Judgment

AHMADI, J.:- Special leave granted.

2. The workmen of the Ordnance Clothing Factory, Avadi, Madras are represented by the petitioner / appellant Union. The workers of the factory are divided into two categories, namely, (i) day workers and (ii) piece rated workers. The day workers are paid wages in the time scale of Rs. 260-400 on the basis of their actual attendance whereas the piece-rated workers are paid on actual output or production calculated on the basis of time required for making the item by multiplying the same by the hourly rate worked out by dividing the mean of the time scale by monthly working hours e.g., Rs. 330-195 hurs = Rs. 1.69 (Rs. 330/ - being the mean of the time scale of Rs. 260-400 and 195 hours being the total monthly hours).

3. The appellant-Union contends that the daily normal working hours of the workmen are 8 during the week except on Saturdays when the working hours are 4-3/4 only. Thus the total working hours during the week come to 44-3/4 hours. If the piece-rated workers are required to work beyond the aforesaid normal working hours they are entitled to overtime wages under Section 59 of the Factories Act, 1948. That section, insofar as is relevant, reads as under :

"Section 59(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 over-time work, be entitled to wages at the rate of twice his ordinary rate of wages."

This sub-section postulates payment of extra wages at twice the ordinary rate of wages for those workers of the factory who are required to work for more than 9 hours in a day or for more than 48 hours in a week. The appellant union filed a Writ Petition No. 2356 of 1985 in the High Court of Madras praying for an appropriate writ or direction to the respondents to pay the piece-rated workers extra or overtime wages at the rate prescribed by Section 59(1) if the total working hours of any workman exceeded 44-3/4 hours in a week. The appellant-union contended that the piece-rate system was introduced sometime in 1963 and since then the piece-rate workers were paid overtime wages accordingly for work done beyond the normal working hours but the same was abruptly discontinued from 1983; so much so that they were even denied the wage at the normal rate for work done beyond 44-3/4 hours and up to 48 hours, i.e., 3-1/4 hours. It is, however, admitted that if the workmen are required to work beyond 48 hours in a week, they are paid extra wages in accordance with section 59(1) of the Factories Act. Thus the controversy is in respect of the rate at which piece-rate workers should be paid wages for the work put in between 44-3/4 and 48 hours in a week. The workers claim they are entitled to extra wages for these 3-1/4 hours at double the normal rate in accordance with Section 59(1) of the Factories Act. In support reliance is placed on the Ministry of Defence letter No.F.8(5)/56/D(Civ.II) dated 1st September, 1959 which inter alia provides that in all cases where overtime pay is admissible to civilian personnel, both under the provisions of the Factories Act and Departmental Rules, the overtime pay should be calculated as under :

(1) For work in excess of normal working hours and up to 9 hours on any day or 48 hours in a week, overtime will be paid at the rate prescribed in the departmental rules. For calculation of overtime pay under this item only basic pay and Dearness allowance shall be taken into account.

(2) For work in excess of 9 hours on any day or 48 hours in a week overtime will be paid at the rates prescribed in the Factories Act. For calculating overtime pay under this item total pay including all allowances will be taken into account.

By a subsequently communication dated 13th February, 1963 the Ministry clarified that having regard to the revision of piece work rates effected in the Ordinance Factories correlating them to the monthly scales of pay sanctioned by the Ministrys letter dat