In a recently reported decision [National Airport Authority v. Sudershan Kumar 2010 (171) DLT 468] the Delhi High Court has declared that overtime is not mandatory in all government offices. Holding that the requirement to pay overtime depended upon the rules and conditions attached the work one is performing and that overtime was not an inviolable concept, the High Court declared that an employee in a scheduled employment drawing more than minimum wages is not entitled to overtime at double the rate as prescribed under the Minimum Wags Act and the Rules made thereunder.
The High Court inter alia observed as under;
15. I may however state my reasons for preferring the view in Municipal Council, Hatta, of the employee even if in scheduled employment but drawing more than minimum wages and enjoying better terms of employment than under the Act and the Rules, being not entitled to overtime at double the rate as provided in the Rules. The Minimum Wages Act, 1948 was only intended to secure minimum wages and certain other conditions in scheduled employment. It was not intended to and/or is not a legislation to otherwise govern the contract of employment between an employer and an employee drawing more than the minimum wages, even in scheduled employment. If an employee in a scheduled employment is drawing more than the notified minimum wages and enjoying amenities, facilities and conditions of employment better than those provided under the Act and the Rules, then holding the provisions of the Act to be still applicable to the employee would tantamount to the legislature interfering in terms of employment in the scheduled industry rather than securing minimum wages and related conditions of employment in such employment. The Supreme Court in Beed District Central Co-operative Bank Ltd. Vs. State of Maharashtra (2006) 8 SCC 514 held that even while interpreting a beneficient statute (in that case the Payment of Gratuity Act) either a contract has to be given effect to or the statute. It was held that the Gratuity Act under consideration in that case, did not contemplate that the workmen would be at liberty to opt for better terms of the contract while keeping the option open in respect of a part of the statute; he has to opt for either of them and not the best of the terms of statute as well as those of the contract and that he cannot have both. A reading of the Minimum Wages Act, 1948 also shows that its scheme is to ensure fixing of hours of work and minimum wages therefor. It also does not envisage interference with the terms of employment even in scheduled establishments where workmen/employees are enjoying wages more than the minimum and working hours/conditions better than those prescribed in the Act. Section 14 of the Act provides for work over and above the time for which the workman is to work in lieu of minimum wages. If the workman is working for lesser hours than those for which he is required to work to earn the minimum wage, then the computation of overtime as done in the Rules on the said premise cannot be made applicable to him.
16. Section 25 of the Act makes a contract whereunder an employee relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under the Act null and void to the extent it purports to reduce the minimum rate of wages fixed under the Act. Unless the Act is held inapplicable to those scheduled employments where payment is being made at rates in excess of the minimum wages, the contract or agreement for payment of overtime at rates lesser than the double rate would become null and void. Section 26(2) of the Act empowers the appropriate government to, by notification, exempt the employees employed in scheduled employment from applicability of the Act or certain provisions thereof. Ideally, the appropriate Government should in exercise of the said power notify that the provisions of the Act shall not apply to those in scheduled employment earning more than minimum wages and enjoying working conditions better than those prescribed in the Act.
17. For the reasons aforesaid, the petition has to succeed and the order of the Authority under the Minimum Wages Act, 1948 is struck down/quashed. The Rule issued earlier is made absolute. However in the facts of the case, the parties are left to bear their own costs.
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