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Rajasthan High Court
S.K. Mal Lodha J.
The Municipal Council, Udaipur - Appellant
Versus
Sup Lal - Respondents
S.B. Civil Writ Petition No. 927 of 1982
Decided On : January 12, 1983
Having regard to s. 13(2) and (3) of the Act, I am of opinion that the Fire Brigade Employees if they work in excess of the normal working hours, are entitled to overtime wages at the overtime rates as fixed under s. 3(2)(d) of the Act. Rule 24-A of the Rules clearly lays down that the payment for the work done in excess of the normal working hours fixed under r. 24 shall be the rate of the overtime fixed fay the State Government. In these circumstances, the order Annexure 4 dated August 21, 1981 holding that the hard duty allowance which was paid to the Fire Brigade Employees cannot be considered as overtime wages at the overtime rates is not without jurisdiction and the Notification Annexure 3 dated December 2,1972 cannot be said to be a declaration issued by the appropriate Government under sec. 13(3) of the Act. The Fire Brigade Employees are entitled to overtime wages and the Authority has jurisdiction to determine the overtime wages at the overtime rates and that the hard duty allowance which is said to have been paid in pursuance of the Notification Annexure-3 dated December 2, 1972 cannot be said to be the payment of overtime wages under the Act. (para 10 & 14)
There is thus an apparent error when the Authority held that the petitioner had taken 12 hours work from non-petitioner No. 1 on each of the days from Nov. 22, 1977 to March 31, 1980. Apart from this the Authority has categorically found that non-petitioner No. 1 is only entitled to claim overtime wages in respect of these working days falling within the period of 6 months from the date of the presentation of the claim. Under sub- s. (3) of s. 20 of the Act, it was necessary for the Authority after coming to the conclusion that non-petitioner No. 1 is entitled to overtime wages to have held an enquiry as to the number of actual days of working falling within the relevant period of 6 months from the date of the presentation of the claim on which the non-petitioner No. 1 had worked overtime. The Authority should have made the order according to the facts and circumstances of the case as determined upon an enquiry to be held by it by recording necessary evidence in support of the contentions which the parties may choose to produce and after giving an opportunity of being heard to the affected party. The procedure laid down in sub-s. (3) of s. 20 of the Act prior to the determination of the amount was not followed by holding an enquiry which was necessary in the cases on hand and under the misapprehension that there is admission of the petitioner, a direction for the payment of amount was made by the Authority. In arriving at the quantified amount regarding overtime wages, a substantial error was committed by the Authority which vitiates its orders Annexure 4. The determination of the amount relating to the overtime wages, compensation etc. cannot be sustained, for, no enquiry in accordance with s. 20(3) of the Act was held. The Authority should have determined the amount for the overtime wages in respect of the days on which non-petitioner No. 1 has worked overtime for four hours falling within the period of 6 months preceding the date of the presentation of the claims. para 12, 13, & 14)
2. It will suffice to notice facts in S.B. Civil Writ Petition No. 927 of 1980 (Petitioner: Municipal Council, Udaipur Versus Rup Lal).
3. Non-petitioner No. 1 Ruplal is a Fire Brigade Driver. Non-petitioner No.2 is the Authority appointed under the Minimum Wages Act (No.XI of 1948) (which will for the sake of brevity hereinafter be referred to as the Act). The Municipal Council, Udaipur is petitioner and employer of non-petitioner No. 1. The petitioner filed the writ petition under Arts. 226 and 227 of the Constitution of India seeking to quash the order Annexure-4 dated Aug. 21, 1981 passed by the Authority and for dismissing the claim of non-petitioner No. 1 which was filed under section 20(2) of the Act. Non-petitioner No. 1 has stated that he had worked as Fire-Brigade Driver in the Fire-Brigade Department of the Municipal Council, Udaipur from November 22, 1977 to March 31, 1980: that during this period, he had worked four hours excess of the number of hours constituting normal working day on each day and, therefore, is entitled to wages for the excess hours at the overtime rate: and that he has not been paid wages for the overtime. The rate at which the wages for overtime were claimed was double the ordinary wages payable on a normal working day Non-petitioner No. 1 calculated the wages due against the petitioner at Rs. 13,426.64P. The claim was filed on May 3, 1980. The claim under s. 20(2) of the Act was accompanied by an application for condonation of delay. The petitioner resisted the claim by filing the reply Annexure-2 dated June 28, 1980. It was submitted by the petitioner that non-petitioner No. 1 was not entitled to get the overtime wages as his employment is essentially intermittent, as though he is required to do work for twelve hours every day still his duty is of such a nature that the daily hours of work include the period of inaction during which non-petitioner No. 1 even on duty is not called upon to display either physical activity or sustained attention. It was also averred that the duty was of such a nature that non-petitioner No. 1 was engaged in a work which could not be carried on except at times on the irregular action of natural forces. In other words, it was contended that non-petitioner No. 1 is covered by the class of employees falling under s. 13(2) of the Act. On the basis of Notification Annexure-3 dated December 2, 1972 issued by the State Government, it was submitted that the State Government has declared that the Fire-Brigade Employees are such whose employment is essentially intermittent as referred to in s. 13 (2) of the Act and has prescribed the rates of hard duty allowance for overtime rates envisaged in r. 24-A of the Rajasthan Minimum Wages Rules, 1959 (for short the Rules hereinafter). The rates have been made applicable to such Fire-Brigade Employees, whose daily hours of duty are fixed by any Municipal Council/ Board as twelve hours instead of normal working of eight hours. A plea that the claim has been presented after six months was also raised. The application for condonation of delay was also opposed by the petitioner.
4. The Authority framed three issues inclusive of the relief. Non-petitioner No. 1 filed his affidavit in support of the claim. Issue No. 1 when translated into English reads as under :
"1. Whether the petitioner (Employee) is not entitled to get overtime wages for four hours per day from the non-petitioner (employer) ?"
On May 19, 1981, the authority passed the order that it is not necessary to record evidence of the parties an according to it, the question involved was legal one which could be decided after hearing arguments. Thereafter, on behalf of the Municipal Council, Udaipur a request was made that it wants to cross-examine non-petitioner No. 1 and also wants t
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