CWP No.5552 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 29.3.2010 Rampal Singh ...Petitioner VERSUS State of Haryana & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.RN Sharma, Advocate for the petitioner Mr.RS Kundu, Addl.A.G., Haryana Permod Kohli, J. (Oral) Notice of motion. Mr.Kundu, Addl.A.G., Haryana who is present in Court has been asked to accept notice on behalf of the respondents. Keeping in view the prayer made and with the consent of the counsel, this petition is disposed of at motion stage. The petitioner is working as conductor. The petitioner made a claim for grant of revised payment of overtime allowance after allowing the 1st and 2nd ACP scales which was rejected by the respondents vide order dated 25.1.2008 (Annexure P-4) on the ground that as per Rule 2.30 of CSR Vol.I, the petitioner is not entitled to the aforesaid benefit. CWP No.5552 of 2010 2 It is agreed to by the learned counsel for the parties that the issue involved in this petition is squarely covered by a judgment of this Court passed in CWP No.15807 of 2008 decided on 5.3.2009 (Annexure P-5) wherein following observations/directions have been made:- “9.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 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 payscales. 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. 10.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 CWP No.5552 of 2010 3 basis for calculation and for determination of the amount of over time allowance they would be entitled to. 11.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 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. 12.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:- “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 prerevised amount and the amount which was due after CWP No.5552 of 2010 4 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. 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.” In view of the above, this petition is disposed of in terms of the aforesaid directions/observations and the petitioner would be entitled to the benefits granted in the aforesaid writ petition. (PERMOD KOHLI) JUDGE 29.3.2010 MFK