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PETITIONER: WORKMEN OF THE BOMBAY PORT TRUST

       Vs.

RESPONDENT: TRUSTEES OF PORT OF BOMBAY

DATE OF JUDGMENT: 10/10/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS WANCHOO, K.N. SHAH, J.C.

CITATION:  1962 AIR  481            1962 SCR  Supl. (1)  36

ACT:      Industrial   Dispute-Wages-if   payable   for Sunday, the  "Weekly off" day on which no work was done and for Sunday on which work was done without compensatory off  day-Rate-Weekly holiday, meaning of-Minimum Wages  Act, 1948  (XI of  1948),  s.l3- Minimum Wages Rules, r. 23.

HEADNOTE:      The Minimum  Wages Act, 1948, and the Minimum Wages Rules,  framed  thereunder,  laid  down  the principle that the Government should provide for a day of  1 est to the workers for every period of 7 days and  also to  make provisions for making some payment  in   connection  therewith.  The  dispute between the  workers and  employers of the present case related  to (a)  arrears of wages for Sunday, the "weekly off" day on which no work was done and (b) arrears of wages for work 37 done on  Sundays which should have been given as a weekly off  day  but  was  not  so  given  and  no compensatory day  was given  in  lieu  thereof  as contemplated under  the Minimum  Wages  Rules.  As regards arrears  of wages  for Sundays on which no work was  done the  workmen’s case  was that  they were entitled  to payment  for  each  such  Sunday amounts equal  to their average daily wages during the preceding  week, that  for the  work  done  on Sundays without  the compensatory  "off day"  they were entitled  to three  times the  ordinary rate. The  respondent’s   case  was  that  on  a  proper interpretation of  r. 23  of  the  Minimum  (Wages Central)  Rules,   1960,  the   Workmen  were  not entitled to  payment for  Sundays on which no work was done  and that  in  any  case  they  had  been constructively paid  for Sundays  inasmuch as  the daily wages  were fixed  at I/26th  of the monthly wages. The  Industrial Tribunal  rejected all  the claims of the workmen. On appeal by special leave. ^

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    Held, that  contravention of  r.  23  of  the Minimum  Wages  Rules  was  punishable  under  the Minimum Wages  Act but the Industrial Tribunal had no authority  to impose  penalty in  the shape  of making the employer pay in respect of work done on Sundays something  more than  what he  would  have otherwise to  pay. Neither  the Minimum  Wages Act nor the  Rules  contain  any  provision  for  such additional payment  over and  above what  would be payable for  over time  work as  such. The workmen therefore cannot  get  three  times  the  ordinary rate.      The phrase  "for which"  in r. 23 referred to the weekly  holiday whether  it was on a Sunday or on any  other day  of the  week as permitted under the Rules.  No distinction  was made  between  the holiday on  the first  day of the week and holiday on one  of the  five days  immediately  before  or after the said day. The scheme was for one holiday in the  week and  it was  for  that  holiday  that payment was provided.      Trustees of  the Port  of Bombay v. Authority under the  Payment of  Wages Act,  (1957) I L.L.J. 627, A.  C. C. v. Labour Inspector, (1960) 1 L. L. J. 192  and Jaswani  Sugar Mills v. Sub-divisional Magistrate, (1960) 2 L. L. J. 373, approved.      The Central Government clearly intended under the Minimum Wages Rules that for work on a holiday something more than what was actually paid for six days of the week should be paid. This could not be defeated by  a statement  that in  form  six  days wages were  paid, but  in fact  and  in  substance seven days wages were paid.      The plea of constructive payment must fail.      The argument  that r. 23 did not apply to the workmen of the present case after the introduction of the  piece rate  scheme introduced in this case must be rejected 38

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 529/1959.      Appeal by  special leave from the Award dated February  28,  1958,  of  the  Central  Government Industrial Tribunal  Calcutta, in reference No. Of 1957.      H. R.  Gokhale, Yeshwant  Chitale, Ratna  Rao and K. R. Choudhri, for the appellants.      S. T.  Desai, J.  B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent No. 1.      1961. October  10. The  Judgment of the Court was delivered by      DAS GUPTA, J.-This appeal by special leave is against  an   award  of   the  Central  Government Industrial  Tribunal  at  Calcutta  in  a  dispute referred  to   that  Tribunal   by   the   Central Government under  s.10 of  the Industrial Disputes Act between  the workmen of the Bombay Port Trust, who are  the appellants before US and the Trustees of the  Port of  Bombay, the  respondents  in  the appeal. The  workmen concerned  in the  dispute as referred  are   shore  workers  belonging  to  "A"

