C.W.P.No.20865 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.20865 of 2008 Date of Decision:- 13.02.2009 Commissioner Secretary, Printing & Stationery, Haryana and another ....Petitioner(s) vs. The Presiding Officer, Labour Court, U.T., Chandigarh and another ....Respondent(s) *** CORAM: HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Additional Advocate General, Haryana for the petitioners. Mr.R.K.Malik, Sr.Advocate with Mr.Sajjan Singh, Advocate for the petitioners in C.W.P.No.16527 of 2007. Mr.Amit Chopra, Advocate for respondent No.2. Mr.S.C.Patial, Advocate, for the respondent. *** AUGUSTINE GEORGE MASIH, J. By this order, I propose to dispose of Civil Writ Petition Nos.16527 of 2007, 20865 of 2008, 20866 of 2008, 20868 of 2008, 20875 of 2008, 20908 of 2008, 244 of 2009, 245 of 2009, 246 of 2009, 283 of 2009, 286 of 2009, 287 of 2009, 295 of 2009, 296 of 2009, 297 of 2009, 298 of 2009, 299 of 2009, 303 of 2009, 315 of 2009, 316 of 2009, 317 of 2009, 370 of 2009, 371 of 2009, 372 of 2009, 373 of 2009, 374 of 2009, 375 of 2009, 376 of 2009, 380 of 2009, 381 of 2009, 382 of 2009, 383 of C.W.P.No.20865 of 2008 -2- 2009, 384 of 2009, 385 of 2009, 386 of 2009, 396 of 2009, 397 of 2009, 398 of 2009, 399 of 2009, 404 of 2009, 405 of 2009, 411 of 2009, 427 of 2009, 428 of 2009, 429 of 2009, 430 of 2009, 431 of 2009, 432 of 2009, 433 of 2009, 435 of 2009, 436 of 2009, 437 of 2009, 438 of 2009, 439 of 2009, 440 of 2009, 441 of 2009 and 442 of 2009, as common questions of facts and law are involved therein. For the sake of convenience, the facts are being taken from C.W.P.No.20865 of 2008. In the present set of writ petitions, challenge is to the order passed by the Labour Court under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') vide which the respondent-workmen have been held entitled to monetary benefits as per the directions of this Court in C.W.P.No.9983 of 1988 Jagdish Chander and 450 others vs. State of Haryana and another, decided on 24.8.2004. Briefly the facts which led to the filing of the present writ petitions by the State of Haryana are that Jagdish Chander and 450 others, who belonged to the industrial staff working in the office of the Controller, Printing and Stationery, Haryana, filed C.W.P.No.9983 of 1988 claiming therein a writ of Mandamus directing the respondents not to compel them to attend to their duties on Saturdays or on other holidays notified as public holidays by the respondent-State of Haryana. They had further sought a writ of Prohibition to the respondents for restraining them from making deduction from their salaries on account of their not attending the office on Saturdays which have been declared public holidays by the State of Haryana. It was stated that the ministerial staff working on technical and non-technical posts have been enjoying all Saturdays as holidays and they were being discriminated with. A consequential prayer was made during C.W.P.No.20865 of 2008 -3- the course of arguments that for the duties performed by the petitioners on Saturdays, they be held entitled to be paid extra wages in terms of the judgment of the Hon'ble Supreme Court in the case of Municipal Employees Union (Regd.), Sirhind and others vs. State of Punjab and others, 2000 (9) SCC 432. Counsel for the petitioners had relied upon a judgment of the Division Bench of this Court in the case of Ajmer Singh and others vs. Punjab State Electricity Board and others, (C.W.P.No.15412 of 2002 decided on 24.9.2002 to contend that the workmen should not be compelled to seek redressal of their grievances through the process of Court and the State should itself grant benefit to the similarly placed employees in terms of the orders passed by the Hon'ble Supreme Court. Considering the submissions made by the counsel for the petitioners, the learned Single Judge passed the order dated 24.8.2004 the concluding part thereof reads as under:- “In the present case, the petitioners have been working in the office of Controller, Printing and Stationery, Haryana and are posted in the Government Text Books Press, Panchkula, Haryana Government Press, Sector 18, Chandigarh and Bal Bhawan Press, Madhuban (Karnal). They are industrial employees. The petitioners have placed reliance on notifications Annexures P1 to P5 to claim that all Saturdays and Sundays have been notified to be holidays but still they have been working on Saturdays. It is claimed that the C.W.P.No.20865 of 2008 -4- ministerial staff and the employees working on technical and non-technical posts have been enjoying all Saturdays as holidays in view of the notification dated 29.10.1987 and letter dated 6.9.1988. The petitioners who are working on class III technical and non-technical posts have been asked to work and attend to their duties on Saturdays and despite