- (1.) The 12 petitioners are sweepers posted in the residential colony for officers and workmen of the Amritsar Sugar Mills Co. Ltd., Rohana Kalau, Muzaffarnagar, respondent No. 2. They made applications under Section 6-H (2) of the U. P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) before the Labour Court, respondent No. 1, claiming that as no weekly holiday as required to be given under Section 9 of the U .P. Duican Aur Vanijya Adhisthan Adhiniyam, 1962, (hereinafter referred to as the Adhiniyam) had been allowed to them during the period 1-12-1963 to 31-8-1970 they were entitled to overtime wages for the work clone on such days. The employer Mills resisted these applications. The Labour Court per its order dated 24-7-1972 held that the applicants were employees within the meaning of Section 2 (6) of the Adhiniyam as well as workmen within the meaning of Section 6-H (2) of the Act and were, therefore, entitled to apply under Section 6-H (2). It, however, dismissed the applications on the ground that there was no provision under the Adhiniyam for payment of overtime wages on a weekly holiday and, therefore, the applications under Section 6-H (2) were not maintainable. This writ petition is for quashing this order and for a direction to the Labour Court to proceed to dispose of the aforesaid applications under Section 6-H (2) by computing the benefit of the weekly holidays to the petitioners on overtime wage basis.
(2.) There was an attempt on behalf of the respondents to question the finding of the Labour Court that the petitioners were employees as defined by Section 2 (6) of the Adhiniyam. The Labour Court has discussed; this question elaborately and found that, in view of the directive in Part C of Schedule I to the Adhiniyam that all the provisions of the Adhiniyam shall apply to those employees of the vacuum pan sugar factories in the State to whom the provisions of Factories Act 1948 do not apply, the petitioners were employees. This is a finding of fact not challengeable in a writ petition when no legal infirmity in the finding has been pointed out. Reference may be made to Andhra Scientific Co. Ltd. v. A Seshagiri Rao (AIR 1967 SC 408) where the Supreme Court held that where the Labour Court on a consideration of the functions actually performed by the employee held that he comes within the definition of workman under the Act the High Court will not interfere with that finding except in cases where there is a clear error on the face of the record. The principle is applicable to the finding of the Labour Court about the employee and workman character of the petitioners.
(3.) It was next contended that the applications were not maintainable under Section 6-H (2) because that provision could apply if the right or title to the benefit claimed by the worker was undisputed and the Labour Court was only to determine the amount at which such benefit should be computed. This contention has no force. In Central Bank of India v. P. S. Rajagopalan (AIR 1961 SC 743) the Supreme Court observed as follows (at p. 748):- "Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit if the said right is disputed the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the computation can arise The claim under Section 33-C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may in some cases have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court." These observations hold good in respect of Section 6-H (2) of the U. P. Industrial Disputes Act which is in pari materia to Section 33-C (2) of the Industrial Disputes Act. It is true that claim for wages etc. based on a challenge to an order of dismissal or_.demotion or to a settlement between the parties would not be covered by Section 6-H (2) of the Act and an industrial dispute would have to be raised. In the present case, however, overtime wages are claimed by individual workmen petitioners on the legal basis of the provisions of the Adhiniyam, without challenge to any dismissal or demotion order or settlement or award. Such a claim is entertainable under Section 6-H (2) and the Labour Court should have decided the matter of petitioners right as a necessary incidental question before proceeding to quantify the benefit in terms of money. The Labour Court's observations, however, show that it was of opinion that in the absence of a specific provision for overtime wages for work on weekly holidays Section 6-H (2.) could not apply. These observations show a mixing up of the question of applicability of Section 6-H (2) with the question of existence of the right on merits. The matter of right will be considered presently, but we must observe that the presence or absence of a specific provision can make no difference to the applicability of Section 6-H (2) and a right alleged to be impliedly conferred by the provisions of the Adhiniyam even if disputed stands for the purposes of applicability of Sec. 6-H (2) on the same footing as one expressly conferred. Relief under Section 6-H (2) must, therefore, be held to he available to the petitioners notwithstanding the denial of the right to overtime wages on behalf of the employer respondent.;