WORKMEN OF THE BOMBAY PORT TRUST versus TRUSTEES OF PORT OF BOMBAY

DAS GUPTA, J.-This appeal by special leave is against an award of the Central Governmn1t Industrial Tribunal at Calcutta in a dispute referr~d to that Tribunal by the Central Government under s. I 0 of the Industrial Disputes Act between the workmen of the Bombay Port Trust, who are the appPllants before us and the Trustees of the Port of Bombay, the respondents in the appeal. 1bc workmen concerned in the dispute as referred are shore workers belonging to "A" category, "B" category and casu&I category. These three categories came into existence under the scheme adopted by the Bombay Port Trust in April 1948 for direct employment of shore workers in place of the system previously in force under which such labourers used to be supplied by contractors known as Toliwallas. The matters in dispute were specified thus in the letter of reference to the Tribunal :-

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"Arrears due to the shore workers belonging to the "A" Mtegory, "B" category and casual category in respect of

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(i) weekly off with pay for the period 15th March, 1951 to 2nd March, 1956;

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(ii) work on weekly off days during the period 15th March, 1951 to 2nd. M~rch, 1956, without a compenaatory day off m lieu; and

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(iii) average daily wages fo-r the weekly off days after the introduction of the piece-rate schPILe with effect from 3rd March, 1956, when the average fluctuated from week to week."

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It became clear at the hearing before the Tribunal that of the period mentioned in Item ( i) and Item (ii), viz., the 15th March, 1951 to 2nd March, 1956, no "weekly off" was given at all from the 15th March 1951 to October 1953 but workmen were made to work generally for all the 7 days of the week, and further that from October, 1953 to 2nd March, 1956, Sunday was given as the "weekly off" and no work was taken on that day. The real dispute therefore as regards Itqn (i) and Item (ii) was in respect of (a) arrears of wages for Sunday the weekly off on which no work was done from October, 1953 to March 2 1956, and (b) arrears· of wages for work done during the period 15th March, 1951 to October, 1953 on Sundays which should have been given as a weekly off day but was not, though no compensatory day was given in lieu thereof.

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As regards arrears of wages for Sundays on which no work was done the worksmen's case is that they were entitled to receive payment for each such Sunday amounts equal to their average daily wages during the preceding week. But admittedly no payment was made for these Sundays. The respondent's case however is that on a proper interpretation of Rules 23 of the Minimum Wages (Central) Rules, 1960, the workmen were not entitled to payment for Sundays on which no work was done by them and further that in any case they have been constructively paid for the Sund~ys a,lso inasmuch as the daily wages were fixed at l /26th of the monthly wage.

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The Tribunal accepted these contentions raised on behalf of the employer and .held that there were no arrears of wages in respect of Sundays Ml SUPREME QOURT ~EPORTS [1962) SUPP. for which no work was done. With.regard to the period March 15, 1951 to October, '1953 it appears the workmen except morphias were paid at twice the ordinary rate inclusive o.f all allowances, for all work done on Sundays; Morphias were pa.id

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and a half times the normal rates of wages. The worker8' case is that for the work done on Sun•l<l·YS during this period they were entitled to thn·o time8 the ordinary rate. This claim was also rejected .by the TribUI)B:l which however held that tho i\forphlas were entitled to double their wages inclusive of all allowances and so directed that they shall be paid for .work <;Iorie by them on weekly rest days from 15th March,. 1951 to October 1953 the difference between· double thelr wages inclusive of all allqwances and what they· have been pa.id.

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We may state at once that the dispute as regards Hrrears due'to workers belonging to "casual" category has not been pressed before us and does not therefore require consideration in this appeal. The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already·heen awarded.for this period to Morphias) does not also merit ssirious consideration ;i.s .the learned ,counsel for the appellant was una.):il6"'-to show any legal basis for such a claim. He tried to persuade us that as Rule 23 of the Minimum Wages (Central) Rules requires the employer to

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give a .weekly holiday on Sunday (unless this is , given on some other day instead) it is not right that when the employer does not comply with that requii;ement he should· get of( with paying nothing more than what he would have paid for such work done oµ any da.y of the week because of the Rules in respect of extra payment for over-time work. The.. Minimum Wages Act, 1948 itself contains' provisions for ·contravention "of the provil!ions of the Act or Rules or Orders made 'thereunder. Section 22 provides for punishment inter alia for contravention of rules or orders under sectioµ 13. Seotton t2A provides for 'Punishment with' fine (which may extend to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention. The Minimum Wages Rules were made by the Central Government in exercise of the powers conferred by s. 30 of the Minimum Wages Act, 1948 (Act XI of 1948) and so contravention of rule 23 of thes~ rules is punishable under section 22A of the Act. Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of ma.king the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay. Neither the Minimum Wages Act nor the Rules contain any provision for such additional payment over and above what would be payable for over time work as such. The workmen's claim for further payment in respect of work done on Sunday during, the period March 15, 1951 to October 1953 has therefore been rightly rejected.

