Thakkar, J.
1. Does a worker who is otherwise entitled to the protection of Payment of Wages Act forfeit the protection of the Act if he works overtime and claims overtime wages in case his contractual wages along with the claim for overtime exceed the statutory limit and will the Act cease to apply to him in that event That is the question which has climbed to the top in this petition under Art. 227 of the Constitution of India invoked by a boiler attendant who was attending to the boiler installed in a factory belonging to the respondent at Jamnagar known as Bajrang Mills and Fertiliser Co. during all the three shifts everyday. He has challenged the impugned order passed by the learned Assistant Judge of Jamnagar exercising appellate powers under S. 17 of the Payment of Wages Act of 1936, hereafter called the 'Act', whereby the learned Assistant Judges has set aside the award for Rs. 14,850 made by the Payment of Wages Authority in favour of the petitioner and rejected the application made by the petitioner in toto. The learned appellate Judge has rejected the application of the petitioner inter alia on the ground as regards the applicability of the Act itself though such a ground was not urged before the Payment of Wages Authority in the initial proceedings at any time and even though it involved a decision on a mixed question of facts and law. The view taken by the learned appellate Judge is that the Payment of Wages Act does not apply to the petitioner in view of S. 1(6) of the Act which provides that nothing in the Act shall apply to wages payable in respect of a wage-period which, over such wage-period, average four hundred rupees a month or more. As observed earlier, no such contention was urged on behalf of the respondent-employer before the Authority in the course of the original proceedings. Whether or not the wages of the petitioner for the relevant wage-period would average four hundred rupees a month or more is a question of fact depending on the wages earned by the workman concerned. Unless a contention is pleaded in the original proceeding and a pointed issue is raised, it would not be necessary for the employee to lead evidence in order to establish that his wages for the wage-period in question did not exceed four hundred rupees at the material time. It was, therefore, not open to the appellate Judge to proceed to decide this mixed question of facts and law for the first time when the attention of the parties was not focussed on this aspect and when the employer had not raised any such plea in the original proceedings.
2. Besides, the learned appellate Judge has misinterpreted S. 1(6) of the Act and has determined the issue against the petitioner on the basis of a basic misconception. The learned appellate Judge has proceeded on the premise that the expression 'wages' occurring in sub-s. (6) of S. 1 of the Act would include overtime wages in respect of the period of which the complaint regarding non-payment or delayed payment related. The relevant provision as it then stood deserves to be quoted :
'1(6) Nothing in this Act shall apply to wages payable in respect of a wage-period which, over such wage period, average four hundred rupees a month or more'.
In order to understand the implication of the expression wage-period S. 4(1) of the Act will have to be consulted. It is provided by S. 4 that every person responsible for the payment of wages under S. 3 shall fix periods (which have been referred to as wage-periods in the course of the Act) in respect of which such wages shall be payable. It is further provided that no wage-period shall exceed one month. On a plain reading of S. 4 it is clear that the expression 'wage-period' relates to the periodicity of the payments made for the work. And the Legislature has provided that the wages shall be paid to the employees periodically and in such a manner that the period for which the wages are payable does not exceed one month. In other words, the period may be one day, one week, two weeks, three weeks or four weeks. It cannot exceed one month. The wages must, therefore, be made payable either daily or weekly or biweekly, etc. and the wage-period cannot exceed one month. It has nothing to do with the period in respect of which complaining is made about non-payment or delayed payment or wrongful deduction. The learned appellate Judge did not realise the meaning and content of the expression wage period employed by the Legislature in S. 1(6) which was required to be understood in the light of S. 4. If it is so understood, the effect of sub-s. (6) S. 1 becomes clear. The average wages of an employee have to be translated in terms of what the employee have to be translated in terms of what the employee would have earned over a period of one month. If the wage-period was, say for instance, a week, the average wages for a month will have to be worked out by employing the multiple of four. And having worked out the average wages earned by an employee per month in the context of the wage-period, the question as regards the applicability or otherwise of the Act would have to be determined depending on whether the average wages do or do not exceed four hundred rupees a month. In the present case the wages were payable monthly. That is common ground between the parties and is an admitted position as emerges from the record. Under the circumstances, there was no question of correlating the wages earned over a