Workmen of the Bombay Port Trust Vs. Trustees of Port of Bombay

Decided On : Oct-10-1961

Court : Supreme Court of India

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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			'casename' => 'Workmen of the Bombay Port Trust Vs. Trustees of Port of Bombay',
			'casenote' => 'The case questioned whether wages were payable for Sunday, the 'weekly off' day on which no works was done and for Sunday on which work was done without compensatory off day - The case debated on the meaning of 'weekly holiday' with in the frame work of Section 13 of the Minimum Wages Act, 1948 - It was held that neither the Act nor Minimum Wages Rules contained any provision for such additional payment over and above what would be payable for over time work - Therefore, the workmen could not get three times the ordinary rate - The meaning of 'weekly off' meant  Sunday when no work has to be done under the Act.<br> - 
[A.D. Koshal,; D.A. Desai,; P.N. Shinghal,; P.S. Kailasam and; V.R. Krishna Iye, JJ.] Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 envisages that the petition of appeal under sub-clause (a) or sub-clause (b) of clause (1) of Art. 134 of the Constitution or under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 or under s. 379 of the Code of Criminal Procedure 1973, on being Registered shall be put up for hearing ex-parte before the court which may either dismiss it summarily or direct issue of notice to all necessary parties or make such orders, as the circumstances of the case may require. The appellants in the appeal who were acquitted by the Sessions Court had been convicted and sentenced by the High Court and awarded life imprisonment under s. 302 read with s. 149 IPC. When their appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 was listed for preliminary hearing under Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 it was contended (1) that the said provision empowering the court to dismiss the appeal summarily was ultra vires the Enlargement Act, 1970, (2) the power of the Supreme Court to frame rules under Art. 145 of the Constitution can not be extended to annul the rights conferred under an Act of Parliament and (3) that an appeal under the Enlargement Act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the State and without giving reasons. HELD: (Per Krishna Iyer, Shinghal &amp; Desai, JJ.) Article 134(1)(c) spells a measure of seriousness because the High Court which has heard the case certifies that it involves questions of such moment that the Supreme Court itself must resolve them. To dispose of such a matter by a preliminary healing is to cast a reflection on the High Court's capacity to understand the seriousness of a certification. [1095 D-E] Article 136 vests a plenary discretion in the Supreme Court to deign or decline to grant leave to appeal against any conviction or sentence. Before deciding to grant or reject such Leave the court accords an oral hearing after perusing all the papers produced. Once leave is granted, the appeal is heard, after notice to the state, in full panoply. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. No appeal after leave, is dismissed summarily or ex-parte. If Art. 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex-parte hearing (or after issue of notice if the court so chooses), Art. 134 which gives a constitutional right to appeal as it were, must stand on a higher footing lest the Constitution makers be held to have essayed in supererogation. [1095G-1096A] There is much more 'hearing' content in an absolute appellate right than in a precarious 'special leave' motion. Jurisprudentially, a right is large than a permission. Art 134 puts the momentous class of cases covered by it beyond the discretionary compass of Art. 136 and within the compulsory area of full hearing such as would follow upon leave being granted under Art. 136(1). A full hearing may not obligate dragging the opposite side to court involving expense and delay. Fullness of hearing of the proponent is not incompatible with non-hearing of the opponent when after appreciating all that could be urged in support of the cause there is no need felt to call upon the other side, as where the proposition is groundless, frivolous or not prima facie statable. [1096B-D] Article 134(2) empowers Parliament to expand the jurisdiction of the Supreme Court to entertain criminal appeals. In exercise of this power, Parliament enacted the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 in its grave concern for long incarceration being subject to great scrutiny at the highest level if first inflicted, by the High Court. A right of appeal to the Supreme Court was granted when the High Court has, for the first time sentenced an accused to life imprisonment or to a term of or above ten years of rigorous imprisonment and equated it with that granted under Art. 134(1)(a) and (b). [1097G-1098D] The nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdiction and systems of jurisprudence. Whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into breaking down the court system by sufferance of interminable submission after several tribunals have screened his case and found it fruitless. The signification of the right of appeal under Art. 134 is a part of the procedure established by law for the protection of life and personal liberty. Nothing which will render this right illusory or its fortune chancy can square with the mandate of Art. 21. &nbsp;When the High Court trying a case sentences a man to death a higher court must examine the merits to satisfy that human life shall not be haltered without an appellate review. A single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that Judges are men and that making assurance doubly sure before irrevocable deprivation of life or liberty comes to pass, full-scale re-examination of the facts and the law is made an integral part of fundamental! fairness or procedure. [1105C, E] The life of the law is not perfection of theory but realisation of justice in the concrete situation of a given system. It is common knowledge that a jail appeal or an appeal filed through an advocate does not contain an exhaustive accompaniment of all the evidentiary material or record of proceedings laying bare legal errors in the judicial steps. It is not unusual that a fatal flaw has been discovered by the appellate judges leading to a total acquittal. Such a high jurisdiction as is vested by Art. 134 calls for an active examination by the judges and such a process will be an ineffectual essay in the absence of the whole record. A preliminary hearing is hardly of any use bearing in mind that what is being dealt with is an affirmation of death sentence for the first time. Section 366 of the Code requires the Court of Session which passes a sentence of death to submit the proceedings to the High Court and rulings insist on an independent appellate consideration of the matter and an examination of all relevant material evidence. The Supreme Court's position is analogous, and independent examination of materials is impossible without the entire records being available. So it is reasonable that before hearing the appeal under Rule 15(1 ) (c) of Order XXI, ordinarily the records are sent for and are available. Counsel's assistance apart, the court it self must apply its mind, the stakes being grave enough. [1105F- 1106B] The recording of reasons is usually regarded as a necessary requirement of fair decision. The obligation to give reasons for decision when consequence of wrong Judgment is forfeiture of life or personal liberty for long periods needs no emphasis, especially when it is a first appeal following upon a heavy sentence imposed for the first time. The constraint to record reasons secures in black and white what the Judge has in mind and gives satisfaction to him who is condemned that what he has had to say has not only been 'heard' but considered and recorded. Art. 21 is a binding mandate against blind justice. In the narrow categories of cases covered by Art. 134(1)(a) and (b) and s. 2(a) of the Enlargement Act, the subject matter is of sufficient gravity as to justify the recording of reasons in the ultimate order. [1160F-G, 1106H-1107A] Protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. Our Rules of Criminal Procedure provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. [1107F] Order XXI, Rule 15(1)(c) of the Rules in an enabling provision not a compulsive one. Harmonious construction of Art. 134 and Art. 145 'leads to the conclusion that the contemplated rules are mere machinery provisions. The sequence is simple. The formalities for entertaining certain types of appeal ale covered by Art. 145(1)(d) the manner of hearing and disposal is governed by Art. 145(1)(b) and the substantive sweep of the appeal as a method of redressal is found in Art. 134. [1107G-H, 1108D, 1109A]. It is daily experience to see judges on the high bench differ, and a fortiori so in the field of sentence, This reality is projected in the context of full freedom for the first appellate decider of facts to reach his own finding on offence and sentence, only to highlight how momentous it is-for the appellant to have his case considered by the highest court when the Constitution and Parliament have conferred a full right of appeal Summary dismissal, save in glaring cases, may spell grave jeopardy to life-giving justice That is why Order XXI Rule 15(1)(c) while it survives to weed out worthless appeals, shall remain sheathed in extra- ordinary cases where facts on guilt or the wider range of considerations on sentence are involved. [1109G-1110B] Rule 15(1)(c) of Order XXI is general and covers all conceivable cases under Art. 134(1). It operates in certain situations, not in every appeal. It merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice. [1111C-D] If every appeal under Art. 134(1) (a) and (b) or s. 2(a) of the enlargement Act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between Art. 134 and Art. 136 may be judicially eroded and Parliament stultified. The minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. To be peevel by this need is to offend against the fair play of the constitution. [1111H-1112B] Upholding the vires of Order XXI Rule 15(1)(c) of the Supreme Court Rules and also s. 384 of the Criminal Procedure Code the majority however held that in their application both the provisions shall be restricted by the criteria set out hereunder ns a permissible exercise in constitutionalisation of the provisions. [1112H] Order XXI Rules 15(1)(c) in action does not mean that all appeals falling within its fold shall be routinely disposed of. Such a course obliterates the difference between Articles 134 and 136, between right and leave. The rule in cases of appeals under Art. 134(1)(a) and (b) and s. 2(a) is notice, records and reasons, but the exception is preliminary hearing on all such materials as may be placed by the appellant and brief grounds for dismissal. This exceptional category is where, in all conscience, there is no point at all. In cases of real doubt the benefit of doubt goes to the appellant and notice goes to the adversary even if the chances of allowance of the appeal be not bright. [113A-C] [With a view to invest clarity and avoid ambiguity, Order XXI Rule 15(1)(c) may be suitably modified.] Maneka Gandhi v. Union of India, [1978] 1 SCC 248; Presidential Ref. No. 1 of 1978 [1979] 2 SCR 476; Wiseman v. Barneman, [1971] AC 297; Russel v. Duke of Norfolk, 11949] 1 All. ER 109, Ponnamma v. Arumogam, [1905] AC at p. 390; Colonial Sugar Refining Co. v. Irving, [1905] AC 369; Newman v. Klausner, [1922] 1 KB 228; referred to. Black's Law Dictionary 4th Edn. p. 1368, Stroud's Judicial Dictionary, 3rd Edn. Vol. 1, pp. 160-161; Current Legal Problems 1958 Vol. 11 p. 194, Law Quarterly Review Vol. 71, 1955 p. 410-11. The Judicial Process by Henry J. Abraham, 1962 pp. 159-160; referred to. Per Kailasam &amp; Koshal, JJ. (dissenting) Article 145 of the Constitution empowers the Supreme Court subject to the provisions of any law made by Parliament with the approval of the President to make rules from time to time for regulating generally the practice and procedure of the court. [1116B] Article 134 confers appellate jurisdiction on the Supreme Court in regard to criminal matters, and while an unrestricted right of appeal is provided to the Supreme Court under clauses (a) and (b) an appeal under such clause (c) is provided only when the case is certified by the High Court as a fit one for appeal. Further, an appeal under sub- clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of Art. 145 and to such conditions as the High Court may establish or require [1116D-1117B] The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970 has conferred on the Supreme Court further power to entertain and hear appeals than conferred on it under Art. 134(1)(a) and (b) as provided for in Art. 134(2) of the Constitution. [1117C] Article 145(1)(b) enables the Supreme Court to frame rules as to procedure for hearing appeals. Rule 15 of under XXI provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing appeals. [1117D- E, 1118C] While s. 374 confers a right of appeal, s. 375 and s. 376 restrict such a right. Section 384 prescribes the procedure for hearing appeals enabling the court to dismiss certain appeals summarily and to deal with others under s. 385 if they are not summarily dismissed. The right of appeal conferred can be curtailed by procedure as envisaged in s. 384 Cr. P.C. Or Rule 15 order XXI of the Supreme Court Rules. [1120D] An appeal to the Supreme Court under s. 374 Cr. P.C. is restricted by the provisions of s. 375 and s. 376 and could be dealt with summarily under s. 384 Cr. P.C. An appeal to the Supreme Court is subject to the several provisions of the Cr. P.C. including the provisions relating to summary disposal of the appeals. [1120E-F, G] The powers and the jurisdiction of the appellate court as prescribed by the Criminal Procedure Code and the rule cannot be said to deny a right of hearing to the appellant. The right to be heard in an appeal is regulated be statute. After a full trial the judgment is rendered by a High Judicial Officer such as a Sessions Judge or a High Court Judge. The appellate court has before it the Judgment of the lower court and the petition for appeal. At the preliminary hearing the appellant or his pleader is heard before the court decides to dismiss the appeal summarily. The power to summarily dismiss an appeal is conferred under the Criminal Procedure Code when the court is satisfied that there are no sufficient grounds for interfering with the judgment appealed against. This decision is taken by the appellate court being the Chief Judicial Magistrate, Court of Sessions, the High Court or the Supreme Court. In the case of the Chief Judicial Magistrate and Court of Sessions, reasons should be recorded for summarily dismissal. The High Court and the Supreme Court need not record reasons for summarily dismissing the appeal. It is necessary that the Supreme Court or the High Court should be satisfied that there are not sufficient ground for interfering. The conclusion is arrived at after hear-ing the appellant, examining the judgment and the petition for appeal. The appellate court is discharging an onerous duty in dismissing a case summarily. The Code provides for calling for the records before dismissing an appeal. In cases where an appellant is sentenced to death, imprisonment for life or long term of imprisonment, it is the bounden duty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. If it feels necessary to call for the records of the case, it is duty to call for the records and examine them, before coming to the conclusion that there are not sufficient grounds for interfering. It is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there be no sufficient grounds for interfering. Equally it is the duty of the appellate court to dismiss the appeal summarily if it i.e satisfied that there are no sufficient grounds for interfering is duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. Taking into account the fact that the duty to decide the question where there are no sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal bas been taken away. [1122E-F, 1122H-1123F] The procedure contemplated in Rules 13, 14 and 15 of the Supreme Court Rules are almost similar to the provisions of the Code of Criminal Procedure relating to appeal. In an appeal sent by the appellant from jail he is entitled to send any written arguments which he may desire to advance in support of his appeal. The Court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. The mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal is not being heard. The court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under Rule 15. This Court being the highest court is not required to give reasons but is expected to bestow the greatest care in exercising the power of summary dismissal under Rule 15. [1124G-1125A] P.K. Mittra v. State of West Bengal, [1959] SUPPL. I SCR 63; Shankar Kerba Yadhav v. State of Maharashtra, [1970] 2 SCR 227; Minakshi v. Subramanya, 14 IA 168; Govinda Kadtuji Kadam v. State of Maharashtra, [1970] 1 SCC 469; referred to. Maneka Gandhi v. Union of India, [1978] 2 SCR 621; distinguished. -  This was clearly in accordance with the principle laid down in s. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid.',
			'caseanalysis' => null,
			'casesref' => 'In Jaswant Sugar Mills v. Sub;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Supreme Court of India',
			'court_type' => 'SC',
			'decidedon' => '1961-10-10',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.C. Shah,; K.C. Das Gupta and; K.N. Wanchoo, JJ.',
