Augustine George Masiii, J.@mdashBy this order, I propose to dispose of Civil Writ Petition Nos. 16527 of 2007, 20865 of 2008, 20866 of 2008, 20868 of 2008, 20875 of 2008. 20908 of 2008, 244 of 2009, 245 of 2009, 246 of 2009, 283 of 2009. 286 of 2009. 287 of 2009. 295 of 2009, 296 of 2009, 297 of 2009. 298 of 2009. 299 of 2009. 303 of 2009, 315 of 2009. 316 of 2009. 317 of 2009, 370 of 2009, 371 of 2009. 372 of 2009. 373 of 2009, 374 of 2009, 375 of 2009, 376 of 2009, 380 of 2009. 381 of 2009. 382 of 2009. 383 of 2009. 384 of 2009. 385 of 2009. 386 of 2009. 396 of 2009. 397 of 2009. 398 of 2009. 399 of 2009, 404 of 2009. 405 of 2009. 411 of 2009, 427 of 2009, 428 of 2009. 429 of 2009. 430 of 2009, 431 of 2009, 432 of 2009. 433 of 2009, 435 of 2009, 436 of 2009. 437 of 2009, 438 of 2009, 439 of 2009, 440 of 2009. 441 of 2009 and 442 of 2009. as common questions of facts and law are involved therein, for the sake of convenience, the facts are being taken from C.W.P. No. 20865 of 2008.
2. In the present set of writ petitions, challenge is to the order passed by the Labour Court u/s 33C(2) of the Industrial Disputes Act. 1947 (hereinafter referred to as "the Act").--vide which the Respondent-workmen have been held entitled to monetary benefits as per the directions of this Court in C.W.P. No. 9983 of 1988 Jagdish Chancier and 450 others v. State of Haryana and Anr., decided on 24th August, 2004.
3. Briefly the facts which led to the filing of the present writ petitions by the State of Haryana are that Jagdish Chander and 450 others, who belonged to the industrial staff working in the office of the Controller. Printing and Stationery. Haryana, filed C.W.P. No. 9983 of 1988 claiming therein a writ of Mandamus directing the Respondents not to compel them to attend to their duties on Saturdays or on other holidays notified as public holidays by the Respondent-State of Haryana. They had further sought a writ of Prohibition to the Respondents for restraining them from making deduction from their salaries on account of their not attending the office on Saturdays which have been declared public holidays by the State of Haryana. It was stated that the ministerial staff working on technical and non-technical posts have been enjoying all Saturdays as holidays and they were being discriminated with. A consequential prayer was made during the course of arguments that for the duties performed by the Petitioners on Saturdays, they be held entitled to be paid extra wages in terms of the judgment of the Hon''ble Supreme Court in the case of
4. Counsel for the Petitioners had relied upon a judgment of the Division Bench of this Court in the case of Ajmer Singh and Ors. v. Punjab State Electricity Board and Ors.. (C.W.P. No. 15412 of 2002 decided on 24th September, 2002) to contend that the workmen should not be compelled to seek redressal of their grievances through the process of Court and the State should itself grant benefit to the similarly placed employees in terms of the orders passed by the Hon''ble Supreme Court.
5. Considering the submissions made by the counsel for the Petitioners, the learned Single Judge passed the order, dated 24th '' August, 2004 the concluding part thereof reads as under:
In the present case, the Petitioners have been working in the office of Controller, Printing and Stationery, Haryana and are posted in the Government Text Books Press, Panchkula, Haryana Government Press, Sector 18, Chandigarh and Bal Bhawan Press Madhuban (Karnal). They are industrial employees, The Petitioners have placed reliance on notifications Annexures PI to P5 to claim that all Saturdays and Sundays have been notified to be holidays but still they have been working on Saturdays. It is claimed that the ministerial staff and the employees working on technical and non-technical posts have been enjoying all Saturdays as holidays in view of the notification, dated 29th October, 1987 and letter, dated 6th September, 1988. The Petitioners who are working on class III technical and nontechnical posts have been asked to work and attend to their duties on Saturdays and despite representation through their union, the claim of the Petitioners has not been acceded to.
