Secretary, Public Works Department vs Tukaram Pandurang Saraf

2024 INSC 703 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 1689 OF 2016

THE SECRETARY, PUBLIC WORKS DEPARTMENT & ORS. ….APPELLANT(S)

VERSUS

TUKARAM PANDURANG SARAF & ORS. ….RESPONDENT(S)

JUDGMENT

Mehta, J.

1. Heard.

2. The present appeal by special leave is preferred on behalf of the

appellants-employer, challenging the impugned judgment dated 15th

November, 2014 passed by the High Court of Judicature at Bombay,

Nagpur Bench at Nagpur in Writ Petition No. 3425 of 2010 (Civil),

whereby the High Court dismissed the said writ petition filed by Signature Not Verified

appellants-employer and upheld the judgment and order dated 31st Digitally signed by Indu Marwah Date: 2024.09.19 17:30:37 IST Reason:

October, 2009 passed by the Industrial Court, Yavatmal,

1 Maharashtra (hereinafter being referred to as ‘Industrial Court’) in

Complaint (A.K.P.) No.38/2006. The Industrial Court had allowed

the complaint filed by the respondent-employees upholding their

claim for entitlement of holidays on 2nd and 4th Saturdays and for

payment of salary equal to one and a half times salary for the work

done by them on 2nd and 4th Saturdays as per the Kalelkar Award.

3. The facts of the case, in a nutshell, are that the respondent-

employees were appointed on the positions of Mailmujar and Mali

between 1982 and 1997 under the Executive Engineer, Public Works

Department, Pusad, Tq. Pusad, District Yavatmal and the Sub-

Divisional Officer, Public Works Department, Pusad, Tq. Pusad,

District Yavatmal. For the sake of brevity, the details of the

respondent-employees with reference to their date of initial

employment, post held, and date of appointment are illustrated in a

tabular form below: -

Name of the Date of the Post Held Work on the Date of Respondent/ Initial temporary Appoin-

Employee Employment establishment tment

Shri Tukaram 1st November Mailmujar Phone 1st P. Saraf 1984 Attendant November 1989

Shri Subhash 13rd April 1988 Mailmujar Room 1st April

2 T. Waghmare Attendant 1993

Shri Mahadeo 1st October 1986 Mailmujar Phone 1st R. Jadhao Attendant January 1991

Shri Kabirdas 1st June 1976 Mailmujar Khan Sama 1st June S. Kamble 1981

Shri Anil S. 1st January 1986 Mailmujar Room 1st Chavhan Attendant January 1997

Mehboob Khan 1st April 1981 Mailmujar Room 1st April Baba Khan Attendant 1986

Shri Ashok V. 15th April 1988 Mailmujar Room 1st April Alane Attendant 1993

Shaikh Nisar 1st January 1986 Mailmujar Room 15th Sk. Mahboob Attendant January 1991

Shri Laxman J. 1st August 1974 Mali Mali 18th May Gabhane 1982

Shri Chhagan 1st January 1986 Mali Sweeper 21st B. Somwal January 1991

Shri Sanjay S. 1st January 1985 Mali Room 1st Reddi Attendant January 1990

Shri Ananda 1st September Mali Room 2nd April Champat Lodhe 1977 Attendant 1982

Shri Himmat 1st February Mali Room 1st Ramkrishna 1985 Attendant February 1990

Saiyyad Pashu 20th January Mali Chowkidar 20nd Sy. Isak 1984 January 1989

3

4. On 27th February, 2004, the respondent-employees were placed

on the Converted Temporary Establishment in accordance with the

Kalelkar Award, which came into effect in the year 1967, determining

the service conditions of the workers working in the Public Works

Department at various places or districts under different projects.

Under the Kalelkar award, the Public Works Department workers or

the staff are entitled to get the benefits of public holidays as well as

holidays on the 2nd and 4th Saturdays of each month.

5. On 10th January 1974, the Government of Maharashtra,

Irrigation and Power Department, Sachivalaya, Bombay, issued a

Government Resolution No. PAS-1070/741883-E(2)(2), wherein the

benefits of public holidays as well as holidays on the 2nd and 4th

Saturdays of each month, were purported to be withdrawn as far as

the field staff is concerned. According to the said Resolution, which

was purported to be a clarification of the Kalelkar award, the ‘field

staff’ was not held entitled to public holidays as well as holidays on

the 2nd and 4th Saturdays of each month. The relevant portion of the

Resolution is reproduced as under:-

“Resolution Orders have been issued from time to time in the Government Resolution mentioned below in regard to grant of Gazetted

4 Holidays and holidays on second and fourth Saturdays to various categories of staff working under the Irrigation and Power Department:-

i) Government Resolution, Irrigation and Power Department No. LAB-1967-L, Dt. the 20th December, 1967.

ii) Government Resolution, Irrigation and Power Department No.LAB-1568/769-L, Dtd. the 21st September,1970.

iii) Government Resolution, Irrigation and Power Department No.LAB-1071/7539 5-L, dated the 19th May, 1972.