			'judgement' => '<p style="text-align: justify;">Das Gupta, J.</p><p style="text-align: justify;">1. This appeal by special leave is against an award of the Central Government Industrial Tribunal at Calcutta in a dispute referred to that Tribunal by the Central Government under s. 10 of the Industrial Disputes Act - Section 10 between the workmen of the Bombay Port Trust, who are the appellants before us and the Trustees of the Port of Bombay, the respondent in the appeal. The workmen concerned in the dispute as referred are shore workers belonging to 'A' category, 'B' category and casual category. These three categories came into existence under the scheme adopted by the Bombay Port Trust in April 1948 for direct employment of shore workers in place of the system previously in force under which such labourers used to be supplied by contractors known as Toliwallas. The matters in dispute were specified thus in the letter of reference to the Tribunal :- </p><p style="text-align: justify;">'Arrears due to the shore workers belonging to the 'A' category, 'B' category and casual category in respect of </p><p style="text-align: justify;"> (i) weekly off with pay for the period 15th March, 1951 to 2nd March, 1956; </p><p style="text-align: justify;"> (ii) work on weekly off days during the period 15th March, 1951 to 2nd March, 1956, without a compensatory day off in lieu; and </p><p style="text-align: justify;"> (iii) average daily wages for the weekly off days after the introduction of the piece-rate scheme with effect from 3rd March, 1956, when the average fluctuated from week to week.' </p><p style="text-align: justify;">2. It became clear at the hearing before the Tribunal that of the period mentioned in Item (i) and Item (ii), viz., the 15th March, 1951 to 2nd March, 1956, no 'weekly off' was given at all from the 15th March 1951 to October 1953 but workmen were made to work generally for all the 7 days of the week, and further that from October, 1953 to 2nd March, 1956, Sunday was given as the 'weekly off' and no work was taken on that day. The real dispute therefore as regards Item (i) and Item (ii) was in respect of (a) arrears of wages for Sunday the weekly off on which no work was done from October, 1953 to March 2, 1956, and (b) arrears of wages for work done during the period 15th March, 1951 to October, 1953 on Sundays which should have been given as a weekly off day but was not, though no compensatory day was given in lieu thereof. </p><p style="text-align: justify;">3. As regards arrears of wages for Sundays on which no work was done the worksmen's case is that they were entitled to receive payment for each such Sunday amounts equal to their average daily wages during the preceding week. But admittedly no payment was made for these Sundays. The respondent's case however is that on a proper interpretation of Rules 23 of the Minimum Wages (Central) Rules, 1960, the workmen were not entitled to payment for Sundays on which no work was done by them and further that in any case they have been constructively paid for the Sundays also inasmuch as the daily wages were fixed at 1/26th of the monthly wage. </p><p style="text-align: justify;">4. The Tribunal accepted these contentions raised on behalf of the employer and held that there were no arrears of wages in respect of Sundays for which no work was done. With regard to the period March, 15, 1951 to October, 1953 it appears the workmen except morphias were aid at twice the ordinary rate inclusive of all allowances, for all work done on Sundays; Morphias were paid one and a half times the normal rates of wages. The worker's case is that for the work done on Sundays during this period they were entitled to three times the ordinary rate. This claim was also rejected by the Tribunal which however held that the Morphias were entitled to double their wages inclusive of all allowances and so directed that they shall be paid for work done by them on weekly rest days from 15th March, 1951 to October 1953 the difference between double their wages inclusive of all allowances and what they have been paid. </p><p style="text-align: justify;">5. We may state at once that the dispute as regards arrears due to workers belonging to 'casual' category has not been pressed before us and does not therefore require consideration in this appeal. The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already been awarded for this period to Morphias) does not also merit serious consideration as the learned counsel for the appellant was unable to show any legal basis for such a claim. He tried to persuade us that as Rule 23 of the Minimum Wages (Central) Rules requires the employer to give a weekly holiday on Sunday (unless this is given on some other day instead) it is not right that when the employer does not comply with that requirement he should get off with paying nothing more than what he would have paid for such work done on any day of the week because of the Rules in respect of extra payment for over-time work. The <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> itself contains provisions for contravention of the provisions of the Act or Rules or Orders made thereunder. Section 22 provides for punishment inter alia for contravention of rules or orders under section 13. Section 22A provides for punishment with fine (which may extend to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention. The Minimum Wages Rules were made by the Central Government in exercise of the powers conferred by s. 30 of the <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> (Act XI of 1948) and so contravention of rule 23 of these rules is punishable under section 22A of the Act. Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay. Neither the Minimum Wages Act nor the Rules contain any provision for such additional payment over and above what would be payable for over time work as such. The workmen's claim for further payment in respect of work done on Sunday during, the period March 15, 1951 to October 1953 has therefore been rightly rejected. </p><p style="text-align: justify;">6. In respect of the claim for pay on Sundays during the period October 1953 to March 2, 1956, on which no work was done we have first to decide on the correct interpretation of the words 'for which' in Rule 23, as it stood before it was amended by a Notification GSR 918 dated the 29th July, 1960. The Rule as it stood before the amendment ran thus :- </p><p style="text-align: justify;">'23. Weekly Holidays - (1) Unless otherwise permitted by the Central Government, no worker shall be required or allowed to work in a scheduled employment, on the first day of the week (hereinafter referred to as the said day) except when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day for which he shall receive payment equal to his average daily wages during the preceding week : </p><p style="text-align: justify;"> Provided that the weekly holidays may be substituted by another day : </p><p style="text-align: justify;"> Provided further that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.' </p><p style="text-align: justify;">7. We are not concerned with clause 2 of Rule 23. The Explanation to the Rule is in the following words :- </p><p style="text-align: justify;">'Explanation - For the purpose of this rule 'week' shall mean a period of seven days beginning at midnight on Saturday night.' </p><p style="text-align: justify;">8. The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals - ordinarily once in every 7 days but in no case at intervals of more than 10 days. This was clearly in accordance with the principle laid down in s. 13 of the Minimum Wages Act that the Government may provide for a day of rest for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 (which covers many other matters other than the matters mentioned in s. 13) no reference has been made to section 13 at all. In giving effect to this policy of providing for a day of rest - ordinarily once in 7 days but in no case at intervals of more than 10 days - the rule-making authority has thought fit also to make provision for making some payment in connection with this. Difficulty has however been caused by the unfortunate complexcity of the sentence, in which the main provision as regards the day of rest and also the subsidiary provision for payment have been combined. </p><p style="text-align: justify;">9. The dispute is about the meaning of the words 'for which'. If one remembers the rule of grammar that what the grammarians call the 'antecedent' (that is the noun or pronoun to which a relative pronoun relates) should be used as near as possible to the relative pronoun, one is tempted to think that 'which' relates to the word 'day' of the 'said day' immediately preceding the preposition 'for'. Breaking up this last portion of the rule, the rule thus analysed would be equivalent to 'and for the said day he shall receive payment equal to his average daily wages during the preceding week'. That will be however only a grammarian's construction. In the Courts however while we have to remember the rules of grammar, because such rules are ordinarily observed by people in expressing their intentions, we have to look a little more closely to understand the real intention expressed. It seems to us unreasonable to impute the rule-making authority an intention that while if the weekly rest is given 'on the said day' that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when 'he has or will have a holiday for the whole day on one of the five days immediately before or after the said day.' For, it that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore that in using the words 'for which' after the words 'the said day' the rule-making authority did not intend to confine the word 'which' to this 'said day' but intended to relate this 'which' to any of the days on which rest is given. In other words, 'for which' was used as short for 'and on such holiday whether on the said day or not'. We do not think the rules of grammar stand in the way of this interpretation. </p><p style="text-align: justify;">10. Mr. Desai's argument on behalf of the respondent is that 'which' relates to the word 'holiday' and that accordingly it is only when the workman has or will have a holiday on one of the five days immediately before or after the said day, that he shall receive payment. According to him, the two phrases 'for the whole day' and 'one of the five days immediately before or after the said day' are adverbial phrases modifying the verb 'has' and 'will have' and no part of these phrases can have any connection with the words 'for which'. Leaving these out, the rule properly analysed is, he says, in really two portions : the first being 'no worker shall be required or allowed to work in a scheduled employment on the first day of week'; the second being 'except when he has or will have a holiday for which he shall receive payment equal to his average daily wages during the preceding week'. That will however be to re-write the sentence in a manner for which we can find no justification. It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made. It will be unreasonable to ascribe such an intention to the legislature. </p><p style="text-align: justify;">11. The Tribunal was so impressed by the unreasonableness of such a consequence that it came to the conclusion that no payment will be receivable by the workmen whether the weekly rest day is given on the first day of the week or on one of the five days immediately before or after the said day. </p><p style="text-align: justify;">12. Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday - whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day - that under the proviso could be substituted by another day. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. </p><p style="text-align: justify;">13. Our attention was drawn to the view taken by the Bombay High Court in Trustees of the Port of Bombay v. Authority under the Payment of Wages Act 1957 (1) L.L.J. 627, which was followed by the Madras High Court in A.C.C. v. Labour Inspector 1960 (1) L.L.J. 192, that the proper construction of the words 'for which' is to relate to word 'holiday' preceding the words 'for the whole day'. In Jaswant Sugar Mills v. Sub-divisional Magistrate 1960 (2) L.L.J. 373, the Allahabad High Court took the view that 'for which' refers to the weekly holiday whether it is on a Sunday or on any other days of the week as permitted under the Rules. In our opinion, the view taken by the Allahabad High Court is correct. </p><p style="text-align: justify;">14. On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and B were entitled to receive payment 'equal to the average wages during the preceding week' in respect of the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">15. This brings us to the employer's claim that there has been constructive payment for the Sundays during this period, viz., October 1953 to March 2, 1956. The argument is that the daily wage for these workmen was fixed by dividing all the components of the monthly scale of pay and allowances by 26 so that what a workman receives as daily wage is really 1/26th of the wage for 30 days. Thus it is said, the total receipts for the 26 days, if no separate payment is made for the rest days will be 26 x 1/26th of 30 days' wage, that is, 30 days' wage. The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days. </p><p style="text-align: justify;">16. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">17. With effect from March 3, 1856 the piece-rate scheme was introduced for the shore workers belonging to the 'A' category and 'B' category. The essentials of this scheme are that a datum line was fixed for the different kinds of work and the piece-rate would vary with the proportion which the out-turn of the gang bears to the datum line in the following manner :- </p><p style="text-align: justify;">'For a shift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) shall rise uniformly from Rs. 3-1-0 at 76% to Rs. 4-5-0 at 100% to Rs. 8 at 150% of the datum line. The piece rate wage earned after 150% of the datum line shall be processed at double the daily wage than is to say the piece rate wage will rise uniformly from Rs. 8 at 150% to Rs. 12 at to 200% of the datum line.' </p><p style="text-align: justify;">18. The scheme further provided that :- </p><p style="text-align: justify;">'Rs. 3-1-0 (comprised of Rs. 1-8-3 basic was including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earning plus idle time payment and/or other earning under this appendix fall short of the said minimum, the Port Trust shall make up the difference that day.' </p><p style="text-align: justify;"> 'Rs. 3-7-0 (comprised of Rs. 1-14-0 basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given employment.' </p><p style="text-align: justify;">19. On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives various from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhale's argument is that average daily wages during the preceding week means average of the total earning per day during the preceding week and so there can be no difficulty in ascertaining for every his worker his average daily wages during any week. </p><p style="text-align: justify;">20. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earning of the workmen by working over-time. So also, in our opinion, the term daily wages as ordinarily understood does not include over-time earnings. If it does not include overtime earning, can it reasonably be said that it includes the high additional earnings, that a worker may receive by increasing his output above the minimum fixed We do not think that to be a reasonable interpretation of the words 'daily wages.' At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to these workmen after the introduction of the piece rate scheme must therefore be rejected. </p><p style="text-align: justify;">21. As regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26. For the reasons for which this argument was rejected in respect of the period October, 1953, to March 2, 1956, we reject this plea of constructive payment. </p><p style="text-align: justify;">22. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage. </p><p style="text-align: justify;">23. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23. </p><p style="text-align: justify;">24. The appeal is accordingly allowed in part. In the circumstances, the parties will bear their own costs in this Court. </p><p style="text-align: justify;">25. Appeal allowed in part. </p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1962SC481; [1961(3)FLR473]; (1961)IILLJ632SC; [1962]Supp1SCR36',
			'ratiodecidendi' => '',
			'respondent' => 'Trustees of Port of Bombay',
			'sub' => 'Labour and Industrial',
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			'circuit' => null
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$title_for_layout = 'Workmen of the Bombay Port Trust Vs. Trustees of Port of Bombay Semantic Analysis'
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		(int) 31 => '15, 1951 to October, 1953',
		(int) 32 => 'Sundays',
		(int) 33 => 'Sundays',
		(int) 34 => 'weekly rest days',
		(int) 35 => '15th March, 1951 to October 1953',
		(int) 36 => 'the period March 15, 1951',
		(int) 37 => 'October 1953',
		(int) 38 => 'weekly',
		(int) 39 => 'Sunday',
		(int) 40 => 'some other day',
		(int) 41 => 'any day of the week',
		(int) 42 => '1948',
		(int) 43 => '1948',
		(int) 44 => '1948',
		(int) 45 => 'Sundays',
		(int) 46 => 'Sunday',
		(int) 47 => 'October 1953',
		(int) 48 => 'Sundays',
		(int) 49 => 'the period October 1953 to March 2, 1956',
		(int) 50 => 'the 29th July, 1960',
		(int) 51 => ''23',
		(int) 52 => 'the first day of the week',
		(int) 53 => 'the whole day',
		(int) 54 => 'the five days',
		(int) 55 => 'the preceding week',
		(int) 56 => 'weekly',
		(int) 57 => 'more than ten days',
		(int) 58 => ''week'',
		(int) 59 => 'seven days',
		(int) 60 => 'Saturday',
		(int) 61 => 'every 7 days',
		(int) 62 => 'more than 10 days',
		(int) 63 => 'a day',
		(int) 64 => '7 days',
		(int) 65 => '1960',
		(int) 66 => 's. 13',
		(int) 67 => 'a day',
		(int) 68 => '7 days',
		(int) 69 => 'more than 10 days',
		(int) 70 => 'the day',
		(int) 71 => ''day'',
		(int) 72 => 'the preceding week'',
		(int) 73 => 'weekly',
		(int) 74 => 'Sunday',
		(int) 75 => 'Sunday',
		(int) 76 => 'the whole day',
		(int) 77 => 'the five days',
		(int) 78 => 'weekly',
		(int) 79 => 'the 5 days',
		(int) 80 => 'Sunday',
		(int) 81 => 'the rest day',
		(int) 82 => 'the days',
		(int) 83 => 'day',
		(int) 84 => 'the five days',
		(int) 85 => 'the whole day'',
		(int) 86 => 'the five days',
		(int) 87 => 'the first day of week'',
		(int) 88 => 'the preceding week'',
		(int) 89 => 'the rest day',
		(int) 90 => 'first day of the week',
		(int) 91 => 'weekly',
		(int) 92 => 'the first day of the week',
		(int) 93 => 'the five days',
		(int) 94 => 'weekly',
		(int) 95 => 'another day',
		(int) 96 => 'the first day of the week or the holiday',
