Judgment : ASHIM KUMAR BANERJEE, J. (1) The moot question involved in this appeal is whether Food Corporation of India (hereinafter referred as FCI) was entitled to refuse one and half time wages to any of its employees for overtime on the plea that they fell short in discharging forty two hours duty in that particular week. (2) There had been contract workers working at different stores and godowns of FCI throughout the State as also neighbouring State. Those workers were working under the contractors. They were constantly demanding for being taken in regular pay roll of FCI. The workers were subsequently absorbed by FCI recognizing them as semi-permanent worker as would appear from the records disclosed in the said proceedings. The FCI Workers Union entered into bipartite agreement with the management of FCI on February 15, 1972 appearing at pages 41-42 of the paper book. Clause 19 dealt with an issue of payment of overtime allowance. It was agreed that the workers would be paid overtime in accordance with the provisions of West Bengal Shops and Establishment Act, 1963 (hereinafter referred to as the said Act of 1963) subject to the approval of FCI. As per the said Act of 1963 the said workers were obliged to work six days a week having Sunday as Holiday. However, the loaders were sometime asked to work on Sundays and/or other holidays to expedite loading and unloading. (3) Dispute cropped up as to what would be the appropriate wages for those work discharged by the concerned labourers during holidays and/or Sundays. As per the provisions of the said Act of 1963 they were entitled to get one and half times (subsequently amended as twice) the wages. The dispute cropped up when FCI started denying one and half time wages for overtime to some of the labourers who did not discharge their duty for at least forty two hours which they were supposed to discharge in a week. (4) The Industrial Dispute was raised which was ultimately referred to the Labour Court. The dispute cropped up when FCI started denying one and half time wages for overtime to some of the labourers who did not discharge their duty for at least forty two hours which they were supposed to discharge in a week. (4) The Industrial Dispute was raised which was ultimately referred to the Labour Court. The point of reference is quoted below:- "Whether the refusal by the Zonal Manager, Food Corporation of India, 10, Middleton Row, Calcutta-700071 to pay overtime wages at one and half times the ordinary rates of Wages to the workmen of Calcutta Complex depots of the Food Corporation of India, for work done on Sunday (i.e. rest day) and festival and national holidays with effect from 1975 is legal, proper and justified? If not, to what relief are the workmen entitled?" (5) The Tribunal, after considering the evidence put before it published its award giving detailed reasons inter alia directing FCI to pay overtime at the amended rate under the said Act of 1963. (6) The award is appearing at pages 97-111 of the paper book. Analysis of the said award reveals as follows:- (i) The management started paying one and half times the ordinary wage on the National Holidays and as such no further adjudication was required on the issue in respect of National Holidays. (ii) On perusal of Paragraphs-8 and 9 of the written statement it appears that payment of one and half times of the normal wages for Sundays, festival and National Holidays was paid till 1975 when it was discontinued. Section 9A of the Industrial Dispute Act, 1947 did not permit the employer to cause hindrance to the service condition, inter alia, resulting loss of pecuniary benefit to any employee. (iii) As per the Memorandum of Settlement workers were assured twenty one days wages in a month. Once the workers reported for duty on the rest of the days they could not be denied normal rate of overtime on the plea that they did not work for forty two hours. (iv) The management witness deposed that the normal working hours were seven hours a day and for six days it would be forty two hours in a week. During cross-examination he deposed that if a person was absent on a working day and performed duties on Sunday he was not paid overtime. (iv) The management witness deposed that the normal working hours were seven hours a day and for six days it would be forty two hours in a week. During cross-examination he deposed that if a person was absent on a working day and performed duties on Sunday he was not paid overtime. (v) The Tribunal observed that it was clear from the evidence that normal working hours was seven hours a day and forty two hours a week and beyond that worker was entitled to overtime. (vi) The Tribunal also observed that no basis was shown as to why different treatment was made for Festival Holidays or Sundays with National Holiday. (vii) The Tribunal heavily relied upon the decision in the case of M/s. Philips India Ltd. v. Labour Court, Madras and Ors. (All India Reporter 1985 Supreme Court, Page 1034), particularly Paragraph-12 where the Apex Court dealt with Section 14 of the Shop and Establishment Act and held that if any worker was asked to work beyond forty eight hours a week he must be paid the overtime wages. (viii) The