C.W.P.No.15807 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.15807 of 2008 Date of Decision:- 05.03.2009 The General Manager, Haryana Roadways, Chandigarh ....Petitioner(s) vs. Azad Singh and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Additional Advocate General, Haryana for the petitioner. Mr.Subhash Ahuja, Advocate for the respondent-workmen. *** AUGUSTINE GEORGE MASIH, J. By this order, I propose to decide a bunch of 25 writ petitions filed by the General Manager, Haryana Roadways, out of which C.W.P.Nos.2285 of 2006, 2313 of 2006, 12666 of 2008, 12716 of 2008, 12727 of 2008, 12729 of 2008, 12730 of 2008, 15805 of 2008, 15806 of 2008, 15807 of 2008, 15811 of 2008, 15814 of 2008, 15815 of 2008, 15834 of 2008, 15836 of 2008, 15843 of 2008, 15844 of 2008 and 16783 of 2008 relate to the claim of the Conductors while C.W.P.Nos.12717 of 2008, 15831 of 2008, 15835 of 2008, 15837 of 2008, 15841 of 2008 and 15842 of 2008 relate to the claim of Drivers. The workmen therein filed applications under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') claiming that they are entitled to over-time C.W.P.No.15807 of 2008 -2- allowance as granted by the Government from time to time. These drivers and conductors belong to the Haryana Roadways owned by the Government of Haryana and are treated as government employees and, therefore, are governed by the pay-scales as applicable to all the government employees of Haryana. As the question with regard to the entitlement of over-time allowance of both the categories of employees i.e. Drivers and Conductors is involved, all these cases are being taken up for disposal as common questions of law and facts are involved in these two sets of writ petitions. Applications were filed by the workmen-respondents before the Industrial Tribunal-cum-Labour Court, Chandigarh under Section 33-C (2) of the Act claiming the computation of the difference of over-time allowance paid to them under the pre-revised pay-scales from 1.1.1996 to 31.12.1997 and the over time allowance under the revised pay-scales on the basis of the notification dated 7.1.1998 issued by the Government of Haryana enforcing the revised pay-scales with effect from 1.1.1996. Arrears of pay as per revised pay-scales have been given to them from 1.1.1996 but not the over time allowance on these revised pay scales. It is the contention of the applicant-workmen that they were being paid the over-time allowance at the rate double the wages they were entitled to per hour for the over time put in by them from 1.1.1996 till 31.12.1997 at the pre-revised pay-scales and thereafter from 1.1.1998 as per the revised pay-scales. They contend that when they have been granted the revised pay-scales with effect from 1.1.1996, they are entitled to the over time allowance at the said rate as the formula for giving effect to or granting the benefit of over time allowance remains the same i.e. double the wages the workmen earn per hour. It is their contention that as a matter of fact, C.W.P.No.15807 of 2008 -3- there is an increase of 33% in the wages of the workmen. In the case of conductors prior to the revision of pay, the applicants were getting over time allowance at the rate of Rs.23/- per hour approximately and on revision of the pay-scales, the same came to about Rs.35/- per hour. Thus, their contention is that they are entitled to the over-time allowance as per the revised pay-scales with effect from 1.1.1996 to 31.12.1997. On the other hand, the stand of the petitioner-Management is that the application under Section 33-C (2) of the Act, is not maintainable as the workmen have no pre-existing right. It is their contention that the over time allowance is admissible to the workmen on the basis of the instructions issued by the Government from time to time and has nothing to do with the revision of the pay-scales. The allowances are taken up separately and are applicable to the employees as and when instructions are issued to that effect. It is the contention of the petitioners that no instructions were issued for granting over-time allowance as per revised pay-scales for the period from 1.1.1996 to 31.12.1997. The workmen are entitled to over time allowance as per the instructions applicable at that time and they have been granted the said benefit of over time under the then prevalent instructions. Reliance has been placed upon the decision of the Government dated 2.3.1998 (Annexure P-3/T) wherein a positive decision was taken that the payment of over time allowance shall be in accordance with the old or unrevised pay-scales to the employees till the final decision of the Government with regard to other allowances i.e. House Rent Allowance, Medical Allowance, Travelling Allowance etc. Thereafter, reliance has been placed upon the decision of the Government dated 23.11.1998 (Annexure P-2) vide which a positive decision was taken by the C.W.P.No.15807 of 2008 -4- Government after carefully considering that for the period 1.1.1998 to 31.8.1998, the workmen would be paid over time allowance as per the past practice but at the rate double the new wages i.e. (at the rate of new basic pay + D.A.) for the period and after 31.8.1998 provisions as laid down under Section 13 of the Motor Transport Workers' Act, 1961 will be complied with. On this basis, the stand of the petitioners is that for the period 1.1.1996 to 31.12.1997, the decision which would prevail is dated 2.3.1998 which says that the workmen would be made payment of over time allowance in accordance with the old or unrevised pay-scales. As that was the prevalent decision for the relevant period, the claim, thus, for this period with regard to over time would be governed by the decision dated 2.3.1998 as this decision was neither modified nor revised nor withdrawn by the Government. No decision other than this was taken for the period 1.1.1996 to 31.12.1997. It has further been submitted by the Government that as per Rule 2.44 of the Punjab Civil Services Rules, Vol.I part I, as applicable to Haryana, (hereinafter referred to as the Rules), the pay means the amount drawn monthly by a Government employee as pay in the time scale or fixed amount, sanctioned for the post as held by him in substantive or officiating capacity. It also includes personal pay, special pay, over-seas pay, technical pay, non-practicing allowance, deputation allowance or any other emoluments, classified as pay by the Competent Authority. Over time allowance has also been defined under Rule 2.30 of the Rules as an additional allowance paid to a Government employee who is to perform duties after normal working hours. On the basis thereof, the Government has projected that the revision of the pay-scales has nothing in common with regard to over time allowance as it is not included in the pay of the C.W.P.No.15807 of 2008 -5- employee. It has further been contended that the revision of the pay-scales does not include the revision of over time allowance and, therefore, the workmen were not entitled to the same; rather they had no pre-existing right and, therefore, application under Section 33-C (2) of the Act was not maintainable. Counsel for the petitioner on the basis of the above pleadings of the petitioner-management submits that the entitlement of the workmen for the period from 1.1.1996 to 31.12.1997 has been decided by the Government vide its order dated 2.3.1998 (Annexure P-3) which says that they would be entitled to Over-Time Allowance as per old/unrevised pay- scales. As per decision dated 23.11.1998 (Annexure P-2), the entitlement of the workmen from 1.1.1998 to 31.8.1998 was determined by holding that they would be entitled to over time allowance as per new wages and from 31.8.1998 according to provisions as laid down under Section 13 of the Motor Transport Workers' Act, 1961. The claim of the workmen for the period from 1.1.1996 to 31.12.1997 as has been claimed by them, i.e. over time allowance as per the revised pay-scales has not been yet determined or adjudicated upon. The decision of the Government dated 2.3.1998 (Annexure P-2) could be an illegal decision but unless the same is set aside, it holds the field and the workmen cannot entitle themselves to submit that they could claim the benefit of over time allowance for the said period under Section 33-C (2) of the Act. This is a positive decision by the Government holding that field and the Labour Court under Section 33-C (2) of the Act would be going against it and even beyond it. In the present case, since the decision of the Government holding the field has not been set aside by any Competent Court, the Labour Court could not have entertained C.W.P.No.15807 of 2008 -6- the application under Section 33-C (2) of the Act nor could have granted the benefit of computation of wages as the question of computation would only come after determination of such claim and its entitlement. Counsel, on this basis, submits that the application itself under Section 33-C (2) deserved to be dismissed. On the other hand, counsel for the respondent-workmen contends that as per the decision dated 2.3.1998 (Annexure P-3) the decision on the question of over time allowance was linked with other allowances i.e. House Rent Allowance, Medical Allowance, Travelling Allowance etc. and what was decided by the said letter was that the payment of over time allowance shall be made to the workmen in accordance with old or unrevised pay-scales till the final decision of the Government with regard to other allowances. He contends that it is not disputed that the House Rent Allowance, Medical Allowance, Travelling Allowance etc. have been granted to all the employees covered