		(int) 97 => 'the five days',
		(int) 98 => 'weekly',
		(int) 99 => 'the 1st day of the week',
		(int) 100 => 'the five days',
		(int) 101 => 'another day',
		(int) 102 => 'one holiday',
		(int) 103 => 'a week',
		(int) 104 => '1957',
		(int) 105 => '1960',
		(int) 106 => 'the whole day'',
		(int) 107 => '1960',
		(int) 108 => 'weekly',
		(int) 109 => 'Sunday',
		(int) 110 => 'the preceding week'',
		(int) 111 => 'the period October 1953 to March 2, 1956',
		(int) 112 => 'Sundays',
		(int) 113 => 'October 1953 to March 2, 1956',
		(int) 114 => 'daily',
		(int) 115 => 'monthly',
		(int) 116 => 'daily',
		(int) 117 => '30 days',
		(int) 118 => 'the 26 days',
		(int) 119 => 'the rest days',
		(int) 120 => '30 days'',
		(int) 121 => '30 days'',
		(int) 122 => 'daily',
		(int) 123 => 'monthly',
		(int) 124 => 'daily',
		(int) 125 => 'daily',
		(int) 126 => 'monthly',
		(int) 127 => 'the six days of the week',
		(int) 128 => 'six days',
		(int) 129 => 'seven days',
		(int) 130 => 'six days',
		(int) 131 => 'seven days',
		(int) 132 => 'Sundays',
		(int) 133 => 'the period October 1953 to March 2, 1956',
		(int) 134 => 'March 3, 1856',
		(int) 135 => 'daily',
		(int) 136 => 'daily',
		(int) 137 => 'a certain day',
		(int) 138 => 'the preceding week',
		(int) 139 => 'the preceding week',
		(int) 140 => 'any week',
		(int) 141 => 'daily',
		(int) 142 => 'weekly',
		(int) 143 => 'monthly',
		(int) 144 => 'weekly',
		(int) 145 => 'monthly',
		(int) 146 => 'daily',
		(int) 147 => 'March 3, 1956',
		(int) 148 => 'monthly',
		(int) 149 => 'the period October, 1953',
		(int) 150 => 'March 2, 1956',
		(int) 151 => 'March 3, 1956',
		(int) 152 => 'daily',
		(int) 153 => 'July 1960',
		(int) 154 => '24'
	),
	'GPE' => array(
		(int) 0 => 'Toliwallas'
	),
	'PERSON' => array(
		(int) 0 => 'Item',
		(int) 1 => 'Item',
		(int) 2 => 'Item',
		(int) 3 => 'Item',
		(int) 4 => 'Desai',
		(int) 5 => 'L.L.J. 373',
		(int) 6 => 'Gokhale',
		(int) 7 => 'Desai'
	),
	'ORDINAL' => array(
		(int) 0 => 'first',
		(int) 1 => 'first',
		(int) 2 => 'second'
	),
	'TIME' => array(
		(int) 0 => 'midnight',
		(int) 1 => 'night'
	),
	'PERCENT' => array(
		(int) 0 => '76%',
		(int) 1 => '100%',
		(int) 2 => '150%',
		(int) 3 => '150%',
		(int) 4 => '150%',
		(int) 5 => '200%'
	)
)
$desc = array(
	'Judgement' => array(
		'id' => '650494',
		'acts' => 'Industrial Disputes Act - Sections 10; Minimum Wages (Central) Rules, 1960 - Rules 23; <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> - Sections 13, 22, 22A and 30; Payment of Wages Act',
		'appealno' => '',
		'appellant' => 'Workmen of the Bombay Port Trust',
		'authreffered' => '',
		'casename' => 'Workmen of the Bombay Port Trust Vs. Trustees of Port of Bombay',
		'casenote' => 'The case questioned whether wages were payable for Sunday, the 'weekly off' day on which no works was done and for Sunday on which work was done without compensatory off day - The case debated on the meaning of 'weekly holiday' with in the frame work of Section 13 of the Minimum Wages Act, 1948 - It was held that neither the Act nor Minimum Wages Rules contained any provision for such additional payment over and above what would be payable for over time work - Therefore, the workmen could not get three times the ordinary rate - The meaning of 'weekly off' meant  Sunday when no work has to be done under the Act.<br> - 
[A.D. Koshal,; D.A. Desai,; P.N. Shinghal,; P.S. Kailasam and; V.R. Krishna Iye, JJ.] Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 envisages that the petition of appeal under sub-clause (a) or sub-clause (b) of clause (1) of Art. 134 of the Constitution or under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 or under s. 379 of the Code of Criminal Procedure 1973, on being Registered shall be put up for hearing ex-parte before the court which may either dismiss it summarily or direct issue of notice to all necessary parties or make such orders, as the circumstances of the case may require. The appellants in the appeal who were acquitted by the Sessions Court had been convicted and sentenced by the High Court and awarded life imprisonment under s. 302 read with s. 149 IPC. When their appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 was listed for preliminary hearing under Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 it was contended (1) that the said provision empowering the court to dismiss the appeal summarily was ultra vires the Enlargement Act, 1970, (2) the power of the Supreme Court to frame rules under Art. 145 of the Constitution can not be extended to annul the rights conferred under an Act of Parliament and (3) that an appeal under the Enlargement Act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the State and without giving reasons. HELD: (Per Krishna Iyer, Shinghal &amp; Desai, JJ.) Article 134(1)(c) spells a measure of seriousness because the High Court which has heard the case certifies that it involves questions of such moment that the Supreme Court itself must resolve them. To dispose of such a matter by a preliminary healing is to cast a reflection on the High Court's capacity to understand the seriousness of a certification. [1095 D-E] Article 136 vests a plenary discretion in the Supreme Court to deign or decline to grant leave to appeal against any conviction or sentence. Before deciding to grant or reject such Leave the court accords an oral hearing after perusing all the papers produced. Once leave is granted, the appeal is heard, after notice to the state, in full panoply. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. No appeal after leave, is dismissed summarily or ex-parte. If Art. 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex-parte hearing (or after issue of notice if the court so chooses), Art. 134 which gives a constitutional right to appeal as it were, must stand on a higher footing lest the Constitution makers be held to have essayed in supererogation. [1095G-1096A] There is much more 'hearing' content in an absolute appellate right than in a precarious 'special leave' motion. Jurisprudentially, a right is large than a permission. Art 134 puts the momentous class of cases covered by it beyond the discretionary compass of Art. 136 and within the compulsory area of full hearing such as would follow upon leave being granted under Art. 136(1). A full hearing may not obligate dragging the opposite side to court involving expense and delay. Fullness of hearing of the proponent is not incompatible with non-hearing of the opponent when after appreciating all that could be urged in support of the cause there is no need felt to call upon the other side, as where the proposition is groundless, frivolous or not prima facie statable. [1096B-D] Article 134(2) empowers Parliament to expand the jurisdiction of the Supreme Court to entertain criminal appeals. In exercise of this power, Parliament enacted the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 in its grave concern for long incarceration being subject to great scrutiny at the highest level if first inflicted, by the High Court. A right of appeal to the Supreme Court was granted when the High Court has, for the first time sentenced an accused to life imprisonment or to a term of or above ten years of rigorous imprisonment and equated it with that granted under Art. 134(1)(a) and (b). [1097G-1098D] The nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdiction and systems of jurisprudence. Whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into breaking down the court system by sufferance of interminable submission after several tribunals have screened his case and found it fruitless. The signification of the right of appeal under Art. 134 is a part of the procedure established by law for the protection of life and personal liberty. Nothing which will render this right illusory or its fortune chancy can square with the mandate of Art. 21. &nbsp;When the High Court trying a case sentences a man to death a higher court must examine the merits to satisfy that human life shall not be haltered without an appellate review. A single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that Judges are men and that making assurance doubly sure before irrevocable deprivation of life or liberty comes to pass, full-scale re-examination of the facts and the law is made an integral part of fundamental! fairness or procedure. [1105C, E] The life of the law is not perfection of theory but realisation of justice in the concrete situation of a given system. It is common knowledge that a jail appeal or an appeal filed through an advocate does not contain an exhaustive accompaniment of all the evidentiary material or record of proceedings laying bare legal errors in the judicial steps. It is not unusual that a fatal flaw has been discovered by the appellate judges leading to a total acquittal. Such a high jurisdiction as is vested by Art. 134 calls for an active examination by the judges and such a process will be an ineffectual essay in the absence of the whole record. A preliminary hearing is hardly of any use bearing in mind that what is being dealt with is an affirmation of death sentence for the first time. Section 366 of the Code requires the Court of Session which passes a sentence of death to submit the proceedings to the High Court and rulings insist on an independent appellate consideration of the matter and an examination of all relevant material evidence. The Supreme Court's position is analogous, and independent examination of materials is impossible without the entire records being available. So it is reasonable that before hearing the appeal under Rule 15(1 ) (c) of Order XXI, ordinarily the records are sent for and are available. Counsel's assistance apart, the court it self must apply its mind, the stakes being grave enough. [1105F- 1106B] The recording of reasons is usually regarded as a necessary requirement of fair decision. The obligation to give reasons for decision when consequence of wrong Judgment is forfeiture of life or personal liberty for long periods needs no emphasis, especially when it is a first appeal following upon a heavy sentence imposed for the first time. The constraint to record reasons secures in black and white what the Judge has in mind and gives satisfaction to him who is condemned that what he has had to say has not only been 'heard' but considered and recorded. Art. 21 is a binding mandate against blind justice. In the narrow categories of cases covered by Art. 134(1)(a) and (b) and s. 2(a) of the Enlargement Act, the subject matter is of sufficient gravity as to justify the recording of reasons in the ultimate order. [1160F-G, 1106H-1107A] Protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. Our Rules of Criminal Procedure provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. [1107F] Order XXI, Rule 15(1)(c) of the Rules in an enabling provision not a compulsive one. Harmonious construction of Art. 134 and Art. 145 'leads to the conclusion that the contemplated rules are mere machinery provisions. The sequence is simple. The formalities for entertaining certain types of appeal ale covered by Art. 145(1)(d) the manner of hearing and disposal is governed by Art. 145(1)(b) and the substantive sweep of the appeal as a method of redressal is found in Art. 134. [1107G-H, 1108D, 1109A]. It is daily experience to see judges on the high bench differ, and a fortiori so in the field of sentence, This reality is projected in the context of full freedom for the first appellate decider of facts to reach his own finding on offence and sentence, only to highlight how momentous it is-for the appellant to have his case considered by the highest court when the Constitution and Parliament have conferred a full right of appeal Summary dismissal, save in glaring cases, may spell grave jeopardy to life-giving justice That is why Order XXI Rule 15(1)(c) while it survives to weed out worthless appeals, shall remain sheathed in extra- ordinary cases where facts on guilt or the wider range of considerations on sentence are involved. [1109G-1110B] Rule 15(1)(c) of Order XXI is general and covers all conceivable cases under Art. 134(1). It operates in certain situations, not in every appeal. It merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice. [1111C-D] If every appeal under Art. 134(1) (a) and (b) or s. 2(a) of the enlargement Act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between Art. 134 and Art. 136 may be judicially eroded and Parliament stultified. The minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. To be peevel by this need is to offend against the fair play of the constitution. [1111H-1112B] Upholding the vires of Order XXI Rule 15(1)(c) of the Supreme Court Rules and also s. 384 of the Criminal Procedure Code the majority however held that in their application both the provisions shall be restricted by the criteria set out hereunder ns a permissible exercise in constitutionalisation of the provisions. [1112H] Order XXI Rules 15(1)(c) in action does not mean that all appeals falling within its fold shall be routinely disposed of. Such a course obliterates the difference between Articles 134 and 136, between right and leave. The rule in cases of appeals under Art. 134(1)(a) and (b) and s. 2(a) is notice, records and reasons, but the exception is preliminary hearing on all such materials as may be placed by the appellant and brief grounds for dismissal. This exceptional category is where, in all conscience, there is no point at all. In cases of real doubt the benefit of doubt goes to the appellant and notice goes to the adversary even if the chances of allowance of the appeal be not bright. [113A-C] [With a view to invest clarity and avoid ambiguity, Order XXI Rule 15(1)(c) may be suitably modified.] Maneka Gandhi v. Union of India, [1978] 1 SCC 248; Presidential Ref. No. 1 of 1978 [1979] 2 SCR 476; Wiseman v. Barneman, [1971] AC 297; Russel v. Duke of Norfolk, 11949] 1 All. ER 109, Ponnamma v. Arumogam, [1905] AC at p. 390; Colonial Sugar Refining Co. v. Irving, [1905] AC 369; Newman v. Klausner, [1922] 1 KB 228; referred to. Black's Law Dictionary 4th Edn. p. 1368, Stroud's Judicial Dictionary, 3rd Edn. Vol. 1, pp. 160-161; Current Legal Problems 1958 Vol. 11 p. 194, Law Quarterly Review Vol. 71, 1955 p. 410-11. The Judicial Process by Henry J. Abraham, 1962 pp. 159-160; referred to. Per Kailasam &amp; Koshal, JJ. (dissenting) Article 145 of the Constitution empowers the Supreme Court subject to the provisions of any law made by Parliament with the approval of the President to make rules from time to time for regulating generally the practice and procedure of the court. [1116B] Article 134 confers appellate jurisdiction on the Supreme Court in regard to criminal matters, and while an unrestricted right of appeal is provided to the Supreme Court under clauses (a) and (b) an appeal under such clause (c) is provided only when the case is certified by the High Court as a fit one for appeal. Further, an appeal under sub- clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of Art. 145 and to such conditions as the High Court may establish or require [1116D-1117B] The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970 has conferred on the Supreme Court further power to entertain and hear appeals than conferred on it under Art. 134(1)(a) and (b) as provided for in Art. 134(2) of the Constitution. [1117C] Article 145(1)(b) enables the Supreme Court to frame rules as to procedure for hearing appeals. Rule 15 of under XXI provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing appeals. [1117D- E, 1118C] While s. 374 confers a right of appeal, s. 375 and s. 376 restrict such a right. Section 384 prescribes the procedure for hearing appeals enabling the court to dismiss certain appeals summarily and to deal with others under s. 385 if they are not summarily dismissed. The right of appeal conferred can be curtailed by procedure as envisaged in s. 384 Cr. P.C. Or Rule 15 order XXI of the Supreme Court Rules. [1120D] An appeal to the Supreme Court under s. 374 Cr. P.C. is restricted by the provisions of s. 375 and s. 376 and could be dealt with summarily under s. 384 Cr. P.C. An appeal to the Supreme Court is subject to the several provisions of the Cr. P.C. including the provisions relating to summary disposal of the appeals. [1120E-F, G] The powers and the jurisdiction of the appellate court as prescribed by the Criminal Procedure Code and the rule cannot be said to deny a right of hearing to the appellant. The right to be heard in an appeal is regulated be statute. After a full trial the judgment is rendered by a High Judicial Officer such as a Sessions Judge or a High Court Judge. The appellate court has before it the Judgment of the lower court and the petition for appeal. At the preliminary hearing the appellant or his pleader is heard before the court decides to dismiss the appeal summarily. The power to summarily dismiss an appeal is conferred under the Criminal Procedure Code when the court is satisfied that there are no sufficient grounds for interfering with the judgment appealed against. This decision is taken by the appellate court being the Chief Judicial Magistrate, Court of Sessions, the High Court or the Supreme Court. In the case of the Chief Judicial Magistrate and Court of Sessions, reasons should be recorded for summarily dismissal. The High Court and the Supreme Court need not record reasons for summarily dismissing the appeal. It is necessary that the Supreme Court or the High Court should be satisfied that there are not sufficient ground for interfering. The conclusion is arrived at after hear-ing the appellant, examining the judgment and the petition for appeal. The appellate court is discharging an onerous duty in dismissing a case summarily. The Code provides for calling for the records before dismissing an appeal. In cases where an appellant is sentenced to death, imprisonment for life or long term of imprisonment, it is the bounden duty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. If it feels necessary to call for the records of the case, it is duty to call for the records and examine them, before coming to the conclusion that there are not sufficient grounds for interfering. It is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there be no sufficient grounds for interfering. Equally it is the duty of the appellate court to dismiss the appeal summarily if it i.e satisfied that there are no sufficient grounds for interfering is duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. Taking into account the fact that the duty to decide the question where there are no sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal bas been taken away. [1122E-F, 1122H-1123F] The procedure contemplated in Rules 13, 14 and 15 of the Supreme Court Rules are almost similar to the provisions of the Code of Criminal Procedure relating to appeal. In an appeal sent by the appellant from jail he is entitled to send any written arguments which he may desire to advance in support of his appeal. The Court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. The mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal is not being heard. The court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under Rule 15. This Court being the highest court is not required to give reasons but is expected to bestow the greatest care in exercising the power of summary dismissal under Rule 15. [1124G-1125A] P.K. Mittra v. State of West Bengal, [1959] SUPPL. I SCR 63; Shankar Kerba Yadhav v. State of Maharashtra, [1970] 2 SCR 227; Minakshi v. Subramanya, 14 IA 168; Govinda Kadtuji Kadam v. State of Maharashtra, [1970] 1 SCC 469; referred to. Maneka Gandhi v. Union of India, [1978] 2 SCR 621; distinguished. -  This was clearly in accordance with the principle laid down in s. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid.',
