SURAT MUNICIPAL CORPORATION v. THE SECRETARY, SUDHRAI MAJDOOR UNION (LAL VATVA)

Surat in Reference (I.T.) No.75 of 2003 in the following factual background.

2 The petitioner is a public body carrying out work under the provisions of Gujarat (Bombay) Provincial Municipal Corporation Act, 1947. The respondent is a Mazdoor Union ("the respondent Union" for short) for the employees working in the Corporation. The challenge in this petition is made against the award dated 09.11.2017 passed by the Industrial Tribunal, which directed the petitioner Corporation to pay overtime for the employees working under the petitioner Corporation with effect from 14.04.2001, as per the provisions of law and this has aggrieved the petitioner Corporation to a large extent.

3 The respondent Union had filed Reference with a demand that the petitioner Corporation be directed to commence eight hours shift in the Fire-Brigade Department and to pay overtime for four hours, as the employees worked for twelve

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hours from 14.04.2001. The employees are working in the Fire-Brigade Department in the petitioner Corporation on the post of Security Guard, Jamadar, Driver, Fireman etc. It is an emergency department and, therefore, the employees in the said Department are duty bound to render their services for 24 hours. The option was obtained from the employees of the said department vide a resolution No.1597 of 1993 dated 30.10.1993 and all employees had accepted the duty of 24 hours.

4 In the year 2000, the petitioner Corporation passed a resolution No.68 of 2000 on 13.01.2000, whereby it introduced 12-12 hours shift for the employees of Fire-Brigade Department. As per the said resolution, the employees were not entitled to any overtime.

4.1 Thereafter, in the year 2017, the Corporation decided to introduce three shifts of each eight hours for the Fire-Brigade Department by a

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Resolution No.103 of 2017 on 30.03.2017 passed by the General Board of the petitioner Corporation.

5 Thus, it is the say of the petitioner Corporation that at the time of resumption of duties by the employees after 1993, they were given the option by the petitioner Corporation as to whether they were ready to work for eight hours or perform 24 hours of duty in wake of the resolution No.1597 of 1993 and on their giving up the option, the order of appointment had been passed. It is the say of the petitioner Corporation that when the employees, on their own volition, have chosen to opt for the duties of 24 hours, there is no question of their demanding any overtime. This vital aspect, according to the petitioner Corporation, has not been considered by the Tribunal, which directed the petitioner Corporation to pay four hours of overtime with effect from 14.04.2001 vide order and award dated 09.11.2017 to all employees of the Fire-

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Brigade Department. It is also the say of the petitioner Corporation that when three eight hours shifts had been initiated on 30.03.2017, a separate challenge was made on 01.05.2017 and that reference has been disposed of. However, aggrieved by the award of 09.11.2017 in Reference (IT) No.75 of 2003, this petition is preferred questioning seriously the alleged illegality and arbitrariness on the part of the Industrial Tribunal. It is the say of the petitioner Corporation that it is paying its employees various allowances, as provided at Annexure-E. The Corporation is also providing residential facilities to its employees, who are working in the emergency department, during this 12 hours duty which does not happen every now and then, but whenever the emergency exists, the employees of the department shall need to render their duties on emergency basis.

5.1 According to the petitioner, there are as many as 356 employees working in such emergency

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departments. In the year 2001, 433 employees were working in the Fire-Brigade Department. It is the grievance on the part of the petitioner Corporation that if it had to pay to every employee, who is working in the emergency department, overtime will be Rs.66,102/- per person. It appears that the petitioner Corporation is bearing expenses of Rs.41,358 per employee as additional perquisites. The petitioner, therefore, urges that if the payment of such huge amount is to be made everyday, it may heavily cause the public exchequer and, therefore, the same be not sustained. Reference (IT) No.75 of 2003 if is looked at, Reference was as to whether the security guard, driver, firemen and cleaner of Shav-Vahini (Ambulance Van) since were working for 12 hours everyday from 14.01.2001, for additional four hours of their duties, over and above the regular eight hours, whether the overtime should be directed or not.

