- (1.) Leave granted.
(2.) Appellant Nos. 1 and 2 were appointed to the respondent mill vide orders dated 4th April 1977 and 19th February 1979 respectively. Both were promoted to various posts in the course of their service and appellant No.2 was put in charge of the employees canteen in the year 1991 whereas appellant No.1 given the same charge in February 1996. The appellants claimed that as they had put in overtime work for a specific number of hours each day, they were entitled to overtime wages for the said period. They repeatedly made representations to the Labour Welfare Officer and to the employers claiming payment, and though an assurance was held out to them that as a similar claim by another employee, one Jayavelu, was pending before the Labour Court, the decision in that case would also be made applicable to their case. It appears that the Labour Court, in the meanwhile, rendered its decision in favour of Jayavelu and he was ordered to be paid his overtime wages which were in fact defrayed. Frustrated in their efforts to get the benefits given to Jayavelu, the appellants filed an application under section 33 C(2) of the Industrial Disputes Act, 1947 (hereinafter called the "Act") making a claim for overtime wages. The respondent submitted its counter and took a specific plea that the appellants had not been directed to do any overtime work and as a matter of fact they had never done so. It was also pleaded that Jayavelu's case had no similarity vis- '-vis the case of the appellants and that proceedings under section 33 C(2) being in the nature of execution proceedings, the Labour Court could not have, under this jurisdiction, determined the rights of the parties, as was required in the present case. In the written submissions filed on behalf of the respondents, a specific plea was also taken that the appellants were, in fact, Managers and not workmen as the salary that they were drawing was more than the limit prescribed under section 2(a) of the Act and the Labour Court for this additional reason as well, had no jurisdiction in the matter. The Labour Court in its award dated 24th May 2002 observed that only documentary evidence had been submitted by the parties and on an examination of the various documents on record, in particular the time cards produced by the appellants and the various representations made by them calling for overtime wages, held that the appellants had indeed worked overtime and were entitled to payment accordingly. The plea of the respondent Management that the appellants were, Managers and not workmen was repelled by observing that as the plea had not been taken in the written statement and only in the written submissions, it did not warrant acceptance. The Court also held that though an application under section 33 C(2) of the Act was in the nature of an execution and a determination of a claim could not be made thereunder, but as section 59 of the Factories Act 1948 provided for the payment of overtime wages and as the documents on record had proved the performance of overtime work, the behaviour of the Management was "reprehensible and was liable to be punished", more particularly, as the award in the case of Jayavelu had become final and had not been challenged. The application was accordingly allowed. The respondent Management thereupon challenged the award in the Madras High Court. The High Court in its judgment dated 8th December 2003, dismissed the writ petition thereby confirming the award of the Labour Court. The Division Bench also observed that the specific stand of the respondent was that the workmen had never been authorized by anybody to work overtime and for this additional reason, the claim must fail. The Court finally concluded that in the light of the settled position of law, proceedings under section 33 C(2) of the Act could only be effective in case of a pre-existing right and as the claim of the respondent workmen was disputed, this was not a matter for decision under this provision. The writ appeal was accordingly allowed and the judgment of the learned Single Judge and the award of the Labour Court were quashed. The present appeal has been filed against this order of the High Court.
(3.) Mr. Colin Gonsalves, the learned senior counsel for the workmen-appellants, has submitted that though proceedings under Section 33 C(2) of the Act were indeed in the nature of execution proceedings but this provision also visualized some enquiry, be it a casual one, and as the Labour Court and the learned Single Judge of the High Court had taken a particular view on the evidence, the Division Bench ought to have stayed its hands and not taken a different view. It has been pleaded that there was a difference between the terminology of Sections 33 C(1) and section 33 C(2) inasmuch as section 33 C(1) dealt with money due to a workman from an employer under a settlement or award etc., whereas section 33 C(2) was much wider in its application and visualized an entitlement with respect to money even if a pre-existing right was created by a Statute and as in the present case, section 59 of the Factories Act visualized payment of overtime wages, a simple enquiry under section 33 C(2) was fully justified. In this connection, the learned counsel has placed reliance on Chief Mining Engineer East India Coal Co.Ltd. vs. Rameshwar & Ors. (1968) 1 SCR 140. He has also pleaded, that even assuming for a moment, that there was some evidence to raise a suspicion that the appellants were Managers and not workmen, the dominant purpose of their employment had to be seen and the dominant purpose being that of workmen, even if they were delegated some minor managerial activities, would not change the nature of their appointment. It was also submitted that all the judgments cited by the Division Bench pertained to cases where the workmen claimed "equal pay for equal work" and which did involve the determination of a right, but in the present case, keeping in view the provisions of Section 59 of the Factories Act, and the dominant purpose of the employment of the appellants, the aforesaid judgments were not applicable.;