by the revised pay-scales with effect from 1.1.1996. Since all these allowances have been granted from 1.1.1996, the decision with regard to over time allowance also is required to be given effect to from 1.1.1996. He further contends that once the pay-scales have been revised with effect from 1.1.1996, the workmen would be entitled to over time allowance also with effect from 1.1.1996 as the basis for determining the over time allowance was that they would be entitled to double the amount of wages calculated on per hour basis. When from 1.1.1996 onwards, the per hour wages stood increased due to revision of the pay-scales, the natural consequence would be that they would be entitled to double the wages so drawn with effect from 1.1.1996 onwards on the over time the workmen had put in. He C.W.P.No.15807 of 2008 -7- submits that the quantum of the allowance has nothing to do with the pay- scales as it is dependent on the per hour wages. The formula for determination of those wages all through remains the same whether under the un-revised pay-scales or under the revised scales i.e. for over time allowance it would be double the wages which a workman is entitled to on hourly wages drawn by him. He submits that the contention of the petitioner-management, therefore, cannot be accepted that the instructions would determine the entitlement of the workmen to such over time allowance and the quantum thereunder. Counsel relies upon a judgment of the Division Bench of the Bombay High Court in the case of K.Shankar Narayan vs. S.S.Thakur and another, AIR 1962 Bombay 260, to contend that the wages for over time should be paid on the basis of increased basic wages from the retrospective date as the determining factor is the wages drawn by the workmen for the relevant period if the rate is not changed. He further contends that a Division Bench of this Court, in a similar case where an application under Section 33-C (2) of the Act filed by another Conductor of Haryana Roadways was allowed by the Labour Court on the same premises and on the same grounds, had dismissed the writ petition preferred by the State of Haryana, holding therein that the claim of the workmen was a pre- existing right which could be enforced by the workmen under Section 33-C (2) of the Act. The question with regard to non-sanctioning of payment of difference of amount of over time between the pre-revised amount and the amount which was due after revision, has also been considered and rejected by the Division Bench of this Court in C.W.P.No.12530 of 2002 State of Haryana vs. Anirudh and others, decided on 11.8.2003 and the Special C.W.P.No.15807 of 2008 -8- Leave Petition preferred by the State of Haryana against the same also stands dismissed by the Hon'ble Supreme Court of India. Since the matter is fully covered by the said Division Bench judgment of this Court, the present writ petition deserves to be dismissed and no interference is called for by this Court. Counsel for the petitioner submits that in Anirudh's case (supra), the Special Leave Petition preferred by the petitioners before the Hon'ble Supreme Court, was dismissed on the ground of inordinate delay in filing the said petition before the Hon'ble Supreme Court. However, the Hon'ble Supreme Court has left the question of law open while dismissing the said Special Leave Petition. He, therefore, contends that it would be open for this Court to take a different view as far as this matter is concerned. I have heard learned counsel for the parties and have gone through the records of the case. The position which emerges from the pleadings of the parties is that the over time allowance is granted to the workmen under the Instructions issued from time to time by the Government of Haryana. Although over time allowance does find mention in Rule 2.30 of the Punjab Civil Services Rules Vol.I Part I but the pay as provided under Rule 12.44 of the Punjab Civil Services Rules Vol.I Part 1, as applicable to Haryana does not include over time allowance. It is not in dispute that the instructions did provide for the grant of over time allowance and the rate thereof was also provided under those instructions i.e. the same was to be double the amount of the wages as calculated per hour. For the period from 1.1.1996 to 31.12.1997 also, the workmen were entitled to the over time allowance as per this rate prescribed under the C.W.P.No.15807 of 2008 -9- instructions. It is also not in dispute that the workmen have been granted the over time allowance as per this very rate for the period in question but by calculating the same as per the un-revised pay- scales. The formula for calculating the over time allowance is also not in dispute i.e. the wages drawn by the workmen for that particular period. The entitlement of the workmen for grant of over time allowance is