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2018 DIGILAW 232 (ORI)

Shive Shankar Singh v. Union of India

2018-03-08

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT : B.R. SARANGI, J. The petitioners are working under Mahanadi Coal Fields Limited in supervisory capacity in different mines. The nature of work discharged by the petitioners indicates that after the work, most of the times they have done overtime in order to achieve the required output. Consequentially, they are entitled overtime wages in terms of Section 33(1) of the Mines Act, 1952, but they have been paid at a flat rate since 1987. Since the petitioners are entitled to be paid balance differential amount of what has been paid to them than what they are entitled to in terms of Section 33(1) of the Act, and the same having not been complied with, the petitioners have filed the present application claiming for such benefit in compliance of Section 33(1) of the Mines Act, 1952 and Rules framed thereunder. 2. Mr. D. Mohanta, learned counsel for the petitioners contended that in view of the provisions contained under Section 33(1) of the Mines Act, 1952 the petitioners are entitled to double the wages for the period of overtime work, but for some reasons best left unexplained, the petitioners are not being paid their overtime wages in terms of the Mines Act, 1952 but are being paid at a consolidated rate despite the petitioners’ several representations and personal approaches to different authorities. It is further contended that as per the provisions contained under National Coal Wages Agreement-iv wherein under Chapter-xi in paragraph-xi(3) payment of wages has been provided. In spite of such provisions, they are not being paid their legitimate claims. Therefore, they have approached this Court by filing this application claiming such benefit as due and admissible to them in accordance with law. 3. Mr. B.N. Moahnty, learned counsel appearing for opposite parties no. 2 and 3 argued with vehemence stating inter alia that the petitioners, who are working in supervisory capacity, are being paid overtime wages as per the decision taken in National Coal Wage Agreement (NCWA), which has been finalized by the Joint Bipartite Committee for the Coal Industry (JBCCI), formulated at Coal India Level. 2 and 3 argued with vehemence stating inter alia that the petitioners, who are working in supervisory capacity, are being paid overtime wages as per the decision taken in National Coal Wage Agreement (NCWA), which has been finalized by the Joint Bipartite Committee for the Coal Industry (JBCCI), formulated at Coal India Level. The provision for payment of overtime to all employees including the confidential and supervisory staff has been formulated in NCWA-IV and NCWA-V, as contemplated under Section 33 of the Mines Act, 1952 and as per the schedule under 9.0.3699 dated 22nd November, 1965, i.e., Central Government Gazettee notification dated 27.11.1965 under Section 83(1) of the Mines Act, 1952, for the benefit of the employees working in the coal industry. It is further contended that in Clause-11.3 of the NCWA-IV it was agreed that all the categories of workers, who were entitled for overtime payment, will continue to get the payment of overtime work in different establishments, units and offices. In Clause 11.4.2 (b & c) a ceiling of basic pay, i.e. Rs.1630/- was fixed for confidential and supervisory staff for calculation of overtime wages. As per Clause 11.4.2, it was agreed to raise the ceiling of basic pay from Rs.1080/- to Rs.1630/- for calculation of overtime wages in respect of confidential and supervisory staff. The matter of ceiling in basic pay for calculation of overtime wages in respect of confidential and supervisory staff is being discussed in JECCI since NCWA-I. On the basis of JBCCI negotiation this ceiling is being fixed and the confidential and supervisory staff are being paid overtime wages. Therefore, the petitioners are not being deprived of payment of overtime wages. As such, the petitioners are entitled to get the benefit in terms of NCWA, as the same is binding on them. 4. We have heard Mr. D. Mohanta, learned counsel for the petitioners and Mr. B.N. Mohanty, learned counsel for opposite parties no. 2 and 3. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this petition is being disposed of finally at the stage of admission. 5. 4. We have heard Mr. D. Mohanta, learned counsel for the petitioners and Mr. B.N. Mohanty, learned counsel for opposite parties no. 2 and 3. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this petition is being disposed of finally at the stage of admission. 