A reference in this regard may be made to representation, dated 23rd November, 1987 (Annexure P-7) and 21st September, 1988 (Annexure P-8). It is in this background of the factual position that learned Counsel for the Petitioners has claimed that ratio of the judgment of the Supreme Court in Municipal Employees Union''s case (supra) is applicable.
I have thoughtfully considered the submissions made by the learned Counsel and find that the instant petition deserves to be disposed of in terms of the direction issued by the Supreme Court in Municipal Employees Union''s case (supra) and accordingly the petition is disposed of with the following directions:
(a) the petitoners may file appropriate application u/s 33-C (2) of the Industrial Disputes Act, 1947 (for brevity, the Act) and on proper computation may be found entitled to extra wages for each of the Saturday on which they might have worked while their collegues belonging to ministerial staff and holding technical and non-technical posts have enjoyed Saturdays as holidays;
(b) if it is shown by the Respondent that at the relevant time any instructions were issued under which the working, conditions of the staff members were uniformly prescribed to be six days in a week, then the question of granting monetary benefit to the Petitioners would not survive.
(c) on the fulfillment of all the conditions, appropriate relief u/s 33-C(2) of the Act may be granted to the Petitioners but the same has to be confined to three years immediately preceding the filing of the instant petition and thereafter continuously upto date. Therefore, in the application to be filed u/s 33-C(2) of the Act, the Petitioners have to their claim accordingly.
(d) If any employee has retired during the pendency of the procedings. then the benefits which may be required to be computed, would obviously be available to him or her till the date of retirement.
(e) If the Petitioners file any such application u/s 33-C (2) of the Act within a period of three months, then the same may be disposed of expeditiously as early as possible preferabley within a period of six months from the date of filing of such application.
6. Thereafter Letters Patent Apeal No. 424 of 2004 State of Haryana and Ors. v. Jagdish Chandcr and Ors. was preferred by the Petitioners which was dismissed by the Division Bench of this Court on 14th September. 2005. Special Leave to Appeal (Civil) No. 672 of 2006 was preferred by the State of Haryana which was also dismissed by the Hon''ble Supreme Court vide its order, dated 30th January, 2006.
7. As per the aforesaid directions, dated 24th August, 2004 of this Court, the Petitioners-workmen (hereinafter referred to Petitioners -applicants) filed appropriate application u/s 33-C(2) of the Act. Similarly placed employees who were not writ Petitioners before this Court (hereinafter referred to as non-Petitioners-applicants) also preferred applications u/s 33-C(2) of the Act before the Labour Court claiming therein the same benefit as the Petitioners in the writ petition. The said applications having been allowed by the Labour Court, the present writ petitions have been preferred by the State of Haryana challenging the orders of the Industrial Tribunal and Labour Court, U.T., Chandigarh.
8. Mr. D.S. Nalwa, learned Additional Advocate General , Haryana has submitted that applicantion u/s 33-C(2) of the Act is not maintainable as there is no settled right in favour of the workmen. Their claim has not been accepted by the Petitioners before the Labour Court. The workmen do not have a pre-existing right which would entitle them to the benefit of moving an application u/s 33-C (2) of the Act. He further contends that judgment, dated 24th August, 2004 passed in C.W.P. No. 9983 of 1988, which is the basis for claiming the benefits u/s 33-C(2) does not hold them entitled to the benefit of Saturdays as no finding to that effect has been given. He contends that the High Court has only issued directions in similar terms as have been issued by the Hon''ble Supreme Court in the case of Municipal Employees Union (Regd.) Sirhind''s case (supra). He contends that the claim of the workmen being not covered under the judgment of the Hon''ble Supreme Court in the case of Municipal Employees Union (Regd.), Sirhind''s case (supra) no benefit u/s 33-C (2) of the Act could be granted to the Petitioners. For this, he contends that there are separate statutory rules governing the service of the ministerial staff and the industrial staff. The Respondent-workmen who belong to industrial staff and the ministrial staff who have been granted the Saturdays as off day, form a separate cadre, have separate seniority, with separate avenues and channels of promotion and the nature of work is also different. There is nothing common between them except the they are working in one establishment. Therefore, no benefit could have been granted to the Respondent-workmen. He submits that those applicants who were non-Petitioners and had not preferred the writ petition in the High Court and were not parties to the judgment, dated 24th August, 2004 cannot be granted the benefit u/s 33-C(2) of the Act and in any case, if the benefit was to be granted to the workmaen-non-Petitioners, the same should have been restricted to 3 years prior to the filing of their appoication undeer Section 33-C(2) of the Act.
