Delhi High Court
The Manager, Khadi Gramodyog Bhawan vs The General Secretary, Khadi Gramodyog ... on 9 July, 2015
Author: Deepa Sharma
Bench: Deepa Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1443/2007
Judgment reserved on: 25.05.2015
% Judgment pronounced on: 09.07.2015
THE MANAGER, KHADI GRAMODYOG BHAWAN
..... Petitioner
Through: Mr.Satyapal Singh, Advocate
versus
THE GENERAL SECRETARY, KHADI GRAMODYOG
BHAWAN KAMGAR MANCH
..... Respondent
Through: Mr.Yashraj Singh, Mr.Amit Gupta
and Ms.Sumati Jumrani, Advocates
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
1. Vide the present writ petition, the petitioner has challenged the award dated 10.10.2006 whereby the learned presiding officer of the Labour Court had held that the respondent-workmen of the petitioner were entitled to get payment of overtime at rate of double the normal wages.
2. In the present case, the petitioner had been giving their workmen the overtime wages at the double rate pursuant to Section 8 of the Delhi Shop and Establishment Act, 1954 (hereinafter referred to as 'the Act') which W.P.(C) 1443/2007 Page 1 of 8 mandates payment of overtime wages at twice the rate of normal wages. These wages were fixed by the petitioner vide Office Order No. 1060 dated 05.02.1977 and continued to follow the said Office Order even after the 4th Pay Commission. Thereafter the petitioner had issued an Office Order No.1879 of 13.11.2000 whereby the rate of overtime wages was reduced and lesser wages were paid than the wages the respondents were entitled to pursuant to Section 8 of the Act. The issue before the Labour Court was whether the action of the management pursuant to its Office Order No.1879 dated 13.11.2000 was legal and justified. After considering the provisions of Section 8 of the Act and other provisions of the law including the fact that the management is covered under the Act and thus bound to pay the overtime as per Section 8 of the Act and in the garb of the Office Order cannot take away statutory rights of the respondents. The award was passed in favour of workers of the petitioner.
3. The petitioner has challenged the said order on the grounds that the petitioner i.e. Khadi Gramodyog Bhawan is a trading unit of Khadi & Village Industries constituted by an Act of Parliament viz. Khadi & Village Industries Commission Act, 1956 (hereinafter referred to as 'the KVIC Act'). It is contended that under the KVIC Act, the commission has the W.P.(C) 1443/2007 Page 2 of 8 power and authority to regulate its budget and with the previous sanction of the Central Government by notification in the Official Gazette, make regulations relating to the terms and conditions of appointment and service and the scales of pay of officers and servants of the Commission and therefore, the Office order dated 13.11.2000 is a valid order and binding on the employees of the Khadi and Village Industries. It is submitted that most of the Khadi Udyog Bhawans are running at a loss which in totality is the loss of the Khadi and Village Industries. It is submitted that in order to streamline the payment of wages and allowance to its employees, the central government had appointed 5th Pay Commission and the 5th Pay Commission in its reports recommended discontinuance of overtime allowance except for staff car driver, operational staff and industrial employees and in order to bring uniformity in the payment of overtime benefits to all its employees, the Office Order no. 1879 dated 13.11.2000 was issued which provides payment of the overtime at uniform basis i.e. normal rates of the wages payable during the normal working hours.
4. It is contended that while enacting KVIC Act in 1956, the Parliament was conscious of the provisions of the Delhi Shop and Establishment Act, 1954 and KVIC Act is a special law whereas the Delhi Shop and W.P.(C) 1443/2007 Page 3 of 8 Establishment Act, 1954 is general law and therefore provisions of KVIC Act has override provisions on the Delhi Shop and Establishment Act, 1954. It is further contended that the provisions of the Delhi Shop and Establishment Act, 1954 are inapplicable to the petitioner who are governed by the rules and regulations made by the Central Government and also under Section 26 of the KVIC Act. It is prayed that the Award dated 10.10.2006 be quashed.
5. The petition is contested by the respondents. It is submitted that the Delhi Shop and Establishment Act, 1954 is applicable on Khadi Gramodyog Bhawan as is clear by the fact that its name is mentioned in the Schedule of the Act and therefore, the Khadi Gramodyog Bhawan is bound to follow the statutory obligations under Section 8 of the Act. It is submitted that the petitioner is covered under definition of 'Establishment' provided under Section 2 (9) of the Act and also under the definition of 'Shop' given under Section 2 (27) of the Act. It is also a 'Commercial Establishment' within the meaning of Section 2 (5) of the Act. It is submitted that the learned Labour Court does not suffer with any illegality and the petition is frivolous and liable to be dismissed.
