Punjab-Haryana High Court
Hari Chand And Ors. vs The State Of Punjab And Ors. on 29 May, 1997
Equivalent citations: (1997)117PLR451
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
JUDGMENT N.K. Sodhi, J.
1. Whether the employees working on the octroi side in the Municipal Committees are entitled to National, Festival, Gazetted and other holidays and lunch breaks at par with their counterparts working in the offices of the Committees is the question that arises for determination by the Full Bench in this bunch of 58 writ petitions pertaining to the Municipal Committees in the States of Punjab and Haryana. Since the arguments were addressed in C.W.P. 5476 of 1992 and the counsel appearing for the parties were agreed that the decision in this case would govern the other cases as well, the facts are being taken from this case. When this petition came up for motion hearing the Division Bench was of the view that the question involved was likely to affect all the Municipal Committees in both the States and keeping in view the importance of the point involved the writ petition was admitted directly to a hearing by a Full Bench. All other cases were ordered to be heard along with C.W.P. 5476 of 1992. This is how we are seized of the matter.
2. The facts are not in serious dispute. Petitioners had been appointed as clerks and peons in the Municipal Committee, Bassi Pathana, District Patiala in the State of Punjab (hereinafter referred to as the committee). The total cadre strength of clerks in the committee is 17 out of which about 13 are working at the barriers whereas the other four are working in the committee office. Similarly, out of the total strength of six peons about four are working at the barriers whereas the other two are in the office. The committee has established barriers at different points determining the octroi limits for the assessment and collection of octroi and those barriers remain open for 24 hours of the day. Apart from octroi Inspectors who supervise the working of the barriers, the committee also appoints at each barrier, staff consisting of officers in charge of the barriers and peons for the assessment and collection of octroi and it is their duty to see that all goods liable to octroi are stopped at the barriers and are dealt with in accordance with the rules. The petitioners are working at the barriers. The committee also appoints clerks and peons who work in the committee office. The clerks and peons working at the barriers and those working in the committee office are borne on the same seniority list and are governed by the same set of service rules. Their pay scales and service conditions are also the same. All Municipal Committees/Corporations in the State of Punjab following the pattern of the State Government observe a five day week with Saturdays and Sundays as off days. However, the staff of the committee employed at the barriers are not given Saturdays and Sundays as off days and are also made to work on National, Festival and other gazetted holidays as notified by the State Government and observed by the committee. Those working at the barriers are given only one weekly rest instead of Saturdays and Sundays- They are also allowed seven holidays throughout a year in lieu of National, Festival and gazetted holidays as enjoyed by their counterparts working in the committee office. The staff employed at the barriers is not allowed any restricted holiday whereas their counterparts are given two such holidays as observed by the State Government. The staff working in the committee office observe a lunch break for half an hour on every working day whereas no such break is allowed to the staff at the barriers. It is common case of the parties that the clerks and peons working in the committee office and those at the barriers are inter-changed and they swap their places quite regularly though one of the grievances made by the petitioners at the time of arguments is that they are being made to work at the barriers for the last several years and have not been posted to the committee office. Their further grievance is that the staff working in the committee office enjoys more holidays than are allowed to them at the barriers even though they are borne on the same seniority list and governed by the same service conditions. According to the petitioners the action of the committee in not allowing the same number of holidays to the staff working at the barriers amounts to hostile discrimination as persons similarly situated and posted in the committee office are being treated differently on the basis of their place of posting. The prayer made in the petition is for the issuance of an appropriate writ, order or direction directing the respondents to grant to the petitioners benefits of National, Festival and other gazetted holidays as allowed to their counterparts in the committee office. They have also demanded that they be allowed a lunch break for half an hour every day. Another prayer made is that the petitioners be granted wages in respect of such holidays on which they were made to work in the past. They have placed strong reliance on a single bench judgment of this Court in Krishan Lal and Ors. v. The State of Punjab and Ors., 1991(3) R.S.J. 638 which pertains to the Notified Area Committee, S.A.S. Nagar, Mohali wherein a direction was issued to the respondents therein to grant to the petitioners there who were employees working at the barriers, the same benefits like holidays etc. which were being granted to the employees working in the office of the committee. A direction was also issued to compensate the petitioners therein by payment of wages for the past.