It is, however, observed that the position in this respect is not quite clear. In amplification modification of the orders referred to above Government is therefore, pleased to issue to following comprehensive orders in the matter:

(1) The Office staff in the office of Circle Office, Divisional Office, Sub-Divisional Office etc. should be allowed all the Public Holidays Notified by Government and the holidays Holidays notified by Government and the holidays on Second and Fourth Saturdays of every month.

(2) The staff working in the field which comprises staff borne on regular establishment, the staff converted to regular establishment from work-charged and daily, rated establishments and the staff on work charged and daily rated establishments should not be held eligible for the Public Holidays and Holidays on Second and Fourth Saturdays of each month. In other words, the days of such holidays should be working days for them. They should, however, be granted 15th August and fourth optional holidays on festival days of their choice, in each year, besides of course one weekly holidays either on Sunday or any other convenient day on which the fieldwork is closed.

5 (3) The orders regarding grant of holidays on Second and Fourth Saturdays issued in –

(a) Government Resolution, Irrigation and Power Department No. LAB-107 2/1027709-L, dated the 7th September, 1972.

(b) Government Memorandum, Irrigation and power Department No. LAB-1072/102795-L, dated the 11th October, 1972;

And

(c) Government Memorandum, Irrigation and Power Department No. LAB-1072/60093-L, dated the 8th of December, 1972.

Applicable to the workers respectively in (a) the Dapodi Workshop at Poona, (b) the Workshops, Research Divisions and the Civil Sub-Division under the Maharashtra Engineering Research Institute, Nasik and

(c) the Regional Workshops at Akola and Nanded and other workshops excluding the project workshops under the Control of the superintending Engineers of Mechanical Circles will stand.

(4) Compensatory holidays should be granted to those who will work on holidays that are admissible, to them. This should be done only if they are asked in writing to work on holidays. As rainy season is usually a slack season, it could be possible to give them as many compensatory holidays during that season-as would be necessary.

(5) Compensatory holidays should be allowed to be accumulated but must be availed of in the particular year and cannot be carried forward in the succeeding year. For this purpose, the year shall be reckoned from October to September. Such, compensatory holidays may be allowed to be joined with leave of any kind.

6 No payment in lieu of the compensatory holidays should be made.

2. These orders apply to the staff in the Irrigation and Power Department and Buildings and Communications, Department.

By order and in the name of the Governor of Maharashtra.”

6. On 12th September 1980, the Government of Maharashtra

Irrigation Department in consultation with the General

Administration Department and the Finance Department, issued a

Government Resolution No. LAB-1080/1047(119)-A(14), wherein the

Government revoked all previous orders related to holidays for

workmen in the Irrigation Department and replaced them with a set

of consolidated and revised guidelines which provided that employees

working in zonal, divisional, sub-divisional, and other related offices

were eligible for public holidays as well as holidays on the 2nd and 4th

Saturdays of each month, as sanctioned by the Government.

Additionally, the workmen employed in the specific regional

workshops, such as those in Dapodi (Pune), Satara, Wardha,

Ahmadnagar (Kedgaon), Ashti, Khadakwasala, Nashik, and Nanded,

along with the Government Central Workshop and Store at Nagpur,

7 were also made eligible for these holidays. However, due to the

unique nature of their work, ‘regional workmen’ were only granted

public holidays on the 26th of January and the 15th of August. They

were also given the option to take four additional holidays per year

on festival days of their choosing, subject to prior approval from the

concerned official. The Resolution further provided that employees or

workmen who were required to work on designated holidays, as

instructed through written orders, were entitled to compensatory

leave. The Government Resolution is reproduced herein below: -

Holidays- Irrigation Department

Government of Maharashtra Irrigation Department

Government Resolution No. LAB-1080/1047(119)-A(14) Mantralaya, Mumbai- 400 032 Date- 12th September, 1980

Read: -

1) Government Resolution Irrigation and —No. PAS-

1070/741883-Aa (9) (2), dated January, 1974

2) Government Resolution, Irrigation Department No. l-AB/Aa (14), dated 20th September 1979.