		'caseanalysis' => null,
		'casesref' => 'In Jaswant Sugar Mills v. Sub;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Supreme Court of India',
		'court_type' => 'SC',
		'decidedon' => '1961-10-10',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.C. Shah,; K.C. Das Gupta and; K.N. Wanchoo, JJ.',
		'judgement' => '<p style="text-align: justify;">Das Gupta, J.</p><p style="text-align: justify;">1. This appeal by special leave is against an award of the Central Government Industrial Tribunal at Calcutta in a dispute referred to that Tribunal by the Central Government under s. 10 of the Industrial Disputes Act - Section 10 between the workmen of the Bombay Port Trust, who are the appellants before us and the Trustees of the Port of Bombay, the respondent in the appeal. The workmen concerned in the dispute as referred are shore workers belonging to 'A' category, 'B' category and casual category. These three categories came into existence under the scheme adopted by the Bombay Port Trust in April 1948 for direct employment of shore workers in place of the system previously in force under which such labourers used to be supplied by contractors known as Toliwallas. The matters in dispute were specified thus in the letter of reference to the Tribunal :- </p><p style="text-align: justify;">'Arrears due to the shore workers belonging to the 'A' category, 'B' category and casual category in respect of </p><p style="text-align: justify;"> (i) weekly off with pay for the period 15th March, 1951 to 2nd March, 1956; </p><p style="text-align: justify;"> (ii) work on weekly off days during the period 15th March, 1951 to 2nd March, 1956, without a compensatory day off in lieu; and </p><p style="text-align: justify;"> (iii) average daily wages for the weekly off days after the introduction of the piece-rate scheme with effect from 3rd March, 1956, when the average fluctuated from week to week.' </p><p style="text-align: justify;">2. It became clear at the hearing before the Tribunal that of the period mentioned in Item (i) and Item (ii), viz., the 15th March, 1951 to 2nd March, 1956, no 'weekly off' was given at all from the 15th March 1951 to October 1953 but workmen were made to work generally for all the 7 days of the week, and further that from October, 1953 to 2nd March, 1956, Sunday was given as the 'weekly off' and no work was taken on that day. The real dispute therefore as regards Item (i) and Item (ii) was in respect of (a) arrears of wages for Sunday the weekly off on which no work was done from October, 1953 to March 2, 1956, and (b) arrears of wages for work done during the period 15th March, 1951 to October, 1953 on Sundays which should have been given as a weekly off day but was not, though no compensatory day was given in lieu thereof. </p><p style="text-align: justify;">3. As regards arrears of wages for Sundays on which no work was done the worksmen's case is that they were entitled to receive payment for each such Sunday amounts equal to their average daily wages during the preceding week. But admittedly no payment was made for these Sundays. The respondent's case however is that on a proper interpretation of Rules 23 of the Minimum Wages (Central) Rules, 1960, the workmen were not entitled to payment for Sundays on which no work was done by them and further that in any case they have been constructively paid for the Sundays also inasmuch as the daily wages were fixed at 1/26th of the monthly wage. </p><p style="text-align: justify;">4. The Tribunal accepted these contentions raised on behalf of the employer and held that there were no arrears of wages in respect of Sundays for which no work was done. With regard to the period March, 15, 1951 to October, 1953 it appears the workmen except morphias were aid at twice the ordinary rate inclusive of all allowances, for all work done on Sundays; Morphias were paid one and a half times the normal rates of wages. The worker's case is that for the work done on Sundays during this period they were entitled to three times the ordinary rate. This claim was also rejected by the Tribunal which however held that the Morphias were entitled to double their wages inclusive of all allowances and so directed that they shall be paid for work done by them on weekly rest days from 15th March, 1951 to October 1953 the difference between double their wages inclusive of all allowances and what they have been paid. </p><p style="text-align: justify;">5. We may state at once that the dispute as regards arrears due to workers belonging to 'casual' category has not been pressed before us and does not therefore require consideration in this appeal. The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already been awarded for this period to Morphias) does not also merit serious consideration as the learned counsel for the appellant was unable to show any legal basis for such a claim. He tried to persuade us that as Rule 23 of the Minimum Wages (Central) Rules requires the employer to give a weekly holiday on Sunday (unless this is given on some other day instead) it is not right that when the employer does not comply with that requirement he should get off with paying nothing more than what he would have paid for such work done on any day of the week because of the Rules in respect of extra payment for over-time work. The <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> itself contains provisions for contravention of the provisions of the Act or Rules or Orders made thereunder. Section 22 provides for punishment inter alia for contravention of rules or orders under section 13. Section 22A provides for punishment with fine (which may extend to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention. The Minimum Wages Rules were made by the Central Government in exercise of the powers conferred by s. 30 of the <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> (Act XI of 1948) and so contravention of rule 23 of these rules is punishable under section 22A of the Act. Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay. Neither the Minimum Wages Act nor the Rules contain any provision for such additional payment over and above what would be payable for over time work as such. The workmen's claim for further payment in respect of work done on Sunday during, the period March 15, 1951 to October 1953 has therefore been rightly rejected. </p><p style="text-align: justify;">6. In respect of the claim for pay on Sundays during the period October 1953 to March 2, 1956, on which no work was done we have first to decide on the correct interpretation of the words 'for which' in Rule 23, as it stood before it was amended by a Notification GSR 918 dated the 29th July, 1960. The Rule as it stood before the amendment ran thus :- </p><p style="text-align: justify;">'23. Weekly Holidays - (1) Unless otherwise permitted by the Central Government, no worker shall be required or allowed to work in a scheduled employment, on the first day of the week (hereinafter referred to as the said day) except when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day for which he shall receive payment equal to his average daily wages during the preceding week : </p><p style="text-align: justify;"> Provided that the weekly holidays may be substituted by another day : </p><p style="text-align: justify;"> Provided further that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.' </p><p style="text-align: justify;">7. We are not concerned with clause 2 of Rule 23. The Explanation to the Rule is in the following words :- </p><p style="text-align: justify;">'Explanation - For the purpose of this rule 'week' shall mean a period of seven days beginning at midnight on Saturday night.' </p><p style="text-align: justify;">8. The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals - ordinarily once in every 7 days but in no case at intervals of more than 10 days. This was clearly in accordance with the principle laid down in s. 13 of the Minimum Wages Act that the Government may provide for a day of rest for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 (which covers many other matters other than the matters mentioned in s. 13) no reference has been made to section 13 at all. In giving effect to this policy of providing for a day of rest - ordinarily once in 7 days but in no case at intervals of more than 10 days - the rule-making authority has thought fit also to make provision for making some payment in connection with this. Difficulty has however been caused by the unfortunate complexcity of the sentence, in which the main provision as regards the day of rest and also the subsidiary provision for payment have been combined. </p><p style="text-align: justify;">9. The dispute is about the meaning of the words 'for which'. If one remembers the rule of grammar that what the grammarians call the 'antecedent' (that is the noun or pronoun to which a relative pronoun relates) should be used as near as possible to the relative pronoun, one is tempted to think that 'which' relates to the word 'day' of the 'said day' immediately preceding the preposition 'for'. Breaking up this last portion of the rule, the rule thus analysed would be equivalent to 'and for the said day he shall receive payment equal to his average daily wages during the preceding week'. That will be however only a grammarian's construction. In the Courts however while we have to remember the rules of grammar, because such rules are ordinarily observed by people in expressing their intentions, we have to look a little more closely to understand the real intention expressed. It seems to us unreasonable to impute the rule-making authority an intention that while if the weekly rest is given 'on the said day' that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when 'he has or will have a holiday for the whole day on one of the five days immediately before or after the said day.' For, it that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore that in using the words 'for which' after the words 'the said day' the rule-making authority did not intend to confine the word 'which' to this 'said day' but intended to relate this 'which' to any of the days on which rest is given. In other words, 'for which' was used as short for 'and on such holiday whether on the said day or not'. We do not think the rules of grammar stand in the way of this interpretation. </p><p style="text-align: justify;">10. Mr. Desai's argument on behalf of the respondent is that 'which' relates to the word 'holiday' and that accordingly it is only when the workman has or will have a holiday on one of the five days immediately before or after the said day, that he shall receive payment. According to him, the two phrases 'for the whole day' and 'one of the five days immediately before or after the said day' are adverbial phrases modifying the verb 'has' and 'will have' and no part of these phrases can have any connection with the words 'for which'. Leaving these out, the rule properly analysed is, he says, in really two portions : the first being 'no worker shall be required or allowed to work in a scheduled employment on the first day of week'; the second being 'except when he has or will have a holiday for which he shall receive payment equal to his average daily wages during the preceding week'. That will however be to re-write the sentence in a manner for which we can find no justification. It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made. It will be unreasonable to ascribe such an intention to the legislature. </p><p style="text-align: justify;">11. The Tribunal was so impressed by the unreasonableness of such a consequence that it came to the conclusion that no payment will be receivable by the workmen whether the weekly rest day is given on the first day of the week or on one of the five days immediately before or after the said day. </p><p style="text-align: justify;">12. Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday - whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day - that under the proviso could be substituted by another day. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. </p><p style="text-align: justify;">13. Our attention was drawn to the view taken by the Bombay High Court in Trustees of the Port of Bombay v. Authority under the Payment of Wages Act 1957 (1) L.L.J. 627, which was followed by the Madras High Court in A.C.C. v. Labour Inspector 1960 (1) L.L.J. 192, that the proper construction of the words 'for which' is to relate to word 'holiday' preceding the words 'for the whole day'. In Jaswant Sugar Mills v. Sub-divisional Magistrate 1960 (2) L.L.J. 373, the Allahabad High Court took the view that 'for which' refers to the weekly holiday whether it is on a Sunday or on any other days of the week as permitted under the Rules. In our opinion, the view taken by the Allahabad High Court is correct. </p><p style="text-align: justify;">14. On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and B were entitled to receive payment 'equal to the average wages during the preceding week' in respect of the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">15. This brings us to the employer's claim that there has been constructive payment for the Sundays during this period, viz., October 1953 to March 2, 1956. The argument is that the daily wage for these workmen was fixed by dividing all the components of the monthly scale of pay and allowances by 26 so that what a workman receives as daily wage is really 1/26th of the wage for 30 days. Thus it is said, the total receipts for the 26 days, if no separate payment is made for the rest days will be 26 x 1/26th of 30 days' wage, that is, 30 days' wage. The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days. </p><p style="text-align: justify;">16. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">17. With effect from March 3, 1856 the piece-rate scheme was introduced for the shore workers belonging to the 'A' category and 'B' category. The essentials of this scheme are that a datum line was fixed for the different kinds of work and the piece-rate would vary with the proportion which the out-turn of the gang bears to the datum line in the following manner :- </p><p style="text-align: justify;">'For a shift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) shall rise uniformly from Rs. 3-1-0 at 76% to Rs. 4-5-0 at 100% to Rs. 8 at 150% of the datum line. The piece rate wage earned after 150% of the datum line shall be processed at double the daily wage than is to say the piece rate wage will rise uniformly from Rs. 8 at 150% to Rs. 12 at to 200% of the datum line.' </p><p style="text-align: justify;">18. The scheme further provided that :- </p><p style="text-align: justify;">'Rs. 3-1-0 (comprised of Rs. 1-8-3 basic was including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earning plus idle time payment and/or other earning under this appendix fall short of the said minimum, the Port Trust shall make up the difference that day.' </p><p style="text-align: justify;"> 'Rs. 3-7-0 (comprised of Rs. 1-14-0 basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given employment.' </p><p style="text-align: justify;">19. On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives various from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhale's argument is that average daily wages during the preceding week means average of the total earning per day during the preceding week and so there can be no difficulty in ascertaining for every his worker his average daily wages during any week. </p><p style="text-align: justify;">20. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earning of the workmen by working over-time. So also, in our opinion, the term daily wages as ordinarily understood does not include over-time earnings. If it does not include overtime earning, can it reasonably be said that it includes the high additional earnings, that a worker may receive by increasing his output above the minimum fixed We do not think that to be a reasonable interpretation of the words 'daily wages.' At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to these workmen after the introduction of the piece rate scheme must therefore be rejected. </p><p style="text-align: justify;">21. As regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26. For the reasons for which this argument was rejected in respect of the period October, 1953, to March 2, 1956, we reject this plea of constructive payment. </p><p style="text-align: justify;">22. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage. </p><p style="text-align: justify;">23. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23. </p><p style="text-align: justify;">24. The appeal is accordingly allowed in part. In the circumstances, the parties will bear their own costs in this Court. </p><p style="text-align: justify;">25. Appeal allowed in part. </p>',
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		'ORDINAL' => array(
			(int) 0 => 'first',