6 Before the Tribunal, it was contended that all

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those employees were working in the Fire-Brigade Department for 12 hours instead of eight hours. The Tribunal noted that from the entire record, it could be noticed that the petitioner Corporation itself had admitted that the employees were working for 12 hours, instead of eight hours. Thus, the additional four hours of working had been curtailed subsequently by way of a compromise. Thus, it was a direct or indirect admission. It also said that work is taken beyond eight hours and no work can be taken from any employee, but, if more work is taken beyond eight hours, the employer is required to pay the overtime. The Tribunal also noted that for rendering services for 12 hours, it had been mutually agreed by the parties. It was, therefore, the contention on the part of the petitioner Corporation that for rendering work for 12 hours, no additional wages could be requested for. All the amenities and perquisites, which are being given to these employees are not available to

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other employees of the petitioner Corporation. They are being given rent free staff quarters without any electricity charges or taxes. Moreover, recreational arrangements have been made, so that in the work hours, they do not sit idle. They are also being given special leave, if there are some injuries that may happen to them. In the event of any accidental death, they are being paid Rs.100,000/- towards damages.

7 The Court looked into the resolutions and the respective stands of the parties to hold that no employer can take work of more than eight hours from any employee and, since the work had been taken from 14.04.2001, for more than eight hours, the employees were entitled to the additional amount of overtime of four hours on a continuous basis. On looking at the resolution dated 07.04.2001, the Court held that every employee has worked for 12 hours and, therefore, they shall be entitled to overtime of four hours for which, they have rendered services.

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8 Additional affidavit on behalf of the petitioner is preferred by the Deputy Municipal

Commissioner,Surat Municipal Corporation. It is further his say that all the documents of the Industrial Tribunal in Reference (IT) No.75 of 2003 are relied upon.

9 Affidavit-in-reply is filed by General Secretary of the respondent Union stating inter alia that the respondent Union is representing the workmen employed by the petitioner Corporation. He, being the office bearer of the Union, is aware of the development and litigations, as also grievances of the workmen with regard to improvement of salary, wages and services conditions. He has denied all averments and contentions raised in the memo of petition. According to him, the award had already been published on 09.01.2018 and, therefore, would be enforcible by law on 08.02.2018. The present petition has been preferred on 19.03.2018, which is a delayed approach. The award has become enforcible on

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08.02.2018. There is no implementation of the award, which otherwise has become enforceable on 08.02.2018. Therefore, the petitioner Corporation is in contempt.

10 It is the say of the respondent Union that beneficiary workmen must get Rs.4000/- of overtime for the actual services rendered by them of four hours from the years 2001 to 2017. It is after all a money decree. He further has contended that even if the said amount works out to be Rs.22 crores, the same shall need to be directed to be deposited with the Registry.

11 It is the say of the respondent Union that if there are two views possible with the very evidence, there is no requirement for the Court to interfere and entertain the petition under Articles 226 and 227 of the Constitution of India. When the petitioner Corporation has failed to show any jurisdictional error or any perversity or illegality, there will be no requirement for the Court to

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interfere. What is being sought by way of the present petition is re-appreciation of the entire evidence on record, which was before the Industrial Tribunal, on the basis of which, the award came to be passed, whereas, according to the respondent, the award has been passed after exhaustively appreciating the facts, which have been adduced. The Tribunal has allowed the reference on the ground of entitlement of the respondent Union, who are the employees of the Corporation to get the overtime in lieu of work of more than eight hours. As per the statutory provisions, the requirement is of eight hours. The petitioner Corporation has taken 12 hours work till the agreement and settlement of eight hours work, which is put in practice. Furthermore, the petitioner Corporation is bound to pay overtime for extra work done, as such a practice is prevalent in every organization also. According to the petitioner Corporation, though the Tribunal has passed the award directing the payment of

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overtime, as per the provisions of Minimum Wages, the petitioner Corporation itself is recovering overtime charges from the respective customers.