6. I have heard the arguments and given careful consideration to the W.P.(C) 1443/2007 Page 4 of 8 rival contentions of the parties.
7. The Office Order 1060 dated 05.02.1977 which was passed by the Chief Executive Officer of the petitioner reads as under:
"No.Adm-II/280/Trad. 5-2-1977
OFFICE ORDER NO.1060
The Managers of the Khadi Gramodyog Bhavans
are hereby authorized to make payment of overtime allowances to the staff of the Bhavans under control as admissible under the provisions of the Shops and Establishments Act applicable to the respective Units. The payment of overtime allowance shall be regulated strictly according to the provisions of the Shops and Establishment Act subject to the amounts provided in the approved annual budgets of the respective Unit. Suitable provisions for grant of overtime allowance may therefore have to be made by the Managers of the respective Bhavans in their budget proposals and submitted to the Director, Marketing for taking further action.
In order to enable the Directors, Marketing to review the position about disbursement on account of overtime wages/hours of work, a quarterly report should be submitted by the Managers of the respective Bhavans to the Director Marketing by 5th of the month following the quarter to which the review relates. The said report for the quarter ending 31.03.1977 should accordingly be submitted by 01.04.1977.
Sd/-
J.N.Tiwari For Chief Executive Officer"
W.P.(C) 1443/2007 Page 5 of 8
8. The aforesaid Officer Order makes it abundantly clear that the management is conscious of the fact that the provisions of the Delhi Shop and Establishment Act, 1954 are applicable on its employees. Accordingly, the petitioner had been making the payment of the overtime wages to its employees at double the rate of the wages as provided under Section 8 of the Act. This Office Order also clearly shows that the payment of overtime allowances shall be regulated strictly according to the provision of the Delhi Shop and Establishment Act, 1954 subject to the amounts provided in the approved annual budgets of the respective Unit. This office order is in consonance of Section 8 of the Act.
9. The sole question for consideration is if the statutory right accrued to the respondents under the Act can be taken away by an Office Order no.1879 dated 13.11.2000. It is interesting to note down para 2 of this office order, which reads as under:
"2. With a view to ensure that a uniform policy for payment of Overtime Allowance is followed by all Departmental Sales Outlets/Trading Units under the Commission, it is brought to the notice of In-charge of all Departmental Sales Outlets/Trading Units, all Zonal Heads, State/Regional Directors of KVIC that pending receipt of orders for Overtime Allowance as per 5th Pay Commission's recommendation, the existing OTA orders as applicable in the 4th Pay Commission shall continue to be followed."W.P.(C) 1443/2007 Page 6 of 8
10. This paragraph shows that vide this office order all the Departmental Sales Outlets/Trading Units under the Commission had been directed to continue to pay the existing OTA as applicable in the 4 th pay Commission, till pending receipts of the orders for overtime allowance as per 5 th Pay Commission's recommendation. The petitioners have not placed on record any orders of payment of overtime allowance as per 5 th Pay Commission's recommendation. Even vide this order the commission had recommended the payment of existing OTA as applicable in 4th Pay Commission. There is no dispute that pursuant to 4th Pay Commission and even earlier pursuant to Office Order No.1060 dated 05.02.1977 according to the provisions of the Act, the petitions were paying the overtime at double the rate as provided under Section 8 of the Act. It is also apparent from Clause 27 of the KVIC Act that the commission can make regulations only with the previous sanction of the central government that too by a notification in the official gazette. The petitioner has not placed on record any notification in the official gazette of the central government. Even otherwise, it is settled provision of law that a benefit given under a Statute cannot be taken away by an office order. The rights given under a Statute can only be taken away by an act of amendment in the Statute.
W.P.(C) 1443/2007 Page 7 of 8
11. In view of the above, it is apparent that the Award dated 10.10.2006 does not suffer with any illegality and needs no interference. The petition has no force, the same is dismissed.
DEEPA SHARMA (JUDGE) JULY 09, 2015 rb W.P.(C) 1443/2007 Page 8 of 8