3. In the written statement filed on behalf of the committee it is pleaded that the petitioners are not entitled to claim the benefits of holidays and lunch break at par with their counterparts working in the office as the octroi staff constitutes a class by itself which is quite distinct from those working in the office and that there is no discrimination in this regard. It is further submitted that the octroi staff is entitled to certain benefits which are not available to the other staff and, therefore, the grievance of the petitioners is wholly unfounded. Reference has been made to the decisions taken in the meeting held on 17.5.1988 between the municipal employees through the representatives of the Punjab Nagar Palika Karamchari Maha Sangh and the Director, Local Government, Punjab wherein it was agreed that uniforms may be allowed to the employees on octroi duty subject to the condition that as and when an employee is transferred he will surrender the uniform for the use of his successor. It was also agreed that compensatory leave would be allowed to the octroi staff on duty in lieu of festivals and national holidays. Annexure R-l with the written statement is the copy of the communication sent by the Director, Local Government to all the Executive Officers of Municipal Committees/Notified Area Committees in the State.
4. The first question for our consideration is whether the petitioners who are working at the barriers are being discriminated by not being given the same number of holidays which are allowed to their counterparts working in the committee office. In our opinion, there is no such discrimination. As noticed earlier, all the clerks and peons employed by the committee are borne on common seniority lists some of whom work in the office while others are posted at the barriers. It is not in dispute that peons and clerks working in the office are frequently interchanged with those working at the barriers and the office clerk of today is the octroi clerk of tomorrow and vice-versa and no employee is ordinarily allowed to remain at the same barrier for a period of more than one month at a time. Same is the position of the peons in this regard. Rule V-7 contained in Chapter-V of the Punjab Municipal Account Code requires such a practice to be followed and it reads thus:
"V-7: The Staff of barriers - (1) The committee shall appoint to each barrier a staff of officers in charge of the barriers and peons for the assessment and collection of octroi, and it shall be the duty of such staff to see that all goods liable to octroi are stopped at the barrier and to deal with them according to these rules.
(2) No officer in charge of the barrier or peon appointed under the provisions of Sub-rule (1) shall ordinarily be allowed to remain at the same barrier for a period of more than one month at a time.
Provided further that the officer in charge of the central barrier may remain at the same barrier for not more than three months at a time."
In the writ petition as also in the replication filed by the petitioners it is admitted by them that their duties are inter-changed with the employees working in the office quite frequently and on such transfer their uniforms are given to the persons coming to the barriers. When all the clerks and peons like the petitioners are regularly rotated between the office and the barriers, we cannot subscribe to the view that those working at the barriers are in any way discriminated in the matter of grant of holidays. Even if the employees at the barriers are not given holidays equal to their counterparts in the committee office, we see no discrimination because all the employees are put in the same position in their own turn because of the rotational system and each one gets a chance to serve in the office as also at the barriers so as to have the same benefits and disadvantages. In such a situation, we fail to understand as to how it can be said that the employees working at the barriers are discriminated against on the basis of their place of posting. Learned counsel for the petitioners strongly contended before us that the petitioners are being made to work on the barriers for the last few years and that they have not been rotated so as to be posted in the office for work. This is not factually correct and the contention of the learned counsel runs counter to what has been stated by the petitioners in the writ petition and in the replication. May be, in some cases the committee is failing in its duty to regularly rotate the employees and some of whom may even be maneuvering to stay at a particular place for a longer period but that by itself will not make the action of the committee in not allowing the same number of holidays to the octroi staff as are allowed to the office staff discriminatory. The learned Advocate General appearing for the State very fairly submitted before us that necessary directions be issued to all the committees in the State to strictly adhere to the Municipal Account Code and the rules contained therein and rotate the employees frequently by not allowing them to stay at any one barrier ordinarily for more than a month.