representation through their union, the claims of the petitioners has not been acceded to. A reference in this regard may be made to representation dated 23.11.1987 (Annexure P-7) and 21.9.1988 (Annexure P-8). It is in this background of the factual position that learned counsel for the petitioners has claimed that the ratio of the judgment of the Supreme Court in Municipal Employees Union's case (supra) is applicable. I have thoughtfully considered the submissions made by the learned counsel and find that the instant petition deserves to be disposed of in terms of the direction issued by the Supreme Court in Municipal Employees Union's case (supra) and accordingly the petition is disposed of with the following directions:- (a) the petitioners may file appropriate application under Section 33-C(2) of the C.W.P.No.20865 of 2008 -5- Industrial Disputes Act, 1947 (for brevity, the Act) and on proper computation may be found entitled to extra wages for each of the Saturday on which they might have worked while their colleagues belonging to ministerial staff and holding technical and non-technical posts have enjoyed Saturdays as holidays; (b) if it is shown by the respondent that at the relevant time any instructions were issued under which the working conditions of the staff members were uniformly prescribed to be six days in a week, then the question of granting monetary benefit to the petitioners would not survive; (c) on the fulfillment of all the conditions, appropriate relief under Section 33-C(2) of the Act may be granted to the petitioners but the same has to be confined to three years immediately preceding the filing of the instant petition and thereafter continuously upto date. Therefore, in the application to be filed under Section 33-C(2) of the Act, the petitioners have to restrict their claim accordingly. (d) If any employee has retired during the C.W.P.No.20865 of 2008 -6- pendency of the proceedings, then the benefits which may be required to be computed, would obviously be available to him or her till the date of retirement. (e) If the petitioners file any such application under Section 33-C (2) of the Act within a period of three months, then the same may be disposed of expeditiously as early as possible preferably within a period of six months from the date of filing of such application.” Thereafter Letters Patent Appeal No.424 of 2004 State of Haryana and others vs. Jagdish Chander and others was preferred by the petitioners which was dismissed by the Division Bench of this Court on 14.9.2005. Special Leave to Appeal (Civil) No.672 of 2006 was preferred by the State of Haryana which was also dismissed by the Hon'ble Supreme Court vide its order dated 30.1.2006. As per the aforesaid directions dated 24.8.2004 of this Court, the petitioners-workmen (hereinafter referred to petitioners-applicants) filed appropriate application under Section 33-C (2) of the Act. Similarly placed employees who were not writ petitioners before this Court (hereinafter referred to as non-petitioners-applicants) also preferred applications under Section 33-C (2) of the Act before the Labour Court claiming therein the same benefit as the petitioners in the writ petition. The said applications having been allowed by the Labour Court, the present writ petitions have been preferred by the State of Haryana challenging the orders C.W.P.No.20865 of 2008 -7- of the Industrial Tribunal and Labour Court, U.T., Chandigarh. Mr.D.S.Nalwa, learned Additional Advocate General, Haryana has submitted that application under Section 33-C (2) of the Act is not maintainable as there is no settled right in favour of the workmen. Their claim has not been accepted by the petitioners before the Labour Court. The workmen do not have a pre-existing right which would entitle them to the benefit of moving an application under Section 33-C (2) of the Act. He further contends that judgment dated 24.8.2004 passed in C.W.P.No.9983 of 1988, which is the basis for claiming the benefits under Section 33-C (2) does not hold them entitled to the benefit of Saturdays as no finding to that effect has been given. He contends that the High Court has only issued directions in similar terms as have been issued by the Hon'ble Supreme Court in the case of Municipal Employees Union (Regd.) Sirhind's case (supra). He contends that the claim of the workmen being not covered under the judgment of the Hon'ble Supreme Court in the case of Municipal Employees Union (Regd.), Sirhind's case (supra) no benefit under Section 33-C (2) of the Act could be granted to the petitioners. For this, he contends that there are separate statutory rules governing the service of the ministerial staff and the industrial staff. The respondent-workmen who belong to the industrial staff and the ministerial staff who have been granted