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IN THE HIGH COURT OF BOMBAY
B.N. SRIKRISHNA, J.
Chief General Manager, Telecom Factory – Appellant
Versus
H.R. Thakur and Others – Respondents
Writ Petition No. 3015 of 1992
Decided On : 24-06-1997
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(J), 33C(2) - FACTORIES ACT, 1948 - SECTION 2(M), 59 - PAYMENT OF WAGES ACT, 1936 - SECTION 2(VI) - TELECOMMUNICATION FACTORY - INDUSTRY - OVERTIME WAGES - HOUSE RENT ALLOWANCE - INCLUSION IN COMPUTATION - VALIDITY OF GOVERNMENT ORDER EXCLUDING HOUSE RENT ALLOWANCE - APPLICABILITY OF PAYMENT OF WAGES ACT - INTERPRETATION.
Fact of the Case:
The Petitioner, a Telecom Factory established by the Government of India, refused to include House Rent Allowance in the computation of overtime wages payable to the Respondent workmen, who were covered by the Central Civil Services (Classifications, Control and Appeal) Rules, 1965, Fundamental and Supplementary Rules, and various Government orders. The Respondent workmen filed applications before the Central Government Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947, claiming the difference in overtime wages. The Labour Court held that the Respondents were entitled to the difference in overtime wages arising from the inclusion of House Rent Allowance. The Petitioner challenged this order by filing a Writ Petition.
Finding of the Court:
The Court held that the Telecom Factory established by the Government of India was an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, and that the applications made under Section 33C(2) of the Act were tenable. The Court further held that the Government order excluding House Rent Allowance from the computation of wages was not valid and that the House Rent Allowance paid to the Respondent workmen amounted to wages within the meaning of Section 2(vi) of the Payment of Wages Act, 1936.
Issues: 1. Whether the Petitioner's Telecom Factory would be an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947? 2. Whether the Government order excluding House Rent Allowance from the computation of wages was valid? 3. Whether the House Rent Allowance paid to the Respondent workmen amounted to wages within the meaning of Section 2(vi) of the Payment of Wages Act, 1936?
Ratio Decidendi: 1. The Court held that the Supreme Court's decision in Sub-Divisional Inspector to Post, Vaikam and Others vs. Theyyam Joseph, which held that the Post and Telegraph Department was not amenable to Section 2(j) of the Industrial Disputes Act, 1947, was not applicable to the present case, as the Supreme Court had only declared that the Post and Telegraph Department was not an "industry" and had not considered the activity of a telecommunication factory. 2. The Court held that the Government order excluding House Rent Allowance from the computation of wages was not valid, as there was no special or general order issued by the State Government excluding the value of the house accommodation (House Rent Allowance) from the computation of wages. 3. The Court held that the House Rent Allowance paid to the Respondent workmen amounted to wages within the meaning of Section 2(vi) of the Payment of Wages Act, 1936, as the definition of "wages" in Section 2(vi) read with the exclusory clause (2) had to be applied for determining the meaning of "ordinary rate of wages" for calculating overtime, and there was no special or general order issued by the State Government excluding the value of the house accommodation (House Rent Allowance) from the computation of wages.
Final Decision: The Court dismissed the Writ Petition and directed the Petitioner to file a detailed statement showing the actual amount of overtime that would become payable to each of the Respondent workmen for the period ending 31st July 1992 under the order of the Labour Court dated 16th January 1991, totalling to Rs. 1,80,393/- which had been deposited by the Petitioner in the Court. The Court also directed the Registry to encash the fixed deposit and pay to each of the Respondent workmen the amount shown as his entitlement together with pro-rata amount of interest accrued on the deposit amount till the date of encashment of the fixed deposit receipt.
JUDGMENT :
B.N. SRIKRISHNA, J.
1. This Writ Petition under Article 227 of the Constitution of India is directed against two orders of the Central Government Labour Court No. 2, one dated 16th January 1991 made in Application Nos. LC-2/2211 to 2403 of 1989 and another dated 28th January 1992 made in Miscellaneous Application No. 2 of 1991, both under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act".)
2. The Petitioner is the Chief General Manager of the Telecom Factory established by the Government of India in Deonar, Bombay. Respondent Nos. 1 to 193 are Class III and IV employees working in the Telecom Factory at Deonar. The Respondents are covered by the Central Civil Services (Classifications, Control and Appeal) Rules, 1965, Fundamental and Supplementary Rules and the different orders issued by the Government of India from time to time. It is not in dispute that the factory of the Petitioner is a "factory" within the meaning of Section 2(m) of the Factories Act, 1948 and is registered as such with the Chief Inspector of Factories, Maharashtra. The Petitioner, for their own reasons, used to designate Respondent Nos. 1 to 193 as "Non-Industrial workmen" and refused to implement the provisions of the Factories Act in respect of such categories of workmen. The issue as to whether the provisions of the Factories Act would apply to so-called "Non-industrial workmen" has been concluded in respect of the Petitioner's Telecom Factory at Bombay by a judgment of this Court in Chief General Manager, Telecom Factory, Bombay and Others vs. All India Telecom Engineering Employees Union and Others, 1996 (1) CLR 336, to which I was a party. By this judgment, it has been held that the workmen were covered by the provisions of the Factories Act and entitled to claim overtime wages u/s 59 thereof.
3. It appears that the Petitioner, while calculating the overtime wages payable to the Respondent workmen, refused to include the House Rent Allowance payable to the Respondent workmen in the computation. The Respondent workmen filed Application. The Respondent workmen filed Application Nos. LC-2/2211 to 2403 of 1989 before the Central Government Labour Court, Bombay, invoking Section 33C(2) of the Act and claimed the difference in overtime wages. By the first order dated 16th January 1991, the Labour Court held that the Respondents are entitled to be paid the difference in overtime wages arising on account of inclusion of House Rent Allowance in the computation of the overtime wages. The first order of the Labour Court was ex-parte because the Petitioner did not appear before the Court when the Applications were taken up for hearing. Being aggrieved by the first order of the Labour Court, the Petitioner moved Misc. Application No. 2 of 1991 for review of the order dated 16th January 1991. By this impugned order dated 28th January 1992, the Labour Court held that there was no power of review vested in the Labour Court and dismissed the Misc. Application for review Hence the present Writ Petition.
4. The fact that the first order of the Labour Court dated 16th January 1991 was ex-parte need not detain us. Mr. Rao, learned Advocate appearing for the Petitioner, has cogently urged the very some points which could have been urged before the Labour Court for the consideration of this Court and I have considered them on merits.
5. The first issue urged by Mr. Rao for consideration of the Court is whether the Petitioner's Telecom Factory would be an "industry" within the meaning of Section 2(j) of the Act and whether the applications made u/s 33C(2) of the Act were tenable. Mr. Rao relies on a judgment of two learned Judges of the Supreme Court in Sub-Divisional Inspector to Post, Vaikam and Others vs. Theyyam Joseph, 1996 (1) SCSLJ 294. In this judgment, the Supreme Court has taken the view that the duty of providing postal and telecommunication service was a sovereign function of the State in view of the directive princi
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