The question as to whether overtime can be claimed as a right was decided by the Nagpur Bench of the Hon’ble Bombay High Court in its decision in M/s. Neco Schubert and Salzer Ltd. Vs. Krushna Nagorao Lute and Ors.[ Writ Petition No. 1021 of 2004 ].
The Petition challenged the judgment and order dated 9-1-2004 passed by the Industrial Court, Nagpur, in Complaint (ULP) No. 402 of 2003. The complaint was filed by the elected representatives of the employees under the Bombay Industrial Relations Act, 1946 and sought to invoke Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 on the ground that the petitioner-employer was engaged in unfair labour practice by recruiting new employees instead of getting overtime work done by the permanent employees. The Industrial Court allowed the said complaint and restrained the Petitioner-employer from recruiting, continuing or engaging new employees to get overtime work done, which is performed by the permanent employees. It is also directed that the petitioner-employer should get done overtime work from the permanent employees only. The Ld. Labour Court therefore held that the permanent workmen had a legal right to get overtime work and consequently the wages for that purpose.
The Hon’ble Bombay High Court opined that, to decide the question of whether the employees could claim overtime by way of a right, the decision in India Security Press Mazdoor Sangh v. Currency Note Press, Nasik Road and others, [1993 (3) L.L.J. (Suppl.) 58] would have to be referred to. In short, in the India Security Press Mazdoor Sangh case, the Hon’ble Bombay High Court had held that; just as the employer initiates overtime work, he has a right to withdraw it unilaterally. Whether overtime work is needed to be done is entirely dictated by the exigencies of work which are variable from time to time.
In view of the above, the Bombay High Court held that the respondent workmen had no right to overtime work, which is necessitated by the exigencies and merely because for length of time of whatever duration the shifts were so arranged as to include the overtime of the work also, that would not confer on a workman right to overtime work. It has to be held that the employer has right to withdraw the overtime work even unilaterally and such action on the part of the employer does not amount to change, requiring a notice under Section 42 of the Bombay Industrial Relations Act. The Hon’ble Court therefore held that the findings recorded by the Industrial Court could not be sustained.