the Saturdays as off day, form a separate cadre, have separate seniority, with separate avenues and channels of promotion and the nature of work is also different. There is nothing common between them except that they are working in one establishment. Therefore, no benefit could have been granted to the respondent-workmen. He submits that those applicants who were non-petitioners and had not preferred the writ petition in the High C.W.P.No.20865 of 2008 -8- Court and were not parties to the judgment dated 24.8.2004 cannot be granted the benefit under Section 33-C (2) of the Act and in any case, if the benefit was to be granted to the workmen-non-petitioners, the same should have been restricted to 3 years prior to the filing of their application under Section 33-C (2) of the Act. Challenging the findings given by the Labour Court in the order impugned herein, the counsel contends that even if the directions as issued by this Court in C.W.P.No.9983 of 1988 vide order dated 24.8.2004 are to be complied with, the Labour Court was bound to give a finding that the claim of the workmen was covered by the judgment of the Hon'ble Supreme Court in the case of Municipal Employees Union (Regd.) Sirhind's case (supra). That having not been done, the order impugned herein cannot be sustained. He further contends that the judgment passed by the Court is a judgment in personam and cannot be termed as a judgment in rem which would entitle the non-petitioners the benefit of the order granted in favour of the petitioners in C.W.P.No.9983 of 1988. Mr. R.K.Malik, learned Sr. counsel, submits that the respondent-workmen would not be entitled to the monetary benefit of Saturdays on which they have worked, as the ministerial staff who are called upon to work on Saturdays are only entitled to compensatory leave. On the other hand, Mr.Amit Chopra, counsel for the respondent-workmen contends that a perusal of the directions issued by this Court in C.W.P.No.9983 of 1988 dated 24.8.2004 would clearly show that direction '(a)' is specific wherein it has been held that the workmen are entitled to extra wages for each Saturday on which they would have worked. He states that the Court has, while issuing directions, clearly C.W.P.No.20865 of 2008 -9- stated that the petitioners may file application under Section 33-C (2) of the Act and on proper computation may be found entitled to extra wages for each of the Saturdays on which they might have worked while their colleagues belong to ministerial staff and holding technical and non- technical posts have enjoyed Saturdays as holidays. He, on this basis, states that this Court has given a direction to the Labour Court to compute their entitlement of extra wages. This direction could have been issued when the Court had accepted the contention of the petitioners because the question of computation would only arise when they are held entitled to the benefit of Saturdays on which they have worked. He further submits that the contention as raised by the counsel for the petitioners cannot survive as all these contentions which are now being sought to be raised for denying the claim of the workmen were raised during the proceedings before this Court in L.P.A.No.424 of 2004 and the Hon'ble Supreme Court in S.L.P.No.672 of 2006 and the same having been rejected by the Courts cannot now be again pressed into service to submit that the workmen are not entitled to the benefit as per the judgment of this Court. He contends that the principle of res judicata would come into play. This would act as an estoppel for the petitioners to now raise the submissions which have once been adjudicated upon and rejected by the Court of competent jurisdiction and therefore, the same cannot now be re- opened in proceedings under Section 33-C (2) of the Act. He further contends that there may be different set of Rules governing certain conditions of service of the ministerial staff and industrial staff but nevertheless as far as the Rules governing the pay fixation, punishment and leave etc. is concerned, the employees of both the categories are governed C.W.P.No.20865 of 2008 -10- by the Haryana Civil Services Rules. The Leave Rules under which leave is being granted and the notification dated 30.7.1979 (Annexure P-2) under which all Saturdays are being observed as holidays by the ministerial staff being the same, the industrial staff are justified in claiming the benefit of Saturdays and they cannot be deprived of this claim. He contends that the workmen are entitled to the benefit of wages for Saturdays on which they had already worked. However, if the State of Haryana in future so desires, may grant the workmen the compensatory leave as has been asserted by the Senior Counsel while making his submissions. As regards the non-petitioners-applicants who