5. The basic question falls for consideration in the present context is whether the petitioners, who are working under the supervisory capacity in the various mines of Mahanadi Coal Fields Limited, are entitled to get extra wages for overtime work as per the provisions of the Mines Act, 1952 and rules framed thereunder. 6. The Indian Mines Act, which relates to regulation and inspection of mines, was passed in 1923. Although it has since been amended in certain respects, the general framework has remained unchanged. Experience of the working of the Act revealed a number of defects and deficiencies which hampered effective administration. Some of these necessitate new forms of control while others require the tightening up of the existing legal provisions. Therefore, it has been considered necessary to thoroughly overhaul the existing Act of 1923. In order to fulfill the lacunas, the legislation in its wisdom enacted Mines Act, 1952, where one of the reasons for such enactment has specifically mentioned that Indian Mines Act, 1923 does not specify the rate of payment of overtime work. Consequentially, the Mines Act, 1952 has taken care of the rates of over time work fixed at 1½ times the ordinary rate of wages in the case of surface workers and at twice the ordinary rate of underground workers. The working hours for all workers, both surface and underground, have been reduced to 48 per week and no worker is to be allowed to work for more than 9 hours a day above ground and 8 hours a day below ground. The provisions of Indian Mines Act, 1923 permits the workers on the surface to work for 54 hours a week or 10 hours a day and workers underground for 9 hours a day. 7. The provisions of Indian Mines Act, 1923 permits the workers on the surface to work for 54 hours a week or 10 hours a day and workers underground for 9 hours a day. 7. This being one of the conditions of enactment of Mines Act, 1952, accordingly the legislature has incorporated such benefits admissible to a person working in the mine by incorporating the provisions contained in Section 33(1), which has been substituted by Act of 62 of 1959 under Section 17 for sub-Section (1) giving effect from 16.01.1960. The relevant provisions of Section 33(1) read as follows: “33. Extra wages for overtime – (1) Where in a mine a person works above ground for more than nine hours in any day, or works below ground for more than eight hours in any day or works for more than forty-eight hours in any week whether above ground or below ground, he shall in respect of such overtime work be entitled to wages at the rate of twice his ordinary rate of wages, the period of overtime work being calculated on a daily basis or weekly basis, whichever is more favourable to him.” 8. In order to give effect to the provisions contained under Section 33(1) of the Mines Act, 1952 itself, the Central Government framed a rule in exercise of power conferred by Section 58 of the Mines Act, 1952 and published as required by sub-section (1) of Section 59 of the said Act. Rule 60 of the Mines Rules, 1955 reads as follows: “60. Extra wages for overtime – (1) For the purpose of section 33, overtimes shall be paid at the end of each wage-period. (2) In calculating overtime on any day a fraction of an hour less than 30 minutes shall be ignored and a fraction of 30 minutes or more shall be counted as one hour. (3) In calculating the ordinary rate of wages or earnings in the case of a person paid by the month, the daily wages shall be 1/26th of his monthly rate of wages and in the case of any other person it shall be the ordinary rate of his daily wages or earnings as the case may be.” 9. (3) In calculating the ordinary rate of wages or earnings in the case of a person paid by the month, the daily wages shall be 1/26th of his monthly rate of wages and in the case of any other person it shall be the ordinary rate of his daily wages or earnings as the case may be.” 9. On perusal of the aforementioned provisions of law, there is no iota of doubt to the extent that where in a mine a person works above ground for more than 9 hours in any day and works below ground for more than 8 hours in any day or works more than 48 hours in any week whether above ground or below ground, he is entitled to get extra wages for over time at the rate prescribed under Section 33(1) of the Mines Act, 1952 read with Rule 60 of the Mines Rules, 1955. As per the decision taken by the JBCCI a National Coal Wage Agreement (NCWA) has been executed, pursuant to which the overtime wages are being paid to the petitioners. As per such agreement under Chapter-XI in paragraph-XI (3) of the NCWA–IV it has been specifically stated with regard to payment of overtime, which reads as follows: “xi(3). Payment of over-time: It is agreed that all the categories of workers who are entitled to receive overtime payment will continue to get the payment of overtime work in different establishment, units and offices.” 