12 It is, thus, the say of the petitioner that the respondent Union cannot be deprived of the statutory right and it is the statutory obligation of the petitioner Corporation to pay for every extra hours that have been rendered beyond eight hours under the payment of Minimum Wages Act, 1948. It is further the say of the respondent Union that undisputed fact situation is that on the very day one respondent union had insisted for eight hours of work and compensation for overtime work as per the binding statutory provisions, it is also undisputed fact situation that member of the respondent Union discharged 12 hours of duty till the petitioner Corporation and the respondent Union arrived at a settlement for eight hours work in the year 2017 and the resolution provides for counting of excess work

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and special leave considering the eight hours of work per day. Respondent union never subscribed to the instructions/order to the effect that the employees should be entitled to any overtime. The said resolution (Annexure-C) has been passed in continuance of 1992 resolution, which provides for compensatory leave for excess work. In light of the said scenario, the conduct of the petitioner Corporation has been objected to by the respondent Union and the petitioner Corporation failed to meet with the demand for payment of overtime and the respondent Union continued the work in good faith and raised the demand only on 18.08.2000. Since the demand was not responded to, by intervention letter dated 11.09.2002, a conciliation was requested by the respondent Union, which was registered as Industrial Dispute Case No.67 of 2002, where the respondent Union filed justification statement, which was opposed by the petitioner Corporation and the same has been decided in favour of the

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respondent Union.

13 It is the say of the respondent Union that the petitioner Corporation never raised the issue that the respondent Union had accepted the change of 12 hours shift without payment of overtime. The change of 12 hours shift without payment of overtime is unacceptable and, therefore, to say that it was accepted by the Union is completely misleading statement. The respondent Union has been agitating this demand for payment of overtime from day one and has not accepted any other basis.

14 The Corporation cannot be permitted to do away with the statutory obligation. It has also relied upon the decision of the Supreme Court to urge that the conditions of employment, which are inconsistent with the statutory provisions, cannot be enforced. Overtime payment is contemplated under section 14 of the Minimum Wages Act, it cannot be denied by the authority, in view of the

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introduction of eight hours work by resolution dated 30.03.2017.

15 It is clear that the workers were entitled to eight hours of work only, which the petitioner Corporation was denying time and again and now when the award is passed on merits qua payment of overtime for extra work, the petitioner Corporation cannot be allowed to overreach the process. It is not being disputed that the resolution No.1597 of 1993 speaks of 24 hours of duty, but the very resolution provides for compensatory leave in lieu of excess work and the said resolution has not been superseded nor cancelled in any manner. Reliance is placed on section 14 of the Minimum Wages Act to urge that it provides that in excess of number of hours constituting a normal work day, the employer shall need to pay every hour or part of an hour to work in excess of overtime rate fixed under the Act or under any other law. The wage period, in case of the respondent Union, being eight hours,

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therefore, the statutory obligation is necessary for the respondent Union to be paid overtime for excess work. The petitioner Corporation is a public body, which is to behave as a model employer and it cannot be permitted to disown the award by frivolous challenges. It is denied that the Industrial Tribunal has erred in exercising the jurisdiction not vested in it. According to the respondent, the petitioner Corporation has submitted to the jurisdiction of the Tribunal. Therefore, it cannot say, as to how, the Tribunal has erred in exercising the jurisdiction not vested in it. It is also denied that the petitioner Corporation is paying various allowances to the employees working in the emergency department. The Tribunal also has considered that and rightly held that merely because some benefits are given to the workmen, would not mean that the statutory benefits cannot be made available to the workmen under section 285 of the Gujarat Provincial Municipal

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Corporations At, 1947 under Chapter XVII, under the heading of Municipalities Fire-Brigade, Section 285 provides the duties cast upon the Municipal Corporation to provide for complete infrastructure and amenities and the same cannot be termed as beneficial service conditions. It is denied that the petitioner Corporation is granting various allowances such as rent for residential facilities etc. and there is also an admission on the part of the petitioner Corporation that the workmen have been rendering 12 hours of duty.

