ORDER
P.D. Dinakaran, J.
1. The petitioner in both the writ petitions is the employer.
2. W.P. No. 15988 of 1990 is directed against the award dated September 29, 1989 made in Claim Petition No. 810/1987 filed by a Mechanic, namely, the first respondent therein, awarding an overtime allowance of Rs. 660.44 for 79 hours at the rate of (4.18 x 2) i.e., Rs. 8.36 per hour for having worked for 119 hours in five days instead of the required time of 8 hours per day i.e. 40 hours when he was at the disposal of the employer and in charge of the transport of the vehicle bearing Registration No. TML 8393 from 4 a.m. on January 6, 1987 till 3 a.m. on January 11, 1987 for an outstation tourist trip between Cuddalore and Sabarimalai.
3. W.P. No. 15989 of 1990 is directed against the award dated September 29, 1989 made in Claim Petition No. 809/1987 filed by a driver, namely, the first respondent therein., awarding an overtime allowance of Rs. 197.15 for 125.30 hours at the rate of (3.58 x 2) i.e., Rs. 7.16 per hour for having worked for 189.30 hours in eight days instead of the required time of 8 hours per day i.e., 64 hours, when he was at the disposal of the employer and was in charge of the transport of the vehicle bearing Registration No. TMS 8513 from 4.00 a. m. on January 3, 1987 till 12.30 p.m. on January 10, 1987 for an outstanding tourist trip between Cuddalore and Sabarimalai.
4. The above factual details with reference to the respective timings namely, starting and closing time of the respective outstation trips as well as the total number of hours, namely 119 hours in W.P. No. 15988 of 1990 and 189.30 hours in W.P. No. 15989 of 1990 for the mechanic; the overtime allowance of (4.18 x 2) i.e. Rs. 8.36 per hour in W.P. No. 15988 of 1990 and (3.58 x 2) i.e. Rs. 7.16 per hour in W.P. No. 15989 of 1990 for the driver are not in dispute.
5. The Labour Court, second respondent in the respective writ petitions, taking into consideration the fact that the first respondent in both the writ petitions were available at the disposal of the employer during the total number of hours, namely, 119 hours in W.P. No. 15988 of 1990 and 189.30 hours in W.P. No. 15989 of 1990, after deducting the hours of work of each day prescribed under Section 13 of the Motor Transport Workers Act, 1961 (hereinafter referred to as ‘the Act’), namely, 8 hours a day, came to the conclusion that the mechanic, first respondent in W.P. No. 15988 of 1990 is entitled for overtime allowance for 79 hours at the rate of (4.18 x 2) Rs. 8.36 per hour and awarded a sum of Rs. 660.44. Similarly, the driver, first respondent in W.P. No. 15989 of 1990 is entitled for overtime allowance for 125.30 hours at the rate of (3.58 x 2) Rs. 7.16 per hour and awarded a sum of Rs. 897.15. Aggrieved by the said award dated September 29, 1989 made in C.P, Nos. 810 and 809 of 1987, the employer-petitioner has preferred the above writ petitions.
6. Mr. Arulraj, learned counsel appearing for the petitioner- employer, contends that as per Sections 13, 15 and 26 of the Act read with Rule 26 of the Tamil Nadu Motor Transport Workers’ Rules, 1965 (hereinafter referred to as ‘the Rules’) the first respondent in the respective writ petitions are entitled only for the salary at the rate of 8 hours a day for the corresponding total number of days, but they are not entitled for any overtime allowance for the remaining hours as they are paid batta for the respective days as per the Circular dated March 12, 1986.
7. Mr. Arulraj, learned counsel for the petitioner, further contends that if the employer pays the overtime allowance for all total number of hours for which the workers were engaged, it would mean that they have engaged the workers for more than the statutory hours as contemplated under Sections 13 and 15 of the Act, and consequently, they are liable to be convicted under Section 31 of the Act.
8. Per contra, Mr. K. Chandru, learned senior counsel appearing for the first respondent in the writ petitions, contends that the first respondent in these writ petitions, who are motor transport workers within the meaning of Section 2(h) of the Act, having been engaged by the employer and worked at the disposal of the employer, are entitled for salary as well as overtime allowance as per Section 26 read with Rule 26 for the total number of hours they have been engaged. Mr. K. Chandru, learned senior counsel, also, placing reliance on the decision in Government Transport Service, Bombay, v. S.L. Mishra reported in (1996-III-LLJ (Suppl) -670) (Bom) contends that the circular relied on by the employer relating to travelling allowance rules is not applicable to the facts and circumstances of this case inasmuch as it cannot supercede the provisions of Section 26 of the Act and Rule 26 of the Tamil Nadu Motor Transport Workers’ Rules, 1965.
9. I have given a careful consideration to the submissions of both sides.
10. In this regard, I am obliged to refer Sections 2(f), 13, 15 and 26 of the Act and Rule 26 of the Rules:
Section 2(f):
“Hours of work” means the time during which a motor transport worker is at the disposal of the employer or of any other person entitled to claim his services and includes –
(i) the time spent in work done during the running time of the transport vehicle;
(ii) the time spent in subsidiary work; and
(iii) periods of mere attendance at terminals of less than minutes.”
