- (1.) ASHIM Kumar Basu, the appellant here is employed in the establishment of I. C. I. (India) Private Ltd. , the respondent No. 1 herein. The appellant made an application under Section 14 of the "west Bengal Shops and Establishments Act, 1963 before the Referee for payment of wage amounting to Rs. 110. 66 paise alleging the said sum had been unlawfully deducted by the said respondent No. 1. The said application was made on October 21,1967.
(2.) THE claim related to dues on account of overtime. It appears, that subsequently the appellant filed another application whereby he amended the claim and sought relief only in respect of Rs. 97. 25 paise. The respondent No. 1 disputed the claim of the appellant and on February 6,1968 the Referee under the aforesaid Act made an order directing payment of Rs. 97. 25 paise to the appellant under Section 14 (3)of the West Bengal Shops and Establishments Act, 1963.
(3.) THE claim of the appellant was on the basis that in respect of overtime work done by him in excess the period of 36 hours a week he was entitled to allowance at the rate of 14 the ordinary wages, viz. , the salary together with the dearness allowance. The stand of the respondent no. 1 was that in respect of overtime work over 36 hours a week but less than 48 hours a week the appellant was only entitled to be paid overtime allowance at the rate of 1times the basic wages, that is to say he was not entitled to be paid overtime on the ordinary wage together with the dearness allowance. This was the main point in dispute between the parties. No specific point was taken in the written statement filed before the Referee questioning the jurisdiction of the referee to adjudicate upon the dispute pending before him. In course of argument, however, before him it was urged that the dispute related to an industrial dispute between the parties and as such the Referee was not competent to adjudicate upon the dispute. The referee entertained the objection but overruled it in holding that this was a claim under the Act and he had jurisdiction to decide the matter. On the merits it was contended that in view of the provisions of Section 7 (2) of the West Bengal Shops and Establishments act, 1963 read with Section 13 of the said Act it was not possible for the appellant to claim under the Act any overtime allowance unless and until the appellant established that he had worked beyond 48 hours a week, which was not the case here. It was, therefore, urged that any claim for overtime within the period of 36 hours to 48 hours of the appellant should be based on the contractual rights and liabilities of the parties and could not be the subject-matter of adjudication under the West Bengal Shops and Establishments Act, 1963 and as such Section 13 of the said Act was not applicable. It was contended, further, that there was a statutory overtime contemplated by the scheme of the various provisions of the said Act and it was the statutory overtime in respect of which a claim could be entertained by the Referee in a reference under West Bengal Shops and Establishments Act, 1963. The Referee was unable to accept this contention. Being aggrieved by the aforesaid decision of the Referee on march 15, 1968 the respondent No. 1 moved an application under Article 226 of the Constitution challenging the order dated February 6, 1968 passed by the Referee as mentioned hereinbefore and obtained a rule Nisi. The said application came up for hearing before T. K. Basu, J. and by a judgment delivered and an order passed on May 20,1971 the learned Judge has made the rule Nisi absolute and has quashed the order dated February 6, 1968. The learned Judge held that inasmuch as determination of the question before the Referee involved complicated questions of law and fact the Referee under the west Bengal Shops and Establishments Act, 1963 was not competent to entertain the application and adjudicate the dispute. He, accordingly, held that the order of the Referee was without jurisdiction.;