Municipal Council, Morinda vs Presiding Officer, Industrial Tribunal and Others

Gurmeet Singh Sandhawalia, J.—This order shall dispose of 11 writ petitions bearing C.W.P. Nos. 2182, 2184, 2186, 2196, 2267, 3210, 3235, 3241, 3247, 3261 & 3988 of 2014, involving common questions of facts and law. However, to dictate orders, facts have been taken from C.W.P. No. 2182 of 2014 titled Municipal Council Morinda v. Presiding Officer, Industrial Tribunal, Patiala and another. The petitioner-Council is aggrieved against the order dated 02.09.2013 (Annexure P1) passed by the Labour Court, Patiala whereby the applications of the workmen under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short, the ''Act'') have been allowed and they were held entitled to receive extra wages for the actual work done for each Saturday, for the period of 3 years immediately preceding the filing of C.W.P. No. 119 of 2002, decided on 14.05.2002. The entitlement was to continue till 30.08.2006 or the date of retirement/death of the workman, whichever was earlier in view of the fact that octroi was abolished from 01.09.2006.

The case of the employees of the Municipal Council, Morinda, in their applications filed under Section 33-C(2) of the Act dated 17.12.2007 was that they were working as Octroi Clerk/Peon and had performed duties at the octroi checkposts in the Octroi Department on all Saturdays whereas the other employees working in other branches were enjoying all the Saturdays as Public Holidays. The employees working in the Octroi branch of the respondent-Council had a Common seniority with other employees having same designation working in the other branches of the Department and their pay scales were same. The employees had approached this Court in C.W.P. No. 7021 of 1992, claiming the benefits but the writ petition was dismissed. Thereafter, the Apex Court had passed the judgment on 15.03.2000 in Municipal Employees Union and others v. State of Punjab and others, 2000 (9) S.C.C. 432. Thereafter, the workman had approached the Nagar Council to grant the relief but the same was denied and C.W.P. No. 119 of 2001 titled Shubkaram Joshi and others v. State of Punjab and others, was disposed of by this Court on 14.05.2002 (Annexure P3), in the same terms as per the judgment of the Apex Court in Municipal Employees Union (supra). It was, accordingly, averred that though having been performing duties on Saturdays ever since they joined the duties and were entitled for the wages on the said days and in view of the directions of the Apex Court had restricted their claim from 01.11.1989, i.e., 3 years prior to the date when they first approached the this Court in their writ petition filed in 1992.

The said applications were resisted on various grounds that the same was not maintainable and was outside the scope of jurisdiction of the Labour Court under Section 33-C(2) and there was no existing right or claim and it was filed at a belated stage. The claim of rest days wages or double wage for the rest days was only a policy matter and only the Punjab Government could make the policy and frame rules and the Municipal Rules and Act were applicable to the applicants. Field staff were getting the benefit of uniform, washing allowance, shoe allowance and conveyance allowance which was not given to the other staff. The octroi post is inter transferable in the office but the field staff remained working in the field as per their job. The applicants were performing their duties as per the prevailing rules and no extra work had been taken from them by the Department. The notification regarding 5 days a week was only applicable to office staff.

The workman tendered into evidence the orders passed by this Court in earlier writ petition and to rebut the evidence, the petitioner-Council examined Gurdeep Singh. The facts, as noticed above, were incorporated in detail in the impugned order and it was held that 52 Saturdays were granted as holidays to all the staff working in the office of the Municipal Council of the Government offices of the State and since there was no bye-laws promulgated by the respondent-Council for the applicants, who were working for 6 days a week and the submission of the officials had been considered on 09.01.1992 favorably. Vide the proceedings of the Committee issued on 20.02.2003, it was decided to implement 5 days'' a week but since the opinion of the Legal Assistant was taken and thereafter, the octroi was abolished on 01.09.2006 and the applicants were no longer working as Octroi Clerks/Peons.

Initially, when notice of motion was issued, counsel for the petitioner argued that the Labour Court had been only approached on 17.12.2007, in pursuance of the orders passed by this Court on 14.05.2002 and therefore, to give arrears of 3 years prior to the filing of the writ petition, i.e., from 1999 was not justified. The arrears should have only been restricted to the period of 3 years from the date of filing of the applications, i.e., 17.12.2007 and not from 1999, which has been done by the Labour Court.

The argument raised by the counsel for he petitioner, however, cannot stand the scrutiny on the basis of the record inter se which has been explained in detail in the written statement filed by the workman wherein it has been categorically stated that after the decision of C.W.P. No. 119 of 2002 on 14.05.2002, a joint application was filed under Section 33-C(2) by 31 workmen which was numbered as application No. 769 of 2003. However, individual applications under Section 33-C(2) came to be filed in 30 cases on 17.12.2007 and the earlier application No. 769 of 2003 was withdrawn on 08.02.2008 (Annexure R2). Thus, it cannot be said that the workman had slept over their rights at any stage and rather had approached the Court at the first instance by filing a joint application. Realising that each of them worked for different periods and gave different facts regarding the period of claim, they filed separate applications which are now being decided by a joint order. Therefore, the submission of counsel for the petitioner that the entitlement of wages would only apply from the filing of the separate applications under Section 33-C(2), is without any substance.

