Supreme Court Of India

Workmen of British Overseas Airways Corporation, New Delhi V. British Overseas Airways Corporation, New Delhi

Civil Appeal No. 57 Of 1961. 05-02-1962

JUDGMENT

Gajendragadkar, J.

1. This appeal by special leave arises from an industrial dispute between the respondent. British Overseas Airways Corporation, New Delhi, and the appellants, its workmen. This dispute had reference to the demands made by the appellants under eight different heads and it was referred by the Chief Commissioner, Delhi, for adjudication to the industrial tribunal, Delhi. On 1 August 1958, the industrial tribunal pronounced its award, dealing with all the items of dispute. The respondent felt aggrieved by some directions in the award, whereas the appellants were dissatisfied with some other directions. Both parties field applications for special leave to appeal against the respective portions of the award by which they were aggrieved. The application preferred by the respondent was dismissed whereas on the application preferred by the appellants leave has been granted limited to the question of overtime wages. That is hoe in the present appeal, we are concerned with the directions issued by the tribunal under the head "overtime wages".

2. The tribunal has held that the respondent is entitled to fix forty-eight hours per week as the normal duly hours and on that basis, it has ordered that every employee shall be entitled to overtime payment for working beyond his normal duty hours and the hourly rate for such payment shall be calculated on the basis of forty-eight hours a week. Sri Sastri for the appellants contends that the tribunal was in error in fixing the normal working hours per week at forty-eight hours. He contends that the existing normal working hours were below forty-eight and so there was no justification for raising the normal workload in a way the tribunal had done.

3. In this connexion, Sri Sastri referred us to the fact that it was common ground between the parties that under the existing arrangements, the employees of the respondent were classified into three categories, one of which worked for thirty-six hours, the other thirty-nine hours and the last forty-two hours. The first category consisted of employees in the accounts, scale, press liaison assistants, despatch, secretaries, stenographers and typists. This category was non-rostered. The second category which consisted of the rostered staff included those employees in reservations, traffic, operations, engineering, was concerned with communications and cargo as well as peons. The argument was that there was no justification for increasing the normal weekly hours of work and the change effected in the existing arrangement should, therefore, be set aside.In dealing with this argument, it is necessary to bear in mind certain distinguishing features of the work carried on by the appellants under the respondent's employment. The head office of the respondent corporation is in England and all its units in the servant countries of the world are controlled by a board in England. The conditions in which its staff has to work and the way in which airlines have to be operated differ widely from those in other industries, particularly in factories, shops and offices. The staff which handles aircraft, their passengers and cargo are not engaged in a continuous process of manufacture as in a factory nor are they continuously at the roster duty. It is well known that though the aircraft scheduled time of arrival and departure is known in advance, owing to vagaries of weather and technical defects which the aircraft are liable to disclose from time to time, dislocation in the schedule is caused several times. That is why it is only for about three-fourths of an hour before arrival and for a like period after the departure of an aircraft the staff has to do such work as is available to be done, but otherwise the members of the staff have to stand by. Even after the aircraft arrives it is detained for repair work if a mechanical trouble is disclosed and this work may last sometimes as long as twenty-four hours. That is the reason why unlike in other establishments, the problem of regulating the hours of work of the respondent's employees becomes complicated particularly a small aircraft station like Delhi.

4. In this connexion, Galpin who was the manager of the respondent since January 1945 and had been in charge of the respondent's establishment in Delhi since 1948 when it was opened, has given evidence. He has stated that prior to 1954, there was no stipulation precisely defining the normal duty hours of the employees. It was in 1954 that the respondent stipulated timings and from 1 November 1954, it began to pay overtime wages. There is no serious dispute about the existing normal working hours in a week. But Galpin had stated that when the overtime payment system was introduced, overtime was paid to the employees if they worked beyond the existing normal weekly hours applicable to their category, but the calculation for the payment of overtime wages was made on the basis of forth-eight hours a week.Galpin also stated that the respondent was doing its best to make its employment attractive and offered such facilities to its employees as appeared reasonable to it. He has added that lately, airport staff have to go back from the town office to their homes on account of delay in the arrival of planes; sometimes the delay is as much as four or five hours; the staff required for duty have to stand by because their duty depends on the movement of aircraft; the respondent does not pay them separately for that stand by, because it pays them comprehensive wages taking in to account the special features of the service expected from the respondent's employees; if there is a gap in time between the duty for one place and the duty for the next place, the respondent allows those hours to be counted as duty hours, provided the gap is nor more than four hours; if the gap is greater, the staff are given transport to go to their homes.