The workmen working in the Irrigation Department and Public Works Department and Housing Department are getting holidays as per demand Number 5 in the Kalelkar Award. But in the said demand, there was no provision regarding working applicable to the workmen of Technical Union working in the workshops the holiday on Second and Fourth Saturday which are admissible to the other employees working on these establishments. Hence, after considering the issue regarding making applicable the said holidays to the workmen working in the workshops at Dapodi, Satara, Wardha and some other 8 regional workshops, the orders were issued declaring the concerned workmen entitled to the said holidays. Similarly, the Government issued the orders to grant, compensatory holidays to these workmen for the work done on holidays. However, these orders were not implemented for the regional workmen due to the peculiarity of their work. Now, it has come to the notice of the Government that as these orders have been issued by different Government Resolutions and there is uniformity in them, number of times it creates confusion in the minds of local authorities while granting leave to the workmen. Similarly, it has also come to the notice of the Government that the holidays on Second and Fourth Saturday are not admissible to the workmen working in the Regional Workshops at Ahmadnagar (Kedgaon), Ashti, Khadakwasala and Nashik like workmen working in other regional workshops. Hence, the question of giving the benefit of these holidays to the concerned workmen was under the consideration of the Government.

Resolution:

Now, the Government is pleased to direct that the orders issued time to time till date for making applicable holidays to the workmen in Irrigation Department should be considered as cancelled and instead, the following consolidated and revised orders should be implemented.

a) The employees working in the Zoned, Divisional, Sub Divisional, etc. offices should be considered eligible for getting Public Holidays and holidays on Second and Fourth Saturday of each month, sanctioned by the Government from time to time.

b) The holidays on Second and Fourth Saturday of each month should be made applicable to the workmen working in the workshops at Dapodi (Pune), Satara and Wardha, Regional Workshops at Akola, Ahmadnagar (Kedgaon), Ashtl, Khadakwasala, Nashik and Nanded, Government Central Workshop and Store at Nagpur.

c) Due to the peculiar nature of work and duties of the regional workmen. Public Holidays on 26th January and 15th August only should be granted. Similarly, they should be given liberty to avail as per their choice additional 4 holidays on any festival day in a year approved by the Government. The workmen should avail such option leave with the prior sanction of the concerned official.

9 d) (i) The employees/ workmen, who will work on the days of leave applicable to them, shall be entitled for getting compensatory holiday. But in this regard, such employees/workmen should have been directed by issuing writing orders to work on the day of holiday. As rainy season hampers the pace of regional and other work, as far as possible maximum compensatory leave, should be granted in rainy season (period from -16th June to 15th October) to the workmen who have become entitled for compensatory leave.

(ii) The liberty to accumulate compensatory leave should be given on the condition of availing leave in the same year itself.

For any reason, permission should not be granted to avail such leave in the next year. For the purpose of counting of leave, period of a year should be considered from the month of October to September.

(iii) Compensatory leave should not be compensated monetarily.

3) The Resolution issues with the informal reference of the General Administration Department dated 14th July, 1980 and with the concurrence of Finance Department vide its informal reference No. 1213/80/EXP- 6, dated 17th July, 1980.

By order and in the name of the Governor of Maharashtra.

Sd/-

(S.G.Khale) Assistant Secretary to the Government.

7. Despite the new Government Resolution revoking all the

previous orders and revising the guidelines, the respondent-

employees were not granted access to all Government holidays and

holidays on 2nd and 4th Saturday under the Kalelkar Award. Instead,

the respondent-employees were compelled to work on these holidays

10 without any additional compensation. Despite submitting multiple

letters and representations to the appellants-employer requesting

enforcement of their rights under the Kalelkar award, no positive

action was taken and instead, their complaint was dismissed vide

communication dated 27th May 1996. Consequently, the respondent-

employees filed a complaint under Section 28 of the Maharashtra

Recognition of Trade Union and Prevention of Unfair Labour Practice

Act, 1971 (hereinafter ‘Maharashtra Act’) before the Industrial Court,

seeking enforcement of their rights under the Kalelkar Award. They

sought direction to the appellants-employer to cease the unfair

labour practices and grant them the holidays as per their entitlement

under the award, along with back wages for the work performed on

these holidays.