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category, "B"  category and casual category. These three categories  came into  existence  under  the scheme adopted  by the  Bombay Port Trust in April 1948 for  direct employment  of shore  workers  in place of  the system  previously  in  force  under which  such  labourers  used  to  be  supplied  by contractors known  as Toliwallas.  The matters  in dispute were  specified  thus  in  the  letter  of reference to the Tribunal:-           "Arrears  due   to  the   shore  workers      belonging to  the "A"  category, "B" category      and casual category in respect of           (i) weekly  off with  pay for the period      15th March, 1951 to 2nd March, 1956;           (ii) work  on weekly off days during the      period 15th  March, 1951  to 2nd March, 1956,      without a compensatory day off in lieu; and 39           (iii) average daily wages for the weekly      off days after the introduction of the piece-      rate scheme with effect from 3rd March, 1956,      when the  average  fluctuated  from  week  to      week."      It became  clear at  the hearing  before  the Tribunal that  of the period mentioned in Item (i) and Item  (ii), viz.,  the 15th March, 1951 to 2nd March, 1956, no "weekly off" was given at all from the 15th  March 1951  to October  1953 but workmen were made  to work generally for all the 7 days of the week,  and further  that from  October 1953 to 2nd March,  1956, Sunday  was given as the "weekly off" and  no work  was taken on that day. The real dispute therefore  as regards  Item (i)  and  Item (ii) was  in respect  of (a)  arrears of wages for Sunday the  weekly off  on which  no work was done from October,  1953  to  March  2  1956,  and  (b) arrears of  wages for  work done during the period 15th March, 1951 to October, 1953 on Sundays which should have been given as a weekly off day but was not, though  no compensatory day was given in lieu thereof.      As regards  arrears of  wages for  Sundays on which no work was done the worksmen’s case is that they were  entitled to  receive payment  for  eah such Sunday  amounts equal  to their average daily wages during the preceding week. But admittedly no payment  was   made   for   these   Sundays.   The respondent’s case  however is  that  on  a  proper interpretation of  Rules 23  of the  Minimum Wages (Central)  Rules,   1960,  the  workmen  were  not entitled to  payment for  Sundays on which no work was done by them and further that in any case they have been constructively paid for the Sundays also inasmuch as  the daily  wages were fixed at I/26th of the monthly wage.      The  Tribunal   accepted  these   contentions raised on  behalf of  the employer  and held  that there were  no arrears  of  wages  in  respect  of Sundays 40 for which  no work  was done.  With regard  to the period March  15, 1951 to October, 1953 it appears the workmen  except morphias  were paid at twice J the. Ordinary  rate inclusive  of all  allowances, for all  work done  on Sundays; Morphias were paid

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one and a half time the normal rates of wages. The workers’ case is that for the work done on Sundays during this  period they  were entitled  to  three time. the  ordinary  rate.  This  claim  was  also rejected by  the Tribunal  which however held that the Morphias  were entitled  to double their wages inclusive of  all allowances  and so directed that they shall be paid for work done by them on weekly rest days  from 15th  March, 1951  to October 1953 the  difference   between   double   their   wages inclusive of  all allowances  and that  they  have been paid.      We may  state at  once that  the  dispute  as regards  arrears   due  to  workers  belonging  to "casual" category  has not  been pressed before US and does  not therefore  require consideration  in this appeal. The claim as regards arrears of wages for the  period March  15, 1951,  to October  1953 (except what  has already  been awarded  for  this period to  Morphias) does  not also  merit serious consideration  as  the  learned  counsel  for  the appellant was  unable to  show any legal basis for such a claim. He tried to persuade to that as Rule 23 of  the Minimum  Wages (Central) Rules required the employer  to give  a weekly  holiday on Sunday (unless this  is given  on some other day instead) it is  not right  that when  the employer does not comply with  that requirement  he should  get  off with paying  nothing more  than what he would have paid for  such work  done on  any day  of the week because of  the Rules  in respect of extra payment for over-time  work. The  Minimum Wages  Act, 1948 itself contains  provisions for  contravention  of the provisions  of the Act or Rules or orders made thereunder. Section  22  provides  for  punishment inter alia  for contravention  of rules  or orders under  section   13.  Section   22A  provides  for punishment withfine 41 (which may  extend to five hundred to five hundred rupees) for  contravention of any provision of the Act or  of any rule or order made thereunder if no other penalty  is provided for such contravention. The Minimum  Wages Rules  were made by the Central Government in  exercise of the powers conferred by s. 30  of the  Minimum Wages  Act, 1948 (Act XI of 1948) and  so contravention  of rule  23 of  these rules is  punishable under section 22A of the Act. Whether or  not any  action is  taken against  the employer for  such contravention,  the  Industrial Tribunal has  no authority  to impose  some  other penalty in the shape of making the employer pay in respect of  work done  on Sundays  something  more than what  he would  have otherwise  have to  pay. Neither  the  Minimum  Wages  At  nor  the  Rules contain any  provision for such additional payment over and above what would be payable for over time work as  such. The  workmen’s  claim  for  further payment in  respect of work done on Sunday during, the period  March 15,  1951 to  October  1953  has therefore been rightly rejected.      In respect  of the  claim for  pay on Sundays during the period  October  1953 to March 2, 1956, on which  no work was done we have first to decide on the  correct interpretation  of the  words "for