			(int) 1 => 'first',
			(int) 2 => 'second'
		),
		'TIME' => array(
			(int) 0 => 'midnight',
			(int) 1 => 'night'
		),
		'PERCENT' => array(
			(int) 0 => '76%',
			(int) 1 => '100%',
			(int) 2 => '150%',
			(int) 3 => '150%',
			(int) 4 => '150%',
			(int) 5 => '200%'
		)
	),
	'desc' => array(
		'Judgement' => array(
			'id' => '650494',
			'acts' => 'Industrial Disputes Act - Sections 10; Minimum Wages (Central) Rules, 1960 - Rules 23; <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> - Sections 13, 22, 22A and 30; Payment of Wages Act',
			'appealno' => '',
			'appellant' => 'Workmen of the Bombay Port Trust',
			'authreffered' => '',
			'casename' => 'Workmen of the Bombay Port Trust Vs. Trustees of Port of Bombay',
			'casenote' => 'The case questioned whether wages were payable for Sunday, the 'weekly off' day on which no works was done and for Sunday on which work was done without compensatory off day - The case debated on the meaning of 'weekly holiday' with in the frame work of Section 13 of the Minimum Wages Act, 1948 - It was held that neither the Act nor Minimum Wages Rules contained any provision for such additional payment over and above what would be payable for over time work - Therefore, the workmen could not get three times the ordinary rate - The meaning of 'weekly off' meant  Sunday when no work has to be done under the Act.<br> - 
[A.D. Koshal,; D.A. Desai,; P.N. Shinghal,; P.S. Kailasam and; V.R. Krishna Iye, JJ.] Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 envisages that the petition of appeal under sub-clause (a) or sub-clause (b) of clause (1) of Art. 134 of the Constitution or under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 or under s. 379 of the Code of Criminal Procedure 1973, on being Registered shall be put up for hearing ex-parte before the court which may either dismiss it summarily or direct issue of notice to all necessary parties or make such orders, as the circumstances of the case may require. The appellants in the appeal who were acquitted by the Sessions Court had been convicted and sentenced by the High Court and awarded life imprisonment under s. 302 read with s. 149 IPC. When their appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 was listed for preliminary hearing under Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 it was contended (1) that the said provision empowering the court to dismiss the appeal summarily was ultra vires the Enlargement Act, 1970, (2) the power of the Supreme Court to frame rules under Art. 145 of the Constitution can not be extended to annul the rights conferred under an Act of Parliament and (3) that an appeal under the Enlargement Act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the State and without giving reasons. HELD: (Per Krishna Iyer, Shinghal &amp; Desai, JJ.) Article 134(1)(c) spells a measure of seriousness because the High Court which has heard the case certifies that it involves questions of such moment that the Supreme Court itself must resolve them. To dispose of such a matter by a preliminary healing is to cast a reflection on the High Court's capacity to understand the seriousness of a certification. [1095 D-E] Article 136 vests a plenary discretion in the Supreme Court to deign or decline to grant leave to appeal against any conviction or sentence. Before deciding to grant or reject such Leave the court accords an oral hearing after perusing all the papers produced. Once leave is granted, the appeal is heard, after notice to the state, in full panoply. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. No appeal after leave, is dismissed summarily or ex-parte. If Art. 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex-parte hearing (or after issue of notice if the court so chooses), Art. 134 which gives a constitutional right to appeal as it were, must stand on a higher footing lest the Constitution makers be held to have essayed in supererogation. [1095G-1096A] There is much more 'hearing' content in an absolute appellate right than in a precarious 'special leave' motion. Jurisprudentially, a right is large than a permission. Art 134 puts the momentous class of cases covered by it beyond the discretionary compass of Art. 136 and within the compulsory area of full hearing such as would follow upon leave being granted under Art. 136(1). A full hearing may not obligate dragging the opposite side to court involving expense and delay. Fullness of hearing of the proponent is not incompatible with non-hearing of the opponent when after appreciating all that could be urged in support of the cause there is no need felt to call upon the other side, as where the proposition is groundless, frivolous or not prima facie statable. [1096B-D] Article 134(2) empowers Parliament to expand the jurisdiction of the Supreme Court to entertain criminal appeals. In exercise of this power, Parliament enacted the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 in its grave concern for long incarceration being subject to great scrutiny at the highest level if first inflicted, by the High Court. A right of appeal to the Supreme Court was granted when the High Court has, for the first time sentenced an accused to life imprisonment or to a term of or above ten years of rigorous imprisonment and equated it with that granted under Art. 134(1)(a) and (b). [1097G-1098D] The nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdiction and systems of jurisprudence. Whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into breaking down the court system by sufferance of interminable submission after several tribunals have screened his case and found it fruitless. The signification of the right of appeal under Art. 134 is a part of the procedure established by law for the protection of life and personal liberty. Nothing which will render this right illusory or its fortune chancy can square with the mandate of Art. 21. &nbsp;When the High Court trying a case sentences a man to death a higher court must examine the merits to satisfy that human life shall not be haltered without an appellate review. A single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that Judges are men and that making assurance doubly sure before irrevocable deprivation of life or liberty comes to pass, full-scale re-examination of the facts and the law is made an integral part of fundamental! fairness or procedure. [1105C, E] The life of the law is not perfection of theory but realisation of justice in the concrete situation of a given system. It is common knowledge that a jail appeal or an appeal filed through an advocate does not contain an exhaustive accompaniment of all the evidentiary material or record of proceedings laying bare legal errors in the judicial steps. It is not unusual that a fatal flaw has been discovered by the appellate judges leading to a total acquittal. Such a high jurisdiction as is vested by Art. 134 calls for an active examination by the judges and such a process will be an ineffectual essay in the absence of the whole record. A preliminary hearing is hardly of any use bearing in mind that what is being dealt with is an affirmation of death sentence for the first time. Section 366 of the Code requires the Court of Session which passes a sentence of death to submit the proceedings to the High Court and rulings insist on an independent appellate consideration of the matter and an examination of all relevant material evidence. The Supreme Court's position is analogous, and independent examination of materials is impossible without the entire records being available. So it is reasonable that before hearing the appeal under Rule 15(1 ) (c) of Order XXI, ordinarily the records are sent for and are available. Counsel's assistance apart, the court it self must apply its mind, the stakes being grave enough. [1105F- 1106B] The recording of reasons is usually regarded as a necessary requirement of fair decision. The obligation to give reasons for decision when consequence of wrong Judgment is forfeiture of life or personal liberty for long periods needs no emphasis, especially when it is a first appeal following upon a heavy sentence imposed for the first time. The constraint to record reasons secures in black and white what the Judge has in mind and gives satisfaction to him who is condemned that what he has had to say has not only been 'heard' but considered and recorded. Art. 21 is a binding mandate against blind justice. In the narrow categories of cases covered by Art. 134(1)(a) and (b) and s. 2(a) of the Enlargement Act, the subject matter is of sufficient gravity as to justify the recording of reasons in the ultimate order. [1160F-G, 1106H-1107A] Protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. Our Rules of Criminal Procedure provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. [1107F] Order XXI, Rule 15(1)(c) of the Rules in an enabling provision not a compulsive one. Harmonious construction of Art. 134 and Art. 145 'leads to the conclusion that the contemplated rules are mere machinery provisions. The sequence is simple. The formalities for entertaining certain types of appeal ale covered by Art. 145(1)(d) the manner of hearing and disposal is governed by Art. 145(1)(b) and the substantive sweep of the appeal as a method of redressal is found in Art. 134. [1107G-H, 1108D, 1109A]. It is daily experience to see judges on the high bench differ, and a fortiori so in the field of sentence, This reality is projected in the context of full freedom for the first appellate decider of facts to reach his own finding on offence and sentence, only to highlight how momentous it is-for the appellant to have his case considered by the highest court when the Constitution and Parliament have conferred a full right of appeal Summary dismissal, save in glaring cases, may spell grave jeopardy to life-giving justice That is why Order XXI Rule 15(1)(c) while it survives to weed out worthless appeals, shall remain sheathed in extra- ordinary cases where facts on guilt or the wider range of considerations on sentence are involved. [1109G-1110B] Rule 15(1)(c) of Order XXI is general and covers all conceivable cases under Art. 134(1). It operates in certain situations, not in every appeal. It merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice. [1111C-D] If every appeal under Art. 134(1) (a) and (b) or s. 2(a) of the enlargement Act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between Art. 134 and Art. 136 may be judicially eroded and Parliament stultified. The minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. To be peevel by this need is to offend against the fair play of the constitution. [1111H-1112B] Upholding the vires of Order XXI Rule 15(1)(c) of the Supreme Court Rules and also s. 384 of the Criminal Procedure Code the majority however held that in their application both the provisions shall be restricted by the criteria set out hereunder ns a permissible exercise in constitutionalisation of the provisions. [1112H] Order XXI Rules 15(1)(c) in action does not mean that all appeals falling within its fold shall be routinely disposed of. Such a course obliterates the difference between Articles 134 and 136, between right and leave. The rule in cases of appeals under Art. 134(1)(a) and (b) and s. 2(a) is notice, records and reasons, but the exception is preliminary hearing on all such materials as may be placed by the appellant and brief grounds for dismissal. This exceptional category is where, in all conscience, there is no point at all. In cases of real doubt the benefit of doubt goes to the appellant and notice goes to the adversary even if the chances of allowance of the appeal be not bright. [113A-C] [With a view to invest clarity and avoid ambiguity, Order XXI Rule 15(1)(c) may be suitably modified.] Maneka Gandhi v. Union of India, [1978] 1 SCC 248; Presidential Ref. No. 1 of 1978 [1979] 2 SCR 476; Wiseman v. Barneman, [1971] AC 297; Russel v. Duke of Norfolk, 11949] 1 All. ER 109, Ponnamma v. Arumogam, [1905] AC at p. 390; Colonial Sugar Refining Co. v. Irving, [1905] AC 369; Newman v. Klausner, [1922] 1 KB 228; referred to. Black's Law Dictionary 4th Edn. p. 1368, Stroud's Judicial Dictionary, 3rd Edn. Vol. 1, pp. 160-161; Current Legal Problems 1958 Vol. 11 p. 194, Law Quarterly Review Vol. 71, 1955 p. 410-11. The Judicial Process by Henry J. Abraham, 1962 pp. 159-160; referred to. Per Kailasam &amp; Koshal, JJ. (dissenting) Article 145 of the Constitution empowers the Supreme Court subject to the provisions of any law made by Parliament with the approval of the President to make rules from time to time for regulating generally the practice and procedure of the court. [1116B] Article 134 confers appellate jurisdiction on the Supreme Court in regard to criminal matters, and while an unrestricted right of appeal is provided to the Supreme Court under clauses (a) and (b) an appeal under such clause (c) is provided only when the case is certified by the High Court as a fit one for appeal. Further, an appeal under sub- clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of Art. 145 and to such conditions as the High Court may establish or require [1116D-1117B] The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970 has conferred on the Supreme Court further power to entertain and hear appeals than conferred on it under Art. 134(1)(a) and (b) as provided for in Art. 134(2) of the Constitution. [1117C] Article 145(1)(b) enables the Supreme Court to frame rules as to procedure for hearing appeals. Rule 15 of under XXI provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing appeals. [1117D- E, 1118C] While s. 374 confers a right of appeal, s. 375 and s. 376 restrict such a right. Section 384 prescribes the procedure for hearing appeals enabling the court to dismiss certain appeals summarily and to deal with others under s. 385 if they are not summarily dismissed. The right of appeal conferred can be curtailed by procedure as envisaged in s. 384 Cr. P.C. Or Rule 15 order XXI of the Supreme Court Rules. [1120D] An appeal to the Supreme Court under s. 374 Cr. P.C. is restricted by the provisions of s. 375 and s. 376 and could be dealt with summarily under s. 384 Cr. P.C. An appeal to the Supreme Court is subject to the several provisions of the Cr. P.C. including the provisions relating to summary disposal of the appeals. [1120E-F, G] The powers and the jurisdiction of the appellate court as prescribed by the Criminal Procedure Code and the rule cannot be said to deny a right of hearing to the appellant. The right to be heard in an appeal is regulated be statute. After a full trial the judgment is rendered by a High Judicial Officer such as a Sessions Judge or a High Court Judge. The appellate court has before it the Judgment of the lower court and the petition for appeal. At the preliminary hearing the appellant or his pleader is heard before the court decides to dismiss the appeal summarily. The power to summarily dismiss an appeal is conferred under the Criminal Procedure Code when the court is satisfied that there are no sufficient grounds for interfering with the judgment appealed against. This decision is taken by the appellate court being the Chief Judicial Magistrate, Court of Sessions, the High Court or the Supreme Court. In the case of the Chief Judicial Magistrate and Court of Sessions, reasons should be recorded for summarily dismissal. The High Court and the Supreme Court need not record reasons for summarily dismissing the appeal. It is necessary that the Supreme Court or the High Court should be satisfied that there are not sufficient ground for interfering. The conclusion is arrived at after hear-ing the appellant, examining the judgment and the petition for appeal. The appellate court is discharging an onerous duty in dismissing a case summarily. The Code provides for calling for the records before dismissing an appeal. In cases where an appellant is sentenced to death, imprisonment for life or long term of imprisonment, it is the bounden duty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. If it feels necessary to call for the records of the case, it is duty to call for the records and examine them, before coming to the conclusion that there are not sufficient grounds for interfering. It is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there be no sufficient grounds for interfering. Equally it is the duty of the appellate court to dismiss the appeal summarily if it i.e satisfied that there are no sufficient grounds for interfering is duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. Taking into account the fact that the duty to decide the question where there are no sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal bas been taken away. [1122E-F, 1122H-1123F] The procedure contemplated in Rules 13, 14 and 15 of the Supreme Court Rules are almost similar to the provisions of the Code of Criminal Procedure relating to appeal. In an appeal sent by the appellant from jail he is entitled to send any written arguments which he may desire to advance in support of his appeal. The Court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. The mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal is not being heard. The court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under Rule 15. This Court being the highest court is not required to give reasons but is expected to bestow the greatest care in exercising the power of summary dismissal under Rule 15. [1124G-1125A] P.K. Mittra v. State of West Bengal, [1959] SUPPL. I SCR 63; Shankar Kerba Yadhav v. State of Maharashtra, [1970] 2 SCR 227; Minakshi v. Subramanya, 14 IA 168; Govinda Kadtuji Kadam v. State of Maharashtra, [1970] 1 SCC 469; referred to. Maneka Gandhi v. Union of India, [1978] 2 SCR 621; distinguished. -  This was clearly in accordance with the principle laid down in s. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid.',
			'caseanalysis' => null,
			'casesref' => 'In Jaswant Sugar Mills v. Sub;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Supreme Court of India',
			'court_type' => 'SC',
			'decidedon' => '1961-10-10',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.C. Shah,; K.C. Das Gupta and; K.N. Wanchoo, JJ.',