9. Challenging the findings given by the Labour Court in the order impugned herein, the counsel contends that even if the directions as issued by this Court in C.W.P. No. 9983 of 1988,--vide order dated 24th August, 2004 are to be complied with, the Labour Court was bound to give a finding that the claim of the workmen was covered by the judgment of the Hon''ble Supreme Court in the case of Municipal Employees Union (Regd.) Sirhind''s case (supra). That having not been done, the order impugned herein cannot be. sustained. He further contends that the judgment passed by the Court is a judgment in personam and cannot be termed as a judgment in rem which would entitle the non-Petitioners the benefit of the order granted in favour of the Petitioners in C.W.R No. 9983 of 1988.
10. Mr. R.K. Malik, learned Sr. counsel, submits that the Respondent-workmen would not be entitled to the monetary benefit of Saturdays on which they have worked, as the ministerial staff who are called upon to work on Saturdays are only entitled to compensatory leave.
11. On the other hand, Mr. Amit Chopra, counsel for the Respondent-workmen contends that a perusal of the directions issued by this Court in C.W.P. No. 9983 of 1988, dated 24th August, 2004 would clearly show that direction ''(a)'' is specific wherein it has been held that the workmen are entitled to extra wages for each Saturday on which they would have worked. He states that the Court has, issuing directions, clearly stated that the Petitioners may file application u/s 33-C(2) of the Act and on proper computation may be found entitled to extra wages for each of the Saturdays on which they might have worked while their colleagues belong to ministerial staff and holding technical and non-technical posts have enjoyed Saturdays as holidays. He, on this basis, states that this Court has given a direction to the Labour Court to compute their entitlement of extra wages. This direction could have been issued when the Court had accepted the contention of the Petitioners because the question of computation would only arise when they are held entitled to the benefit of Saturdays on which they have worked.
12. He furhter, submits that the contention as raised by the counsel for the Petitioners cannot survive as all these contentions which are now being sought to be raised for denying the claim of the workmen were raised during the proceedings before this Court in L.P.A. No. 424 of 2004 and the Hon''ble Supreme Court in SLP No. 672 of 2006 and the same having been rejected by the Court cannot now be again pressed into sevice to submit that the workmen are not entitled to the benefit as per the judgment of this Court. He contends that the principle of res judicata would come into play. This would act as an estoppel for the Petitioners to now raise the submission which have once been adjudicated upon and rejected by the Court of competent jurisdiction and therefore, the same cannot now be reopened in proceedings u/s 33-C(2) of the Act. He further contends that there may be different set of Rules governing certain conditions of service of the ministerial staff and industrial staff but nevertheless as far as the Rules governing the pay fixation, punishment and leave etc. is concerned, the employees of both the categories are governed by the Haryana Civil Services Rules. The Leave Rules under which leave is being granted and the notification dated 30th July, 1979 (Annexure P-2) under which all Saturdays are being observed as holidays by the ministerial staff being the same, the industrial staff are justified in claiming the benefits of Saturdays and they cannot be deprived of this calim. He contends that the workmen are entitled to the benefit of wages for Saturdays on which they had already worked. However, if the State of Haryana in future so desires, may grant the workmen the compensatory leave as has been asserted by the Senior Counsel while making his submissions.
13. As regards the non-Petitioners-applicants who were not party to the judgment passed by this Court in C.W.P. No. 9983 of 1988, he contends that since their status has not been denied that they are similarly placed as the workmen who were Petitioners in the petition and the right of the workmen having been established by this Court and a declaration to that effect having been issued holding them entitled to the wages for the Saturdays on which they have already worked, the non-Petitioners-applicants cannot be deprived of the same benefit by taking a plea that their right has not yet been adjudicated upon or that the same has not been established or that there is no pre-existing right.