8. The Industrial Court, vide Order dated 31st October 2009,

allowed the complaint and held that the complainants (respondent-

employees), who were employed in a Converted Temporary

Establishment are entitled to Government holidays, including those

on the 2nd and 4th Saturdays, and to overtime compensation for work

performed on such holidays as per the Kalelkar Award. The Industrial

Court confirmed that these entitlements are in line with the Kalelkar

11 Award's provisions, which mandate Government holidays and

overtime allowances. Overruling the objections raised by the

appellants-employer, the Industrial Court found that the Circular

issued by the Government on 27th May 1996 did not exclude the

complainants (respondent-employees) from these benefits as the said

Circular only concerns the issue involved in the disposed of cases

and in the cases pending before the Industrial Court at Bombay. The

Industrial Court directed the appellants-employer herein to grant all

entitled holidays and to provide appropriate overtime payments to

respondent-employees, within a month.

9. Aggrieved by the Industrial Court’s award, the appellants-

employer herein filed Writ Petition No. 3425 of 2010 before the High

Court of Bombay, Nagpur Bench. After hearing both the parties and

taking into consideration the material available on record, the High

Court dismissed the writ petition upholding the Industrial Court's

decision that employees covered under the Kalelkar Award are

entitled to Government holidays and overtime pay for working on the

2nd and 4th Saturdays. The High Court affirmed that the State

Government's Circular issued on 27th May 1996, excluding certain

employees from these benefits was invalid, as it contradicted the

12 Kalelkar Award’s provisions and the High Court's earlier precedents.

The order dated 15th November, 2014 passed by the High Court

dismissing the writ petition of the appellants-employer is subjected

to challenge in this appeal by special leave.

Submissions on behalf of the Appellants: -

10. Learned counsel representing the appellants-employer,

vehemently and fervently contended that although the respondent-

employees were appointed to the establishment and were given

monthly salaries regularly as per the Kalelkar Award, however, this

by itself would not entitle them to the same facilities and leave

benefits as permanent employees. These privileges including

additional holidays and overtime wages, which apply to permanent

employees cannot pari passu be extended to respondent-employees,

given their status as temporary workers. Thus, this logical distinction

invalidates any claims for benefits exclusive to permanent staff, as

the respondent-employees’ conditions of employment are totally

different.

11. Learned counsel further urged that the respondent-employees’

demand for holidays and reimbursement of back wages for duties

performed on holidays, as well as other benefits typically reserved for

13 permanent staff, is unjustified and untenable in the eyes of law. To

buttress this submission, learned counsel referred to the

Government Circular issued on 27th May, 1996 and urged that the

respondent-employees are not entitled to the benefits under the

Kalelkar award.

12. Learned counsel further contended that the demand of the

respondent-employees for holidays on the 2nd and 4th Saturdays and

additional compensation is based on a misinterpretation of the

Kalelkar Award and relevant regulations. He laid emphasis on the

fact that some of the respondent-employees being temporary

employees were deputed to work as Khansama and for incidental

work at Guest House at Pusad, where their presence is imperative as

important dignitaries such as Chief Minister, other Ministers, Judges

of the High Court, Judges of other courts and other Senior Officers

visit thereat. These employees are getting one week off regularly.

13. On these grounds, learned counsel for the appellants-employer

implored the Court to accept the appeal, quash the proceedings, and

set aside the impugned judgment and order.

14 Submissions on behalf of the Respondents: -

14. Learned counsel representing the respondent-employees,

vehemently and fervently opposed the submissions advanced by the

learned counsel for the appellants-employer. Learned counsel

asserted that the respondent-employees were rightfully entitled to

claim the benefits under the Kalelkar Award, including Government

holidays, holidays on the 2nd and 4th Saturdays, and overtime pay at

a rate of one and a half times salary for the work done by them on

2nd and 4th Saturdays as per the Kalelkar Award.

15. Learned counsel further urged that the appellants-employer

had engaged in unfair labour practices by denying these rightful

benefits and by compelling the respondent-employees to work on

these designated holidays without paying appropriate overtime

compensation.

16. It was further urged that the appellants-employer also failed to

issue the notice as mandated under Section 9A of the Industrial

Disputes Act, 1947, when altering the service conditions of the

respondent-employees. Thus, the appellants-employer clearly

violated the provisions of the Kalelkar Award, and the Industrial

Court was justified in granting relief sought for by the respondent-

15 employees. He urged that the order of the Industrial Court has also

been affirmed by the High Court after detailed deliberation on facts

as well as in law.