10. In view of the aforementioned provisions of NCWA-IV, the same is in adherence to the statutory provisions contained in Section 33(1) of the Mines Act, 1952 read with Rule 60 of the Mines Rules, 1955. But under Clause 11.4.2 (b) and (c) a ceiling has been fixed to pay Rs.1630/-for confidential and supervisory staff for calculation of overtime wages and on the basis of the JBCCI negotiation the ceiling is being fixed and the confidential and supervisory staff are being paid overtime wages accordingly. In view of such Clause 11.4.2 of the NCWA-IV, fixing a ceiling for payment of extra wages for overtime is contrary to the provisions contained in Section 33(1) of the Mines Act, 1952 read with Rule 60 of the Mines Rules, 1955. 11. Mr. In view of such Clause 11.4.2 of the NCWA-IV, fixing a ceiling for payment of extra wages for overtime is contrary to the provisions contained in Section 33(1) of the Mines Act, 1952 read with Rule 60 of the Mines Rules, 1955. 11. Mr. Mohanty, learned counsel appearing for opposite parties no.2 and 3 contended that since a bipartite agreement has been executed and it is purely contractual in nature the same is binding on the petitioners and they cannot claim the benefit beyond the agreement so executed by way of filing the present application. To examine such contention, it is seen that such condition stipulated for fixation of ceiling for payment of extra wages for overtime is contrary to the provisions contained in Section 33(1) of the Mines Act, 1952 read with Rule 60 of the Mines Rules, 1955. Therefore, any condition stipulated in the agreement de horse the statutory provisions cannot sustain in the eye of law. 12. It is no doubt true that the provisions contained in Section 33(1) of the Mines Act, 1952 read with Rule 60 of the Mines Rules, 1955 are to be read by applying the rule of literal construction giving natural and grammatical meaning to it, in view the law laid down in Corporation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240 and also Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165 wherein it has been held that the words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. The said view of the Privy Council has been reiterated by the apex Court time and again in Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 ; Madanlal Fakir Chand Dudhediya v. Shri Changdeo Sugar Mills Ltd., AIR 1962 SC 1543 ; Mohammad Ali Khan v. Commissioner of Wealth Tax, AIR 1997 SC 1165 ; Colgate Palmolive (India) Ltd. v. M.R.T.P. Commission, AIR 2003 SC 317 ; and State of Rajasthan v. Babu Ram, AIR 2007 SC 2018 . 13. Ltd., AIR 1955 SC 376 ; Madanlal Fakir Chand Dudhediya v. Shri Changdeo Sugar Mills Ltd., AIR 1962 SC 1543 ; Mohammad Ali Khan v. Commissioner of Wealth Tax, AIR 1997 SC 1165 ; Colgate Palmolive (India) Ltd. v. M.R.T.P. Commission, AIR 2003 SC 317 ; and State of Rajasthan v. Babu Ram, AIR 2007 SC 2018 . 13. In Nokes v. Doncaster Amalgamated Collieries Ltd., (1940) 3 All ER 549 it was held that the golden rule is that the words of a statute must prima facie be given their ordinary meaning. 14. In Suthendram v. Immigration Appeal Tribunal, (1976) 3 All ER 611 the speech of LORD SIMON OF GLAISDALE has been referred to as follows: “Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply ‘the golden rule’ of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further”. 15. In view of the aforesaid facts and circumstances and applying the law discussed above, in our considered opinion if the provisions of Section 33(1) of the Mines Act, 1952 read with Rule 60 of Mines Rules, 1955 prescribe for payment of extra wages for overtime and also its modalities, the same should be adhered to as there is no ambiguity in the same. Therefore, adherence to any of the conditions stipulated in the NCWA fixing a ceiling for payment of extra wages for overtime de horse such statutory provisions cannot sustain in the eye of law. Accordingly, we direct the opposite parties to pay the differential amount of overtime wages in consonance with the provisions contained under Section 33(1) of the Mines Act, 1952 and Rule 60 of the Mines Rules, 1955 from the date of filing of this application before this Court, i.e., 29.09.1997 agitating such benefits in conformity with the said provisions. 16. The writ application thus stands allowed. No order as to costs.