			'judgement' => '<p style="text-align: justify;">Das Gupta, J.</p><p style="text-align: justify;">1. This appeal by special leave is against an award of the Central Government Industrial Tribunal at Calcutta in a dispute referred to that Tribunal by the Central Government under s. 10 of the Industrial Disputes Act - Section 10 between the workmen of the Bombay Port Trust, who are the appellants before us and the Trustees of the Port of Bombay, the respondent in the appeal. The workmen concerned in the dispute as referred are shore workers belonging to 'A' category, 'B' category and casual category. These three categories came into existence under the scheme adopted by the Bombay Port Trust in April 1948 for direct employment of shore workers in place of the system previously in force under which such labourers used to be supplied by contractors known as Toliwallas. The matters in dispute were specified thus in the letter of reference to the Tribunal :- </p><p style="text-align: justify;">'Arrears due to the shore workers belonging to the 'A' category, 'B' category and casual category in respect of </p><p style="text-align: justify;"> (i) weekly off with pay for the period 15th March, 1951 to 2nd March, 1956; </p><p style="text-align: justify;"> (ii) work on weekly off days during the period 15th March, 1951 to 2nd March, 1956, without a compensatory day off in lieu; and </p><p style="text-align: justify;"> (iii) average daily wages for the weekly off days after the introduction of the piece-rate scheme with effect from 3rd March, 1956, when the average fluctuated from week to week.' </p><p style="text-align: justify;">2. It became clear at the hearing before the Tribunal that of the period mentioned in Item (i) and Item (ii), viz., the 15th March, 1951 to 2nd March, 1956, no 'weekly off' was given at all from the 15th March 1951 to October 1953 but workmen were made to work generally for all the 7 days of the week, and further that from October, 1953 to 2nd March, 1956, Sunday was given as the 'weekly off' and no work was taken on that day. The real dispute therefore as regards Item (i) and Item (ii) was in respect of (a) arrears of wages for Sunday the weekly off on which no work was done from October, 1953 to March 2, 1956, and (b) arrears of wages for work done during the period 15th March, 1951 to October, 1953 on Sundays which should have been given as a weekly off day but was not, though no compensatory day was given in lieu thereof. </p><p style="text-align: justify;">3. As regards arrears of wages for Sundays on which no work was done the worksmen's case is that they were entitled to receive payment for each such Sunday amounts equal to their average daily wages during the preceding week. But admittedly no payment was made for these Sundays. The respondent's case however is that on a proper interpretation of Rules 23 of the Minimum Wages (Central) Rules, 1960, the workmen were not entitled to payment for Sundays on which no work was done by them and further that in any case they have been constructively paid for the Sundays also inasmuch as the daily wages were fixed at 1/26th of the monthly wage. </p><p style="text-align: justify;">4. The Tribunal accepted these contentions raised on behalf of the employer and held that there were no arrears of wages in respect of Sundays for which no work was done. With regard to the period March, 15, 1951 to October, 1953 it appears the workmen except morphias were aid at twice the ordinary rate inclusive of all allowances, for all work done on Sundays; Morphias were paid one and a half times the normal rates of wages. The worker's case is that for the work done on Sundays during this period they were entitled to three times the ordinary rate. This claim was also rejected by the Tribunal which however held that the Morphias were entitled to double their wages inclusive of all allowances and so directed that they shall be paid for work done by them on weekly rest days from 15th March, 1951 to October 1953 the difference between double their wages inclusive of all allowances and what they have been paid. </p><p style="text-align: justify;">5. We may state at once that the dispute as regards arrears due to workers belonging to 'casual' category has not been pressed before us and does not therefore require consideration in this appeal. The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already been awarded for this period to Morphias) does not also merit serious consideration as the learned counsel for the appellant was unable to show any legal basis for such a claim. He tried to persuade us that as Rule 23 of the Minimum Wages (Central) Rules requires the employer to give a weekly holiday on Sunday (unless this is given on some other day instead) it is not right that when the employer does not comply with that requirement he should get off with paying nothing more than what he would have paid for such work done on any day of the week because of the Rules in respect of extra payment for over-time work. The <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> itself contains provisions for contravention of the provisions of the Act or Rules or Orders made thereunder. Section 22 provides for punishment inter alia for contravention of rules or orders under section 13. Section 22A provides for punishment with fine (which may extend to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention. The Minimum Wages Rules were made by the Central Government in exercise of the powers conferred by s. 30 of the <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> (Act XI of 1948) and so contravention of rule 23 of these rules is punishable under section 22A of the Act. Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay. Neither the Minimum Wages Act nor the Rules contain any provision for such additional payment over and above what would be payable for over time work as such. The workmen's claim for further payment in respect of work done on Sunday during, the period March 15, 1951 to October 1953 has therefore been rightly rejected. </p><p style="text-align: justify;">6. In respect of the claim for pay on Sundays during the period October 1953 to March 2, 1956, on which no work was done we have first to decide on the correct interpretation of the words 'for which' in Rule 23, as it stood before it was amended by a Notification GSR 918 dated the 29th July, 1960. The Rule as it stood before the amendment ran thus :- </p><p style="text-align: justify;">'23. Weekly Holidays - (1) Unless otherwise permitted by the Central Government, no worker shall be required or allowed to work in a scheduled employment, on the first day of the week (hereinafter referred to as the said day) except when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day for which he shall receive payment equal to his average daily wages during the preceding week : </p><p style="text-align: justify;"> Provided that the weekly holidays may be substituted by another day : </p><p style="text-align: justify;"> Provided further that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.' </p><p style="text-align: justify;">7. We are not concerned with clause 2 of Rule 23. The Explanation to the Rule is in the following words :- </p><p style="text-align: justify;">'Explanation - For the purpose of this rule 'week' shall mean a period of seven days beginning at midnight on Saturday night.' </p><p style="text-align: justify;">8. The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals - ordinarily once in every 7 days but in no case at intervals of more than 10 days. This was clearly in accordance with the principle laid down in s. 13 of the Minimum Wages Act that the Government may provide for a day of rest for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 (which covers many other matters other than the matters mentioned in s. 13) no reference has been made to section 13 at all. In giving effect to this policy of providing for a day of rest - ordinarily once in 7 days but in no case at intervals of more than 10 days - the rule-making authority has thought fit also to make provision for making some payment in connection with this. Difficulty has however been caused by the unfortunate complexcity of the sentence, in which the main provision as regards the day of rest and also the subsidiary provision for payment have been combined. </p><p style="text-align: justify;">9. The dispute is about the meaning of the words 'for which'. If one remembers the rule of grammar that what the grammarians call the 'antecedent' (that is the noun or pronoun to which a relative pronoun relates) should be used as near as possible to the relative pronoun, one is tempted to think that 'which' relates to the word 'day' of the 'said day' immediately preceding the preposition 'for'. Breaking up this last portion of the rule, the rule thus analysed would be equivalent to 'and for the said day he shall receive payment equal to his average daily wages during the preceding week'. That will be however only a grammarian's construction. In the Courts however while we have to remember the rules of grammar, because such rules are ordinarily observed by people in expressing their intentions, we have to look a little more closely to understand the real intention expressed. It seems to us unreasonable to impute the rule-making authority an intention that while if the weekly rest is given 'on the said day' that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when 'he has or will have a holiday for the whole day on one of the five days immediately before or after the said day.' For, it that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore that in using the words 'for which' after the words 'the said day' the rule-making authority did not intend to confine the word 'which' to this 'said day' but intended to relate this 'which' to any of the days on which rest is given. In other words, 'for which' was used as short for 'and on such holiday whether on the said day or not'. We do not think the rules of grammar stand in the way of this interpretation. </p><p style="text-align: justify;">10. Mr. Desai's argument on behalf of the respondent is that 'which' relates to the word 'holiday' and that accordingly it is only when the workman has or will have a holiday on one of the five days immediately before or after the said day, that he shall receive payment. According to him, the two phrases 'for the whole day' and 'one of the five days immediately before or after the said day' are adverbial phrases modifying the verb 'has' and 'will have' and no part of these phrases can have any connection with the words 'for which'. Leaving these out, the rule properly analysed is, he says, in really two portions : the first being 'no worker shall be required or allowed to work in a scheduled employment on the first day of week'; the second being 'except when he has or will have a holiday for which he shall receive payment equal to his average daily wages during the preceding week'. That will however be to re-write the sentence in a manner for which we can find no justification. It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made. It will be unreasonable to ascribe such an intention to the legislature. </p><p style="text-align: justify;">11. The Tribunal was so impressed by the unreasonableness of such a consequence that it came to the conclusion that no payment will be receivable by the workmen whether the weekly rest day is given on the first day of the week or on one of the five days immediately before or after the said day. </p><p style="text-align: justify;">12. Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday - whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day - that under the proviso could be substituted by another day. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. </p><p style="text-align: justify;">13. Our attention was drawn to the view taken by the Bombay High Court in Trustees of the Port of Bombay v. Authority under the Payment of Wages Act 1957 (1) L.L.J. 627, which was followed by the Madras High Court in A.C.C. v. Labour Inspector 1960 (1) L.L.J. 192, that the proper construction of the words 'for which' is to relate to word 'holiday' preceding the words 'for the whole day'. In Jaswant Sugar Mills v. Sub-divisional Magistrate 1960 (2) L.L.J. 373, the Allahabad High Court took the view that 'for which' refers to the weekly holiday whether it is on a Sunday or on any other days of the week as permitted under the Rules. In our opinion, the view taken by the Allahabad High Court is correct. </p><p style="text-align: justify;">14. On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and B were entitled to receive payment 'equal to the average wages during the preceding week' in respect of the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">15. This brings us to the employer's claim that there has been constructive payment for the Sundays during this period, viz., October 1953 to March 2, 1956. The argument is that the daily wage for these workmen was fixed by dividing all the components of the monthly scale of pay and allowances by 26 so that what a workman receives as daily wage is really 1/26th of the wage for 30 days. Thus it is said, the total receipts for the 26 days, if no separate payment is made for the rest days will be 26 x 1/26th of 30 days' wage, that is, 30 days' wage. The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days. </p><p style="text-align: justify;">16. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">17. With effect from March 3, 1856 the piece-rate scheme was introduced for the shore workers belonging to the 'A' category and 'B' category. The essentials of this scheme are that a datum line was fixed for the different kinds of work and the piece-rate would vary with the proportion which the out-turn of the gang bears to the datum line in the following manner :- </p><p style="text-align: justify;">'For a shift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) shall rise uniformly from Rs. 3-1-0 at 76% to Rs. 4-5-0 at 100% to Rs. 8 at 150% of the datum line. The piece rate wage earned after 150% of the datum line shall be processed at double the daily wage than is to say the piece rate wage will rise uniformly from Rs. 8 at 150% to Rs. 12 at to 200% of the datum line.' </p><p style="text-align: justify;">18. The scheme further provided that :- </p><p style="text-align: justify;">'Rs. 3-1-0 (comprised of Rs. 1-8-3 basic was including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earning plus idle time payment and/or other earning under this appendix fall short of the said minimum, the Port Trust shall make up the difference that day.' </p><p style="text-align: justify;"> 'Rs. 3-7-0 (comprised of Rs. 1-14-0 basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given employment.' </p><p style="text-align: justify;">19. On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives various from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhale's argument is that average daily wages during the preceding week means average of the total earning per day during the preceding week and so there can be no difficulty in ascertaining for every his worker his average daily wages during any week. </p><p style="text-align: justify;">20. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earning of the workmen by working over-time. So also, in our opinion, the term daily wages as ordinarily understood does not include over-time earnings. If it does not include overtime earning, can it reasonably be said that it includes the high additional earnings, that a worker may receive by increasing his output above the minimum fixed We do not think that to be a reasonable interpretation of the words 'daily wages.' At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to these workmen after the introduction of the piece rate scheme must therefore be rejected. </p><p style="text-align: justify;">21. As regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26. For the reasons for which this argument was rejected in respect of the period October, 1953, to March 2, 1956, we reject this plea of constructive payment. </p><p style="text-align: justify;">22. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage. </p><p style="text-align: justify;">23. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23. </p><p style="text-align: justify;">24. The appeal is accordingly allowed in part. In the circumstances, the parties will bear their own costs in this Court. </p><p style="text-align: justify;">25. Appeal allowed in part. </p>',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1962SC481; [1961(3)FLR473]; (1961)IILLJ632SC; [1962]Supp1SCR36',
			'ratiodecidendi' => '',
			'respondent' => 'Trustees of Port of Bombay',
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			'circuit' => null
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$title_for_layout = 'Workmen of the Bombay Port Trust Vs. Trustees of Port of Bombay Semantic Analysis'
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$desc = array(
	'Judgement' => array(
		'id' => '650494',
		'acts' => 'Industrial Disputes Act - Sections 10; Minimum Wages (Central) Rules, 1960 - Rules 23; <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> - Sections 13, 22, 22A and 30; Payment of Wages Act',
		'appealno' => '',
		'appellant' => 'Workmen of the Bombay Port Trust',
		'authreffered' => '',
		'casename' => 'Workmen of the Bombay Port Trust Vs. Trustees of Port of Bombay',
		'casenote' => 'The case questioned whether wages were payable for Sunday, the 'weekly off' day on which no works was done and for Sunday on which work was done without compensatory off day - The case debated on the meaning of 'weekly holiday' with in the frame work of Section 13 of the Minimum Wages Act, 1948 - It was held that neither the Act nor Minimum Wages Rules contained any provision for such additional payment over and above what would be payable for over time work - Therefore, the workmen could not get three times the ordinary rate - The meaning of 'weekly off' meant  Sunday when no work has to be done under the Act.<br> - 