5. The octroi staff is meant for the assessment and collection of octroi throughout the day and since the traffic does not stop the octroi has to be collected as and when the vehicles pass the barriers. Moreover, the octroi staff works in three 'eight hourly' shifts so that the barriers are manned all the twenty four hours. This being so, the employees working at the barriers cannot in the very nature of things justifiably demand a luncheon interval so as to leave the barriers unmanned nor can the barriers be closed for any period. The mode and manner in which the octroi staff works is different from those working in the office and for this reason as well the former cannot claim parity in all matters with their counterparts working in the office.
6. We may now examine the judgment of this Court in Krishan Lal's case (supra). In this case too the octroi employees of the Municipal Committee, Mohali had sought parity in the matter of holidays etc. with their counterparts in the office. The learned Judge noticed that inter-se transfers were frequently made from the committee office to the barriers and vice versa. He further observed that the clerks and peons formed one cadre and were born on the same seniority list and, therefore, they could not be discriminated in the matter of grant of holidays as that would amount to discrimination on the basis of the place of posting. We do not find ourselves in agreement with the view expressed by the learned judge. In our opinion, since all the employees of the committee are regularly rotated between the office and the barriers and both are treated alike when they are working in the office as also at the barriers and it cannot, therefore, be said that there is any discrimination on the basis of place of posting. No doubt, the working conditions in the office, and at the bar-; riers are different but that is of no significance when all the employees both at the' barriers and the offices are regularly rotated and every one of them has to face the same conditions of service in their due turn. The view expressed by the learned Single Judge is thus not correct and we have no hesitation in over-ruling the same.
7. It has been strenuously urged by the learned counsel for the writ petitioners that since the octroi employees of Municipal Committees of Mohali and Bucho Mandi in the State of Punjab were being given the same holidays which their counterparts working in the office were enjoying, the writ petitioners too were entitled to get the same holidays which the employees of the Committee in the office were getting on the principle of equality and 'equal pay for equal work. He referred to a judgment of the Supreme Court in Abid Hussain and Ors. v. Union of India and Ors., A.I.R. 1987 S.C. 820 in support of his contention. We are unable to agree with this contention of the learned counsel either. It is true that the Municipal Committee, Mohali (now called the Municipal Council) is giving to its octroi employees the same holidays which the office employees are giving but this is because of the directions issued by the learned Single Judge in Kishan Lal's case (supra) which we are holding to have not laid down the correct law. Therefore, if the Municipal Committee, Mohali is giving to its octroi employees the same benefits on the basis of the directions issued in Krishan Lal's case (supra) the other committees in the State of Punjab cannot be directed to follow suit on that basis. In the case of Municipal Committee, Bhucho Mandi some of its employees filed applications under Section 33-C(2) claiming wages in lieu of national and festival holidays during the years 1984 to 1986 on the plea that they were made to work on those holidays. Their claim was disputed by the employer. Those applications were allowed by the Labour Court, Bathinda in June, 1988 and the writ petition filed by the Municipal Committee was dismissed in limine by this Court without passing a speaking order. Even a Special Leave Petition was dismissed without recording any reasons. Whether these employees are being given the same holidays after the decision of the Labour Court is not clear from the record. Be that as it may, the Labour Court did not issue any general directions to the committee that its octroi employees should be given the same holidays which were enjoyed by the staff in the office. The award of the Labour Court is, therefore, of no help to the writ petitioners and they cannot on its basis claim that they are entitled to the same holidays which the office employees of the committee are enjoying. In Abid Hussain's case (supra), the Air-conditioned Coach Incharge-Attendants in the Western Railway, Central Railway and Eastern Railway were being paid overtime allowances for extra duty but the same benefit was denied to the similarly placed employees of the Northern Railway. The learned Judges of the Apex Court held that there was no justification for denying overtime allowances to the employees of the Northern Railway and a direction was issued to the Union of India to pay those allowances to them as well. The case before us is, however, different and the decision in Abid Hussain's case (supra) is, therefore, of no help to the petitioners.