Section 13:
“Hours of work. – No adult motor transport worker shall be required or allowed to work for more than eight hours in any day and forty-eight hours in any week:
Provided that where any such motor transport worker is engaged in the running of any motor transport service on such long distance routes, or on such festive and other occasions as may be notified in the prescribed manner by the prescribed authority, the employer may, with the approval of such authority, require or allow such motor transport worker to work for more than eight hours in any day or forty-eight hours in any week but in no case for more than ten hours in a day and fifty-four hours in a week, as the case may be:
Provided further that in the case of a breakdown or dislocation of a motor transport service or interruption of traffic or act of God, the employer may, subject to such conditions and limitations as may be prescribed, require or allow any such motor transport worker to work for more than eight hours in any day or more than forty-eight hours in any week.”
Section 15:
“Daily intervals for rest – (1) The hours of work in relation to adult motor transport workers on each day shall be so fixed that no period of work shall exceed five hours and that no such motor transport worker shall work for more than five hours before he has had an interval for rest for at least half-an-hour:
Provided that the provisions of this sub-section insofar as they relate to interval for rest shall not apply to a motor transport worker who is not required to work for more man six hours on that day.
(2) The hours of work on each day shall be so fixed that a motor transport worker is, except in any case referred to in second proviso to Section 13, allowed a period of rest of at least nine consecutive hours between the termination of duty on any one day and the commencement of duty on the next following day.”
“Section 26:
“Extra wages for overtime:- (1) Where an adult motor transport worker works for more than eight hours in any day in any case referred to in the first proviso to Section 13 or where he is required to work on any day of rest under Sub-section (2) of Section 19, he shall be entitled to wages in respect of the overtime work or the work done on the day of rest, as the case may be.”
“Rule 26:
“Extra hours of work. –
(1) The Chief Inspector may, on written application from an employer, subject to such conditions and for such period as he may think fit, permit motor transport workers who are engaged in the running of any motor transport service.
(i) on any route of 120 kilometers or more; or
(ii) on such festive or other occasions as may be notified by the Chief Inspector in the Official Gazette to work for more than 8 hours in a day or 48 hours in a week but in no case more than 10 hours in a day or 54 hours in a week as the case may be.
(2) The authority competent to accord approval for the employer requiring or allowing any such motor transport worker as is referred to in the first proviso to Section 13 to work for more than the hours of work specified in that section shall be the Inspector.
(3) In any case referred to in the second proviso to Section 13, an employer shall not require or allow any motor transport worker to work for more than sixteen hours in a day and seventy-two hours in any week nor shall any such motor transport worker be required or allowed to work for more than the hours of work specified in Section 13 unless he had at least eight consecutive hours of rest between the termination of duty and commencement of the next duty.
11. As per the definitions of hours of work, it is clear that eventhough the first respondent in the respective writ petitions are engaged for outstation festival trip, namely, between Cuddalore and Sabarimalai within the proviso to Section 13 and Section 15(2) of the Act, there is nothing on record to show that the employer had terminated the duty of the workers on the expiry of either eight hours of minimum duty or ten hours of maximum duty, contemplated under Sections 13 and 15 of the Act, nor there is anything on record that the employer has given any roaster for engaging the employees, who admittedly, had been at the disposal of the employer for 119 hours and 189.30 hours in W.P. Nos. 15988 and 15989 of 1990 respectively. In the absence of any such direction for terminating their respective work or a roaster to that effect, it is deemed that the workers were engaged throughout by the employer and were available for service at the disposal of the employer. When there is no material either before the Labour Court or before this Court nor any averment is stated by the writ petitioner-employer to that effect, I have no option except to conclude that the first respondent-workers were at the disposal of the employer for all these hours. Consequently, they are entitled for the benefit of extra wage for overtime as per Section 26 of the Act read with Rule 26 of the Rules, referred to above.
12. Eventhough Mr. Arulraj relies upon the travelling allowance circular giving the benefit only for daily allowance and travelling allowance, in my considered opinion, such a circular will not prevail over Section 26 of the Act and Rule 26 of the Rules, which guarantee the overtime allowance to the first respondent in the respective writ petitions, statutorily.
13. In fact, as referred to by Mr. K. Chandru, learned senior counsel for the first respondent in the respective writ petitions, the Bombay High Court in Government Transport Service, Bombay v. S.L. Mishra (supra), held that such allowance will not give statutory credentiality in preference to the provisions of the Act and the Rules.
14. For all these reasons, I am unable to appreciate the contentions of the learned counsel for the petitioner challenging the impugned awards. The writ petitions are devoid of merits, and want of legal contention, and hence, they fail, and are therefore dismissed. Consequently, W.M.P. Nos. 25021 and 25022 of 1990 are also dismissed. No. costs.