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which" in  Rule 23,  as it  stood  before  it  was amended by  a Notification  GSR 918 dated the 29th July, 1960.  Tho  Rule  as  it  stood  before  the amendment ran thus:-           "23. Weekly  Holidays-(1)  Unless  other      wise permitted  by the Central Government, no      worker shall  be required  or allowed to work      in a  scheduled employment,  on the first day      of the  week (hereinafter  referred to as the      said day)  except when  he has or will have a      holiday for  the whole day on one of the five      days immediately before or after the said day      for which  he shall  receive payment equal to      his average  daily wages during the preceding      week. 42           Provided that the weekly holidays may be      substituted by another day:           Provided further  that  no  substitution      shall be made which will result in any worker      working for  more than ten days consecutively      without a holiday for a whole day."      We are  not concerned  with cl. 2 of Rule 23. The Explanation  to the  Rule is  in the following words:-           Explanation-For the purpose of this rule      "week" shall  mean a  period  of  seven  days      beginning at midnight on Saturday night."      The main policy underlying the rule obviously is that  workmen shall  have full rest at frequent intervals-ordinarily once  in every  7 days but in no case  at intervals  of more  than 10 days. This was clearly  in accordance with the principle laid down in  8. 13  of the  Minimum Wages Act that the Government may provide for a day of rent for every period of  7  days  even  though  in  framing  the Minimum Wages  (Central) Rules  1960 (which covers many  other   matters  other   than  the   matters mentioned in  8.13) no  reference has been made to section 13 at all. In giving effect to this policy of providing  for a day of rest-ordinarily once in 7 days but in no case at intervals of more than 10 days-the rule  making authority  has  thought  fit also to  make provision for making some payment in connection with  this. Difficulty has however been caused  by  the  unfortunate  complexcity  of  the sentence, in  which the  main provision as regards the day  of rest and also the subsidiary provision for payment have been combined.      The dispute is about the meaning of the words "for which".  If one remembers the rule of grammar that what  the grammarians  call the  "antecedent" (that is  the noun  or pronoun to which a relative pronoun  relates)   should  be  used  as  near  as possible to  the relative  pronoun, one is tempted to think that "which" relates to the word "day" of the "said 43 day"  immediately   preceding  the  preceding  the preposition "for".  Breaking up  this last portion of the  rule, the  rule  thus  analysed  would  be equivalent to  "and for  the  said  day  he  shall receive payment  equal to  his average daily wages during the  proceeding week". That will be however only A  grammarian’s construction.  In the  Courts