wage-period with the average wages for a month. The monthly wages of the petitioner were fixed at R. 145 (Rs. 130 basic wages plus Rs. 15 allowances). Therefore, there was no question of introducing the concept of wage period and working out the average wage-period. Admittedly the wages per month worked out at Rs. 145. There was, therefore, no question of the wages of the petitioner exceeding four hundred rupees per month. The learned appellate Judge, however, made an erroneous approach and got confused by reason of the fact that he did not take into account the definition of 'wage-periodi' embodied in S. 4. He proceeded on the assumption as if the expression 'wage-period' related to the time-lag during which the deduction was made. He proceeded on the footing that as the petitioner had claimed Rs. 9,250 by way of deduction during 19 months between 7th February, 1963 and 7th September, 1964 the amount claimed had to be divided by 19 in order to find out what was the deduction according to the petitioner per month. There is a basic fallacy in this reasoning as pointed out earlier and the learned appellate judge has reached the conclusion that the Act does not apply to the petitioner on account of his misinterpretation of the relevant provision which has its roots in his misconception as regards the meaning and content of the expression 'wage-period.' On this short ground the finding recorded by the learned appellate Judge deserves to be reversed. It is also possible to approach the question from a different standpoint. Having regard to the context the expression 'wages' employed in sub-s. (6) of S. 1 of the Act would relate to the contractual wages and not to overtime allowance claimable by a worker. The amount claimable by way of overtime allowance would depend on the additional work put in by way of overtime work beyond the specified hours. That can have no relation to the wage period. Sometimes a workman might be called upon or obliged to do overtime work. Sometimes he may not be. By its very nature, whether or not an employee would be required to do overtime work, cannot be foreseen and would not be within the contemplation of the parties. The scheme of sub-s. (6) of S. 1 is pretty clear. It only relates to the contractual wages claimable by a workman on an average per month having regard to the fact that the wages may be payable daily or weekly or by some other wage period not exceeding one month. When the wages are payable by one month there can be no doubt or dispute for whether the Act is applicable to the workman or not would depend on what the workman earned during the period. No further inquiry or investigation need be undertaken for the purpose of ascertaining whether or not the Act is applicable. Once the contractual wages over a period of one month on an average are worked out, the test is a simple test and it does not depend on whether during the particular period the workman was called upon to do overtime work or not. The overtime wages claimed by a workman do not have to be taken into account in determining the question as regards the applicability of the Act in the context of sub-s. (6) of S. 1 of the Act. If the meaning and the content of the expression 'wage-period' is kept on the mental screen, no doubt or difficulty can arise on this score. We are, therefore, least concerned with what the employee earned during the said period by way of overtime wages. Some confusion was sought to be created by adverting to the definition of 'wages' contained in S. 2(vi) of the Act. The expression 'wages' so defined has reference to a subsequent provision of the Act. It cannot be automatically read into the expression 'wages' which occurs in sub-s. (6) of S. 1. Again sub-s. (6) of S. 1 was enacted in 1936. At that time the definition of wages contained in S. 2(vi) did not take within its sweep the overtime wages claimable by a workman. It is no doubt true that the expression 'wages' has undergone a change by virtue of a subsequent amendment introduced by S. 3 of Act 68 of 1957 with effect from April 1, 1958. But then the meaning and content of the expression 'wages' employed by the Legislature in S. 1(6) cannot depend on the subsequent enlargement of the expression 'wages' brought about some 22 years later. The test for determining the applicability of the Act embedded in S. 1(6) has remained the same from 1936 onwards. It has not undergone any change. Even if one were to assume that it is permissible to incorporate by reference the definition of the expression 'wages' contained in S. 2(vi) in interpreting sub-s. (1) of S. 6 (in my opinion it is not permissible to do so) it will have to be done in the light of the circumstance that from 1936 till 1958 the expression 'wages' as defined by S. 2(vi) did not cover within its amplitude the concept of overtime wages. Therefore, from 1936 to 1958 if wages within the meaning of S. 1(6) meant contractual wages as interpreted by me in the earlier part of the judgment, it cannot be said that the test was automatically altered by virtue of an amendment in relation to the expression 'wages' which was incorporated for the first time in 1958 particularly as so far as sub-s. (6) of S. 1 is concerned, it has remained unaltered except and save in regard to the figure of average monthly wages. In any view of the matter, therefore, it is impossible to hold with the learned appellate Judge that the Act did not apply to the petitioner.
