1. Avery India Limited, Madras, the first respondent, has a workshop, which is governed by the provisions of the Factories Act, 1948. The work consists of assembling and repairing weighing machines. The mechanics not only work in the factory premises but also work outside whenever they are deputed to attend to the weighing machines supplied to the customers. Alleging that in so working outside the factory they were entitled to overtime wages, three of the employees, of whom the petitioner in this case is one, applied under Section 33C(2) of the Industrial Disputes Act, 1947, before the Labour Court, Madras, the second respondent, for computation of overtime wages under Section 59(1) of the Factories Act. The management contended that it had fixed certain rates of remuneration for the kind of work done outside the factory premises, considered as extra work, and that inasmuch as such work was not done in the factory, those employees were not entitled to overtime wages under Section 59(1) of the Factories Act.
2. The claimants explicitly restricted their claim to overtime wages for the work, which, according to them, was done, in factories other than the factory of the first respondent. Considering the contention of the management with regard to payment for the work done outside its factory premises, the Labour Court observed that what was being paid was reasonable and that the claimants were not entitled to any benefit under Section 59 of the Factories Act for work done outside the factory premises. In that view the claim petition was rejected. Aggrieved by that decision, one of the claimants has filed this writ petition as a test case, as conceded by the counsel for the petitioner. It is contended on behalf of the petitioner that the view taken by the Labour Court is erroneous, for, irrespective of the place of work, the workman is entitled to overtime wages, if he is required to work more than the hours fixed under Section 59 of the Factories Act and that, therefore, the petitioner is entitled to overtime wages. The management has reiterated before me the contentions urged before the Labour Court.
3. Section 59(1) of the Factories Act provides:
59. (1) Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
4. The question is whether the expression "a worker works in a factory" means "a worker working in the factory in which he is employed" or a worker works in any factory". On facts, it has not been established in this case that the petitioner worked in any place other than the first respondent's factory and that such a place is also a factory within the meaning of the Factories Act. On the other hand, the contention urged is that even though the place outside the first respondent's factory, where the petitioner worked, may not be a factory, still, inasmuch as such work was done in connection with the work of the first respondent-factory, it should be deemed that the work was done in the factory and that the petitioner is entitled to the benefits under Section 59(1). In State of U.P. v. M. P. Singh 19601 L.L.J. 270; (1960) 17 F.J.R. 395, the question that arose for consideration before the Supreme Court was whether supervisors and kamdars employed by a sugar factory to guide, supervise and control the growth and supply of sugarcane for use in the factory were employees of "commercial establishment" within the meaning of the Uttar Pradesh Shop and Commercial Establishment Act, 1947. The Magistrate, who tried certain persons for offences under section 27 of that act, held the field workers were employees of a commercial establishment. The High Court of Allahabad took a contrary view. The correctness of that decision arose for consideration before the Supreme Court. In upholding the view taken by the Magistrate and disagreeing with the view taken by the High Court, the Supreme Court observed (at page 397-8):
By the use in Section 2(1) of the Factories Act of the expression,
"employed in any other kind of work incidental to or connected with the subject of manufacturing process,"
not only workers directly connected with the manufacturing process, but those who are connected with the subject of manufacturing process in a factory are included. It is unnecessary for the purpose of this case to decide the precise meaning of the expression 'subject of the manufacturing process' in Section 2 Clause (1), because the diverse
provisions of the factories act are intended to benefit only workers employed in a factory, i.e., in the precincts or premises of a factory. It is difficult to hold that field workers who are employed in guiding, supervising and controlling the growth and supply of sugarcane to be used in the factory are employed either in the precincts of the factory or in the premises of the factory; and if these workers are not employed in a factory, the
provisions of the Factories Act, 1948, do not apply to them and they evidently fall within the definition of 'commercial establishment'.
5. In Buckingham & Carnatic Mills v. Natarajan 196411 L.L.J. 160, an employee of B & C Mills applied for computation of overtime wages in respect of the work done by him in Salt Cotaurs, outside the precincts of the employer's factory. The management contended that the employee was not entitled to overtime wages for any work done outside its factory premises. The Labour Court having rejected the contention, the management came up to this Court with a petition under Article 226 of the Constitution. Veer swami, J., as he then was, following the decision of the Supreme Court in State of U.P. v. M.P. Singh 1960-1 L.L.J 270; [1960] 17 F.J.R. 395, observed (at page 161) :
A combined reading of the two definitions of 'worker' and 'factory' indicates that a worker is to be understood for the purposes of the Act not only in terms of the kind of work he is engaged in but also the place wherein he works. The word 'worker' in Section 59(1) has, therefore, to be understood in that sense. Nevertheless, that sub-section says, for purposes of claiming overtime wages at the specified rate, that a worker 'works in a factory'. As I read the section, the intention appears to be that the overtime work, to attract overtime wages at the rate mentioned, should be in the factory itself, which means within the factory premises, including the precincts thereof. Any other construction will not give effect to the words 'in a factory'.
6. On behalf of the petitioner reliance was placed upon the decision of the High Court of Bombay in Ahmedabad Mfg. & Calico Printing Co. v. District Judge 19601 L.L.J. 770. In that case, the applicants for overtime wages were lorry drivers, who were employed in the factory. Their work, in the nature of things as lorry drivers, was outside the factory, and the Court held that having regard to the nature of the work, the lorry drivers were entitled to overtime wages. But that principle is not applicable to the facts of the instant case in which the petitioner is admittedly employed for doing work inside the factory, but claims overtime wages for the work done outside the factory premises. The decision in Shinde v. Bombay Telephones 196811 L.L.J. 74, on which reliance was placed on behalf of the petitioner, is also not relevant, for, the point decided in that case was whether particular persons were "workmen" within the meaning of the Factories Act. The question similar to the one that arises for consideration in this case did not arise for consideration in that case.
7. Following Buckingham & Carnatic Mills v. Natarajan 1964JI L.L.J. 160, I find that inasmuch as admittedly the petitioner claims overtime wages for work done outside the factory premises of his employer, S, 59(1) is not attracted, The Labour Court has considered the reasonableness of the payments which the management makes for work done outside the factory premises, though, strictly speaking, this point did not arise for consideration, and the Labour Court was not competent to go into that question. If the employees like the petitioner feel that what is being paid for work which they may do outside the factory premises, is not sufficient, it is open to them to raise an industrial dispute, and if the matter is referred by the Government, it will be open to the competent Tribunal to decide that question. As matters stand at present, the petitioner is not entitled to the relief asked for in a petition under Section 33C(2) of the Industrial Disputes Act read with Section 59(1) of the Factories Act.
8. In the result, the petitioner fails and is dismissed. No order as to costs.