8. We may now refer to the communication dated 24.5.1988 addressed by the Director, Local Government, Punjab to all the Executive Officers of the Municipal Committees/Notified Area Committees (now called Municipal Councils) in the State of Punjab. The Punjab Nagar Palika Karamchari Maha Sangh which appears to be a representative body of the Municipal employees in the State had raised some demands on behalf of the municipal employees including the grant of uniforms to octroi staff and grant of over-time benefit in lieu of festival and national holidays. The representatives of this union held a meeting with the Director, Local Government, Punjab in her office on 17.5.1988 and it was agreed that the uniforms may be allowed to the employees on octroi duty subject to the condition that as and when an employee is transferred he would surrender his uniforms to be given to his successor. It was also agreed that compensatory leave may be allowed to the octroi staff on duty on festival and national holidays. These two decisions taken in the meeting were communicated by the Director, Local Government, Punjab to all the Executive Officers of the Municipal Committees/Notified Area Committee in the State through a circular letter dated 24.5.1988. As per the additional affidavit filed by Sh. Mandeep Singh, Joint Secretary, Punjab, Department of Local Government all the Municipal Committees in the State were told to allow compensatory leave to the octroi staff on duty in lieu of festival and national holidays. In para 9 of the preliminary objections taken in the written statement, it was stated that ten compensatory leaves were being granted by all the municipalities to their octroi staff. In the additional affidavit now filed during the course of arguments it is submitted it was inadvertently mentioned that all the committees were granting ten compensatory leaves to the octroi staff. The error has been regretted and the office has undertaken to be careful in future. Since we find that the mistake committed was a bona fide one we drop the matter here. It is now stated in the additional affidavit that only 13 Municipal Councils in the State are granting ten compensatory leaves to their octroi staff in lieu of gazetted and national holidays whereas other Municipal Councils like Rajpura and Banur are allowing 12 compensatory leaves in addition to the normal casual leaves.
9. Learned Advocate General appearing on behalf of respondents 1 and 2 placed before us a list of Municipal Councils in the State showing the number of compensatory leaves which are being granted by them to their octroi staff. A perusal of this list would show that there is no uniform policy in this regard. In the additional affidavit filed on behalf of respondents 1 and 2, it is stated that with a view to bring uniformity instructions have now been issued by the Director, Local Government, Punjab to all the Municipal Councils/Nagar Panchayats in the State directing them to uniformally allow ten compensatory leaves to the octroi staff in lieu of national and festival holidays in addition to the normal casual leaves. Now that all the Municipal Councils in the State would be granting compensatory leaves on uniform basis to their octroi employees to compensate them for the national and gazetted holidays on which they may have to work due to the exigencies of service, the hardship, if any, that was being experienced by the octroi employees now stands removed and no further directions from the court are called for in this regard. However, as was suggested by the learned Advocate General, the Municipal Councils throughout the State of Punjab are directed to continuously rotate their employees from the office of the barriers and vice-versa as is the requirement of the rules contained in the Punjab Municipal Account Code so that there is no scope for any employee to make a grievance in this regard. Subject to this direction, we find no merit in the writ petitions and the same stand dismissed leaving the parties to bear their own costs.
10. Civil Writ Petition 19149 of 1991, 6615 of 1993 and 1605 of 1994 had been ordered to be heard by the Full Bench along with CWP 5476 of 1992 and other similar petitions. In the course of arguments it, however, transpired that these three petitions are different on their facts and require to be heard separately from this bunch of petitions which the Full Bench is disposing of. These three petitions arc, therefore, separated and directed to be listed for hearing before the learned Single Judge.