16 Furthermore, it is contended that the financial burden cannot be a ground for challenge of award passed on the basis of legal entitlement. A public employee cannot be permitted to deny the statutory legality and depriving the workman of the statutory rights, if extra work has been done by the concerned beneficiary workmen. They cannot be deprived of such payment on the ground of such financial burden. According to the

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respondent Union, payment of overtime for excess work done would be lesser liability than payment of salary to regular appointee. It is initially contended by the respondent Union that the petitioner Corporation being the public body, since has not disputed on the work having been performed, it cannot deny to include the statutory requirement of payment of overtime. The public functions are not to be performed, exploiting the workmen and denying them their statutory rights for the period from 2001 to 2017 for the payment of overtime. There is no future liability, since from March, 2017, the petitioner Corporation already introduced eight hours of work system. Therefore, the question of extra financial burden of 50 hours every year is wholly incorrect.

17 Additionally, affidavit has been filed on behalf of the petitioner Corporation. According to the Deputy Municipal Corporation, attempt was made for compromise in relation to the overtime, proposed by the respondent Union, where they

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demanded simply overtime money, instead of compensatory leave for existing leave and full overtime for retired/expired employees.

18 The petitioner Corporation on 09.10.2019, had taken on record, a communication from in-charge Chief Fire and Emergency Services Department along with the draft communication addressed to the Commissioner, Surat Municipal Corporation. It has also directed that the same be placed before the Standing Committee.

19 Additional affidavit on behalf of the petitioner Surat Municipal Corporation has been filed on 16.12.2019, which is by Deputy Municipal Corporation, letting the Court know as to what development has taken place pursuant to the order dated 21.10.2019.

20 Reference is also needed of the order dated 21.10.2019 passed by this Court. The same is reproduced as under:-

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"Pursuant to the order passed by this Court on 09.10.2019, today the resolution dated 17.10.2019 appointing the sub- committee of a convener and two members is brought on the record. According to learned advocate Mr. Pandya, this committee is likely to meet soon in accordance with law. He therefore has sought time today.

Considering the fact that this Court already has invested sufficient time and both the sides have been heard, at the instance of the respondent, the matter had been posted for exploring the possibility of amicable settlement of this dispute, let the decision be taken latest by

13.11.2019.

The matter shall be posted on 14.11.2019 to proceed before this Court. At the request of both the sides, the matter is being treated as part heard."

21 On 22.11.2019, the committee had called the head of the concerned department, who provided the following details.

"(a) That on 31/12/2003 total 321 Employees were working however, at the present out of 321, 169 Employees are retired and 152 Employees are in service in fire department ( who are parties to the reference).

(b) That As per provision of resolution no.1597/1993 passed by standing Committee in its meeting dated 30/10/1993 the Surat Municipal Corporation shall bear Light Bill/Property Tax Bill/House Rent; longer duty allowances/training expenses, for employees of fire department for 24 hours duty in Fire Department. It is pertaining to

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point out that pursuant to policy framed vide a resolution no.1597/1993 the Surat Municipal Corporation has paid Light Bill Rs.4,15,88,997, Property Tax

Rs.40,33,143, House Rent Rs.22,41,980 and longer duty allowance Rs.88,26,925 in total approximately Rs.5,66,81,045.00 has been incurred by the corporation during 2001-2017 for the Employees working in Fire Department.

(c) That the Employees of the Fire Department require to undergo training for Fire Officer, Sub Fire Officer, Divisional Fire Officer etc., the training expense of all these posts are also incurred by the Surat Municipal Corporation.

(d) That it was specifically mentioned in the policy framed by resolution no.1597/1993 that if the Employees accepting the duty/shift of 08 hrs. He shall not be entitled for additional allowance; Overtime or longer duty allowance.

(e) That Pursuant to demand for Shift in the fire department, the standing Committee of SMC has after discussing the matter with representative of the Union, framed the policy to initiate 12 hrs. shifts vide a resolution no.68/2000 in its meeting dated

22.02.2000.

