Delhi Shops and Establishments Act,1954 — Physical PDF page 9 of 27

     The cases where a workman is paid a daily rate present no difficulty. However, when
payment is made on monthly scale of pay, the daily rate of wages for a worker can be obtained
only by dividing the amount of wages for 30 days by 26. This is done because the workman is
entitled to four days as weekly rest during which period he does not work. The reason is that
workman actually gets monthly wages for the work done only for 26 days. Thus for a workman, it
is the actual receipt for 26 days which is his monthly scale of pay, i.e., 30 days wages. Therefore,
a day’s wage should mean the result obtained by dividing the monthly wages by actual number of
working days, i.e., 26 days. This principle will, however, be applicable in case of such workers
who get monthly wages only for the actual number of working days. The formula for calculation of
the overtime wages for one hour is to divide the month’s wages by 26 into the number of normal
working hours and the result so obtained by them then multiplied by two to calculate one hour’s
overtime wages; P. Radhakrishnan Nair v. K.S.R.T.C., 1983 Lab. IC 276 (Ker. HC). Similarly, a
day’s wage should mean the result obtained by dividing the monthly wages by actual number of
working days; K.S. Verma v. The Madhya Pradesh State Road Transport Corporation, 1979 Lab
IC 107: 1979 LLR 150.
     In one case before the Supreme Court, the management had prescribed 39 hours and had
agreed to pay overtime wages for any work taken in excess of such normal working hours and
upto the maximum, i.e., 48 hours at 1½ times the ordinary rate of wages and beyond the
maximum, i.e., 48 hours and upto 54 hours at double the rate of ordinary wages and the question
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posed was where the employer prescribes working hours less than the maximum permissible in
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the statute, does he incur the obligation to pay overtime wages at the rates prescribed in the
Tamil Nadu Shops & Establishments Act, 1947. The Supreme Court allowed the appeals filed by
the management and reversed the decision of the High Court directing payment of overtime
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wages by twice the ordinary rates of wages for any work beyond the prescribed 39 hours and
upto 48 hours; Philips India Ltd. v. Labour Court, Madras, AIR 1985 SC 1034: 1985 (1) LLN 633:
1985 (66) FJR 474.                               di
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     However, the Allahabad High Court has held that if the workers are required to work for
additional hours but if such additional hours will be less than 48 hours in a week, the employees
will be entitled to wages and not overtime; New Victoria Mills, Unit of National Textile Corporation,
Uttar Pradesh Ltd. v. Labour Court (1) Kanpur, 1990 LLR 113.
     Claim for overtime should be made within reasonable time. It has been held by Delhi High
Court that the claim for overtime by the employee when he was in Iraq or if he could not make his
claim there, he should have served a notice in writing upto the employer as soon as he returned
to India; Bhandari Builders v. M.K. Seth, 1988 (72) FJR 134: 1988 LLR 91: 1988(1) CLR 279.
     It is, however clarified that the Delhi Shops & Establishments Act, 1954 is not exhaustive on
all the rights and obligations of the employers and the employees as such the provisions of
Industrial Disputes Act, 1947 being Central Act governs the matters.
     For instance if an employer who proposes to effect any change prejudicial to the workmen, in
respect of any matter specified in the fourth schedule to the Act, should give the workmen
concerned twenty one days notice under section 9A of the Industrial Disputes Act. The real object
and purpose of section 9A of the Act is to afford an opportunity to the workmen to consider the
effect of the proposed change and, if necessary, to represent their point of view on the proposal.
Such consultation further serves to stimulate a feeling of common interest of the management
and workmen in industrial progress, efficiency and increased productivity. This approach on the
part of the employer would reflect his harmonious and sympathetic cooperation in improving the
status and dignity of the employee in accordance with the egalitarian and progressive trend of our
industrial jurisprudence which strives to treat capital and labour as co-sharers and to break away
from the tradition of labour’s subservience to capital. In order to achieve the object underlying
section 9A, it would be more appropriate to place on the fourth schedule read with section 9A of
the Industrial Disputes Act, a construction liberal enough to include change of weekly rest days
from Sundays to some other week day.
     The Fourth Schedule as appended to the Industrial Disputes Act, 1947 provides as follows:
            “Conditions of Service for Change of which Notice is to be given
            1. Wages, including the period and mode of payment;