17. On these grounds, the learned counsel for the respondent-

employees implored the Court to dismiss the appeal and affirm the

impugned judgment and order.

Discussions and Conclusion: -

18. We have given our thoughtful consideration to the submissions

advanced at a bar and have perused the impugned judgments. With

the assistance of learned counsel for the parties, we have thoroughly

examined the material available on record.

19. The fundamental issue before us is whether the respondent-

employees who are working in Public Works Department as a

Converted Temporary Establishment and fall within the domain of

Kalelkar Award, are entitled to get the benefits of public holidays as

well as holidays on the 2nd and 4th Saturdays of each month.

20. It is not in dispute that the respondent-employees have been

taken on Converted Temporary Establishment from 27th February,

2004 as per the Kalelkar Award. Under the Kalelkar Award, there is

a specific agreement between the parties i.e., the employer and

16 employee in respect of “holidays” under caption demand No. 5 which

reads as under: -

“Demand Number 5:- The employee in the work charged, regular temporary and permanent category shall be entitled for the Government Holidays approved by the Government. The employee on daily wages shall be; entitled for the three paid leave in a year that is on 1) 26th January, 2) 15th August and

3) 2nd October as per the existing practice". Similarly additional four optional paid; leave shall be granted to these employees by taking into: consideration the exigency of work. The employee shall avail these leave on any day of festival as per their: choice.

But they are required to make an application in. advance for availing these optional leave.

Demand number 6 :- All the employees shall be paid overtime allowance as per the provisions of section 14 (Annexure-:8) of the Minimum Wages Act, 1948. The employees, who are being paid overtime allowance at present, shall be paid overtime allowance at the double rate of minimum wages or at one and a half time rate of the actual salary of the employee whichever rate is higher, as prescribed in the Government notification issued as per the provisions of the Minimum Wages Act, 1948.” (emphasis supplied)

21. It is thus clear that except the daily-wage employees, all other

categories of employees are entitled to get such public holidays as are

sanctioned by the Government for these categories of employees. The

respondent-employees in the present factual matrix fall under the

category of temporary employees and not as daily-wage employees.

As of 27th February 2004, they have been placed on the Converted

Temporary Establishment in accordance with the Kalelkar Award.

17 Therefore, the respondent-employees are entitled to all the holiday

benefits and other emoluments stipulated under the Kalelkar Award.

22. The contention advanced by the learned counsel for the

appellants-employer that the respondent-employees are not eligible

for Government holidays, including the 2nd and 4th Saturdays, based

on the Circular issued by the Government on 27th May 1996, is

fundamentally flawed. The Circular, as referred to by the learned

counsel for the appellants-employer, pertains specifically to the

issues involved in disposed of cases and those pending before the

Industrial Court in Bombay. The instructions in this Circular were

related to the cancellation of facilities and concessions granted

through interim orders in those particular cases. However, the above

stated Circular does not govern the employees who were shifted to

the Converted Temporary Establishment under the Kalelkar Award,

neither it stated that the said employees would be ineligible for the

benefits outlined in the Award, such as Government holidays and

overtime allowances.

23. In fact, the provisions of the Kalelkar Award explicitly state that

all employees, except those on daily wages, are entitled to these

18 benefits. The appellants-employer’s reliance on the 27th May, 1996

Circular to deny the complainants their rightful entitlements is

misguided and does not withstand scrutiny when compared to more

specific and comprehensive provisions of the Kalelkar Award.

Consequently, the Circular does not negate the eligibility of the

respondent-employees for Government holidays and overtime

allowances, and they were rightly granted the relief sought for by the

Industrial Court and affirmed by the High Court.

24. The Industrial Court assigned strong unassailable reasons

while granting relief sought for by the respondent-employees in terms

of the Kalelkar award. The findings arrived at by the Industrial Court

have been reaffirmed by the High Court with the dismissal of the writ

petition filed by the appellants-employer against the Industrial

Court’s award. Thus, the impugned judgment dated 15th November,

2014 does not suffer from any infirmity warranting interference.

25. The appeal is dismissed accordingly. No costs.

26. The appellants-employer are directed to comply with the order

passed by the Industrial Court, and later affirmed by the High Court,

within a period of eight weeks.

19

27. Pending application(s), if any, shall stand disposed of.

..………………….……….J. (SANDEEP MEHTA)

..………………………….J. (R. MAHADEVAN) New Delhi;

September 19, 2024.

20 21