14. I have given my thoughtful consideration to the submissions put-forth by the counsel for the parties and with their able assistance have gone through the records of the case and am of the view that the present writ petitions deserve to the dismissed. The directions as given by the learned Single Judge in C.W.P. No. 9983 of 1988,--vide order dated 24th August, 2004 would clearly show in direction ''(a)'' that this Court had granted liberty to file an appropriate application u/s 33-C (2) of the Act and that after proper computation if the Labour Court finds that they are entitled to extra wages for each of the Saturdays on which they might have worked while their colleagues belonging to the ministerial staff and holding technical and non-technical posts have enjoyed Saturdays as holidays, they would be entitled to the said relief. Direction ''(c)'' issued by this Court would show that the relief u/s 33-C (2) of the Act was confined to 3 years immediately preceding the filing of the writ petition and thereafter continuously upto date i.e. the benefit of the directions with regard to the arrears was restricted by this Court. However, direction ''(b)" really put a rider as far as the claim of the workman for grant of extra wages for Saturdays is concerned. It said that if the State of Haryana proved before the Labour Court that at the relevant time for which the claim of the workmen is based, any instructions were issued under which the working conditions of the staff member were uniformly prescribed to be six days in a week, then the question of granting monetary benefits would not survive.
15. Counsel for the State has very fairly conceded that there are no such instructions issued by the State which uniformly prescribed that all staff members irrespective of the fact whether they belong to the ministerial staff holding technical or non-technical posts, as well as the industrial staff arc to work for six days in a week. That being so. the contention of the counsel for the Petitioners that there is no direction given by this Court holding the workmen entitled to extra wages for the Saturdays on which they had worked while the ministerial staff had enjoyed as holidays, as such is not acceptable.
16. The contention of the counsel for the Petitioner-State that the learned Single Judge has not held that the claim of the Petitioner would be covered by the judgment of the Hon''ble Supreme Court in the case of Municipal Employee Union (Regd.) Sirhind''s case (supra) is also devoid of any merit as the Division Bench of this Court while dismissing Letters Patent Appeal No. 424 of 2004 has categorically held as follows:
xxxxx xxxxx xxxxx xxxxx
The learned Single Judge held that the matter was covered in favour of the writ Petitioners-Respondents by the judgment of Hon''ble Supreme Court in
We find that in view of the undisputed facts mentioned above, the Respondent-writ Petitioners, clearly fall within the purview of the afore-cited judgment. It appears from the record that the Respondents-writ Petitioners are being denied holidays on Saturdays, whereas certain employees, working in the same office but in different branches, arc being given a holidays on that day. We, therefore, find that there is no merit in this appeal. Dismissed.
17. The other submission as raised by the counsel for the Petitioners with regard to the workmen belonging to separate cadre having separate seniority and separate statutory rules and, thus, not entitled to the benefit of Section 33-C (2) of the Act, also cannot be accepted for the reason that all these grounds which have been taken here by the Petitioners have already been pressed into service by the Petitioner-State while preferring Letters Patent Appeal No. 424 of 2004.
Ground-I thereof reads as under:
1. That the Learned Single Judge has delivered the judgment in the aforesaid Writ Petition on the basis of the judgment of the Hon''ble Supreme Court of India in case of
18. Thereafter, these very grounds were also taken by the Petitioners in the Hon''ble Supreme Court in Special Leave to Appeal (Civil) No. 672 of 2006. The same reads as follows:
2. QUESTIONS OF LAW:
That the following questions of law arise for consideration by this Hon''ble Court:
(i) Whether the High Court committed an error in treating Class-Ill Industrial Staff working in various presses of the Department at par with the Class-Ill Ministerial Staff overlooking the fact that Class-Ill Industrial Staff is governed by the provisions of the Factories Act, 1948 whereas Class-Ill Ministerial Staff is not governed by the Factories Act, 1948 ?
(ii) Whether the High Court committed an error in basing its judgment on the judgment of this Hon''ble Court in the case of "
(iii) Whether the High Court committed error in treating class-Ill Industrial Staff and Class-Ill Ministerial Staff at par especially when they were governed by different working Rules ?
19. In the light of the above all the submissions which have been put-forth by the learned Counsel for the Petitioners which arise from these very grounds cannot be adjudicated upon in the present proceedings after the dismissal of the Letters Patent Appeal and the Special Leave to Appeal preferred by the Petitioners. The grounds which have been pressed into service by the Petitioners in the present writ petition have already been taken by them in the proceedings preferred against the order dated 24th Augutst, 2004 passed in C.W.P. No. 9983 of 1988 before a Division Bench of this Court and, thereafter in the Supreme Court.
