High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02..03..2005CORAMTHE HON’BLE MR.MARKANDEY KATJU, CHIEF JUSTICEandTHE HON’BLE MR.JUSTICE D.MURUGESANW.A.Nos. 897 and 898 of 2004andW.A.M.P.Nos. 1645, 1646, 7017 and 7018 of 2004------------The Special Officer, Vellore Co-operative Sugar Mills,Ammundy Post, Vellore – 632 519,VELLORE...Appellant in both the W.As.Petitioner in both Wps.Vs. 1.The Presiding Officer, Labour Court, Vellore...1st respondent in both the W.As.2. K.Shanmugam..2nd respondent in W.A.897/2004. 3. D.Krishnan..2nd respondent in W.A.898/2004. (Respondents in – do -)PRAYER: Writ Appeals filed against the common order of thelearned single Judge dated 08.12.2003, passed inW.P.Nos.32374 and 32375 of 2002, as stated therein. ---------- For Appellant :: Ms.G.ThilagavathyFor Respondent – 2 :: Mr.Anbhazhagan for in both the W.As. Ms. D. Geetha---------- J U D G M E N T THE HON’BLE THE CHIEF JUSTICE These writ appeals have been filed against the impugnedorder of the learned single Judge dated 08.12.2003 in dismissingW.P.Nos. 32374 and 32375 of 2002. https://hcservices.ecourts.gov.in/hcservices/

2. Heard learned counsel for the parties and perused therecord. 3. The second respondent in both the writ petitions wereworkmen of the writ petitioner-Mill who filed applicationsunder Section 33-C(2) of the Industrial Disputes Act beforethe Labour Court, Vellore. The 2nd respondent in W.P.No.32375of 2002 viz., D.Krishnan in his application stated that he wasworking in the writ petitioner –Mill from 19.02.1979, and hewas promoted as Time Keeper during the year 1982. He wasdeputed to work as Manager of the Canteen from 10.02.1996. Healleged that he used to work normally from 6 am to 6 pm, andhe worked overtime for 1298 ½ hours between 15.02.1996 to31.05.1997 as detailed in the annexure to his application. Hehas relied on the punching cards available with the managementto prove his claim. It was alleged in his application that hemade several representations to the management claimingovertime allowance, but since they were not heeded to he wascompelled to filed an application under Section 33-C(2) of theIndustrial Disputes Act, with an additional prayer to condonethe delay in the filing the said application.4. Similarly, the second respondent in W.P.No.32374 of2002 viz., K.Shanmugam in his claim petition stated that hewas working in the writ petitioner-Mill from 04.04.1977, andhe was appointed as Clerk-cum-Typist on 14.11.1980, and re-designated as Junior Clerk in the month of June, 1988.Thereafter, he was transferred and made in charge Manager ofthe Employees’ Canteen. He stated in his claim petition thathe used to work normally from 4 am to 4 pm, and he workedovertime for 10,374 hours between 05.09.1991 to 10.12.1995 asdetailed in his annexure to the claim petition. He also reliedon the punch cards available with the management in respect ofhis claim. 5. A written statement was filed by the management inreply to those claim petitions. The writ petitioner-Milldenied and repudiated the claim of overtime allowance andalleged that the concerned employees were never asked to doovertime work. It was alleged that the petitioners in theclaim petition were managers of the Mill and not workmen. Inparagraph – 6 of the written statement the claim of theemployees were denied and it was alleged that they were neverordered to work overtime. It was alleged in paragraph – 13 ofthe written statement that mere production of punch cards doesnot establish the right to any overtime allowance. The punchcards would only show at what time an employee entered thegate of the factory and at what time he left. There can bevarious reasons as to why an employee stays inside the factorycompound. Unless there is a specific direction from thefactory manager or any other authorised person to do overtimework, the employees cannot claim overtime allowance, and theycannot claim overtime allowance merely because they were https://hcservices.ecourts.gov.in/hcservices/ inside the factory beyond the working hours. More over, theclaim made after a long lapse of time, without an iota ofevidence, cannot be sustained at all. 6. By its order dated 24.05.2002 the Labour Court allowedthe claim petitions of both the employees. It held that thepetitioner in Claim Petition No.141 of 1999, viz., D.Krishnanwas entitled to a sum of Rs.38,331/- and the petitioner inclaim petition No.147 of 1999, viz., K.Shanmugam was entitledto Rs.1,10,000/- as overtime allowance, which the respondent-management has to pay within a period of two months, failingwhich interest at the rate of 6% p.a. will be charged.7. We have carefully perused the order of the LabourCourt dated 24.05.2002. It may be noted that no oral evidencewas adduced on behalf of the claimants before the Labour Courtand no exhibits were marked. In our opinion, whenever there isa claim for overtime allowance, it is incumbent on the workmenconcerned to at least come into