Central Administrative Tribunal - Delhi
Shri Tasuwar vs Municipal Corporation Of Delhi on 12 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA No.766 of 2009
New Delhi this the 12th day of August, 2009
Honble Dr. Dharam Paul Sharma, Member (J)
1. Shri Tasuwar,
S/o Shri Fateh Mohammad,
R/o 880, MCD Primary School,
Haveli Azam Khan,
Chitli Cabar, Jama Majid,
Delhi-6
Shri Bannu Ram,
S/o Shri Bajjo,
R/o 1331, Gali Beriwali,
Kala Mahal,
Daryaganj,
New Delhi
Shri Salimuddin,
S/o Shri Abdul Shakoor,
R/o 1948, Gali Bara Dari,
Kucha Chellan,
Daryaganj,
New Delhi
Shri Vakil Singh,
S/o Shri Suchit Singh,
R/o MCD Primary School,
Phool Mandi,
Daryaganj,
New Delhi
Shri Hari Singh,
S/o Shri Mawasi,
R/o U-4, Welcome Seelampur,
Delhi-53
Shri Manager Singh,
S/o Shri Vakil Singh,
R/o MCD Primary School,
New Delhi
.... Applicants
( Applicant No.1 in person)
VERSUS
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi.
(service to be effected through its Commissioner.
.. Respondents
(By Advocate: Shri Shakil Ahmed)
O R D E R
The applicants, herein, filed this case before the Honble High Court of Delhi in Civil Writ No.4218/1995 which has since been transferred to this Tribunal under the orders of the Honble High Court dated 19.02.2009 as per notifications No. SO 1823 (E) dated 25.10.2007, SO 906(E) dated 22.4.2008, SO 2580 (E) dated 31.10.2008 and SO(E) dated 01.12.2008.
2. In the said writ petition, the applicants have prayed for direction to the respondent to continue paying over-time allowance in lieu of duty performed on gazetted holidays;
not to make recovery of the amount already paid to the petitioners for over-time allowance for putting in services on gazetted holidays;
to revise and re-fix the rates of intermittent allowance payable to the petitioners for performing duties after prescribed normal duty hours, at the rate of over-time being paid by the State to its other regular Class IV employees.
3. The applicants have been working as Chowkidars in the Primary Schools under the respondent/Municipal Corporation of Delhi (MCD) and are regular employees. The case of the applicants is that they are working on regular basis in the Education Department of the respondent-MCD; their wages are not fixed under the Minimum Wages Act and as they are rendering their services on gazetted holidays also. They are entitled for the overtime as per prevalent rules and instructions issued by the Govt. of India from time to time. In support of this, they have relied upon the Circular dated 21st March,1994, a copy of which is Annexure P-1. The said Circular reads as under:
Under the D.M.C. Service regulations of 1959, notified by Govt. of India, it has been laid down that in case a Class IV regular employee whose wages are not fixed under the Minimum Wages Act, is put to work on a Gazaetted Holiday, he becomes entitled for overtime at the rate prescribed under the Secretarial Rules.
In view of the service Regulation, referred to above, it is clarified that 11chowkidars who are working on regular basis in the Education Department are entitled for the overtime as per prevalent rules and instructions issued from the Govt. of India, from time to time and adopted by MCD on the subject, if and when they are put to work on Gazetted holiday(s).
4. The respondents have paid to the applicants in terms of the aforesaid Circular. However, subsequently, the Assistant Chief Accountant vide his letter No. SML/CZ/11 dated 27.4.1995, asked the authorities to stop the payment of overtime allowance and to make recovery of the amount already paid to the applicants, a copy of said letter is Annexure P-3. The reason for this is stated to be that the applicants are in receipt of intermittent allowance and, therefore, they are not entitled to any overtime allowance. For this, reliance has been placed on Circular dated 13.2.1995, a copy of which is Annexure P-2. The said Circular reads as follows:
Subject: Increase in Intermittent Allowance.
The Special Officer exercising powers of the Delhi Municipal Corporation has vide decision No.4311/G:W/Cor[. Dated 6.2.95, while revising the present rates of the Intermittent Allowance payable to those employees whose services have been declared as Essential Intermittent (services) prescribed the revised rates as follows:
Sl.No. Duties of the employee Rate of intermittent Allowance Those employees who to Present on duty for less than12 hours who get normal weekly off. 130/- per month Those employees who to be present on duty for less than16 hours and do not get any weekly off. 160/- per month Those employees who to Present on duty for less than 24 hours and do not get any weekly off. 190/- per month
5. Feeling aggrieved by the proposed recovery, the applicant filed the writ petition in the High Court of Delhi challenging the respondents proposed action as arbitrary and discriminatory as they are entitled to get Gazetted holidays like other employees of the respondents. They are entitled to get such holidays or they should be paid compensation in the form of overtime. They are getting intermittent allowance for putting work for the period beyond the normal duty hours on working days.
6. The respondents were restrained from making the proposed recovery from the applicants vide Honble High Court of Delhis order dated 24.11.1995 in C.M.-7081/95 which was ultimately confirmed on 10.12.1996.
