IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 20100 of 2006(S) -------------------------- OA.288/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- M.K.VENUGOPALAN, AGED 42 YEARS, S/O.M.S.KOMALAVALLIAMMA, MOTOR DRIVER, CIVIL CONSTRUCTION WING, ALL INDIA RADIO, KAKKANAD P.O., KOCHI-30. BY ADV. SRI.K.VINOD CHANDRAN RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF INFORMATION & BROAD CASTING, NEW DELHI. 2. PRASAR BHARATHI(BROAD CASTING CORPORATION OF INDIA), ALL INDIA RADIO, PARLIAMENT STREET, NEW DELHI 110 001. 3. THE EXECUTIVE ENGINEER (CIVIL), OFFICE OF THE EXECUTIVE ENGINEER (CIVIL), ALL INDIA RADIO, KAKKANAD P.O., KOCHI 30. 4. THE SUPERINTENDING ENGINEER (CIVIL), PRASAR BHARATHI, BROAD CASTING CORPORATION OF INDIA, OFFICE OF THE SUPERINTENDING ENGINEER (CIVIL), CIVIL CONSTRUCTION WING. ALL INDIA RADIO & DOORADARSHAN,SWAMY SIVANANDA SALAI, CHEPAUK, CHENNAI 600 005. 5. U.RAJU, EXECUIVE ENGINEER (CIVIL), OFFICE OF THE EXECUTIVE ENGINEER CIVIL, CIVIL CONSTRUCTION WING, PRASAR BHARATI, ALL INDIA RADIO, KAKKANAD P.O., KOCHI 30. ADV. SRI.JOHN VARGHESE, ASSISTANT SG FOR R1 TO R4 ADV.SRI.THOMAS THOMAS, FOR ASG THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7.8.09 , THE COURT ON 07/08/2009 DELIVERED THE FOLLOWING: WPC.20100/06 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORIGINAL APPLICATION FILED BY THE PETITIONER. P2 COPY OF THE REPLY STATEMENT FILED BY R3. P3 COPY OF THE REPLY STATEMENT FILED BY R5. P4 COPY OF THE ORDER IN OA.NO.288/03 DT 5.12.05. P5 COPY OF THE REVIEW APPLICATION WITH ANNEXURE RA2 AND RA3. P6 COPY OF THE ORDER DT 1.2.2006. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE O.M. DT 19.1.04 ISSUED BY THE GOVT. OF INDIA. R1(B) COPY OF THE COMMUNICATION DT 21.6.06. // True Copy // P.A. to Judge K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ```````````````````````````````````````````````````` W.P.(C) No. 20100 OF 2006 S ```````````````````````````````````````````````````` Dated this the 7th day of August, 2009 J U D G M E N T Balakrishnan Nair, J. The writ petitioner was the applicant in O.A.No.288/03 before the Central Administrative Tribunal, Ernakulam Bench. Ext.P1 was the original application filed by him. The main relief claimed was that his working time should be similar to those of other employees in the regular establishment. This prayer was made as the applicant was a driver in the work charged establishment. He wanted to get over-time allowance up to 100 hours in a month. He also sought to quash Annexures-A6, A7 and A8, which stood in the way of granting the above reliefs. The respondents herein, who were the respondents in the O.A., filed Ext.P2 reply statement resisting the prayers in the O.A. The Tribunal, after hearing both sides, by Ext.P4 order, disposed of the said O.A. The operative portion of the said order reads as follows:- WPC.20100/06 : 2 : “ 5. Since the applicant being a work charged employee and the work charged employees are admittedly governed by the Minimum Wages Act, 1948 and the Minimum Wages (Central) Rules, 1950 made thereunder, the applicant cannot exclude himself from the provisions of the said Act and Rules. The work charged employees also cannot be equated with other regular staff members of the Respondent Department in view of the aforesaid express provision in the Rules regarding the working hours. The administrative order issued vide Annexure-A1 Memorandum dated 29.1.93 relied upon by the applicant cannot be extended to fixing up of working hours by way of inference. Further, it is well settled principle of law that the administrative instructions cannot override the provisions contained in the statutory rules. Hence the Respondents' direction to the applicant to attend his normal duty from 0830 hrs to 1830 hours from Monday to Friday and restricting the OTA for the duty performed beyond 48 hours a week cannot be faulted. We also do not find anything wrong on the part of WPC.20100/06 : 3 : the Respondents to restrict the OTA for 50 hours a month and in optimum utilization of the services of the work charged staff. In our considered opinion, the OA has no merit and the same is accordingly dismissed leaving the parties to bear their own costs.” 