20. In any case, the submissions as put forth by the counsel for the Petitioners cannot succeed for the simple reason that it is an admitted fact that for the purpose of pay-fixation, punishment, leave etc. the employees of both the categories are governed by the same Rules i.e. the Haryana Civil Services Rules. The Managment witness No. 1 Shri Dilbag Singh Berwal, Assistant Controller, Office of Controller, Printing and Stationery Department, Haryana Chandigarh has stated as follows in his cross-examination.
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By the Rep. For the workman.
The Head of Department of the entire press i.e. Ministerial staff and technical staff is one. The punishing and appointing authority of class-Ill and class-IV employees of both the categories referred above is also the same as per rule. The pay commission recommendations have been made applicable to whole of State of Haryana. The employees of the press are also the Haryana Government Employees. For the purpose of pay fixation, punishment, leave etc. the employees of both the categories are governed by Haryana Civil Services Rules.
21. Since the question involved in the matter relates to "leave and the employees belonging to the ministerial staff and the industrial staff for the purpose of leave arc governed by the Haryana Civil Services Rules and there are no separate rules governing this aspect, there can be no other conclusion except the one that the two categories cannot be treated differently under the same rules unless the rules provide for such different treatment but that also would depend upon the situations envisaged thereunder. Since there are no separate rules governing the conditions with regard to leave, the workmen belonging to the industrial staff cannot be discriminated with the ministerial staff.
22. The only contention as raised by the counsel for the Petitioners which now needs to be considered is with regard to the non-pctitioners-applicants who had filed applications directly u/s 33-C (2) of the Act before the Labour Court. Here again. Mr. Dilbag Singh Berwal MW-1 in his cross-examination before the Labour Court has admitted that these non-petitioncrs-applicants arc performing the job in the same Press where the persons who had filed the writ petitions are working. It would not be out of way to mention here that this Court in C.W.P. No. 9948 of 1988 had primarily decided the question as to whether the workmen who belong to the industrial staff were entitled to the same beneftis as the workmen belonging to the ministerial staff. This Court has decided the rights as a class and thereafter for computation of individual entitlement had directed filing of individual applications u/s 33-C (2) of the Act. This is apparent from direction ''(a)'' issued by this Court, wherein it has been held that the computation on an application made u/s 33-C (2) of the Act be made by the Labour Court holding the workmen entitled to extra wages for each of the Saturdays on which they might have worked while their colleagues belonging to the ministerial staff holding technical and non-technical posts have enjoyed the Saturdays as holidays.
23. In the light of this clear direction where this Court had adjudicated upon the entitlement of industrial staff vis-a-vis the ministerial stall with regard to Saturdays as holidays the contention as raised by the counsel for the Petitioners cannot be accepted. When it is being admitted that the non-Petitioners/applicants belonging to the industrial category, there can be no other conclusion except that they are entitled to the same benefit as has been granted to the Petitioners in C.W.P. No. 9948 of 1988. Therefore, they did have a pre-existing right which would entitle them for maintaining an application u/s 33-C (2) of the Act.
24. The contention of the counsel for the Petitioners that such non-Petitioners-applicant would only be entitled to the benefit of arrears of 3 years immediately preceding the filing of their application u/s 33-C (2) of the Act before the Labour Court, docs carry weight. The Petitioners who had filed the Writ Petition No. 9948 of 1988 before this Court have been held entitled to the relief confined to three years immediatly preceding the filing of the writ petitoin and thereafter continuous upto date. The same principle needs to be applied to the non-Petitioners-appllicants while restricting their claim accoordingly. They are, thus, held entitled to the relief as claimed by them u/s 33-C (2) of the Act confined to 3 years immediatly preceding the filing of the application before the Labour Court.
25. Accordingly, the writ petitions stand dismissed. The impugned orders passed u/s 33-C (2) of the Act by the Industrial Tribunal and Labour Court. U.T.. Chandigarh qua the Petitioners-applicants arc upheld and qua the non-Petitioners-applicants it shall stand modified to the extent that the non-Petitioners-applicants would be entitled to the relief u/s 33-C (2) of the Act confined to three years immediately preceding the filing of the application by them before this Labour Court and thereafter continuously upto date.
