Bombay High Court
Louis Xavier Mendonca vs Board Of Trustees Of Port Of Bombay And ... on 30 August, 1990
Equivalent citations: 1991(1)BOMCR98, 1991(1)MHLJ47
JUDGMENT S.M. Daud, J.
1. Article 226 of the Constitution has been invoked for recovery of Rs. 35,000/- representing arrears of dues alleged to have been wrongfully withheld from the petitioner.
2. The claim aforementioned pertains to a period during which the petitioner was under suspension. This suspension was nullified in that the period spent thereunder was to be treated as duty period. Petitioner applied for the balance of the salary and allowance - the latter including overtime allowance, conveyance allowance and uniform allowance. These allowance he worked out to about Rs. 1200/-, Rs. 250/- and Rs. 100/- per month. After the setting aside of the punishment imposed upon him, the petitioner called upon the Bombay Port Trust (BPT) to pay him the arrears inclusive of those under the 3 heads detailed above. This demand was based on petitioner's contention that the illegal and unjustified suspension had prevented him from earning the three allowances which would have accrued to him had he been allowed to work. The BPT contended that petitioner was entitled to these allowances only when he actually performed the duties annexed to his post. The setting aside of the suspension and the direction that period spent as such be treated as duty period was a notional concept for recovery of basic pay and other allowances but not those figuring in this controversy. These stands have been adhered to by the parties in their pleadings.
3. The first contention taken by the BPT is that the claim arises out of a contract of employment and its breach. Either way i.e. whether the sum is claimed by way of an unpaid allowance or as damages, the writ jurisdiction cannot be invoked. If the claim and denial arise out of employment with an instrumentality of the State, and the BPT is that - it would be futile to drive petitioner to a Civil Court. This is all the more so when it is remembered that the claim pertains to the period 2nd September, 1976 to 23rd July, 1978. Further this claim was instituted in 1983 and we are now in 1990. True, the BPT cannot be denied the right to plead petitioner's non-entitlement to invoke Article 226. The question here is not linked to a controversy on facts. It is virtually a question of law, the factual position being more or less undisputed. Mr. Bhatkar submits that on petitioner's own showing it was deprival of the right to work which occasioned his losing the different allowances. Therefore, what petitioner was claiming was damages and that required an investigation into facts. Attractive as the argument is, it is not possible to hold that the inquiry into facts required in this petition will be a complicated one. Denial of the three allowances would not make the repudiated sums, damages. The basic question to be resolved in this petition is whether the allowances are so annexed to the employment as to constitute a part of the wages or are contingent upon actual workings i.e. have to be earned over and above by being merely on the rolls of the employer? This is an issue which can be answered by a writ Court and for that reason, the preliminary objection raised by the respondents is negatived.
4. The 1st item is overtime allowance. The overtime is required to be done by Dredging Masters is not disputed. The said allowance depends on duty assigned. When such duty is not assigned no overtime allowance accrues to the incumbent. Petitioner has quantified the total sum claimed on this count by working out an average on the basis of past accruals to him under this head. This average has not been challenged. Page 59 of the rules and Regulations for the BPT's Non-Scheduled Staff shows that those on duty on dredgers have 12 hour shifts and a certain number of hours out of these are termed as 'overtime'. The overtime allowance is a monetary return for the hours put in as 'overtime'. A pointed question was put to Mr. Bhatkar to ascertain whether a workman on any shift after the normal duty hours not including the 'overtime' could leave the work-place. Counsel had to concede that no such liberty was available to the worker. In fact until the expiry of the shift which included the overtime, the workman had to be available at the work-place. Mr. Bhatkar relies on Bharat Electronics v. Industrial Tribunal, Karnataka, (1990)II L.L.J. 33 to fortify his submission. Punchhi, J., speaking for the Court reviewed the case law and expounded the effect to be this:-
"The stream of though which inevitably gurgles up is that an allowance which from the term of employment flows as not contingent on actual working is part of wages for the purposes of section 33(2)(b), but an allowance which is earnable only by active serving is not an allowance which will form part of wages, within the meaning of the said provision."
In the light of this enunciation His Lordship felt that night shift allowance had to be earned by the workman's reporting for duty and being put on that shift. By itself it did not form part of his wages. The point which arose for determination was whether night shift allowance was part of 'wages' as defined by section 33(2)(b) of the Industrial Disputes Act, 1947. In the present case, the competent authority has directed that period of suspension undergone by the petitioner shall be treated as if he were on duty. The entitlement in such a case would be governed by Rule 42-B(3) of the Digest of Pay and Allowances, Leave and Pension Rules. This rule and sub-registration (8) mentioned therein read as follows:
"(3). Where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the employee shall, subject to the provisions of sub-regulation (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended".
"(8) The payment of allowances under sub-regulation (2), sub-regulation (3) or sub-regulation (5) shall be subject to all other conditions under which such allowances are admissible".
It is thus clear that petitioner as a Dredging Master would have earned overtime. That was a necessary concomitant of his service. Respondents do not contend that though in service he would not have been assigned work. And if work had to be provided to him, it necessarily had to be for a 12 hour shift, which included the specified number of hours designated as 'overtime'. That these hours varied in number or that they were rateably recompensed over and above basic wages, is not relevant for ruling on the issue arising before me. Considered in the light of the rules and the peculiar conditions of shifts figuring in this case it has to be held that the decision upon itself shows overtime allowance to be a necessary component of wage and not contingent upon actual working.
5. The remaining two items present no difficulty. Uniform and Conveyance Allowances are admittedly the entitlement of every Dredging Master. They are not dependent on being in uniform or travelling to and for the home and dredger. If suspension prevented the petitioner from wearing the uniform or commuting , it was because of the suspension. These are, to quote the words of sub-rule (3) (supra), "allowances to which he would have being entitled had he not been suspended".
6. The result of the foregoing discussion is that the petition succeeds. BPT pay to the petitioner Rs. 35,000/- plus interest at 6% per annum from today until payment. Rule in these terms made absolute, with costs left to be borne as incurred.