:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.269 OF 1998 PETITION NO.269 OF 1998 PETITION NO.269 OF 1998 Life Insurance Corporation of India, a Corporation Established under the Life Insurance Corporation Act, 1956 having its Central Office at "Yogkshema" Jeevan Bima Marg, Bombay-400 021 ..Petitioner V/s 1. Satara Division Insurance Workers Organisation, 267, Bhawani Peth, Mothi Chowk, Satara 415 001 2. Presiding Officer, Central Government Industrial Tribunal No.2, Mumbai 3. Union of India, represented by the Secretary Ministry of Labour, New Delhi. ..Respondents Ms Snehal Paranjape a/w O. Mohandas i/b Little & Co. for the petitioner Mr.S.M.Dharap for the respondent No.1 Mr.G.Hariharan a/w H.V. Mehta i/b Dr. T.C. Kaushik for respondent Nos. 2 and 3. CORAM CORAM CORAM : : : SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI SRI SRI A.A. SAYED, JJ. A.A. SAYED, JJ. A.A. SAYED, JJ. DATE DATE DATE : 10TH JULY, 2008 : 10TH JULY, 2008 : 10TH JULY, 2008 ORAL ORAL ORAL JUDGMENT (PER SRI R.M.S.KHANDEPARKAR,J.) JUDGMENT (PER SRI R.M.S.KHANDEPARKAR,J.) JUDGMENT (PER SRI R.M.S.KHANDEPARKAR,J.) 1. Heard. The petitioner challenges the award dated 11th June, 1993 passed by the Central :2: Government Industrial Tribunal No.2, in Reference No. C.G.I.T. -2/35 of 1987 on the ground that the same is contrary to the provisions of law and circular issued by the petitioner on the point in issue. 2. The said reference under section 10(1)(d) of the Industrial Dispute Act, 1947 was made by the Central Government to decide as to whether the action on the part of Life Insurance Corporation of India of refusing the payment of overtime allowance, with effect from 1/1/1975, to the Jeep and Mobile Van drivers in Satara Division while they were on duties beyond 8 hours a day on the ground that intermittent gaps between spells of driving should be excluded from the duty hours is justified or not. 3. It was the case of the respondent that the workmen in question being the drivers of Mobile Van and Jeeps are required to work beyond the duty hours of 8 hours a day and therefore, overtime is required to be allowed for the number of hours for which they are required to render services beyond the service for prescribed period of 8 hours per day. The Management however, from January, 1975 had stopped :3: the payment of such allowances, thereby depriving the said drivers of the overtime allowances. It is their further contention that on account of service conditions they have to even stay away from their residential houses and that there was no justification of non payment of overtime to them, while same being paid to other staff members. The petitioners on the other hand, contended that the (Staff) Regulations, 1960 are applicable to the employees of LIC and it has statutory force and cannot be challenged by way of Industrial Dispute. The demand of overtime allowances with effect from 1/1/1975 is liable to be rejected on account of belated claim in that regard. It is their further contention that the Central Government by order dated 1st June, 1957 has decided the working hours of LIC employees. In the year 1970 a settlement was arrived between various Unions and the Corporation on the basis of Charters of Demand submitted by the respondent and the same did not provide for payment of over time allowances. It is further contention of the petitioner that in view of the demand made for overtime to such drivers, the management thought it appropriate to disallow that and to introduce a :4: system of discomfort allowance per month. Thus according to the learned Counsel for the petitioner, it was clearly reflected in the letter dated 9th November, 1971. 4. The Establishment Manual prepared by the petitioner deals with the subject of over time and clause 12 provides that the over time will be allowed at the rates as are admissible to the Peons for the hours put in by the Staff car driver in excess of 8 hours in working day, on holidays and weekly offs to those whose letter of appointments specifies the number of holidays. Weekly offs and in excess of 8 hours on holidays to those whose letters of appointments clearly indicates that no holidays will be allowed. As regards the Jeep and Mobile van drivers; overtime will be allowed only for the number of hours for which they are required to drive the jeep or mobile van in excess of 8 hours. Upto 8 hours however, driving even on holidays or weekly offs, they will not be allowed any over time since they cannot be granted compensatory off for those days on their return to headquarters. :5: 5. The circular dated 9-11-1971 issued by the petitioners specifies that the existing rules for the purpose of computation of hours of over time work shall apply. However, Mobile van and Jeep Drivers will be allowed a "discomfort" allowance" of Rs. 30/- per month from a prospective date, when they proceed on tour subject to certain conditions and while explaining the regulations in relation to over time it was stated that it is not possible to apply the same rules i.e. being applied to the drivers of the staff car while considering the claim of drivers of the Jeep and Mobile Van for payment for rendering the services as over time. 6. While assailing the impugned award the learned Counsel appearing for the petitioner submitted that the Tribunal totally failed to consider various contentions which were sought to be raised on behalf of the petitioner in relation to the differentiations between the monetary