(f) Though the policies were framed after discussing the issue with the union representative, the Union preferred the reference before the Industrial Tribunal whereby raised initiation of 8 hrs. shifts & 4 hrs. overtime money from 14/01/2001.

(g) That vide resolution no.103/2017 dated 30/03/2017 the standing Committee of Surat Municipal has decided to quash earlier resolutions regarding the shifts in Fire Department and also ceased to pay allowances and started 8 hrs. shifts from 01/04/2017.

(h)That before the resolution no.103 of 2017 dated 30/03/2017, the respondent Corporation was bearing all the expenses of

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Light Bill; Property Tax Bill of the Employees of the Fire Department moreover the longer duty allowance paid to employees and training Expenses also barred by Surat Municipal Corporation.

(i) That the competent authority of Surat Municipal Corporation vide an order no. GAD/EST/1835 dated 20/10/1998 decided to stop the payment of overtime from 01/11/1998 to employees of Surat Municipal Corporation. The copy of the order annexed herewith as Annexure:R/1. 6.After considering the information provided by the department and proposal made by the union Sub-Committee arrived on following conclusion..

-That the Surat Municipal Corporation is public body constituted under the provision of Gujarat Municipal Corporation Act, 1949 rendering its service to public at large. -That the Surat Municipal Corporation has stopped to pay overtime from 1998. All the employee have knowledge of this act. - The resolution no.68/2000 for initiation of 12 hrs. shifts passed after discussing the issue with the representative of union therefore, the demand raised in the proposal is not reasonable.

-The Surat Municipal Corporation has incurred expenses approximately

Rs.5,66,81,045.00 to provide various facilities/ allowances to the Employees of Fire Department during 2001-2017."

22 Affidavit-in-rejoinder was filed by the petitioner Corporation. Additional affidavit has been filed by the respondent Union. It is urged that the Resolution dated 17.10.2019 of Standing Committee appointed Sub-Committee in which the members had to submit the final report on

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the aspect of implementation of the impugned award. The petitioner Corporation agreed to make payment of single overtime payment for the period from 14.04.2001 till 13.04.2017 to the workers, who have already retired, considering the extra work done by the existing employees for the very period. However, considering the shortage of staff and the remaining service period, the respondent Union conveyed that it would not be feasible for the petitioner Corporation to grant Compensatory Leave towards overtime work done from 14.04.2001 to 13.04.2017. Therefore, instead of compensatory leave, payment be made to them. The petitoner Corporation denied the possibility of settlement on the ground of facilities extended during the period from 14.04.2001 to 13.04.2017 on account of providing residential quarter with property tax and electricity bill and providing longer duty allowances to comply with the directions passed by the Tribunal. Difference of opinion between the

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respondent Union and the sub-Committee remained for payment of overtime to the workers by employment. Thus, the scenario emerges is that the respondent Union has accepted the proposal for payment of overtime to the workers, who have already been retired, but the petitioner Corporation has taken a complete volte-face in denying the possibility of any settlement on unsustainable grounds and facts contrary to record and that too, without placing the report of the sub-committee before the Standing Committee.

23 The system was introduced for longer duty allowances and risk allowances by General Body resolution No.339 dated 27.03.1985, where against 24 hours, Rs.30 per day was decided to be paid and Rs.75/- per month was decided to be paid as risk allowances and, at that time also, the overtime payment for extra work was being given.

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24 By way of Standing Committee Resolution No.1456 dated 26.10.1989 long duty allowance and risk allowance have merged into one allowance having nomenclature of risk allowance of Rs.325/- per month. It is, therefore, denied that the contention that longer duty allowance and risk allowance is in lieu of overtime work done, which is absolutely hollow and without any basis. The risk allowance is for risk involved while attending any episode of fire and it has nothing to do with the overtime work. The longer duty allowance and the risk allowance is being paid from March, 1985. According to the respondent Union, this is being paid with change in rights of payment in October, 1989 and till overtime payment has been made till 1998, thereafter, the compensatory leave in lieu of overtime has been granted. Therefore, it is wrong to contend that longer duty allowance or risk allowance is in lieu of overtime workers. It is further contended that the quarters are not being provided free and the