not in dispute. What is in dispute, therefore, is the quantum of the over time allowance the workmen are entitled to. When the basis for calculating over time allowance i.e. the wages for one hour, the formula for determination i.e. double the wages calculated and the period i.e. from 1.1.1996 to 31.12.1997 is not in dispute; then what is left out for the Labour Court to decide is the quantum the workmen would be entitled to for the said period. If that being so, the contention of the counsel for the petitioner that the application under Section 33-C (2) would not be maintainable, cannot be sustained. The contention raised by the learned counsel for the petitioner that there are no specific instructions providing for the grant of over time allowance under the revised pay-scales with effect from 1.1.1996 to 31.12.1997, would be of no consequence as the pay-scales were revised with effect from 1.1.1996 and the arrears thereof have been paid to them with effect from the said date. Meaning thereby, the workmen have been granted the revised wages which would become the basis for calculation and for determination of the amount of over time allowance they would be entitled to. When it is not the case of the petitioners that they are not entitled to nor is it their case that they are not to be given over time C.W.P.No.15807 of 2008 -10- allowance for the period in question and that they have not been granted the revised pay-scale, how can they be deprived of the claim of the amount due as per the wages determined under the revised pay-scales received by them for this relevant period? It is also not the case of the petitioners that from 1.1.1996 the mode of calculation for grant of over time allowance to the workmen has been changed or that their entitlement for over time allowance has been curtailed or withdrawn. What has, therefore, been determined by the Labour Court is not the entitlement of the workmen for payment of over time allowance but only the amount they are entitled to on the revision of the pay-scales without violating any of the instructions which entitle the workmen for the payment of over time allowance. The instructions prevalent during the relevant time, provided for the over time allowance and the mode of calculation which admittedly has not been changed by the Government and both these basic features have not been tampered with or changed by the Labour Court while determining the quantum of the amount, the workmen would be entitled to. The Labour has only taken the revised pay-scales, which have been granted to the workmen with effect from 1.1.1996, the actual payment thereof has admittedly also been made in the form of arrears to them, as the basis for determining the average wages per hour for determining the quantum of over time they would be entitled to for the period in question. No fault can be found in this decision of the Labour Court. Therefore, the contentions as raised by the counsel for the petitioner cannot be accepted. The Division Bench of this Court vide its order dated 11.8.2003 in Anirudh's case (supra) in C.W.P.No.12530 of 2003 has held as follows:- C.W.P.No.15807 of 2008 -11- “The workman had made an application under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) claiming for payment of overtime allowance in the sum of Rs.43,241/-. It was argued by the Management before the Labour Court, which has been reiterated in this Court by Ms.Monga, that the Government has not sanctioned payment by difference on account of overtime between the pre- revised amount and the amount which was due after revision. Consequently, there was no pre-existing right which could have been enforced by the workman under Section 33-C (2) of the Act. The Labour Court, after examination of the entire evidence has come to the conclusion that the workman was entitled to the payment of overtime allowance in the same ratio as was being paid on the pre-revised pay scale. We are unable to agree with the submission of Ms.Monga tot he effect that the Labour Court has no jurisdiction to compute the difference of payment on account of overtime between the pre-revised amount and the amount which was due after revision of the pay scale. In view of the above, the writ petition is dismissed.” These observations of the Division Bench, further support the conclusions reached by me above and I see no reason to take a contrary view despite the Hon'ble Supreme Court keeping the question of law open in the SLP. C.W.P.No.15807 of 2008 -12- In view of the above, I do not find any illegality in the order passed by the Industrial Tribunal-cum-Labour Court, Chandigarh which would persuade me to take a different view therefrom or interfere with the same. Finding no merit in these writ petitions, I dismiss the same. March 5th, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No