Bhaskar Bhattacharya, J.
1. This revisional application under Article 227 of the Constitution of India is at the instance of workmen and is directed against order dated January 8, 1999 passed by the learned Chief Judge, Small Causes Court, Calcutta, the appellate authority under the Payment of Wages Act ('Act') in P.W.A. Appeal No. 4 of 1991 thereby setting aside order dated June 20, 1991 passed by the Authority under Payment of Wages Act in P.W.A, Case No. 56 of 1985.
2. The petitioners, who arc all workmen under the respondent filed a joint petition before the Authority under Section 15 of the said Act alleging illegal deduction from the wages of the applicants.
3. The petitioners claimed that in accordance with Rule 6 of the Certified Standing Orders, their weekly duty hours are restricted to 45 hours and they are entitled to get overtime wages for doing more than 45 hours a week. According to them, as per Rule 7 of the said Standing Order, they should getovertime at the single rate for working between 45 and 48 hours a week and at double rate, for the works beyond 48 hours. The employer however has adopted a different mode of calculation of overtime hours. According to the employer, one day should be equivalent to 8 hours and as such in a month a workman is required to work for 240 hours if the same consists of 30 days. The workmen on the other hand demand that 45 hours, a week should be multiplied by 52 weeks of the year and the product should be divided by 12 for the purpose of arriving at the monthly working hours of 195 hours.
4. The question is what should be the total monthly hours a workman is required to work.
5. The authority under said Act accepted the calculation of the workmen and came to the conclusion that any work done beyond 45 hours a week should be compensated by payment of overtime and thus directed the respondent authority to calculate the amount on that basis.
6. Being dissatisfied, the employer preferred an appeal under Section 17 of the Act and by the order impugned herein the appellate authority has set aside the order passed by the authority below and has held that for the purpose of calculating overtime, 8 hours should be taken to be a day's work.
7. Being dissatisfied, the workmen have come up with the instant application.
8. Mr. Bhattacharjee, the learned counsel appearing on behalf of the petitioners has placed strong reliance upon Rules 6 and 7 of the Certified Standing Orders and has contended that the appellate authority below acted illegally and with material irregularity in relying upon subsequent executive instruction in arriving at the conclusion that a workman is required to work 8 hours a day. Mr. Bhattacharjee contends that when there is a specific provision declaring the employee's working hours a week, any executive instruction in conflict with such specific provision should be ignored.
9. Mr. Bag, the learned counsel appearing on behalf of the respondents has howeversupported the order passed by the appellate authority and has contended that the appellate authority rightly relied upon Office Order No. 9560 in arriving at a conclusion that overtime should be payable if a workman works exceeding 8 hours a day.
10. Therefore, the only question that falls for determination in this application is whether the monthly working hour should be calculated by multiplying the number of days of a month with 8 or whether such hour should be calculated by multiplying 45 by 52 and dividing the product by 12.
11. Before appreciating the respective contentions of the learned counsel for the parties it may not be out of place to mention here that in the absence of any statutory rule it is open to the employer to regulate service condition by issuing relevant administrative instructions but when there is specific Certified Standing Orders laying down answer to the disputed question, the administrative instructions are not required to be looked into. The Certified Standing Orders applicable to the petitioners have been placed before this Court. It appears from Rule 1 that the said provisions came into force in accordance with the provisions of Section 7 of the Industrial Employment (Standing Orders) Act, 1946. According to Section 10 of the said Act, standing orders finally certified under the said Act shall not, except on agreement between employer and the workmen or a trade union or other representative body of the workmen be liable to modification until expiry of six months from the date on which the standing orders or the last modification thereof came into operation. The said provision also deals with the manner in which application for modification of such standing order shall be made. Section 12 of the said Act specifically prohibits giving of oral evidence having the effect of adding to or otherwise varying or contradicting standing orders as finally certified under the said Act and no such evidence shall be admitted in any Court. In the instant case, at the time of disposal of the dispute, one representative of the union gave evidence on behalf of the petitioner while arepresentative of the respondent contradictedsuch oral evidence by appearing in the box. Theexistence of the Certified Standing Orders andall the subsequent office orders have not beendisputed. For the purpose of appreciatingquestion involved herein the provisionscontained in Rules 6 and 7 of the CertifiedStanding Orders and Office Order No. 9560relied upon by the appellate authority below arequoted herein: :
'6. Working hours: Subject to the maximum limits laid down in the Factories Act, the hours of duty will be fixed by the competent authority. The present working hours as fixed by the competent authority are 45 hours a week except for the following staff in the Bombay Telephone Workshops whose working hours are as under:
Women staff: 43 and 1/2 hours per week. Planning staff: 40 hours per week. 7. Overtime: For work performed beyond the weekly working hours prescribed in Standing Order 6 but within a maximum of 48 working hours a week, extra wages for overtime shall be paid at the ordinary rates of wages of the worker concerned. For work performed beyond nine hours in any day or beyond 48 hours in any week extra wages for overtime thus worked shall be paid at the rate of twice the ordinary wages of the worker concerned.