the witness box and state onoath before the Labour Court that he/she worked overtime. Whenhe/she does not even adduce his/her own oral evidence it isdifficult to accept the claim for overtime allowance. In thiscase, the claimants/workmen never adduced any oral evidencebefore the Labour Court. Only claim petitions were filed, andthe only material which has been relied upon is the time cardsfiled by the respondent/management (appellant in the presentwrit appeals). In our opinion, the time cards only reflect thetime of entry of the workman into the factory and time ofexit. In our opinion, the punch card by itself cannotsubstantiate a claim for overtime allowance, as it does notprove that in fact the workman concerned worked overtime. Allthat the time cards show is the time of entry into the factoryand the time of exit. It is quite possible that even after theworking hours of the workman concerned, he may be loiteringaround inside the factory premises without being told to domore work. 8. Even in their claim petition before the Labour Court(which was not even supported by an affidavit) the workmenconcerned did not mention who asked them to work overtime. Inour opinion, it was incumbent upon the claimant for overtimeallowance to mention which officer or supervisor asked him towork overtime, and when and where, but these details have notbeen given in the present cases. In our opinion, merelymentioning that the claimant worked overtime for a certainnumber of hours without clearly stating who ordered him towork overtime and without giving other details cannot sustaina claim for overtime allowance. https://hcservices.ecourts.gov.in/hcservices/

9. In the written statement it was the clear case of therespondent-management that the claimants were never asked towork overtime (vide paragraphs-6 and 13 of the writtenstatement filed in reply to the workmen’s claim petitionbefore the Labour Court). 10. Against the order of the Labour Court dated24.05.2002 the management filed writ petitions before thelearned single Judge, who has dismissed the petitions statingthat there was material on record i.e., punch cards whichsupported the workmen’s claim.11. We have carefully perused the judgment of the learnedsingle Judge. In paragraph – 11 of his Judgment the learnedsingle Judge observed “it is seen that no oral evidence had been letin on the side of the management to establish thatthe employees did not work during the hours as couldbe seen from the punch cards”. Thus, the learned single Judge has put the burden ofproof on the management. In our opinion, whenever a claimfor overtime allowance is made by a workman, the burdenof proof lies on the workman to prove by relevantevidence that he was ordered to work overtime and in facthe had worked overtime and was entitled for overtimeallowance. The burden of proof is not on the management,vide Rajasthan State Ganganagar Sugar Mills Ltd., Vs.State of Rajasthan and Another, 2004 (8) SCC 161,Municipal Corporation, Faridabad Vs. Siri Niwas, 2004 (8)SCC 195, and M.P.Electricity Board Vs. Hariram, 2004 (8)SCC 246. 12. Section 101 of the Indian Evidence Act, 1872 states:-“Whoever desires any Court to give judgment asto any legal right to liability dependent on theexistence of facts which he asserts, must prove thatthose fact exists”. 13. Section 102 of the Indian Evidence Act, 1872states:- “The burden of proof in a suit or proceedinglies on that person who would fail if no evidence atall were given on either side”. 14. In view of both the above provisions the burden ofproof obviously lies on the workman when he claims overtime https://hcservices.ecourts.gov.in/hcservices/ allowance. In view of Section 101 of the Indian Evidence Act,the workman must prove that he in fact worked overtime. Inview of Section 102 of the Indian Evidence Act if no evidenceis let in on either side the claim of the workman will berejected. Thus, it is evident that the learned single Judgewas not correct when he put the burden of proof on themanagement to prove that the workmen concerned did not workovertime. As mentioned above, the workmen concerned neveradduced any oral evidence in support of their claim forovertime allowance. In our opinion, it was incumbent on theworkmen concerned to at least adduce their own oral evidenceand state on oath that they had in fact worked overtime, butthey did not do so. They did not even file an affidavit insupport of their claim in their claim petitions. Mere relianceon the punch cards, in our opinion, does not prove that infact they had worked overtime, because, as already statedabove, the punch cards would only prove the time of entry intothe factory and the time of exit from the factory, but it doesnot necessarily prove that during that period the workmanconcerned was in fact working all through on the orders of hissuperior. 15. There was nothing on record to prove that the manageror any authorised person ordered the workmen concerned to workovertime. 