were not party to the judgment passed by this Court in C.W.P.No. 9983 of 1988, he contends that since their status has not been denied that they are similarly placed as the workmen who were petitioners in the writ petition and the right of the workmen having been established by this Court and a declaration to that effect having been issued holding them entitled to the wages for the Saturdays on which they have already worked, the non- petitioners-applicants cannot be deprived of the same benefit by taking a plea that their right has not yet been adjudicated upon or that the same has not yet been established or that there is no pre-existing right. I have given my thoughtful consideration to the submissions put-forth by the counsel for the parties and with their able assistance have gone through the records of the case and am of the view that the present writ petitions deserve to be dismissed. The directions as given by the learned Single Judge in C.W.P.No.9983 of 1988 vide order dated 24.8.2004 would clearly show in direction '(a)' that this Court had granted liberty to file an appropriate application under Section 33-C (2) of the Act and that after C.W.P.No.20865 of 2008 -11- proper computation if the Labour Court finds that they are entitled to extra wages for each of the Saturdays on which they might have worked while their colleagues belonging to the ministerial staff and holding technical and non-technical posts have enjoyed Saturdays as holidays, they would be entitled to the said relief. Direction '(c)' issued by this Court would show that the relief under Section 33-C (2) of the Act was confined to 3 years immediately preceding the filing of the writ petition and thereafter continuously upto date i.e. the benefit of the directions with regard to the arrears was restricted by this Court. However, direction '(b)' really put a rider as far as the claim of the workmen for grant of extra wages for Saturdays is concerned. It said that if the State of Haryana proved before the Labour Court that at the relevant time for which the claim of the workmen is based, any instructions were issued under which the working conditions of the staff member were uniformly prescribed to be six days in a week, then the question of granting monetary benefits would not survive. Counsel for the State has very fairly conceded that there are no such instructions issued by the state which uniformly prescribe that all staff members irrespective of the fact whether they belong to the ministerial staff holding technical or non-technical posts, as well as the industrial staff are to work for six days in a week. That being so, the contention of the counsel for the petitioners that there is no direction given by this Court holding the workmen entitled to extra wages for the Saturdays on which they had worked while the ministerial staff had enjoyed as holiday, as such is not acceptable. The contention of the counsel for the petitioner-State that the learned Single Judge has not held that the claim of the petitioners would be C.W.P.No.20865 of 2008 -12- covered by the judgment of the Hon'ble Supreme Court in the case of Municipal Employees Union (Regd.) Sirhind's case (supra) is also devoid of any merit as the Division Bench of this Court while dismissing Letters Patent Appeal No.424 of 2004 has categorically held as follows:- “xxxxx xxxxx xxxxx xxxxx The learned Single Judge held that the matter was covered in favour of the writ petitioners-respondents by the judgment of the Hon'ble Supreme Court in Municipal Employees Union (Regd.) Sirhind and others vs. State of Punjab and others, (2000) 9 SCC 432, in which the Hon'ble Supreme Court when dealing with a similar case had issued certain directions, which have been applied to the present case as well. We find that in view of the undisputed facts mentioned above, the respondents-writ petitioners, clearly fall within the purview of the afore-cited judgment. It appears from the record that the respondents-writ petitioners are being denied holidays on Saturdays, whereas certain employees, working in the same office but in different branches, are being given a holiday on that day. We, therefore, find that there is no merit in this appeal. Dismissed.” The other submission as raised by the counsel for the petitioners with regard to the workmen belonging to separate cadre having separate seniority and separate statutory rules and, thus, not entitled to the C.W.P.No.20865 of 2008 -13- benefit of Section 33-C (2) of the Act, also cannot be accepted for the reason that all these grounds which have been taken here by the petitioners have already been pressed into service by the petitioner-State while preferring Letters Patent Appeal No.424 of 2004. Ground-I thereof reads as under:- “1. That the Ld. Single Judge has delivered the judgment