[A.D. Koshal,; D.A. Desai,; P.N. Shinghal,; P.S. Kailasam and; V.R. Krishna Iye, JJ.] Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 envisages that the petition of appeal under sub-clause (a) or sub-clause (b) of clause (1) of Art. 134 of the Constitution or under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 or under s. 379 of the Code of Criminal Procedure 1973, on being Registered shall be put up for hearing ex-parte before the court which may either dismiss it summarily or direct issue of notice to all necessary parties or make such orders, as the circumstances of the case may require. The appellants in the appeal who were acquitted by the Sessions Court had been convicted and sentenced by the High Court and awarded life imprisonment under s. 302 read with s. 149 IPC. When their appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 was listed for preliminary hearing under Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 it was contended (1) that the said provision empowering the court to dismiss the appeal summarily was ultra vires the Enlargement Act, 1970, (2) the power of the Supreme Court to frame rules under Art. 145 of the Constitution can not be extended to annul the rights conferred under an Act of Parliament and (3) that an appeal under the Enlargement Act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the State and without giving reasons. HELD: (Per Krishna Iyer, Shinghal &amp; Desai, JJ.) Article 134(1)(c) spells a measure of seriousness because the High Court which has heard the case certifies that it involves questions of such moment that the Supreme Court itself must resolve them. To dispose of such a matter by a preliminary healing is to cast a reflection on the High Court's capacity to understand the seriousness of a certification. [1095 D-E] Article 136 vests a plenary discretion in the Supreme Court to deign or decline to grant leave to appeal against any conviction or sentence. Before deciding to grant or reject such Leave the court accords an oral hearing after perusing all the papers produced. Once leave is granted, the appeal is heard, after notice to the state, in full panoply. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. No appeal after leave, is dismissed summarily or ex-parte. If Art. 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex-parte hearing (or after issue of notice if the court so chooses), Art. 134 which gives a constitutional right to appeal as it were, must stand on a higher footing lest the Constitution makers be held to have essayed in supererogation. [1095G-1096A] There is much more 'hearing' content in an absolute appellate right than in a precarious 'special leave' motion. Jurisprudentially, a right is large than a permission. Art 134 puts the momentous class of cases covered by it beyond the discretionary compass of Art. 136 and within the compulsory area of full hearing such as would follow upon leave being granted under Art. 136(1). A full hearing may not obligate dragging the opposite side to court involving expense and delay. Fullness of hearing of the proponent is not incompatible with non-hearing of the opponent when after appreciating all that could be urged in support of the cause there is no need felt to call upon the other side, as where the proposition is groundless, frivolous or not prima facie statable. [1096B-D] Article 134(2) empowers Parliament to expand the jurisdiction of the Supreme Court to entertain criminal appeals. In exercise of this power, Parliament enacted the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 in its grave concern for long incarceration being subject to great scrutiny at the highest level if first inflicted, by the High Court. A right of appeal to the Supreme Court was granted when the High Court has, for the first time sentenced an accused to life imprisonment or to a term of or above ten years of rigorous imprisonment and equated it with that granted under Art. 134(1)(a) and (b). [1097G-1098D] The nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdiction and systems of jurisprudence. Whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into breaking down the court system by sufferance of interminable submission after several tribunals have screened his case and found it fruitless. The signification of the right of appeal under Art. 134 is a part of the procedure established by law for the protection of life and personal liberty. Nothing which will render this right illusory or its fortune chancy can square with the mandate of Art. 21. &nbsp;When the High Court trying a case sentences a man to death a higher court must examine the merits to satisfy that human life shall not be haltered without an appellate review. A single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that Judges are men and that making assurance doubly sure before irrevocable deprivation of life or liberty comes to pass, full-scale re-examination of the facts and the law is made an integral part of fundamental! fairness or procedure. [1105C, E] The life of the law is not perfection of theory but realisation of justice in the concrete situation of a given system. It is common knowledge that a jail appeal or an appeal filed through an advocate does not contain an exhaustive accompaniment of all the evidentiary material or record of proceedings laying bare legal errors in the judicial steps. It is not unusual that a fatal flaw has been discovered by the appellate judges leading to a total acquittal. Such a high jurisdiction as is vested by Art. 134 calls for an active examination by the judges and such a process will be an ineffectual essay in the absence of the whole record. A preliminary hearing is hardly of any use bearing in mind that what is being dealt with is an affirmation of death sentence for the first time. Section 366 of the Code requires the Court of Session which passes a sentence of death to submit the proceedings to the High Court and rulings insist on an independent appellate consideration of the matter and an examination of all relevant material evidence. The Supreme Court's position is analogous, and independent examination of materials is impossible without the entire records being available. So it is reasonable that before hearing the appeal under Rule 15(1 ) (c) of Order XXI, ordinarily the records are sent for and are available. Counsel's assistance apart, the court it self must apply its mind, the stakes being grave enough. [1105F- 1106B] The recording of reasons is usually regarded as a necessary requirement of fair decision. The obligation to give reasons for decision when consequence of wrong Judgment is forfeiture of life or personal liberty for long periods needs no emphasis, especially when it is a first appeal following upon a heavy sentence imposed for the first time. The constraint to record reasons secures in black and white what the Judge has in mind and gives satisfaction to him who is condemned that what he has had to say has not only been 'heard' but considered and recorded. Art. 21 is a binding mandate against blind justice. In the narrow categories of cases covered by Art. 134(1)(a) and (b) and s. 2(a) of the Enlargement Act, the subject matter is of sufficient gravity as to justify the recording of reasons in the ultimate order. [1160F-G, 1106H-1107A] Protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. Our Rules of Criminal Procedure provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. [1107F] Order XXI, Rule 15(1)(c) of the Rules in an enabling provision not a compulsive one. Harmonious construction of Art. 134 and Art. 145 'leads to the conclusion that the contemplated rules are mere machinery provisions. The sequence is simple. The formalities for entertaining certain types of appeal ale covered by Art. 145(1)(d) the manner of hearing and disposal is governed by Art. 145(1)(b) and the substantive sweep of the appeal as a method of redressal is found in Art. 134. [1107G-H, 1108D, 1109A]. It is daily experience to see judges on the high bench differ, and a fortiori so in the field of sentence, This reality is projected in the context of full freedom for the first appellate decider of facts to reach his own finding on offence and sentence, only to highlight how momentous it is-for the appellant to have his case considered by the highest court when the Constitution and Parliament have conferred a full right of appeal Summary dismissal, save in glaring cases, may spell grave jeopardy to life-giving justice That is why Order XXI Rule 15(1)(c) while it survives to weed out worthless appeals, shall remain sheathed in extra- ordinary cases where facts on guilt or the wider range of considerations on sentence are involved. [1109G-1110B] Rule 15(1)(c) of Order XXI is general and covers all conceivable cases under Art. 134(1). It operates in certain situations, not in every appeal. It merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice. [1111C-D] If every appeal under Art. 134(1) (a) and (b) or s. 2(a) of the enlargement Act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between Art. 134 and Art. 136 may be judicially eroded and Parliament stultified. The minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. To be peevel by this need is to offend against the fair play of the constitution. [1111H-1112B] Upholding the vires of Order XXI Rule 15(1)(c) of the Supreme Court Rules and also s. 384 of the Criminal Procedure Code the majority however held that in their application both the provisions shall be restricted by the criteria set out hereunder ns a permissible exercise in constitutionalisation of the provisions. [1112H] Order XXI Rules 15(1)(c) in action does not mean that all appeals falling within its fold shall be routinely disposed of. Such a course obliterates the difference between Articles 134 and 136, between right and leave. The rule in cases of appeals under Art. 134(1)(a) and (b) and s. 2(a) is notice, records and reasons, but the exception is preliminary hearing on all such materials as may be placed by the appellant and brief grounds for dismissal. This exceptional category is where, in all conscience, there is no point at all. In cases of real doubt the benefit of doubt goes to the appellant and notice goes to the adversary even if the chances of allowance of the appeal be not bright. [113A-C] [With a view to invest clarity and avoid ambiguity, Order XXI Rule 15(1)(c) may be suitably modified.] Maneka Gandhi v. Union of India, [1978] 1 SCC 248; Presidential Ref. No. 1 of 1978 [1979] 2 SCR 476; Wiseman v. Barneman, [1971] AC 297; Russel v. Duke of Norfolk, 11949] 1 All. ER 109, Ponnamma v. Arumogam, [1905] AC at p. 390; Colonial Sugar Refining Co. v. Irving, [1905] AC 369; Newman v. Klausner, [1922] 1 KB 228; referred to. Black's Law Dictionary 4th Edn. p. 1368, Stroud's Judicial Dictionary, 3rd Edn. Vol. 1, pp. 160-161; Current Legal Problems 1958 Vol. 11 p. 194, Law Quarterly Review Vol. 71, 1955 p. 410-11. The Judicial Process by Henry J. Abraham, 1962 pp. 159-160; referred to. Per Kailasam &amp; Koshal, JJ. (dissenting) Article 145 of the Constitution empowers the Supreme Court subject to the provisions of any law made by Parliament with the approval of the President to make rules from time to time for regulating generally the practice and procedure of the court. [1116B] Article 134 confers appellate jurisdiction on the Supreme Court in regard to criminal matters, and while an unrestricted right of appeal is provided to the Supreme Court under clauses (a) and (b) an appeal under such clause (c) is provided only when the case is certified by the High Court as a fit one for appeal. Further, an appeal under sub- clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of Art. 145 and to such conditions as the High Court may establish or require [1116D-1117B] The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970 has conferred on the Supreme Court further power to entertain and hear appeals than conferred on it under Art. 134(1)(a) and (b) as provided for in Art. 134(2) of the Constitution. [1117C] Article 145(1)(b) enables the Supreme Court to frame rules as to procedure for hearing appeals. Rule 15 of under XXI provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing appeals. [1117D- E, 1118C] While s. 374 confers a right of appeal, s. 375 and s. 376 restrict such a right. Section 384 prescribes the procedure for hearing appeals enabling the court to dismiss certain appeals summarily and to deal with others under s. 385 if they are not summarily dismissed. The right of appeal conferred can be curtailed by procedure as envisaged in s. 384 Cr. P.C. Or Rule 15 order XXI of the Supreme Court Rules. [1120D] An appeal to the Supreme Court under s. 374 Cr. P.C. is restricted by the provisions of s. 375 and s. 376 and could be dealt with summarily under s. 384 Cr. P.C. An appeal to the Supreme Court is subject to the several provisions of the Cr. P.C. including the provisions relating to summary disposal of the appeals. [1120E-F, G] The powers and the jurisdiction of the appellate court as prescribed by the Criminal Procedure Code and the rule cannot be said to deny a right of hearing to the appellant. The right to be heard in an appeal is regulated be statute. After a full trial the judgment is rendered by a High Judicial Officer such as a Sessions Judge or a High Court Judge. The appellate court has before it the Judgment of the lower court and the petition for appeal. At the preliminary hearing the appellant or his pleader is heard before the court decides to dismiss the appeal summarily. The power to summarily dismiss an appeal is conferred under the Criminal Procedure Code when the court is satisfied that there are no sufficient grounds for interfering with the judgment appealed against. This decision is taken by the appellate court being the Chief Judicial Magistrate, Court of Sessions, the High Court or the Supreme Court. In the case of the Chief Judicial Magistrate and Court of Sessions, reasons should be recorded for summarily dismissal. The High Court and the Supreme Court need not record reasons for summarily dismissing the appeal. It is necessary that the Supreme Court or the High Court should be satisfied that there are not sufficient ground for interfering. The conclusion is arrived at after hear-ing the appellant, examining the judgment and the petition for appeal. The appellate court is discharging an onerous duty in dismissing a case summarily. The Code provides for calling for the records before dismissing an appeal. In cases where an appellant is sentenced to death, imprisonment for life or long term of imprisonment, it is the bounden duty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. If it feels necessary to call for the records of the case, it is duty to call for the records and examine them, before coming to the conclusion that there are not sufficient grounds for interfering. It is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there be no sufficient grounds for interfering. Equally it is the duty of the appellate court to dismiss the appeal summarily if it i.e satisfied that there are no sufficient grounds for interfering is duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. Taking into account the fact that the duty to decide the question where there are no sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal bas been taken away. [1122E-F, 1122H-1123F] The procedure contemplated in Rules 13, 14 and 15 of the Supreme Court Rules are almost similar to the provisions of the Code of Criminal Procedure relating to appeal. In an appeal sent by the appellant from jail he is entitled to send any written arguments which he may desire to advance in support of his appeal. The Court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. The mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal is not being heard. The court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under Rule 15. This Court being the highest court is not required to give reasons but is expected to bestow the greatest care in exercising the power of summary dismissal under Rule 15. [1124G-1125A] P.K. Mittra v. State of West Bengal, [1959] SUPPL. I SCR 63; Shankar Kerba Yadhav v. State of Maharashtra, [1970] 2 SCR 227; Minakshi v. Subramanya, 14 IA 168; Govinda Kadtuji Kadam v. State of Maharashtra, [1970] 1 SCC 469; referred to. Maneka Gandhi v. Union of India, [1978] 2 SCR 621; distinguished. -  This was clearly in accordance with the principle laid down in s. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid.',
		'caseanalysis' => null,
		'casesref' => 'In Jaswant Sugar Mills v. Sub;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Supreme Court of India',
		'court_type' => 'SC',
		'decidedon' => '1961-10-10',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.C. Shah,; K.C. Das Gupta and; K.N. Wanchoo, JJ.',