Office Order No. 9560: The orders communicated in the General Manager, P & T Workshops, Calcutta, Memo No. A/Acctt/Procedure/Workshop 54 dated January 18, 1955 are reproduced below. In implementing the orders the following procedure will be followed provisionally. The procedure will however, be subject to further review.
At present the Allocation Register furnished details of hours worked by each worker on individual W.Ps. In addition to these the following particulars are furnished in the allocation register.
1) O.T. in hours.
2) Factories Act leave in days.
3) Gate Pass in hours for which allowance are paid.
4) Late Attendance in hours for which allowance are paid.
5) Absence in days and
6) Scheduled holidays in days.
Since Sundays are also weekly holidays and since the payments made for these days do not constitute productive labour charges, the payment of Sundays may also have to be segregated. For this purpose in addition to the items mentioned above the allocation register will also show the number of Sundays for which payment has been made for the individual worker.
As regards the Gate Passes and late attendance the figures will show separately-the total hours of absence as also the hours for which allowances are paid.
Provisionally the following work orders may be opened for booking the hours in respect of Sundays, Factories Act Leave and Gate Passes including late attendance.
3(e) Sunday3(f) Factories Act Leave.3(g) Gate pass and lateattendance withallowance. For the Allocation Register the hours in respect of scheduled holidays, Sundays, Factories Act Leave and Gate Passes including late attendance for which payment is made, may be transcribed into labour job cards in 8 hours as equivalent to one day. This will give the total hours of non-productive labour under the above heads. From these particulars the hourly rate will have to be found in respect of pay, D.A., H.R.A. and C.A. This will enable the allowances being segregated in respect of non-productive hours.
A. E. (PP) may please watch the working of the procedure and furnish a report after the submission of the accounts for the current month.'
12. Rule 6 of the Certified Standing Orders specifies the working hours as fixed by the competent authority. There is no dispute that in the present case the same is 45 hours a week. Rule 7 of the said Standing Orders lays down that for work done beyond weekly working hours prescribed in Rule 6 of the Standing Orders but within a maximum of 48 working hours a week, extra wages for overtime shall be paid at the ordinary rates of wages of the worker concerned but for the work done beyond nine hours in any day or beyond 48 hours in any week, extra wages for overtime shall be paid at the rate of twice the ordinary wages of the worker concerned. No material has been placed before the Court showing that those two provisions have been modified in accordance with law. The Office Order No. 9560, in my view, cannot have any overriding effect over Rules 6 and 7 of the Certified Standing Orders. By the said office order it has been stated that for implementing orders, the procedure mentioned therein will be followed provisionally. By the said order some particulars are required to be furnished in the allocation register and further some work orders were directed to be opened for booking the hours in respect of Sundays. The working hours of 8 a day mentioned in the said order are meant for giving the total hours of non productive labour under those heads. Those will, as the order itself indicates, enable the allowances being segregated in respect of non productive hours. Therefore, the said office order does not help in any way in fixing maximum working hours a week or granting overtime in accordance with Rule 7 of the Certified Standing Orders.
13. The appellate authority therefore, in my view, acted illegally and with materialirregularity in relying upon Office Order No. 9560. I have already indicated that Rules 6 and 7 of the Certified Standing Orders have not yet been modified in accordance with the provisions contained in Industrial Employment (Standing Orders) Act, 1946 and thus those are binding upon the parties. In this connection Mr. Bag appearing on behalf of the respondent placed strong reliance upon the decision in the case of Khimji Vindhy v. Premier High School, reported in : (1999)9SCC264 and contended that this Court should not exercise jurisdiction under Article 227 of the Constitution of India in the facts of the present case. I am afraid, the principle laid down therein cannot have any application to the facts of the present case. In the said case, it was held by the Apex Court that the jurisdiction of the High Court under Article 227 should be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact which fall in the domain of an appellate Court only. In the instant case, I have indicated that appellate authority totally ignored the standing orders binding upon parties and relied upon subsequent office order which cannot upset the provisions relating to maximum working hours and overtime specified in the Certified Standing Orders. Thus, the error committed by the appellate authority in the instant case goes to the root of jurisdiction resulting in failure of justice and has caused serious injury to the petitioners.
14. I thus set aside the order passed by the appellate authority and restore the one passed by the original authority.
15. In the facts and circumstances there will be however no order as to costs.