The Labour Court has, thus, rightly directed the petitioner-Council to calculate the total amount of extra wages of the applicants by taking into consideration the salary of the applicants during the relevant period, the number of total Saturdays on which the applicants actually worked, during the relevant period and release the amount of applicants within 2 months from the date of passing of the order, failing which, they would be entitled to 6% per annum. The entitlement of the employees who worked as Octroi Clerks and asked for salary for working on Saturdays has been upheld by the Apex Court in Municipal Employees Union (supra) wherein similar question arose for consideration. The entitlement of the Clerks and peons working in the octroi checkposts and barriers run by the Punjab Municipal Committees and being entitled for payment on account of working on Saturdays while the colleagues of their office enjoyed holidays on all Saturdays was granted. The Apex Court noticed that vide Government notification dated 11.12.1986, issued by the Government of Punjab the accuracy and this document Department of Personnel and Administrative Reforms (General Establishment Branch), 52 Saturdays were to be observed as holidays. Thus, all State Government servants were to enjoy the 52 closed Saturdays in the absence of bye-laws instead of 6 days in a week. However, since a factual finding had to be recorded, the employees were relegated to their remedy under Section 33-C(2) before the Labour Court and in cases where the writ petitioners had approached this court. The claim was restricted to 3 years immediately preceding the filing of the petitions under Section 33-C(2) or the writ petition, and thereafter, continuously up-to-date, subject to certain conditions being satisfied by them. Relevant observations read as under:

"15. So far as this question is concerned unless there is any express provision in the Municipal Bye-laws requiring all the staff members to have six days'' working-per week, in our view, it would not be open to the respondent-Municipal Committees to deny the benefit of non-working Saturdays only to those staff members who have because of the exigencies of service to discharge their duties at octroi check-posts or barriers rather than in the offices. But that would require a further question as to whether, at the relevant time at which the concerned employees like the appellants have actually worked on Saturdays, their colleagues in the offices had enjoyed such holidays and further whether the bye-laws of the concerned Municipal Committees required the employees, by way of their service conditions, to discharge their duties for six days in a week and, therefore, it was open to the Municipal authorities, looking into the exigencies and pressure of work, to give some additional concession to only those office staff members who would have been permitted not to come for work on any Saturdays. Therefore, all that we can lay down in the present proceedings is to the effect that if the appellants, at the relevant time at which they claim to have earned the right to enjoy holidays falling on Saturdays were made to work while their colleagues similarly situated like them, working in the offices of the Municipal Committees, were given the benefit of such holidays and when there were no bye-laws requiring the employees to work for 6 days in a week, then they would be entitled to be given monetary compensation for the working Saturdays by grant of extra wages for each of the working Saturday on which they are shown to have discharged their duties.

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Under these circumstance, the relief which is granted to all the employees by modification of the High Court''s order will be as under:

The appellants, by filing appropriate applications under Section 33-C(2) of the Industrial Disputes Act, 1947 may, on proper computation, be entitled to get extra wages for each of the Saturdays of which they might have worked while their colleagues in the offices of the Municipal Committees had enjoyed benefit of Saturdays provided - the 52 Saturdays in a given calendar year were enjoyed by the employees of the State Government.

Even if the State Government employees had enjoyed the said benefit during the relevant calendar year but if the Municipal Committees had promulgated, at the relevant time, any bye-law under which the working conditions of the staff members were uniformly prescribed to be six days in a week, then, the question of granting any monetary benefit to the appellants would not survive.

On the other hand if there was no such bye-law at the relevant time, then the appellants would be entitled to claim wages for the Saturdays on which they have actually worked when their colleagues in the offices had not worked and had enjoyed benefit of closed Saturdays.

If all these conditions are satisfied, then appropriate relief under Section 33-C(2) of the Industrial Disputes Act can be granted to the appellants in appropriate proceedings.

It is made clear that in the writ petitions which were filed in the High Court either at the end of 1991 or in the beginning 1992 the writ petitioners cannot get any more monetary benefit, save and except, for the period of three years immediately preceding the filing of such petitions and thereafter continuously up-to-date, subject to aforesaid conditions being satisfied by them. In the petitions under Section 33-C(2) the appellants, therefore, have to restrict their claims to the abovesaid extent."

Thus, the entitlement of the workman to claim wages for working on Saturdays under Section 33-C(2) had been approved specifically by the Apex Court in Municipal Employees Union (supra) and therefore, it does not lie in the mouth of the Municipal Committee to raise any issue of jurisdiction, on this point. Accordingly, this Court is of the opinion that these present writ petitions, challenging the impugned order of the Tribunal, is without any basis and the entitlement of the said employees to claim the wages for working on Saturdays, has rightly been allowed by restricting to the 3 years preceding the filing of C.W.P. No. 119 of 2002, subject to the verifications which is to be done by the petitioner-Committee. Accordingly, the present writ petitions are dismissed.