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Judgment
M. Katju, J.—This writ petition has been filed against the impugned award of the Labour Court, Kanpur, dated 2821981 Annexure 10 to the writ petition.
I have heard learned counsels for the parties.
The petitioner is a company registered under the Indian Companies Act. The present dispute relates to the petitioners factory at Saharanpur. In paragraph 5 of the writ petition it is alleged that apart from the workman working in the company at Saharanpur, there are workers on the establishment side which is known as the commercial Department. The working hours of these workers of the Commercial Department are from 8 AM. to 12 noon and from 1 P.M. to 5 P.M. from Monday to Saturday. Notice was given accordingly under the Factories Act by the petitioner vide Annexure 1 to the petition. In paragraph 6 of the petition it is alleged that although the working hours in the commercial department were from 8 A.M. to 12 noon and 1 AM. to 5 P.M. from Monday to Saturday but in view of the nature of the load of work in the department, the workers were generally allowed to leave the office around 4 P.M. from Monday to Friday and on Saturday they were permitted to leave at noon as normally the work used to finish by that time. However, if a particular worker could not finish his work he had to attend the office till 5 P.M. and if he finished the work he was allowed to leave before 5 P.M. However, if the workers had worked beyond 5 P.M. they were paid wages for overtime. In this connection the petitioner also entered into a settlement with the Cigarette Workers Union on 26121967 which was duly registered.
The respondents 4 to 17 who were employed in the commercial Department and represented by the Tbbacco Friends Union raised a dispute claiming overtime wages for working from 4 P.M. to 5 P.M. from Monday to Friday and 1 P.M. to 5 P.M. on Saturday. This dispute was referred to the Labour Court and the Labour Court decided in favour of the respondents. Hence this petition.
Sri Yashwant Varma, learned counsel for the petitioner invited my attention to Section 61(1) of the Factories Act which says:
"There shall be displayed and correctly maintained in every factory in accordance with the provisions of subSection (2) of Section 108, a notice of periods of work for adults, showing clearly for every day the periods during which adult workers may be required to work."
Under this provision the employer had displayed the notice of period of work. True copy of this notice dated 1111965 is Annexure 1 to thewritpetition. A perusal of the said notice in Form11 shows that period of work from Monday to Saturday is from 8 AM. to 12 noon in the morning and from 1 P.M. to 5 P.M. in the afternoon.
Sri Varma invited my attention to paragraph 12 of the writ petition where the relevant portion of clause 13 of the Settlement of 1967 has been quoted. In this paragraph it is mentioned that the hours of work of general office are seven. Learned counsel for the respondent hence argued that since the petitioner has admitted that the hours of work are seven and not eight per day hence the workers are entitled to overtime after working seven hours in a day.
However, in the counter affidavit of the Tobacco Friends Union in paragraph 5, it is stated that the Tobacco Friends Union did not enter into any settlement with the petitioner. The Settlement of 1967 was with the Cigarette Workers Union and not the Tobacco Friends Union and it is alleged in the counter affidavit that the said Settlement of 1967 is not binding on the workers who are the members of Tobacco Friends Union. It is further stated in paragraph 6 of the counter affidavit that the alleged settlement was collusive and fraudulent. Thus it is evident that the stand of the Tobacco Friends Union is that the 1967 Settlement is not binding on the members of Tobacco Friends Union.
Moreover, it is settled law that a Settlement outside conciliation is only binding on the parties and not on others [vide General Manager, Security Paper Millv. R. S., Sharma and others AIR 1986 SC 954]. A perusal of the order dated 2841978 Annexure 9 to the writ petition shows that the Labour Court has held that the settlement was under Section 6B of the U. P. Industrial Disputes Act. Section 6B deals with the Settlement outside conciliation and hence the said Settlement cannot be binding on the Tobacco Friends Union or its members. Thus the respondent workers cannot get any advantage of any clause of the Settlement of 1967. At any event since the respondent workmen are themselves contending that they are not bound by the Settlement of 1967, they can obviously not claim any benefit under the said Settlement, as they cannot be permitted to blow hot and cold together. In its order dated 2841978, the Labour Court has held that the Settlement of 1967 cannot be binding on the members of Tobacco Friends Union. Consequently, the respondents cannot get any benefit from the Settlement of 1967.
It has been alleged in paragraph 27 of the writ petition that no notice of change from hours of work has been made under Section 61(10) under the Factories Act and hence the notice dated 1111965 continues. This allegation has not been disputed in the counter affidavit.
Since hours of work had been fixed by the notice under Section 61 of the Factories Act obviously no overtime allowance could have been granted to the workers concerned for working during the period of these hours of work. In my opinion, therefore, the Labour Court has arbitrarily granted overtime allowance to the workers concerned for working from 4 P.M. to 5 P.M. on Monday to Friday and after 12 noon on Saturday. Merely because the workers were permitted to leave at 4 P.M. does not entitle them any allowance if they were asked to work till 5 P.M. Thus in view of the above I am of the opinion that the impugned award dated 2821981 is arbitrary and illegal and it is here by quashed. The petition is allowed. No order as to costs.