2. The aggrieved applicant attempted a review petition but that was dismissed by Ext.P6. Challenging Exts.P4 and P6, the writ petition is filed. In this writ petition, the respondents filed a counter affidavit. In the said counter affidavit, they have stated that the working hours of work charged jeep drivers are regulated as per Annexure-R1 produced by them along with Ext.P2 reply statement. It is a Circular of the Central Public Works Department dated 8.5.1989. The relevant portion of the said Circular reads as follows:- “ Please refer to your above cited letters seeking clarification on the method of calculating overtime wages to jeep drivers. The clarifications given in the Labour Officers worked example enclosed with your letter dated 13.1.1989 are in order and hence shall be followed in the calculations of OTA. You may also please WPC.20100/06 : 4 : refer to Rule 24 of Minimum Wages(Central) Rules according to which the normal working day for an adult consists of 9 hours (excluding lunch). This is not 8 hours excluding lunch as presumed by you. The clarifications are summed up as under: (i) Any driver working for more than 9 hours (excluding lunch hour) is entitled for OTA for the number of hours he so works in a day. Hence, when one hour lunch is allowed OTA is payable to the worker beyond 10 hours in a day (including lunch). (ii) In a week however, the driver is entitled to OTA for such no. of hours as he works beyond 48 hours (excluding lunch hours). (iii) The calculations have to be made independently in both the above methods and whichever is more should be adopted. Thus a worker who performs 9 hours work every day (excluding lunch) is not entitled to any OTA if the calculation is done on daily basis but becomes entitled for 6 hours of OTA as the number of hours he has worked in the week (6 x 9 = 54) exceeds 48 hours by 6 hours. WPC.20100/06 : 5 : Similarly a worker performing 11 hours work (excluding lunch) on any day though does not complete 48 hours in that week by remaining on leave during the rest of the week has to be paid OTA for 2 hours. (iv) In case the driver is on casual leave/Regular Leave during the course of a week, then for the purpose of determining the average hours per work, it may be assumed that he has worked 7 normal working hours on the day of the leave so granted to him. (v) So far as circle offices are concerned where Saturday is a holiday, the actual no. of hours he has worked (excluding hours for rest) should be taken for calculating OTA. (vi) In the event a driver works without lunch, the fact should be specifically recorded by the concerned Executive Engineer/ Superintending Engineer. The above instructions may kindly be noted for compliance. All executive engineers under your control also please be instructed to review the method of calculation of OTA being followed WPC.20100/06 : 6 : by them and ensure that the instructions are not violated.” 3. If the over time benefits are granted as per the above quoted Circular, the petitioner's main grievance will be redressed, it is submitted. In other words, he is willing to work without over time for 9 hours a day excluding lunch time and also 48 hours a week excluding the lunch time. Regarding the working time also, he has no objection in reporting 30 minutes ahead of the working time of the other office staff and to work for 30 minutes more after the office hours for other employees. But, if the total working hours exceed what is stipulated in the above quoted Circular, he is entitled to get over-time, it is submitted. We also heard Mr.Thomas Thomas appearing for the Assistant Solicitor General on behalf of the respondent. 4. Many labour legislations dealing with working hours provide that a worker has to work only for 8 hours a day and 48 hours a week. In the case of drivers also more or less similar working hours are there under the Motor Transport Workers Act. In the case of the petitioner, as the working days have been reduced from 6 days to 5 days per week, he will have to work WPC.20100/06 : 7 : some more time in a day when compared to the drivers in other establishments where the working days are 6 per week instead of 5. Having regard to the facts of the case, in modification of the orders issued by the CAT, it is ordered that the directions in the Circular, which we have quoted above, will govern the working hours and right to get over time of the petitioner. It is ordered that the directions, if any, contained in Annexures-A6, A7 and A8, which are contrary to what is stated in the Circular, which we have quoted above, shall not be enforced. In other words, if he works more than 9 hours a day excluding lunch break or if he works for more than 48 hours a week, excluding the lunch break, he will be entitled to over time allowance. The writ petition is disposed as above. Sd/- (K.BALAKRISHNAN NAIR, JUDGE) Sd/- (C.T.RAVIKUMAR, JUDGE) aks