benefits enjoyed by the drivers of the staff car on one hand and drivers of the Mobile Van and Jeep on the other hand. While holding that the discomfort allowances and travelling allowances would not disentitle the respondents from :6: claiming over time allowances the Tribunal rejected the claim of the petitioners. While submitting that the circular dated 9th November, 1971 has statutory force and is binding upon the parties in view of the provisions of law it is argued that the said circular clearly clarifies that the drivers of the Jeep and Mobile Van would be entitled for over time allowances only when they have actually driven the vehicle and not otherwise. No reason has been disclosed for discarding the said circular by the Tribunal. On this count itself according to the learned advocate, impugned award needs to be set aside and matter be remanded to the Tribunal to deal with the issue afresh in accordance with the law. Attention was drawn to the decision in the matter of A.V. Nachane A.V. Nachane A.V. Nachane and and and another V. Union of India and another another V. Union of India and another another V. Union of India and another, reported in (1982) 1 SCC 205 and Pune Municipal Corporation Pune Municipal Corporation Pune Municipal Corporation V.Suryakant V.Suryakant V.Suryakant Pandurang Dharwad Pandurang Dharwad Pandurang Dharwad, reported in 2002 (4) Mh.L.J. 7. On the other hand, the learned advocate for the respondent submitted that the Tribunal had duly considered the matter and held that the stand taken by the petitioner in relation to the non entitlement :7: of the over time allowances to the Jeep and Mobile Van drivers during the time they do not actually drive the vehicle to be totally not borne out from the record in as much as that norm of the regulations or the circular specifies that the drivers of the Jeeps and Mobile Van would be entitled for the over time only during the time they actually drive the vehicle. 8. Perusal of the impugned award discloses that the Tribunal without considering any material on record as such and without considering the methodology of calculating over time allowance for the staff car drivers and without comparing the quantitative and qualitative benefits enjoyed by such drivers from the over time allowances received by them with the facilities and benefits enjoyed by the drivers of Mobile Van and Jeep, merely referring the contention sought to be raised on behalf of the petitioner held that the drivers of Mobile Van and the Jeep would be entitled for over time allowances in regard of the total period for which they are kept without being relieved from their duty either for actual driving or in anticipation of need for :8: driving. 9. Undisputedly record discloses that the drivers of the Jeeps and Mobile Vans are provided with other allowances, compensatory off, discomfort allowances etc. It is true that each type of allowances is granted for different purpose as rightly contended on behalf of the respondent. However, without considering the nature of duties performed by the drivers of the staff car as well as by the drivers of the Mobile Van and Jeeps and ascertaining the distinctive features in such duties as also without comparing the monetary benefits received by rendering such services by two classes of drivers, the Tribunal could not have jumped to the conclusion about the entitlement of the over time allowances to the respondents for the entire period for which they are kept without being relieved beyond the duty hours either for actual driving or in anticipation of their need for driving. 10. Undoubtedly while performing this exercise it would be also necessary for Tribunal to take into consideration the provisions of law applicable to the :9: parties as well as judicial pronouncement on the aspect of over time allowance permissible to the employees. The impugned award nowhere discloses any such aspect having been considered by the Tribunal. 11. In the circumstances, it will be therefore, premature to express any opinion on the points which are sought to be raised in relation to claim of overtime allowances by either of the parties in the matter in hand. In our considered opinion therefore, it would be appropriate to remand the matter to the Tribunal to decide the issue relating to the claim of over time allowances by the drivers of the jeeps and mobile vans after allowing the parties to place before the Tribunal all the materials in support of rival contentions and bearing in mind the observations hereinabove. Whatever payment if any has been made in accordance with the impugned order passed shall not be disturbed in any manner till the disposal of the reference by the Tribunal and such payment shall be subject to the award that would be passed by the Tribunal. The Tribunal to dispose of the matter as expeditiously as possible and in any case, within a period of six months from the date of :10: receipt of writ from this Court. 12. In the result therefore, the impugned order is set aside. The matter is remanded to the Tribunal to decide afresh as stated above. Rule is made absolute accordingly with no order as to costs. Parties may appear before the Central Government Industrial Tribunal on 30th July, 2008 at 11.30 a.m. for further proceeding in the matters. The advocate for the parties to take note of the same. (R.M.S. (R.M.S. (R.M.S. KHANDEPARKAR, J.) KHANDEPARKAR, J.) KHANDEPARKAR, J.) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)