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In respect of the claim for pay on Sundays during the period October 1953 to March 2, 1956, on which no work was done we have first to decide on the correct interpretation of the words "for which" in Rule 23, as it stood before it was amended by a Notification GSR 918 dated the 29th July, 1960. The Rule as it stood before the amendment ran thus:-

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"23. Weekly Holidays-(!) Unless otherwise permitted by the Central Government, no worker shall be required or allowed to work in a scheduled employment, on the first day of the week (herei~fter referred to as the said day) except when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day for which he shall receive payment equal to his average daily wages during the preceding week:

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Provided that the weekly holidays may be substituted by another day :

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Provided further that no substitution shall be made which will result in any worker working for more than ten days consecutively

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without a holiday for a whole day." We a.re not concerned with cl. 2 of Rule 23. The Explanation to the Rule is in the following words:-

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"Explanation-For the purpose of this rule "week'' shall mean a period of seven days beginning at midnight on Saturday night."

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The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals-ordinarily once in every 7 days but in no case &t intervals of more than IO days. This was clearly in aceordanoe with the principle laid down ins. 13 of the Minimum Wages Act that the Government may provide for a day of re~t for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 (which eoverH many other matters other than the matters mentioned in s.13) no reference has been made to section 13 at all. In giving effect to this policy of providing for a day of rest-ordinarily once in 7 days but in no case at intervals of more than IO days-the rulemaking authority has thought fit also to make provision for making some payment in connection with this. Difficulty has however been caused by the unfortunate complexcity of the sentence, in which the ma.in provision as regards the da.y of rest and also the subsidiary provision for payment have been combined.

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The dispute is about the meaning of the words "for which". If one remembers the rule of grammar that what the grammarians ca.II the "antecedent" (that is the noun or pronoun to which a. relative pronoun relates) should be used as neat poesible to the relative pronoun, one is tempted to think that "which" relates to the word "day" of the "said da.y" immediately preceding the preposition "for". Breaking up this last portion of the rule, the rule thus analysed would be equivalent to "and for the said day he shall receive payment equal to his average daily wages during the preceding· week". That will be however only a grammarian's construe· tion. In the Courts however while we have· to remember the rules of grammar, because such rules are ordinarily observed by people in expressing their intentions, we have to look a little more closely to understand the real intention expressed. It seems to us unreasonable to impute the rule-ma;king authority an intention that while if the weekly rest is given "on the said day" that is, Sunday the work· men shall receive payment, he shall rec11ive no pay· ment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when "he has or will have a holiday for the whole day on one of tjie five days immediately before or after the sa.id day.'' For, it that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore. that in using the words "for which" after the words "the said day'.' the rule-making authority did not intend to confine the word "which" to this "said day" but intended to relate this "which" to any of the days on which rest is given. In other words, "for which" was used as short for "a.nd on such holiday whether on the sa.id day or not". We do not think the rules of grammar stand in the way of this interpretation .

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.Mr. Desai's argument on behalf of the respon· dent is that "which" relates to the word "holiday" and that. accordingly it is only when the workman has or will ha.ve a holiday on one of the five days immediately before or after the said da.y, that he sha.11 receive payment. According to him, the two phrases "for the whole day" a<id "one of the five days immediately before or a.fter the said d:i.y" are adver· bial phrases modifyin~ the verb "has" and "will ha,·c" and no part of these phrase~ can have any co11nection with the words "for which". Leaving theHe put, the rule properly analysed ii!, he sa.ys, in really two portions : the first being "no worker shall be required or allowed to work in a scheduled employment, on the first day of week"; the second hei11g "except when he has or will have a holiday for which he shall receive payment equal to his average daily wage~ during the preceding week". That will however be to re· write the sentence in a mann~r for whi(;h we can find no justification. It i~ proper to remember also that this interpretation will have the peculiar conoequ3ncc that if the rest day is given on first day of the week no paym~nt will have to be made, but if it is givl·n on some other day payment will have to be made. It will Le unreasonable to ascribe such an intention to the legislature.

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The Tribunal was so impressed by the unreasonableness of rnch a consequence that it came to thn conclusion that no payment will be receivable by the workmen \\hether the weekly rest day is given on the first day of the week or on one of tho five days immediately before or after the said day.