		'judgement' => '<p style="text-align: justify;">Das Gupta, J.</p><p style="text-align: justify;">1. This appeal by special leave is against an award of the Central Government Industrial Tribunal at Calcutta in a dispute referred to that Tribunal by the Central Government under s. 10 of the Industrial Disputes Act - Section 10 between the workmen of the Bombay Port Trust, who are the appellants before us and the Trustees of the Port of Bombay, the respondent in the appeal. The workmen concerned in the dispute as referred are shore workers belonging to 'A' category, 'B' category and casual category. These three categories came into existence under the scheme adopted by the Bombay Port Trust in April 1948 for direct employment of shore workers in place of the system previously in force under which such labourers used to be supplied by contractors known as Toliwallas. The matters in dispute were specified thus in the letter of reference to the Tribunal :- </p><p style="text-align: justify;">'Arrears due to the shore workers belonging to the 'A' category, 'B' category and casual category in respect of </p><p style="text-align: justify;"> (i) weekly off with pay for the period 15th March, 1951 to 2nd March, 1956; </p><p style="text-align: justify;"> (ii) work on weekly off days during the period 15th March, 1951 to 2nd March, 1956, without a compensatory day off in lieu; and </p><p style="text-align: justify;"> (iii) average daily wages for the weekly off days after the introduction of the piece-rate scheme with effect from 3rd March, 1956, when the average fluctuated from week to week.' </p><p style="text-align: justify;">2. It became clear at the hearing before the Tribunal that of the period mentioned in Item (i) and Item (ii), viz., the 15th March, 1951 to 2nd March, 1956, no 'weekly off' was given at all from the 15th March 1951 to October 1953 but workmen were made to work generally for all the 7 days of the week, and further that from October, 1953 to 2nd March, 1956, Sunday was given as the 'weekly off' and no work was taken on that day. The real dispute therefore as regards Item (i) and Item (ii) was in respect of (a) arrears of wages for Sunday the weekly off on which no work was done from October, 1953 to March 2, 1956, and (b) arrears of wages for work done during the period 15th March, 1951 to October, 1953 on Sundays which should have been given as a weekly off day but was not, though no compensatory day was given in lieu thereof. </p><p style="text-align: justify;">3. As regards arrears of wages for Sundays on which no work was done the worksmen's case is that they were entitled to receive payment for each such Sunday amounts equal to their average daily wages during the preceding week. But admittedly no payment was made for these Sundays. The respondent's case however is that on a proper interpretation of Rules 23 of the Minimum Wages (Central) Rules, 1960, the workmen were not entitled to payment for Sundays on which no work was done by them and further that in any case they have been constructively paid for the Sundays also inasmuch as the daily wages were fixed at 1/26th of the monthly wage. </p><p style="text-align: justify;">4. The Tribunal accepted these contentions raised on behalf of the employer and held that there were no arrears of wages in respect of Sundays for which no work was done. With regard to the period March, 15, 1951 to October, 1953 it appears the workmen except morphias were aid at twice the ordinary rate inclusive of all allowances, for all work done on Sundays; Morphias were paid one and a half times the normal rates of wages. The worker's case is that for the work done on Sundays during this period they were entitled to three times the ordinary rate. This claim was also rejected by the Tribunal which however held that the Morphias were entitled to double their wages inclusive of all allowances and so directed that they shall be paid for work done by them on weekly rest days from 15th March, 1951 to October 1953 the difference between double their wages inclusive of all allowances and what they have been paid. </p><p style="text-align: justify;">5. We may state at once that the dispute as regards arrears due to workers belonging to 'casual' category has not been pressed before us and does not therefore require consideration in this appeal. The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already been awarded for this period to Morphias) does not also merit serious consideration as the learned counsel for the appellant was unable to show any legal basis for such a claim. He tried to persuade us that as Rule 23 of the Minimum Wages (Central) Rules requires the employer to give a weekly holiday on Sunday (unless this is given on some other day instead) it is not right that when the employer does not comply with that requirement he should get off with paying nothing more than what he would have paid for such work done on any day of the week because of the Rules in respect of extra payment for over-time work. The <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> itself contains provisions for contravention of the provisions of the Act or Rules or Orders made thereunder. Section 22 provides for punishment inter alia for contravention of rules or orders under section 13. Section 22A provides for punishment with fine (which may extend to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention. The Minimum Wages Rules were made by the Central Government in exercise of the powers conferred by s. 30 of the <a href="/act/50765/minimum-wages-act-1948-complete-act">Minimum Wages Act, 1948</a> (Act XI of 1948) and so contravention of rule 23 of these rules is punishable under section 22A of the Act. Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay. Neither the Minimum Wages Act nor the Rules contain any provision for such additional payment over and above what would be payable for over time work as such. The workmen's claim for further payment in respect of work done on Sunday during, the period March 15, 1951 to October 1953 has therefore been rightly rejected. </p><p style="text-align: justify;">6. In respect of the claim for pay on Sundays during the period October 1953 to March 2, 1956, on which no work was done we have first to decide on the correct interpretation of the words 'for which' in Rule 23, as it stood before it was amended by a Notification GSR 918 dated the 29th July, 1960. The Rule as it stood before the amendment ran thus :- </p><p style="text-align: justify;">'23. Weekly Holidays - (1) Unless otherwise permitted by the Central Government, no worker shall be required or allowed to work in a scheduled employment, on the first day of the week (hereinafter referred to as the said day) except when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day for which he shall receive payment equal to his average daily wages during the preceding week : </p><p style="text-align: justify;"> Provided that the weekly holidays may be substituted by another day : </p><p style="text-align: justify;"> Provided further that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.' </p><p style="text-align: justify;">7. We are not concerned with clause 2 of Rule 23. The Explanation to the Rule is in the following words :- </p><p style="text-align: justify;">'Explanation - For the purpose of this rule 'week' shall mean a period of seven days beginning at midnight on Saturday night.' </p><p style="text-align: justify;">8. The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals - ordinarily once in every 7 days but in no case at intervals of more than 10 days. This was clearly in accordance with the principle laid down in s. 13 of the Minimum Wages Act that the Government may provide for a day of rest for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 (which covers many other matters other than the matters mentioned in s. 13) no reference has been made to section 13 at all. In giving effect to this policy of providing for a day of rest - ordinarily once in 7 days but in no case at intervals of more than 10 days - the rule-making authority has thought fit also to make provision for making some payment in connection with this. Difficulty has however been caused by the unfortunate complexcity of the sentence, in which the main provision as regards the day of rest and also the subsidiary provision for payment have been combined. </p><p style="text-align: justify;">9. The dispute is about the meaning of the words 'for which'. If one remembers the rule of grammar that what the grammarians call the 'antecedent' (that is the noun or pronoun to which a relative pronoun relates) should be used as near as possible to the relative pronoun, one is tempted to think that 'which' relates to the word 'day' of the 'said day' immediately preceding the preposition 'for'. Breaking up this last portion of the rule, the rule thus analysed would be equivalent to 'and for the said day he shall receive payment equal to his average daily wages during the preceding week'. That will be however only a grammarian's construction. In the Courts however while we have to remember the rules of grammar, because such rules are ordinarily observed by people in expressing their intentions, we have to look a little more closely to understand the real intention expressed. It seems to us unreasonable to impute the rule-making authority an intention that while if the weekly rest is given 'on the said day' that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when 'he has or will have a holiday for the whole day on one of the five days immediately before or after the said day.' For, it that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore that in using the words 'for which' after the words 'the said day' the rule-making authority did not intend to confine the word 'which' to this 'said day' but intended to relate this 'which' to any of the days on which rest is given. In other words, 'for which' was used as short for 'and on such holiday whether on the said day or not'. We do not think the rules of grammar stand in the way of this interpretation. </p><p style="text-align: justify;">10. Mr. Desai's argument on behalf of the respondent is that 'which' relates to the word 'holiday' and that accordingly it is only when the workman has or will have a holiday on one of the five days immediately before or after the said day, that he shall receive payment. According to him, the two phrases 'for the whole day' and 'one of the five days immediately before or after the said day' are adverbial phrases modifying the verb 'has' and 'will have' and no part of these phrases can have any connection with the words 'for which'. Leaving these out, the rule properly analysed is, he says, in really two portions : the first being 'no worker shall be required or allowed to work in a scheduled employment on the first day of week'; the second being 'except when he has or will have a holiday for which he shall receive payment equal to his average daily wages during the preceding week'. That will however be to re-write the sentence in a manner for which we can find no justification. It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made. It will be unreasonable to ascribe such an intention to the legislature. </p><p style="text-align: justify;">11. The Tribunal was so impressed by the unreasonableness of such a consequence that it came to the conclusion that no payment will be receivable by the workmen whether the weekly rest day is given on the first day of the week or on one of the five days immediately before or after the said day. </p><p style="text-align: justify;">12. Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday - whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day - that under the proviso could be substituted by another day. The scheme clearly is for one holiday, generally once in a week and it is for this one holiday that payment is provided. </p><p style="text-align: justify;">13. Our attention was drawn to the view taken by the Bombay High Court in Trustees of the Port of Bombay v. Authority under the Payment of Wages Act 1957 (1) L.L.J. 627, which was followed by the Madras High Court in A.C.C. v. Labour Inspector 1960 (1) L.L.J. 192, that the proper construction of the words 'for which' is to relate to word 'holiday' preceding the words 'for the whole day'. In Jaswant Sugar Mills v. Sub-divisional Magistrate 1960 (2) L.L.J. 373, the Allahabad High Court took the view that 'for which' refers to the weekly holiday whether it is on a Sunday or on any other days of the week as permitted under the Rules. In our opinion, the view taken by the Allahabad High Court is correct. </p><p style="text-align: justify;">14. On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and B were entitled to receive payment 'equal to the average wages during the preceding week' in respect of the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">15. This brings us to the employer's claim that there has been constructive payment for the Sundays during this period, viz., October 1953 to March 2, 1956. The argument is that the daily wage for these workmen was fixed by dividing all the components of the monthly scale of pay and allowances by 26 so that what a workman receives as daily wage is really 1/26th of the wage for 30 days. Thus it is said, the total receipts for the 26 days, if no separate payment is made for the rest days will be 26 x 1/26th of 30 days' wage, that is, 30 days' wage. The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government making in these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days. </p><p style="text-align: justify;">16. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 1956. </p><p style="text-align: justify;">17. With effect from March 3, 1856 the piece-rate scheme was introduced for the shore workers belonging to the 'A' category and 'B' category. The essentials of this scheme are that a datum line was fixed for the different kinds of work and the piece-rate would vary with the proportion which the out-turn of the gang bears to the datum line in the following manner :- </p><p style="text-align: justify;">'For a shift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) shall rise uniformly from Rs. 3-1-0 at 76% to Rs. 4-5-0 at 100% to Rs. 8 at 150% of the datum line. The piece rate wage earned after 150% of the datum line shall be processed at double the daily wage than is to say the piece rate wage will rise uniformly from Rs. 8 at 150% to Rs. 12 at to 200% of the datum line.' </p><p style="text-align: justify;">18. The scheme further provided that :- </p><p style="text-align: justify;">'Rs. 3-1-0 (comprised of Rs. 1-8-3 basic was including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earning plus idle time payment and/or other earning under this appendix fall short of the said minimum, the Port Trust shall make up the difference that day.' </p><p style="text-align: justify;"> 'Rs. 3-7-0 (comprised of Rs. 1-14-0 basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given employment.' </p><p style="text-align: justify;">19. On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives various from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhale's argument is that average daily wages during the preceding week means average of the total earning per day during the preceding week and so there can be no difficulty in ascertaining for every his worker his average daily wages during any week. </p><p style="text-align: justify;">20. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earning of the workmen by working over-time. So also, in our opinion, the term daily wages as ordinarily understood does not include over-time earnings. If it does not include overtime earning, can it reasonably be said that it includes the high additional earnings, that a worker may receive by increasing his output above the minimum fixed We do not think that to be a reasonable interpretation of the words 'daily wages.' At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to these workmen after the introduction of the piece rate scheme must therefore be rejected. </p><p style="text-align: justify;">21. As regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26. For the reasons for which this argument was rejected in respect of the period October, 1953, to March 2, 1956, we reject this plea of constructive payment. </p><p style="text-align: justify;">22. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage. </p><p style="text-align: justify;">23. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23. </p><p style="text-align: justify;">24. The appeal is accordingly allowed in part. In the circumstances, the parties will bear their own costs in this Court. </p><p style="text-align: justify;">25. Appeal allowed in part. </p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1962SC481; [1961(3)FLR473]; (1961)IILLJ632SC; [1962]Supp1SCR36',
		'ratiodecidendi' => '',
		'respondent' => 'Trustees of Port of Bombay',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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LAW: the Industrial Disputes Act - Section 10, The Minimum Wages Act, Section 22, section 13, the Minimum Wages Act, the Minimum Wages Act, the Minimum Wages Act, section 13, Rule 23, Rule 23

NORP: J.1, Rules, grammarians, contra

ORG: the Central Government Industrial Tribunal at Calcutta, Tribunal, the Central Government, the Bombay Port Trust, the Bombay Port Trust, the Tribunal :- 'Arrears, Tribunal, Tribunal, Tribunal, Morphias, The Minimum Wages Rules, the Central Government, the Industrial Tribunal, the Central Government, Government, the Minimum Wages (Central) Rules, Tribunal, the Bombay High Court, A.C.C. v., Labour Inspector, Magistrate, the Allahabad High Court, the Central Government, Port Trust, the Minimum Wages Rules, Tribunal, Court

CARDINAL: three, 2, 3., 23, 1/26th, 4., half, three, 5., five hundred, 30, 23, 6, 1, one, 2, 23, 8, 13, 9, one, one, one, 10, one, two, two, 11, one, 12, one, one, 13, 1, 627, 1, 192, 2, 14, 15, 26, 1/26th, 26, 1/26th, 1/26th, 16, 17, 3-1-0, 4, 8, 8, 12, 18, 3-1-0, 1-8, 1, 3-7, 1, 1, 19, 23, 20, 21, 26, 22, 23, 25

DATE: April 1948, weekly, the period 15th March, 1951 to 2nd March, 1956, weekly off days, the period 15th March, 1951 to 2nd March, 1956, daily, 3rd March, 1956, week, the 15th March, 1951 to 2nd March, 1956, weekly, the 15th March 1951 to October 1953, all the 7 days of the week, October, 1953 to 2nd March, 1956, Sunday, weekly, that day, Sunday, weekly, October, 1953 to March 2, 1956, the period 15th March, 1951 to October, 1953, Sundays, weekly, Sundays, Sunday, the preceding week, Sundays, 1960, Sundays, Sundays, monthly, Sundays, 15, 1951 to October, 1953, Sundays, Sundays, weekly rest days, 15th March, 1951 to October 1953, the period March 15, 1951, October 1953, weekly, Sunday, some other day, any day of the week, 1948, 1948, 1948, Sundays, Sunday, October 1953, Sundays, the period October 1953 to March 2, 1956, the 29th July, 1960, '23, the first day of the week, the whole day, the five days, the preceding week, weekly, more than ten days, 'week', seven days, Saturday, every 7 days, more than 10 days, a day, 7 days, 1960, s. 13, a day, 7 days, more than 10 days, the day, 'day', the preceding week', weekly, Sunday, Sunday, the whole day, the five days, weekly, the 5 days, Sunday, the rest day, the days, day, the five days, the whole day', the five days, the first day of week', the preceding week', the rest day, first day of the week, weekly, the first day of the week, the five days, weekly, another day, the first day of the week or the holiday, the five days, weekly, the 1st day of the week, the five days, another day, one holiday, a week, 1957, 1960, the whole day', 1960, weekly, Sunday, the preceding week', the period October 1953 to March 2, 1956, Sundays, October 1953 to March 2, 1956, daily, monthly, daily, 30 days, the 26 days, the rest days, 30 days', 30 days', daily, monthly, daily, daily, monthly, the six days of the week, six days, seven days, six days, seven days, Sundays, the period October 1953 to March 2, 1956, March 3, 1856, daily, daily, a certain day, the preceding week, the preceding week, any week, daily, weekly, monthly, weekly, monthly, daily, March 3, 1956, monthly, the period October, 1953, March 2, 1956, March 3, 1956, daily, July 1960, 24

GPE: Toliwallas

PERSON: Item, Item, Item, Item, Desai, L.L.J. 373, Gokhale, Desai

ORDINAL: first, first, second

TIME: midnight, night

PERCENT: 76%, 100%, 150%, 150%, 150%, 200%