in the aforesaid Writ Petition on the basis of the judgment of the Hon'ble Supreme Court of India in case of Municipal Employees Union (Regd.) Sirhind and others v. State of Punjab and others (2000) 9 SCC 432. A mere perusal of the aforesaid judgment would reveal that the said judgment was delivered under entirely different set of facts and circumstances, whereas the impugned matter in the said case was governed by entirely different law. The matter decided by the Hon'ble Supreme Court pertained to the Municipal Employees who were having common seniority list and common Pay Scales and were required to work either at Octroi Check Post or in office depending upon exigency of service. The Octroi Staff was not given the benefit of non-working Saturdays specified in the Govt. Notification for the Govt. employees, whereas such benefit was given to their counterparts posted in the offices. It was under these facts and circumstances that the aforesaid judgment of the Hon'ble Supreme Court was delivered. But the facts and circumstances involved C.W.P.No.20865 of 2008 -14- in the Writ Petition decided by the Learned Single Judge are entirely different. Here the employees with whom the parity has been ordered by the Ld. Single Judge are governed by different set of Rules. The staff working in various Presses of the Department is Class-III Industrial Staff and their service with respect to the working hours is governed by the provisions of The Factories Act, 1948 whereas the provisions of the said Act are not applicable on Class-III Ministerial Staff with whom parity has been ordered by the Hon'ble Single Judge.” Thereafter, these very grounds were also taken by the petitioners in the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.672 of 2006. The same reads as follows:- “2. QUESTIONS OF LAW:- That the following questions of law arise for consideration by this Hon'ble Court:- i) Whether the High Court committed an error in treating Class-III Industrial Staff working in various presses of the Department at par with the Class-III Ministerial Staff overlooking the fact that Class-III Industrial Staff is governed by the provisions of the Factories Act, 1948 whereas Class-III Ministerial Staff is not governed by the Factories Act, 1948 ?. ii) Whether the High Court committed an error in basing its judgment on the judgment of this Hon'ble Court in the case of “Municipal Employees Union (Regd.) C.W.P.No.20865 of 2008 -15- Sirhind and others vs. State of Punjab and others” reported in (2000) 9 SCC 432 wherein this Hon'ble Court found that the employees belonging to Class-III and Class-IV Service of the Municipal Committees working at the Octroi check post cannot be denied the right to enjoy Saturdays as holidays when their counterparts working in the office of the Municipal Committee are enjoying Saturdays as holidays ? iii) Whether the High Court committed error in treating class-III Industrial Staff and Class-III Ministerial Staff at par especially when they were governed by different working Rules ?” In the light of the above all the submissions which have been put-forth by the learned counsel for the petitioners which arise from these very grounds cannot be adjudicated upon in the present proceedings after the dismissal of the Letters Patent Appeal and the Special Leave to Appeal preferred by the petitioners. The grounds which have been pressed into service by the petitioners in the present writ petition have already been taken by them in the proceedings preferred against the order dated 24.8.2004 passed in C.W.P.No.9983 of 1988 before a Division Bench of this Court and, thereafter in the Supreme Court. In any case, the submissions as put forth by the counsel for the petitioners cannot succeed for the simple reason that it is an admitted fact that for the purpose of pay-fixation, punishment, leave etc. the employees of both the categories are governed by the same Rules i.e. the Haryana Civil Services Rules. The Management witness No.-1 Shri Dilbag Singh Berwal , C.W.P.No.20865 of 2008 -16- Assistant Controller, Office of Controller, Printing and Stationery Department, Haryana Chandigarh has stated as follows in his cross- examination. “XXXXXX By the Rep. For the workman. The Head of Department of the entire press i.e. Ministerial staff and technical staff is one. The punishing and appointing authority of class-III and class- IV employees of both the categories referred above is also the same as per rule. The pay commission recommendations have been made applicable to whole of State of Haryana. The employees of the press are also the Haryana Government Employees. For the purpose of pay fixation, punishment, leave etc. the employees of both the categories are governed by Haryana Civil Services Rules.” Since the question involved in the matter relates