IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 23.3.2011. (1) LPA No. 858 of 2009 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Azad Singh and ors ....Respondents (2) LPA No. 1448 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Puran Singh and ors .... Respondents (3) LPA No. 1432 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Ramphal Singh and ors ....Respondents (4) LPA No. 1449 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Rameshwar Dass and ors ....Respondents (5) LPA No. 1450 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Jawahar Lal and ors ....Respondents LPA No. 858 of 2009 (6) LPA No. 1452 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Manjit Singh and ors ....Respondents (7) LPA No. 1453 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Chander Hass and ors ....Respondents (8) LPA No. 1862 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Partap Singh and ors ....Respondents (9) LPA No. 1863 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Ram Mehar and ors ....Respondents (10) LPA No. 1864 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Sant Ram and ors ....Respondents 2 LPA No. 858 of 2009 (11) LPA No. 1865 of 2009 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Dharambir Singh and ors ....Respondents (12) LPA No. 1866 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Azad Singh and ors ....Respondents (13) LPA No. 1856 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Darshan Singh and ors ....Respondents (14) LPA No. 1857 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Surinder Kumar and ors ....Respondents (15) LPA No. 1858 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Gajender Singh and ors ....Respondents (16) LPA No. 1859 of 2010 The General Manager Haryana 3 LPA No. 858 of 2009 Roadways Chandigarh …..Appellant vs. Basant Singh and ors ....Respondents (17) LPA No. 1860 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Sher Singh and ors ....Respondents (18) LPA No. 1861 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Ram Diya and ors ....Respondents (19) LPA No. 1671 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Suraj Bhan and ors ....Respondents (20) LPA No. 1672 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Balwan Singh and ors ....Respondents (21) LPA No. 1673 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. 4 LPA No. 858 of 2009 Gurmej Singh and ors ....Respondents (22) LPA No. 1674 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Surinder Kumar and ors ....Respondents (23) LPA No. 1675 of 2010 The General Manager Haryana Roadways Chandigarh …..Appellant vs. Dilbag Singh and ors ....Respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE ARVIND KUMAR Present: - Mr. P.S. Poonia, Addl. AG, Haryana for the appellant. Mr. Ashok Khunger, Advocate for respondents HEMANT GUPTA, J This order shall dispose of LPA Nos. 858 of 2009, 1448, 1432, 1449, 1450, 1452, 1453, 1862 to 1866 of 2010, 1857 to 1861 of 2010 and 1671 to 1675 of 2010 arising out of the similar question of law and facts i.e. 5 LPA No. 858 of 2009 entitlement of over time allowance to the respondents herein for the period from 1.1.1996 to 31.12.1997. Respondents herein are the conductors and drivers working with Haryana Roadways, Chandigarh. The said respondents filed an application under Section 33-C (2) of the Industrial Disputes Act, 1947 (for short the ‘Act’) before the learned Labour Court claiming over time allowance in view of the over time policy dated 23.7.1985. It is the case of the workmen that the pay scale of the State employees including that of drivers and conductors were revised vide the notification dated 7.1.1998 pursuant to the report of the 5th Pay commission but with retrospective effect i.e. 1.1.1996. Earlier, the workmen were getting over time allowance as per the policy dated 23.7.1985 but after the revision of pay, circular was issued on 2.3.1998 that till such time the Government take a final decision with regard to over time pay to the employees in the Haryana Roadways shall be in terms of the earlier policy. Subsequently, vide the circular dated 23.11.1998, circular was issued to pay over time allowance at the rate of double the wages i.e. new pay scale but the dearness allowance from the period 1.1.1998. 6 LPA No. 858 of 2009 In view of the said fact, respondents herein claimed over time allowance from 1.1.1996 till 31.12.1997 at double the new wages. Learned Labour Court allowed the application submitted by respondents herein. The writ petition filed by the Management against the said order passed by learned Labour Court under Section 33-C (2) of the Act was dismissed. Still aggrieved, the State filed the present appeal under Clause 10 of the Letters Patent. The sole argument raised by learned counsel for the appellant is that the invocation of jurisdiction under Section 33-C (2) of the Act is misconceived as to whether the respondents are entitled to double the wages is a disputed question of fact which could not be determined in proceedings under Section 33-C(2) of the Act. The remedy of the workmen in these circumstances is to raise an industrial dispute or to avail such other remedy but the learned Labour Court in proceedings under Section 33-C(2) of the Act cannot be adjudicated upon. Reliance is placed upon a judgment of Hon’ble the Supreme Court in 1974 AIR (SC) 1604, Central Inland Water Transport Corporation Ltd vs. The Workmen and another. On the other hand, learned counsel for the workmen has relied upon Section 26 of the Motor Transport 7 LPA No. 858 of 2009 Workers Act, 1961 (for short the ‘1961 Act’) to contend that the right to overtime allowance is a statutory right. Therefore, such statutory right was rightly enforced by the provisions under section 33-C(2) of the Act. The workmen are entitled to twice the wages for the period they are assigned and applicable at that time. We have heard learned counsel for the parties and find that no interference is called for in the present appeal. Section 26 of the 1961 Act contemplates that an adult motor transport worker such as the respondents herein works for more than eight hours in any day in case referred to in the first proviso to Section 13 but work on any rest day under sub-Section (2) of Section 19 in terms of wages at the rate of ‘twice his ordinary rate of wages.’ Sub Section 4 defines ‘ordinary rate of wages’ in relation to a motor transport worker means basic wages plus dearness allowance. Though, the notification was issued on 1.1.2008 revising the pay scale of the employees of the State Government including the drivers and conductors but such revision of pay scale was effected from 1.1.1996. Thus, the drivers and conductors are entitled to over time allowance at the rate of twice the ordinary rate of wages i.e. basic wages plus dearness allowance. 8 LPA No. 858 of 2009 In view of the said fact, we do not find any illegality in the order passed by learned Single Judge which may warrant interference in appeal. But before parting, the question whether the respondents have worked for more than eight hours in any day and 48 hours in any week in terms of Section 13 or any of the respondents have worked on any rest day in terms of Section 19 may be determined by learned Labour Court in execution proceedings. (HEMANT GUPTA) JUDGE 23.3. 2011 (ARVIND KUMAR) preeti JUDGE 9