Tribunal also observed that the impugned circular changed the condition of service which had no legal basis and as such was unlawful. (ix) The workers of Calcutta Complex of FCI were entitled to overtime wages at the rate of one and half times the ordinary rate of wage for working on Sundays, Festival or National Holidays and refusal to pay the same was not justified. (x) During the pendency of the reference, the said Act of 1963 was amended by the amending Act of 1988 and the rate of overtime was increased from one and half times to twice. Hence, the worker should get overtime at the amended rate. (7) Being aggrieved and dissatisfied with the award, the FCI management filed a writ petition before the learned Single Judge being W.P. No.479 of 1998. The writ petition was heard by the learned Single Judge and was disposed of by judgment and order dated December 9, 2005 appearing at pages 155-161 of the paper book. (8) The learned Single Judge observed that the view expressed by the Tribunal was a possible view. Hence, there was hardly any scope for interference. The learned Single Judge further observed that the issue of overtime was guided by the provisions of the said Act of 1963. (8) The learned Single Judge observed that the view expressed by the Tribunal was a possible view. Hence, there was hardly any scope for interference. The learned Single Judge further observed that the issue of overtime was guided by the provisions of the said Act of 1963. Section 5 inter alia provided that no person would be required to work more than eight hours a day and forty eight hours in one week. The proviso, however, made it clear that the employer might utilize the service of the concerned employee beyond forty eight hours a week but not more than ten hours in any one day being the total number of hours and must not exceed one hundred twenty hours in one year beyond fifty four hours a week by making payment of extra wages which was initially one and half times and then enhanced to twice the normal wages as per Section 13 thereof. His Lordship dismissed the writ petition with cost of 200 G.Ms. (9) Being aggrieved and dissatisfied with the judgment and order of the learned Single Judge FCI preferred the instant appeal which was heard by us. (10) Mr. Chatterjee, learned Senior Counsel being assisted by Mr. Kamal Kumar Chattopadhyay appearing for FCI being the appellant above named contended that the provisions of the said Act of 1963 clearly mentioned that overtime at the prescribed rate would only be available to the concerned employee once he had worked for the normal hours. The normal hours of work in Calcutta Complex were forty two hours a week. Hence, any person who worked less than forty two hours in a week would not be lawfully entitled to overtime at the normal rate. (11) Mr. Chatterjee relied upon Clause 19 of the Memorandum of Settlement appearing at page 47 of the paper book which, inter alia provided that the workers should be paid overtime in accordance with the provisions of the said Act of 1963. According to him, since some of the workers did not discharge their duty as per the normal working hours in a week they should not be allowed to draw overtime at the rate prescribed under the said Act of 1963. He also referred to the written statement filed before the Tribunal by the management particularly Paragraph-8 in this regard. According to him, since some of the workers did not discharge their duty as per the normal working hours in a week they should not be allowed to draw overtime at the rate prescribed under the said Act of 1963. He also referred to the written statement filed before the Tribunal by the management particularly Paragraph-8 in this regard. (12) To support his contention he relied on the following decisions:- (i) Indian Oxygen Ltd. v. Their Workmen, 1969 (1) Labour Law Journal, Page 235, (ii) The Workmen of the Calcutta Electric Supply Corporation Ltd. v. The Calcutta Electric Supply Corporation Ltd., 1973 (II) Labour Law Journal Page 258, (iii) Clothing Factory, National Workers Union, Avadi, Madras v. Union of India by its Secretary and Ors., 1990, (III) Supreme Court Cases, Page 50, (iv) Model Mills, Nagpurv. Labour Court, NagpurS, Ors., 1993, (II) Labour Law Journal Page 51, (v) M/s. Philips India Ltd. v. Labour Court, Madras and Ors., AIR 1985, Supreme Court Page 1034. (13) We have considered the pleadings, the award passed by the Tribunal and the judgment and order of the learned Single Judge affirming the award impugned in this appeal. We have also considered the contentions raised by Mr. Chatterjee. (14) Mr. Partha Sarathi Sengupta learned Counsel appeared for the Union. We, however, did not feel it necessary to call upon him to address us. (15) The provisions of the said Act of 1963 is absolutely clear and unambiguous. Both the Tribunal as well as the learned Single Judge considered the aspect and upheld the claim of the workers. If we try to bring them in a narrow campus we would find that the said Act of 1963, inter alia, provides the normal working hours on an outer limit beyond which the employer was not entitled to exploit the workmen compelling him to work beyond the working hours. It was also provided