of overtime in letter and spirit, as quoted hereunder:"the Board has issued specific instruction not to take overtime from office staff likewise broad guide-lines has also, been given for taking overtime from O and M staff in case of active emergency and unavoidable circumstances within the provision of factories Act, 1948. But it has come to the notice of the Board that the field officers are not adhering to the instructions strictly. But it has come to the notice of the Board that the field officers are not adhering to the instructions strictly. They arc taking overtime work even beyond 50 (fifty) hours per quarter from a workman which is against the provisions of the factories Act, 1948, Section 64. After examining the matter, it has been decided to enforce the order of the Board issued vide office order No. 451 dated January 19, 1995 in true spirit. In case of any deviation in taking OT work from any staff violating instruction of the Board it will be at the risk and cost of the officer concerned. The amount involved in payment of such irregular O. T. will be recovered from the pay of the erring officer and they will also be liable for disciplinary action. (Shivendu)Secretary" ( 10 ) FROM the aforesaid provisions of law and the guidelines/circulars, issued by the bihar State Electricity Board, Patna, it will be evident that the Board restricted overtime beyond 50 hours per quarter but made it clear that if any officer deviates from such instruction, it will be at the risk and cost of the officer concerned and the amount involved in payment of such irregular overtime will be recovered from the pay of the erring officer and they will also be liable for disciplinary action. (emphasis added) ( 11 ) IF any provision of Factories Act, 1948 is violated, the person, so violates, is to be punished. Chapter X of the Factories Act, 1948 prescribes penalties and Procedure section 92 while prescribes general penalty for offences, Section 102 empowers the Court to pass appropriate order in addition to awarding any punishment. For violation of the provision by any person or management, the workman cannot be punished nor overtime can be denied on such ground. On the other hand, it will be evident from the Boards Circular No. 81/eb dated April 13, 1999 that for overtime work taken beyond the prescribed period, the amount involved in payment will be recoverable from the pay of the erring officer, that means the amount will be paid to the workers and then it will be recovered. ( 12 ) THIS Court directed the General manager-cum-Chief Engineer to decide the claim of the petitioner by order dated January 7, 2002, passed in WP (S) No. 127 of 2002. ( 12 ) THIS Court directed the General manager-cum-Chief Engineer to decide the claim of the petitioner by order dated January 7, 2002, passed in WP (S) No. 127 of 2002. The said officer passed the order, allowing the total claim but somehow or other, the order could not be communicated to the petitioner. It appears that when contempt proceeding was taken up, the successor General Manager-cum-Chief Engineer, Transmission Zone-I, hurriedly passed the impugned order, contained in Memo No. 2673 dated December 2, 2004 and rejected major part of the claim, without understanding the law and the same appears to have been passed to purge him from contempt. ( 13 ) THOUGH learned counsel for the petitioner alleged bias on Sri M. K. Mitra, general Manager-cum-Chief Engineer, transmission Zone-I, Ranchi, but no notice having been issued, this Court is not inclined to make any observation in his absence. ( 14 ) AS to which officer asked the petitioner to perform overtime work beyond the period, prescribed by the Board, cannot be determined by this Court under Article 226 of the Constitution of India. It is to be determined by the Board for the purposes of taking disciplinary action and recovery, if the total overtime dues are paid in favour of the petitioner. For the said reasons, this Court has not issued any notice to the private respondents. It is to be determined by the Board for the purposes of taking disciplinary action and recovery, if the total overtime dues are paid in favour of the petitioner. For the said reasons, this Court has not issued any notice to the private respondents. ( 15 ) IN the facts and circumstances, this court while holds that the petitioner is entitled for payment of the overtime wages as per the actual hours of overtime work, taken from him, as quoted above and not disputed by the respondents, set aside the impugned order, contained in Memo No. 2673 dated December 2, 2004 to the extent, the claim of the petitioner has been rejected, and remit the case to the respondents with the following directions: (i) The respondents will pay the total overtime dues to the petitioner for the hours, as shown against different months between the year, 1994 and 2001 and will pay the rest of the dues, after adjusting the amount, already paid, within two months from the date of receipt/production of a copy of this order, failing which, they will be liable to pay interest at the rate of 5% per annum on rest of the dues from the date of disposal of the earlier writ petition (WP (S) No. 127 of 2002, disposed of on January 7, 2002); (ii) The respondents J. S. E. B. is directed to enquire as to which officer (s) deviated and taken more overtime work from the petitioner than 50 hours quarterly, violating the instruction of the Board and if any such officer, prima facie is found to be at fault and is in the services of the jharkhand State Electricity Board, the respondents will take disciplinary action against him in terms with the office order no. 81/eb dated April 13, 1999 and will also take steps to ensure penal action against him under Section 92 of the Factories Act, 1948; and (iii) The Jharkhand State Electricity Board, ranchi is also given liberty to recover the amount, as may be paid to the petitioner, from the pay of the erring officer, in terms with order No. 81/eb dated April 13, 1999. ( 16 ) THE writ petition is, thus, allowed, with the aforesaid observations and directions with a cost, assessed to the tune of Rs. 5,000/-to be paid in favour of the petitioner. --- *** --- .