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Heading the over a ti ve portion of this rule with the proviso that the weekly holiday may be substituted by another day it app<>ars to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday-whether given on the 1st day of the week or whether on on<• of the five days immediately before or nfter the sa.id day-that under the proviso could be substituted by another day .. The scheme clearly is for one holiday, generally, once in a week and it is for this holiday that payment is provided.

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Our attention waq drawn to the view taken by the Bombay High Court in Trnsfoes of the Port of Bombay v. Authority under the Payment of Wages Act(') which was followed by the .\fadras High Court in A.0.0.v. Labour Inspector(') that the proper conRtruction the words "for which" is to relate to word "holiday" preceding the words "for the whole ·day". In Jaswant Sugar .Mills v. Sub·divisional illagistrate(') the Allahabad High Court took the view that "for which" refers to the weekly holiday whether it is on a Sunday or on any other days of the week as permitted under the Rules. In our opinion, the view taken by the Allahabad High Court is correct.

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On a proper construction of the rule it must, in our opinion, be held that the workmen of cetegories A and B were entitled to receive payment "equal to the average wages during the preceding week" in respect of the period Octo her 1953 to March 2, 1956.

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This brings us to the employer's claim that there has been constructive payment for the Sundays during this period, viz., October 1953 to March 2, 1956. Tho argument is that the daily wage for these workmen was fixed by dividing all the components of the monthly scale of pay and allowances by 26 so that what a workman receives as daily wage is really I/26th of 'the wage for 30 days. Thus, it is said, the total receipts for the 26 days, if no seperate payment is made for the rest days will be 26 xl/26th of 30 days' wage, that is, 30 days' wage. Tho fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being I/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraeti on of the monthly wage. When the Central Goverument making in these Minimum Wages Hules made this provision for payment on a holiday it clearly ·intended that something in aflditi<'n to what was being actually receiv<•d for thf' six days of the week should be pai<l. This cannot be defeatC'd by a statement that though in form Rix days wag('s were being paid, in fact and in suhstancc, seven days wages were being paid. By no stretch of imagination can payment for six days be er1uated to payment. for seven days.

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We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to :lfareh 2, 1956.

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With effect from l\Iarch 3, l8;)fi the piece-rate scheme was introcluced for the shore work<>rs belonging to the "A" category and "B°' catC>gory. The essentials of this S<"hcme are that a datum line was fixed for the different kinds of work and t.hP. piece-rate would vary with the proportion wl1i<-h the out-turn of the gan'.( bears to the datum line in the following manner :-

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"For a. shift fully occupied in doing piece rate work the piece r .te wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) sludl rise uniformly from Rs. 3-1-0 at i6% to Rs. 4-fi-O at 100% to Rs. 8 at 150% of the datum line. The piece rate wage earned after 150% of the datum line shall bo processed at rlouble the daily wage that is to say the piece rate wage will rise uniforml.v from Rs. 8 at 150%

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to Rs. 12 at to 200% of the datum line." The scheme further provided that :-

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"R1. 3-1-0 (comprised of Hs. 1-8-3 basic was including allowances and Rs. J-9 0 dearness allowance) sh1'11 be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earnings plus idle timo payment and/or other earnings under this appendix fall short of tile l!&id minimum, the Port Trust shall make up the difference that day."

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"Rs. 3-7-0 (comprised of Rs. 1-14-0 basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given cmp oymen . . 1 t ''

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On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives varies from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhale's argument is that average daily wages during the preceding week means average of the total earnings per day during the preceding week and so there can be no difficulty in ascertaining for every his worker his average daily wages during any week.

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We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contn.-distin· ction to weekly wages or monthly wages. 'fhe weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working over-time. So also, in our opinion, the term daily wages as ordinarily understood does not include over-time earnings. If it does not include over· time earnings, can it reasonably be said that it includes the high additional earnings, that a work· er may receive by increasing his output above the minimum fixed? We do not think that to be a reasonable interpretation of the words "daily wacrps." At the same time, we see no reason why the guaranteed minimum fixed for ea.ch workman per day should not be considered his daily wages. The piece rate system introduct>d for these work· men has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the pieee rate a time rate-cum-piece rate in which the guaranteed mini· mum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to these workmen after the introduction of the piece rate scheme must therefore be rPjected.

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As regards this period also (that is, the pc· rio<I from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrivPd at Ly dividing the monthly wage by :W. For the reasons for which this argument was rejected in respect of the period October, 1953, to March 2, 1956, we reject this plea of constructive payment. ·

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We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage.

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As has already been mentioned, Rule 23 waa amended in July 1960, i.e., long after the Trihunal gave the award under appeal. We expreBS no opinion as to what the position in law is, after this amendment of Rule 23.

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The appeal is accordingly allowed in part. In the circumstances, the parties will bear their own costs in this Court.

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.Appeal allowed in part.

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