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petitioner Corporation has not paid house rent allowance payable to the concerned workmen at the rate of 10% or 20% of basic and dearness allowance, which is paid to the workers and employees, who are not provided with quarter facilities within the claim of free quarter facility, which is a misnomer or is misleading. Moreover, the property tax is being borne by the petitioner Corporation. It is to be paid by the owner of the property and, therefore, the burden of property tax cannot be transferred to the workers. So far as the electricity bill is concerned, it is not being disputed, however, according to the respondent Union, quarter is of one bed room and the electricity bill from 2001 to 2017 is Rs.1533/- per month. Therefore, the petitioner Corporation be directed to prove the electricity bill charges etc. for the entire period in question. It is, thus, denied that the arguments of financial burden faced by the petitioner Corporation on account of the quarters, property tax and electricity bill is

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wholly unrealistic and highly inflated.

25 Additional affidavit is filed by the Deputy Commissioner, Surat Municipal Corporation. According to him, the employees of Fire-Brigade Department whenever have rendered their duty of beyond 12 hours shift, they have enjoyed the duty in the year 1984, employees of Fire-Brigade Department raised demands for special and other allowances for 16 hours of duty, pursuant to which, Reference (IT) No.98 of 1989 was registered. Pending the Reference, Union and Surat Municipal Corporation arrived at a compromise for various demands, which were sanctioned by the General Board of Surat Municipal Corporation in its meeting dated 02.03.1990. One of the demands was of special pay to the employees of Fire-Brigade Department for their 24 hours of duty. The said resolution was placed before the Industrial Tribunal. Reference was dismissed by the Industrial Tribunal on 27.03.2000. The additional affidavit

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of 16.12.2019 provided that the petitioner Corporation paid house rent of Rs.22,41,980/-. Its House Rent Recovery allowance (HRR) was waived by the petitioner Corporation before 2017. The petitioner Corporation is recovering house rent recovery from each employee. The petitioner Corporation has recovered from each employee, who has enjoyed staff quarter facility, whereas from the Fire-Brigade Department employees, the amount of Rs.70/- per month has not been recovered. Thus, from 2001 to 2017, approximately, Rs.22,41,980/- has been waived.

26 Even the general taxes i.e. property taxes of the employees of the Fire-Brigade Department has not been collected, whereas, from other employees, the same has been done. Actually, the electricity bill of the staff quarter employee has been paid in the year 1989. The respondent Union raised demand of 16 hours duty in the year 1993. 24 hours duty and eight hours duty shift, but none of the employees has accepted

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eight hours shift. Thereafter, the petitioner Corporation introduced 12-12 hours shit. The respondent Union's duty hours have been reduced from 24 hours to 12 hours and in 2017 the petitioner Corporation further reduced from 12 hours to 08 hours. Reliance is placed on the decision rendered by the Apex Court in the case of Gujarat Water Resources Development Corporation vs. Jal Sammite Nigam, 2005(3) GLR

2515.

27 It is to be noted that the petitioner Corporation agreed to make payment of single overtime for the period from 14.04.2001 till 13.04.2017 to workers already retired, considering the extra work done. For the existing employees for the very period, the respondent Union made written proposal, wherein it demanded overtime allowances for existing employees and, therefore, the compromise process could not be arrived at on 22.11.2019. The Tribunal, since has not considered the special pay duty for and other

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facilities, as per the policy of the petitioner Corporation, who have rendered services for 24 hours and 12 hours, which is the challenge made in the petition therein.

28 Order dated 26.12.2019 does not require any dilation and the same shall be discussed at the time of adjudication. Written submissions have been made by the parties, who have been, also through their counsels, heard extensively.