3. The conclusion is, therefore, inevitable that the Payment of Wages Authority was right in proceeding to determine the claim of the petitioner on merits. There, however, remains one stumbling block in the way of the petitioner. On an appreciation of evidence the Payment of Wages Authority came to the conclusion that the petitioner had successfully made out his claim by reason of the fact that the factory was admittedly working three shifts a day throughout the 24 hours and that the company had not employed any other boiler-attendant apart from the petitioner. Admittedly the petitioner alone was a qualified boiler attendant employed by the respondent. The learned appellate Judge misread the evidence and came to the conclusion that it was not possible to believe that the petitioner would have been working for all the 24 hours round the clock. The learned appellate Judge observed that it would be humanly impossible for an individual to do so. What the learned appellate Judge failed to realise was that according to the petitioner, he alone was engaged as a boiler-attendant in order to discharge his duties as such for all the three shifts and that he had to be at the beck and call of the employer throughout this period. What was meant was that he was to be available whenever a need arose apart from the fact that every day he was being called upon to work for several hours beyond the duty hours by way of overtime work. The witnesses examined by the employer have supported the stand of the petitioner to some extent as is evident from the following passage extracted from the judgment :
'It is true that the evidence of Bhagwati Prasad and Hargovind examined by the opponent to support the say of the applicant that there was only one boiler-attendant working in their factory during the relevant period. From this, it can be argued that the applicant alone must be working as boiler attendant for all the 24 hours. It appears that this circumstances has played a great part in making the learned authority believe the story of the applicant. Now the say of the witness Hargovind is that the presence of the boiler attendant is not necessary for all the 24 hours after boiler starts working. He has stated that there is one fireman working in every shift and that once the boiler starts, the fireman attend the same. He has stated that he also used to look after the boiler when the applicant was not on duty. This is not improbable. Hargovind has stated at one place that he used to watch the boiler, when the boiler attendant was on duty. The learned authority has taken out this stray sentence and held that this statement of Hargovind shows that the witness Hargovind never went to look after the boiler in absence of the applicant. I do not think that this was at all just or proper. The witness has stated that second boiler attendant is appointed in 1964 and that the third boiler attendant is also appointed thereafter. He has stated that even after these boiler attendants are appointed, he used to go for a watch and it is in this context that the witness has stated that he boiler attendant was on duty. The learned authority, with due respect to him, has taken out this sentence and read it without taking into account the context in which it was made and given a finding in favour of the applicant. It is, therefore, not possible for me to agree with him in this respect'.
As is evident from the aforesaid passage even the witnesses of the employer were obliged to admit that the petitioner was the only boiler-attendant attached to the factory which was working during all the three shifts everyday. A question similar to the one posed by the present petition in regard to the rights of an employee who is required to be at the beck and call of the employer and keep himself in readiness for making himself available throughout the day arose in Special Civil Application No. 672/63 decided by J. B. Mehta, J. on February 6, 1968. There the question arose in relation to the duties discharged by a nurse and the Court came to the conclusion that inasmuch as the employee had to keep himself available at all the relevant times, it can be said that he was required to work during the period. The reasoning is obvious. When a serious responsibility rests on the shoulders of an employee and he has by and large to remain on or about the premises of the employer throughout and make himself available to meet the demands which can or may arise, the employee cannot attend to any of his private work properly or leave the premises or consider himself free to do what he likes as if he were off duty. Even if, therefore, he may not be actually working, he would have to be considered as being on duty. In view of the legal position as settled by this High Court in the aforesaid matter as early as in 1968, it is specious to argue that the petitioner is not entitled to claim overtime wages though he had to keep himself at the beck and call of the employer and to make himself available during all the three shifts, he being the only boiler-attendant employed by the employer. The view taken by the learned Authority was right and the learned appellate Judge has committed an error apparent on the face of the record in taking a contrary view. The decision of the learned appellate Judge under the circumstances in so far as it is adverse to the petitioner on the aforesaid score must, therefore, be quashed.
4. Turning now to the question as to what amount could be lawfully claimed by the petitioner, fortunately for the petitioner a remand can be avoided as the learned appellate Judge has after entering into the arithmetical calculation recorded a finding to the effect that the petitioner would be entitled to claim Rs. 6,611 plus Rs. 25 by way of compensation along with interest at 6% from the date of the application. The learned Judge has recorded this alternative finding in para 17 of his judgment in the petitioner's favour on the footing that such would be the amount claimable by him if the petitioner had succeeded in establishing his claim.
5. Under the circumstances, the petition must be allowed. The impugned order passed by the learned Assistant Judge, Jamnagar, on March 11, 1969, in Civil Regular Appeal No. 229 of 1967 to the extent that it is adverse to the petitioner on the aforesaid points is quashed and set aside. Having regard to the finding recorded by the learned appellate Judge as regards the quantum of wages and compensation claimed by him, the award passed by the payment of wages Authority in the original proceeding being Wages Application No. 267/64 will have to be modified in order to bring it in conformity with the computation made by the learned appellate Judge as per the discussion made a short while ago. In other words, the award passed by the Authority in Wage Application No. 267/64 will be modified to the following extent, namely, that the respondent shall pay to the petitioner the sum of Rs. 6,611 plus a sum of Rs. 25 along with interest at 6% from the date of the application, i.e., from July 6, 1964 till the date of realization.
6. The petition is allowed. Rule is made absolute to the aforesaid extent with costs.