7. Opposing the applicants claim, the respondents filed their reply wherein it has, inter alia, been submitted that the applicants are being given weekly holidays besides intermittent allowance for working more hours than the normal prescribed working hours. It has further been submitted that the Circular dated 21.3.1994 (Annexure P-1) is applied to those employees who are not getting intermittent allowance. Those employees who are getting intermittent allowance regularly, are not entitled to get overtime allowance. The respondents case is that since the applicants have been paid both intermittent and overtime allowance for the same period and have thus been paid in excess from the Municipal treasury and, therefore, they are liable to refund the same.
8. At the hearing, the applicant No.1 appeared in person and stated that their counsel is not in a position to argue the case and he is unable to engage another counsel.
9. Since the matter is quite old, it has been requested by the applicant that the case may be decided on the basis of the records. It has been contended by the applicant that the overtime amount has been paid to them for the services rendered by them under the rules.
10. The learned counsel for the respondents reiterated the averments made in their reply and stated that the employees who are paid intermittent allowance regularly, are not entitled to get overtime allowance since the intermittent allowance is paid in lieu of the overtime allowance. Since the applicants have been paid intermittent allowance, they are not entitled to over-time allowance. The contention of the learned counsel for the respondents are, however, not supported by two Circulars dated 21.3.1994 and 13.2.1995 (Annexure P-1 and Annexure P-2 respectively). The Circular dated 13.2.1995 (Annexure P-2) is on the subject of increase in intermittent allowance. There is nothing in the Circular dated 13.2.1995 to indicate that the persons who are in receipt of intermittent allowance, will not get the benefits of Circular dated 21.3.1994. The intermittent allowance is being paid for remaining duty beyond the normal working hours. It does not specifically deal with the payment of over-time allowance for the duty performed on gazetted holidays. The Circular dated 21.3.1994 (Annexure P-1) is with regard to entitlement for overtime allowance on gazetted holidays only, the conditions for applicability of overtime allowance in this Circular are that if a Class IV regular employee whose wages are not fixed under the Minimum Wages Act, is put to work on a gazetted holiday, he would be entitled to get over time allowance for the work done on gazetted holiday. Both the conditions are satisfied in the case of applicants. The Circular further clarifies the rates at which the overtime allowance under the D.M.C. Service Regulation of 1959 would be payable, are as per prevalent rules and instructions issued from the Govt. of India, from time to time and adopted by MCD on the subject, if and when the employees are put to work on gazetted holidays. If they are not put to work on gazetted holiday, they are not entitled to overtime allowance under the Circular.
11. The learned counsel for the respondents referred to two cases; namely, Municipal Council ,Hata Vs. Bhagat Singh and others ( 1998 (2) SCC 443) and Deep Chand Vs. Labour Court, Delhi ( Civil Writ Appeal No. 864 of 1971, decided on 7.4.1983). The first case relates to application of Section 14 of the Minimum Wages Act,1948 to the applicants for payment of overtime allowance on the ground that they were working for four additional hours everyday. It was held by the Honble Apex Court that overtime under Section 14 is payable only to those employees who are getting a minimum rate of wage as prescribed under the Minimum Wages Act,1948. As such it does not apply to those getting better wages under other statutory rules. The case is distinguishable on facts.
12. The second case of Deep Chand (Supra) is also under the Minimum Wages Act wherein it has been held that the employment of a Chowkidar is essentially intermittent and covered by Clause ) of Sub-section (2) of Section 13 and, therefore, the order fixing the number of hours of work under Sub-section (1) would not apply to him and he is not entitled to any overtime wages. This case too is distinguishable on facts. The present case is not under the Minimum Wages Act. It is under the DMC Service Regulations of 1959.
13. There is another aspect of the matter. The applicants have been paid overtime allowance under the DMC Service Regulations,1959 in terms of Circular dated 21.3.1994. The excess payment, if any, cannot be attributed to any act or omission on the part of the applicants. As the Chowkidars who are working in School were being paid intermittent allowance, their overtime allowance for putting work on gazetted holidays was stopped vide Circular dated 27.4.1995 (Annexure P-3). This circular has prospective application.
14. In view of the facts and circumstances of the case, referred to above, I find much force in the applicants claim for direction to the respondents not to recover the amount earlier paid to them for overtime allowance for putting work on gazetted holidays and direct the respondents accordingly. However, no direction can be issued to the respondents to continue paying to the applicant overtime allowance as the same is dependant on duties being performed on gazetted holidays. However, before availing the services of the applicants on gazetted holidays, it would be appropriate for the respondents to re-examine and clarify the position as to the applicability of Circular dated 21.3.1994, specially having regard to such allowances which are being paid under DMC Service Regulations,1959.
15. As regards the rates of intermittent allowance, the learned counsel for the applicants submitted that the same have not been revised since 6.9.1995 and the allowances are being paid at the same rate as fixed vide Circular dated 13.2.1995. The rates revised appear to be inadequate as the employee working for 24 hours is getting only 190/- per month. No arguments have been advanced on the propriety and validity of such intermittent allowances. I, therefore, do not consider it expedient to express any view in the matter which is essentially a matter of policy. While parting with the matter, I would, however, observe that the respondents will do well if they would look into the matter and take an appropriate view on the upward revision of the rates of intermittent allowance having regard to the changes since the last revision.
16. The application is accordingly disposed of. No order to costs.
(Dr. Dharam Paul Sharma) Member (J) /usha/