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however while  we have  to remember  the rules  of grammar,  because   such  rules   are   ordinarily observed by people in expressing their intentions, we  have   to  look   a  little  more  closely  to understand the: real intention expressed. It seems to  us  unreasonable  to  impute  the  rule-making authority an  intention that  while if  the weekly rest is given on the said day" that is, Sunday the workmen shall receive payment, he shall receive no payment if  and when  the employer takes advantage of the  provisions that no workman may be required or allowed  to work on Sunday when the has or will have a  holiday for  the whole  day on  one of the five days  immediately before  or after  the  said day." For,  it that  be  permitted,  the  employer would always give the weekly holiday on one of the 5 days  immediately before or after the Sunday and thus avoid  payment for  the rest  day.  It  seems clear to us therefore that in using the words "for which" after  the words  the said  day" the  rule- making authority  did not  intend to  continue the word "which"  to this  said day"  but intended  to relate this  "which" to  any of  the days on which rest is  given. In  other words,  ’for which"  was used as  short for  and on such holiday whether on the said day or not". We do not think the rules of grammar stand in the way of this interpretation.      Mr.  Desai’s   argument  on   behalf  of  the respondent is  that ’"which"  relates to  the word holiday and  that accordingly  it is only when the workman has  or will  have a holiday on one of the five days  immediately before  or after  the  said day, that  he Shall  receive payment. According to him, the  two phrases  for the whole day" and "one of the  five days  immediately before or after the said day" are adver-. 44 bial phrases  modifying the  verb "has"  and "will have" and  no part  of these  phrases can have any connection with  the words  for which". Leaving of these out, the rule properly analysed is, he says, in really two portions: the first being "no worker shall  be   required  or  allowed  to  work  in  a scheduled employment,  on the  first day of week"; the second being except when he has or will have a holiday for  which he  shall receive payment equal to his  average daily  wages during  the preceding week".  That  will  however  be  to  re-write  the sentence in  a manner  for which  we can  find  no justification. It  is proper to remember also that this  interpretation   will  have   the   peculiar consequence that if the rest day is given on first day of  the week  no payment will have to be made, but if  it is given on some other day payment will have to  be  made.  It  will  be  unreasonable  to ascribe such an intention to the legislature.      The  Tribunal   was  so   impressed  by   the unreasonableness of  such a  consequence  that  it came to  the conclusion  that no  payment will  be receivable by  the workmen whether the weekly rest day is  given on  the first  day of the week or on one of  the five  days immediately before or after the said day.      Reading the  operative portion  of this  rule with the  proviso that  the weekly  holiday may be

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substituted by  another day it appears to us clear that the  rule making  authority did  not draw any distinction between  the holiday  on the first day of the week or the holiday on one of the five days immediately before  or after  the said day. It was this weekly  holiday-whether given  on the 1st day of the  week or  whether on  one of  the five days immediately before  or  after  the  said  day-that under the  proviso could be substituted by another day.  The  scheme  clearly  is  for  one  holiday, generally, once  in a  week and it is for this one holiday that payment is provided. 45      Our attention  was drawn to the view taken by the Bombay  High Court  in Trustees of the Port of Bombay v.  Authority under  the payment  of  Wages Act(1) which was followed by the Madras High Court in A.C.C.  v. Labour  Inspector(2) that the proper construction of  the word "for which" is to relate to word  "holiday" preceding  the word"  "for  the whole  day".   In  Jaswant  Sugar  Mills  v.  Sub- Divisional Magistrate (3) the Allahabad High Court took the view that for which" refers to the weekly holiday whether  it is on a Sunday or on any other days of  the week as permitted under the Rules. In our opinion,  the view taken by the Allahabad High Court correct.      On a proper construction of the rule it must, in our  opinion,  be  held  that  the  workmen  of categories A  and were entitled to receive payment equal to  the average  wages during  the preceding week" in  respect of  the period  October 1963  to March 2, 1956.      This brings  us to  the employer’s claim that there  has   been  constructive  payment  for  the Sundays during  this period, viz., October 1953 to March 2, 1956. The argument is that the daily wage for these  workmen was  fixed by  dividing all the Components  of   the  monthly  scale  of  pay  and allowances by  26 so that what, a workman receives as daily  wage is really 1/26th of the wage for 30 days. Thus, it is said, the total receipts for the 26 days,  if no  seperate payment  is made for the rest days  will be  26 x1/26th  of 30  days wage., that  is  30  days’  wage.  The  fallacy  in  this argument is  that it  ignores the  essential  fact that once  the daily  wage is  fixed at  a certain figure it no longer retains its character of being 1/26th of  the monthly  wage. However  arrived at, the daily  wage is a daily wage and it is wrong to regard it  as a  certain fraction  of the  monthly wage. When  the Central Government making in these Minimum  Wages   Rules  made  this  provision  for payment on a holiday it clearly (1)1957 (1) L. L. J. 627.     (2) 1960(I) L. L. J.                                               192.            (3) 1960 (II) L. L. J. 373. 46 intended that  something in  addition to  what was being actually  received for  the six  days of the week should  be paid. This cannot be defeated by a statement that  though in form six days wages were being paid,  infact and  in substance, fieven days wages  were   being  paid.   By  no   stretch   of imagination can payment for six days be equated to