29 At the outset, the Court needs to refer to the decision of Shalini Shyam Shetty & Anr vs Rajendra Shankar Patil, (2010) 8 SCC 329, wherein the Apex Court has held and observed as under:-

62. On an analysis of the aforesaid deci- sions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Con- stitution is different from a petition un- der Article 227. The mode of exercise of power by High Court under these two Arti- cles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The

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history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of

Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superinten- dence under Article 227 of the Constitu- tion, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exer- cise of this power, act as a Court of appeal over the orders of Court or tribunal subor- dinate to it. In cases where an alternative statutory mode of redressal has been pro- vided, that would also operate as a re- strain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superin- tendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subse- quent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts sub- ordinate to it, `within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercis- ing jurisdiction which is vested in them and by not declining to exercise the juris- diction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exer- cise of its power of superintendence when

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there has been a patent perversity in the orders of tribunals and Courts subordi- nate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superinten- dence High Court cannot interfere to cor- rect mere errors of law or fact or just be- cause another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exer- cised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amend- ment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Ar- ticle 227. At the same time, it must be re- membered that such statutory amend- ment does not correspondingly expand the High Court's jurisdiction of superinten- dence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exer- cised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of jus-

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tice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of jus- tice remains pure and unpolluted in order to maintain public confidence in the func- tioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest where- as Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

30 The question that arises for consideration of this Court, on the basis of longer pleadings and elaborate submissions made by both the sides, is as to whether there is any perversity, which deserves any interference in superintending jurisdiction under Article 227 of the Constitution

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of India. The very evidence, which can result into different view, also cannot be the ground for the Court to consider. Suffice to note that, if the authority concerned has not acted within its bounds, this Court is required to interfere. The extra financial burden on the petitioner Corporation also can never be the ground for the Court to interfere and deny the statutory legal obligation. Undoubtedly, the petitioner Corporation needs to be a model employer and this issue is only from the year 2001 to 2017, as agreed to by and between the parties. Even if eight hours duty has been finalized for Fire Brigade department employees, it is not in dispute that these employees have worked beyond eight hours for the time period for which the overtime is being demanded.

31 Two questions, which deserve to be regarded are as to whether the extra facilities and special favour made to those employees, as offered by the petitioner Corporation, can be said to be

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sufficient discharge of obligation, which would meet with the requirement of section 14 of the Minimum Wage Act. According to this Court, on the part of employees to work beyond eight hours also, cannot be a ground to infer their consent to do this without any charges. Therefore, by virtue of some of the resolutions, which are pressed into service, if the employees have discharged their duties beyond eight hours by volunteering to perform beyond eight hours, that would not deny them their claim, if otherwise statutorily admissible.

32 In this view of the matter, the narrow scope of this petition is as to whether the special allowance and amenities made available to the employees of the Fire Brigade Department, would enable the petitioner Corporation to discharge its statutory obligation and the same is to be construed as sufficiently discharged to fulfill the obligations contemplated under section 14 of the Minimum Wages Act.

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33 It is worth recapitulating that eight hours shift was going on in the Fire Brigade Department and it was decided from 14.04.2001 that overtime would be paid for the period of four hours to those employees, who worked four hours extra. The employees were working in the Fire Brigade Department on different posts. All the employees had accepted the duty of 24 hours.

34 The Corporation had passed a resolution on 13.01.2000 being the resolution No.68 of 2000 and it introduced 12 hours of shift for an employee of Fire Brigade Department vide resolution No.103 of 2017 on 30.03.2017 passed by the General Board of the Corporation. They were also given the option as to whether they were ready to work for eight hours. The option to the employees also was as to whether they were ready to work for 24 hours in wake of the resolution No.1597 of 1993 and the employees had chosen out of their own volition, duties for 24 hours, and, therefore overtime, according to the

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Corporation, was impermissible to be demanded. The Corporation since initiated 08 hours shift for 24 hours on 30.03.2017, separate challenge was made on 01.05.2017, which was disposed of.

35 In reference (IT) No.75 of 2003, the award impugned passed on 09.11.2017 is challenged in the present petition to question the alleged illegality and arbitrariness on the part of the Industrial Tribunal in allowing the reference.

36 Allowances which are claimed to have been paid to those employees are as follows.

(a) Residential facilities for those who are working round the year.