16. The contention of the management that there was noauthorisation or permission granted to the workmen concernedto work overtime was in our opinion wrongly rejected by theLabour Court on an erroneous finding that “there is nospecific denial as to non-performance of the overtime by themanagement”. This is wholly contrary to the written statementfiled by the management before the Labour Court in which thereare specific averments in paragraph –4. Thus, in C.P.No.141 of1999 paragraph – 4 of the written statement states:- “The respondent submits that the petitioner wasnever directed to do any overtime and thereforethere was no order issued for payment of any O.T. Healso did no do any overtime work. The respondentdoes not admit the averments made in paras 1 and 2of the petition”.Similarly, in C.P.No.147 of 1999 paragraph – 4 of the writtenstatement states:- “The respondent submits that the petitioner wasnever directed to do any overtime and thereforethere was no order issued for payment of any O.T. Healso did not do any overtime work. The respondent https://hcservices.ecourts.gov.in/hcservices/ does not admit the averments made in paras 1 and 2of the petition.” 17. Thus, the above observation of the Labour Court iscontrary to the record. Apart from that, the point whether theclaimants are employees or workmen under the IndustrialDisputes Act or Managers was also not considered by the Labourcourt, although the plea was specifically raised by themanagement before the Labour Court. 18. The learned single Judge has placed reliance on thedecision of the Supreme Court in Chief Mining Engineer, M/s.East India Coal Co. Ltd., Bararee Collier, Dhanbad Vs.Rameshwar & Others, AIR 1968 SC 218. In our opinion, the saiddecision was clearly distinguishable, because there the claimwas for bonus available under a Scheme formulated for thebenefit of the employees. Thus, there was a pre-existing rightof the workmen for bonus in that case. On the other hand, inthe present case there was no automatic right to claimovertime unless the workman concerned was ordered orauthorised to work overtime under the Factories Act. UnderSection – 54 of the Factories Act there is a time restrictionfor work in the factory, and under Section – 59 extra paymentcan be made for overtime work. Under Rule 78B of the TamilNadu Factories Rules, 1950 the management can authorise anemployee to work overtime by granting him an overtime slip,and it is only on the basis of this that a claim for overtimeallowance can arise. The management has specifically contendedin its written statement that the workmen concerned were neverordered or authorized to work overtime. The workmen concernedhave not stated who ordered them to work overtime, when andwhere he gave this order, and other such details. All thesehave not been considered by the learned single Judge as wellas the Labour Court. 19. The learned counsel for the appellant-management hadalso submitted that the Labour Court was incompetent to decidethe application under Section 33-C (2) of the IndustrialDisputes Act since there was no pre-existing right, vide U.P.Electric Supply Co. Ltd. Vs. R.K. Shukla and Others, AIR 1970SC 237 and Municipal Corporation of Delhi Vs. Ganesh Razak andAnother, 1995 (1) SCC 235. We agree with this submissionalso. In this connection, it has been held by the SupremeCourt in Municipal Corporation of Delhi Vs. Ganesh Razak andAnother, 1995 (1) SCC 235 that the right to a benefit which issought to be computed under Section 33-C(2) must be anexisting one, that is to say, one which has already beenadjudicated upon or provided for under a statute orsettlement. The Supreme Court in the aforesaid decisionobserved (vide para-13):- https://hcservices.ecourts.gov.in/hcservices/ “In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, tobe paid wages at the same rate as the regularworkers, had not been earlier settled byadjudication or recognition by the employer withoutwhich the stage for computation of that benefitcould not reach. The workmen’s claim of doing thesame kind of work and their entitlement to be paidwages at the same rate as the regular workmen on theprinciple of “equal pay for equal work” beingdisputed, without an adjudication of their disputeresulting in acceptance of their claim to thiseffect, there could be no occasion for computationof the benefit on that basis to attract Section 33-C(2)”. 20. For the reasons given above these writ appeals areallowed and the impugned judgment of the learned single Judgedated 08.12.2003 and the common Award of the Labour Courtdated 24.05.2002 are quashed. Consequently, all the connectedmiscellaneous applications are closed.sm Sd/Asst.Registrar/true copy/Sub Asst.RegistrarCopy to:- 1.The Presiding Officer, Labour Court, Vellore.+ Two ccs to Ms.D. Geetha, Advocate in Sr 9791, 9792+ One cc to Ms. G. Thilakavathi, Advocate in SR 9779 Judgment in W.A.Nos.897 & 898 of 2004 Delivered on: 2..03..2005 psi (co)bp