5. It is in the light of all these features of the service expected of the appellants that we have to consider the question as to whether the tribunal was right in fixing the weekly hours of work at forty-eight. It is clear that until 1954 there was no occasion to prescribe the weekly hours as such because the extent and volume of the work did not justify any such fixation. Sometimes, employees in the three respective categories were not required to do as much weekly work as was regarded as normal. Sometimes, if the work was heavier and the vagaries of the arrival or departure of the aircraft imposed additional burden, the normal working hours were exceeded. Until 1954, no question of payment of overtime wages arose. In 1954, the respondent started paying overtime wages in the manner already indicated. Therefore, the question as to whether in fixing forty-eight hours as the normal working hours in a week, the tribunal has committed an error must be judged not so much by a reference to the existing normal working weekly hours but by a reference to the principles which generally apply to the fixation of weekly working hours. In our opinion, judged in that way, it would be difficult to sustain the argument of the appellants that forty-eight hours in a week is either unduly reasonable to exercise. That is why we do not think that the general argument urged by the appellants that the existing working hours should be standardized can be accepted.However, there is one point which the appellants are entitled to succeed. We have already referred to the fact that one category of the staff which works at the office has always been working thirty-six hours in a week and Galpin had, in fact, fairly stated in his evidence that when the respondent arranged for payment of overtime wages. It was specially mentioned by it that the office staff should get overtime wages, it was specially mentioned by it that the office staff should get overtime after thirty-six hours of work, whereas other staff should get overtime after forty-eight hours of work. In other words, Galpin did not seriously suggest in his evidence not did the respondent contend before the tribunal that the office staff which was working thirty-six hours in a week should be required to work forty-eight hours in a week. Indeed, Sri Sen for the respondent has fairly conceded before us that he does not press for that part of the award which has prescribed forty-eight hours as weekly working hours for the staff which may be called the "officer staff." This staff, as we have already mentioned, consists of accounts, sales, press liaison assistances, despatch, secretaries, stenographers and typists. The only point which calls for our decision in respect of this staff is whether the overtime wages should be calculated on the basis of forty-eight working hours in a week or thirty-six hours. Sri Sen faintly suggested that it would be Sri Sen faintly suggested that it would be better in the interest of uniformity that forty-eight working hours should be adopted as the basis for calculating overtime when members of the said staff worked for more than thirty-six hours in a week. We do not think that this argument can be sustained. If thirty-six hours are prescribed as the working hours in a week for this staff, then over-time wages must be calculated on that basis itself. There would be no justification for adopting forty-eight hours as the basis in that behalf. Therefore, we modify the award in respect of this point by directing that the staff falling in the first category should work for thirty-six hours in a week and overtime payable to this staff should be calculated on that basis.The next point raised is in regard to the spread-over. The tribunal has held that the claim made by the appellants in respect of spread-over cannot be upheld, except in regard to such employees of the corporation at Delhi who may be governed by the Factories Act. Whether or not any employees are governed by the Factories Act need not be and cannot be considered in the present proceedings. If there are any who fall in that category, they would be governed by the provisions of the Factories Act. In rejecting the appellants' claim in that behalf, the appellants' claim in that behalf, the tribunal has considered the distinctive features of the service rendered by the appellants to the respondent. It has observed that the respondent has been exempted wholly from the Delhi Shops and Establishments Act which prescribes a spread-over and that all airlines are similarly exempted. Before the tribunal, the appellants appear to have contended that the spread-over of duty should not exceed a period of ten hours on any day from the time of resumption of duty and that the day should be calculated from the time an employee resumes his duty. This argument is obviously untenable. The day being with the midnight and ends with the midnight and it is on that footing, that the calculation must inevitable be made. The only grievance which Sri Sastri seriously made against the present arrangement was that an employee may occasionally have to report for duty thrice within twenty-four hours and that he said, was extremely unreasonable. We were, however, told by Sri Sen that since February 1961, the respondent has introduced a method of distributing duties amongst its employees in such a manner that nobody is required to make three trips to join his duties and even two trips within twenty-four hours are not usual. This position was conceded by the appellants. Sri Sen assured us that it was intended to continue the present arrangement to avoid inconvenience to the employees. Since arranging shifts in the way the respondent has introduced them in Calcutta is impracticable in New Delhi because of insufficiency of work, the present arrangement introduce by the respondent appears to meet the grievance made by Sri Sastri under this head. Therefore, we do not see any reason to interfere with the order passed by the tribunal rejecting the appellants' claim for spread-over.In regard to the payment of overtime for working on holidays and weekly off days, there is a small point on which correction has to be made in the award. The tribunal has ordered that the "employees shall be entitled to payment for overtime for working on weekly holidays and on holidays, as mentioned is Employment Regulation 6, and as already found above in Para. 66."

6. This is likely to create some doubt as to whether what is required to be paid is at two or one and a half times. The regulation to which the sentence in the award refers provides for the payment at one and a half rates though what the tribunal obviously intended is the payment at twice the rate. The reference to Para. 66 is an oversight, for Para. 66 where the rate prescribed is twice the rate and not one and a half times. Sri Sen has conceded that there is a mistake which has crept in through oversight and the same can be corrected.

7. That leaves only one question to be considered and it has reference to the retrospective operation of the award from 1 April 1954 to 31 October 1954. The tribunal has directed that the overtime wages should be paid to the appellants at the rate prescribed by the award from 1 November 1954, but for the period between 1 april 1954 to 31 October, 1954, the said wages should be paid at one and a half times. Sri Sastri contends that this rate should also be the age as from the 1 November 1954. We are not impressed by this argument. It is significant that earn the first demand for overtime wages was made by the appellants by Ex. M1 on 13 or 14 January 1955, no claim was expressly made for a period prior to the date of the demand. However, during the course of negotiations. Galpin had said that he would be prepared to pay overtime from 1 April 1954 and the tribunal has held him bound by the said promises, though the offer when it was made by Galpin was not accepted by the appellants. That being the basis of the direction fort the payment of overtime wages from 1 April 1954 to 31 October 1954, it is but fair that the rate should be the same as was promised by Galpin then. Galpin has then told the employees that as from 1 April 1954, respondent would pay from them overtime in the same way in which it was paid to the workmen in Calcutta. Therefore, no grievance can be made against the order passed by the tribunal in that behalf.The result is, the appeal substantially fail and the award passed by the tribunal is confirmed except for the two modifications directed in this judgment. In the circumstances of the case, parties shall bear their own costs.

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