(b) There is also an insistence that whenever the emergency exists, employee of the department shall need to render his or her services. The version on the part of the respondent is that nearly 356 employees were working in emergency department and 433 in Fire Brigade Department.

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Whereas, according to the Department, it has to pay to every employee the overtime of Rs.66,102/- each month, which is a huge amount in a routine course and it would result in incurring heavy losses and that is not a sustainable module.

37 It is causing heavy losses to the public exchequer. Before the Tribunal, it was the contention that all employees were working in the Fire Brigade Department for 12 hours instead of 08 hours. It was an additional four hours of work which had been curtailed, subsequently by way of a compromise since the Corporation itself had admitted that employees were working for 12 hours instead of eight hours. The Tribunal was of the opinion that the work is taken beyond eight hours, which was not to be taken from any employee, the employer is bound to pay the overtime. In an event of any accidental death, they are being paid Rs. 1 lakh towards damages. They have rent free staff quarters without any

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electricity charges or taxes. Thus the Court had been emphatic that if more than eight hours work is taken, the employees would be entitled to the additional amount of overtime. The Court looked at the resolution dated 07.04.2001 and held that every employee had worked for 12 hours and therefore, is entitled to overtime of four hours. As rightly contended by the respondent, it is a money decree and the total amount is worked out is of Rs. 22 crores. What has been found is that the Tribunal has allowed the reference on the ground of entitlement to the overtime in lieu of work of more than eight hours. The statutory requirement is to work for eight hours, whereas 12 hours work has been taken till an agreement and settlement of eight hours of work so, therefore, Tribunal was justified in holding that the overtime has to be given. Payment of Minimum Wages Act also entitles extra pay for extra work. Till the year 2017 when the petitioner Corporation and respondent Union arrived at a

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settlement for eight hours work, the extra hours which have been already worked, the respondent union has insisted on payment of amount. It appears that the demand was raised in the year 2000 itself and since it was not responded to on 11.09.2002, another letter of even number was mentioned. Conciliation was also requested for by the respondent union, which got registered as Industrial Disputes Case No.67 of 2002, where the Union filed a justification statement and the same was opposed by the Corporation. It is a statutory obligation of the Corporation and it is also to be regarded that the reliance is placed on the Supreme Court decision.

38 As rightly considered the conditions of employment which are inconsistent with the statutory provisions cannot be enforced. However, section 14 of the Minimum Wages Act permits overtime payment. It was the demand of the employees from the beginning to allow the payment for overtime for extra work. The

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Corporation denied the same, time and again and the resolution No.1597 of 1993 speaks of 24 hours of duty but at the same time, it provides for compensatory leave in lieu of excess work and the said resolution also has not been superseded nor cancelled. Section 14 of the Minimum Wages Act also provides that the excess number of hours beyond normal functioning, the employer is required to pay overtime or part of hours if it is excess of overtime rate fixed in the Act. The Tribunal has exhaustively considered and rightly held that some of the benefits if are given to the workmen, the statutory benefits cannot be denied to them. Section 285 of the Gujarat Provincial Municipal Corporation Act provides for giving complete infrastructure and amenities for the employees of the Corporation, however, if the same is provided by the Corporation, that would not mean that the same to be construed as beneficial service conditions disentitling these employees to recover any other allowances such

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as the payment for extra work. Moreover, the financial burden could never be put forth as the ground to make the payment of overtime for any excess work done. The statutory rights to be given is from 2001 to 2017 as from March, 2017 already eight hours work system has been introduced.

39 In the opinion of this Court, there is no perversity in the findings or conclusions. No interference is desirable in superintending jurisdiction. As object of superintending is to maintain efficient, smooth and orderly functioning of the entire machinery, in such a way that it does not bring any disrepute. In exceptional circumstances, this Court needs to interfere.

40 Let the implementation of this order be made 12 weeks from the date of receipt of the copy of this order.

41 Petition stands disposed of accordingly.

(MS. SONIA GOKANI, J)

SUDHIR

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