that in case the employer needs an employee to work beyond the normal hours he may do so with restrictions imposed in the said statute discussed above. An organization covered under the said Act of 1963 is entitled to fix its normal working hours which must not go beyond the maximum limit prescribed under the said Act of 1963. The Calcutta Complex of FCI fixed its normal working hours as seven hours a day and forty two hours a week by excluding the rest period. An organization covered under the said Act of 1963 is entitled to fix its normal working hours which must not go beyond the maximum limit prescribed under the said Act of 1963. The Calcutta Complex of FCI fixed its normal working hours as seven hours a day and forty two hours a week by excluding the rest period. Hence, beyond forty two hours if a worker is asked to discharge duty he must be paid overtime at the rate prescribed under Section 13 of the said Act of 1963. As per the memorandum of settlement twenty one days wages in a month was assured irrespective of the work given to the worker. However, six days week would amount to about twenty six days in a month. Balance five days wages was dependent upon the work load. Hence, a worker if reports for duty from Monday to Saturday every day and he is refused work on any day and then the same worker is asked to work on Sunday or any holiday of that week he cannot be denied extra wages as overtime wages as it was not his fault that he worked less than forty two hours a week. Similarly, if someone takes any leave authorized by the management for a particular day or days in a week and is asked to work on a Sunday in the said week he cannot be refused overtime wages on the plea that he did not work for forty two hours. (16) If we read Sections 5 and 13 together we would find that the legislature thought it fit to fix the maximum peiiod of work an employee can be asked to work. It is an enabling provision for the employer to fix the working hours as per the said provision. Similarly it is a protection given to the employee from exploitation of its labour beyond the normal working hours. (17) On the issue of overtime the law is as clear as water. If someone is asked to work beyond the normal working hour or on a holiday he must be paid overtime at a particular rate prescribed under Section 13. This provision has recognized entitlement of a worker to get wages at a higher rate when he is asked to work beyond normal hours. If someone is asked to work beyond the normal working hour or on a holiday he must be paid overtime at a particular rate prescribed under Section 13. This provision has recognized entitlement of a worker to get wages at a higher rate when he is asked to work beyond normal hours. We fully agree with the Tribunal that if a worker is paid overtime at the statutory rate on a National Holiday there is no reason why he would not be paid at the said rate on festival holiday or Sundary? We asked this question specifically to Mr. Chatterjee. He tried to give an explanation. We, however, did not understand and searched in vain the logic behind such different treatment. (18) The rate of overtime does not have and cannot have any nexus with the issue of discharging work during normal hours. If an employee does not work during normal hours he is vulnerable and the employer is entitled to proceed against him departmentally. Similarly if an employee deliberately keeps himself absent unauthorisedly during normal hours the employer is at liberty to take steps against him. The employer is also at liberty to refuse him overtime work. However, once he is asked to work on a holiday he must be paid wages at the rate prescribed under the statute. (19) The learned Tribunal relied on the decision in the case of M/s. Philips India Ltd. (supra). We have perused the said decision as also the other decisions cited at the Bar. We find support from the Apex Court decision in the case of Indian Oxygen Ltd. (supra) and The Workmen of the Calcutta Electric Supply Corporation Ltd. (supra) in this regard. (20) The protlem can be viewed from another angle. Section 9A of the said Act of 1947 Inter alia provides that an employer is not entitled to alter the service conditions detrimental to the interest of the employee. Rightly or wrongly FCI continued to pay overtime at the rate prescribed under the said Act of 1963. Hence, sudden withdrawal of such benefit in some cases by issuing the purported circular was contrary to the provisions of Section 9A and was not permissible in law. Mr. Chatterjee tried to justify the circular by contending that the benefit was given mistakenly and the authority was entitled to rectify their mistake. The facts as revealed do not support Mr. Hence, sudden withdrawal of such benefit in some cases by issuing the purported circular was contrary to the provisions of Section 9A and was not permissible in law. Mr. Chatterjee tried to justify the circular by contending that the benefit was given mistakenly and the authority was entitled to rectify their mistake. The facts as revealed do not support Mr. Chatterjees contention in this regard. (21) The appeal fails and, is, hereby dismissed. (22) There would be no order as to costs.