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payment for seven days.      We have therefore come to the conclusion that the workmen  of the  A and categories are entitled to arrears  of wages  in respect of Sundays during the period octobcr 1953 to March 2, 1956.      With effect from March 3, 1856 the piece-rate scheme  was   introduced  fer  the  shore  woIkers belonging to  the A" category and B’ category. Tbe essentials of  this scheme  are that  a datum line was fixed  for the different kinds of u.ork and tl piece-rate would  vary with  the proportion  which the out  turn of  the gang bears to the datum line in the following manner:-           "For a  hift  fully  occupied  in  doing      piece rate  work the  piece rate  wage of the      basic gang worker (inclusive of basic pay and      the allowancefi  above mentioned)  shall rise      uniformly from  Rs. 3-1-O at 76% to Rs. 4-5-O      at lOO%  to Rs  8 at  150% of the datum line.      The piece  rate wage earned after 150% of the      datum line  shall be  processed at double the      daily wage that is to say the piece rate wage      will rise uniformly from Rs. 8 at 150% to Rs.      12 at to at to 200% of the datum line." The scheme further provided that:-           "Rs. 3-1-0 (comprised of Rs. 1-8-3 basic      was  including   allowances  and  Rs.  1-9  O      dearne6s allowance)  shall  be  the  mirlimum      guar&nteed wage  per  dav  on  which  a  gang      worker is given employment; if on any day the      piece work  earnings plus  idle time  payment      andlor other  earnings  under  this  appendix      fall short of the said minimum, 47      Port Trust  shall make up the difference that day."           "Rs.  3-7-0  (comprised  of  Rs.  1-14-0      basic wage including allowances and Rs. 1-9-0      dearness allowanance)  shall be  the  minimum      guaranteed wage per day on which a, morpia is      given employment."      On behalf  of the  respondent a  question was raised before us that Rule 23 of the Minimum Wages Rules does  not apply  to these  workmen after the piece rate scheme was introduced. It is urged that for such  worker there  is no  daily wage, as what the piece  worker receives  varies from day to day according to his total output. It may even happen, it is  suggested, that  on a  certain day on which output is  nil, the piece rate worker will receive nothing. Against  this, Mr.  Gokhale’s argument is that average daily wages during the preceding week means average of the total earnings per day during the  preceding   week  and  so  there  can  be  no difficulty in  ascertaining for  every his  worker his average daily wages during any week.      We  are   not   prepared   to   accept   this construction of  average daily  wages  as  average earnings per  day.  The  daily  wage  has  in  the industrial  world   a  definite   significance  in contra-distinction  to  weekly  wages  or  monthly wages. The  weekly wages  or monthly  wages  of  a person would  not as ordinarily understood include the extra earnings of the workmen by working over- time. So  also, in  our opinion,  the  term  daily

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wages as  ordinarily understood  does not  include over-time  earnings.   If  it   does  not  include overtime earnings,  can it reasonably be said that it includes  the high  additional earnings, that a worker may  receive by increasing his output above the minimum  fixed ?  We do not think that to be a reasonable  interpretation  of  the  words  "daily wages." At the same time, we see no reason why the guaranteed minimum fixed for each workman 48 per day  should not be considered his daily wages. The piece rate system introduced for these work-As men has fixed such a minimum. Indeed, the fixation of such  A minimum  wage for  a piece  rate system makes, it  may be said the piece rate a time rate- cum-piece rate  in which the guaranteed minimum is the time  rate daily  wage and  the extra earnings are piece  rates. The  argument that  Rule 23 does not apply  to these workmen after the introduction of  the   piece  rate  Scheme  must  therefore  be rejected .      As regards  this period  also (that  is,  the period from  March 3, 1956 onwards) Mr. Desai con. tended that there has been constructive payment of the workers  as the guaranteed minimum was arrived at by  dividing the  monthly wage  by 26  For  the reasons for  which this  argument was  rejected in respect of  the period  October, 1953, to March 2, l956, we reject this plea of constructive payment.      We are  therefore of opinion that the workers of categories  A and  B are entitled to arrears of wages for  the Sundays  from March  3, 1956 on the basis that  the guaranteed  minimum wage  was  the daily wage.      As has  already been  mentioned, Rule  23 was amended  in   July  1960,  i.e.,  long  after  the Tribunal gave  the award  under appeal. We express no opinion  as to  what the  position in  law  is, after this amendment of Rule 23.      The appeal is accordingly allowed in part. In the circumstances, the parties will bear their own costs in this Court.                             Appeal allowed in part