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Judgment
Harsimran Singh Sethi, J. (Oral)
The present bunch of petitions, the details of which are mentioned in the heading, involve common point of law and common set of facts, hence, they are being dealt together.
In the present bunch of petitions, the challenge is to the impugned order dated 26.10.2021 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Union Territory, Chandigarh (hereinafter referred to as ‘the Tribunal’), by which, a finding has been recorded that all the employees working in the same institution should either be governed by five-days a week or six-days a week and the employees working in the same institution cannot be bifurcated into two categories, i.e. one category being governed by five-days a week with two holidays and the other category governed by six-days a week with one holiday.
Learned State counsel submits that the issue relates to the Transport Department of the Government of Haryana, where different categories of staff are working, i.e. operational staff, technical staff and ministerial staff. Keeping in view the different nature of duties performed by the categories of employees, they are governed either by five- days a week performing of duties based upon roster, as the case may be.
Learned State counsel submits that the ministerial staff is governed by five-days a week, whereas the technical and operational staff are governed by duties as fixed by roster and hence, the order passed by the Tribunal, whereby all three categories have been amalgamated and directed to be governed by five- days a week with two holidays, and the employees who are asked to work on Saturdays have been held entitled for reimbursement for such overtime work, is incorrect.
Learned counsel for the appellants further submits that the technical and operational staff are required to work even on Saturdays keeping in view the nature of work to be performed by such staff, as they are saddled with more responsibilities based upon the roster so fixed and none of the category is made to work beyond 48 hours in a week and any employee in any category works beyond 48 hours in a week, overtime wages are extended and, therefore, granting them the benefit of extra payment for working on Saturdays, is incorrect as such employee might be on rest on a weekday basis upon roster .
On the other hand, learned counsel for the respondents submits that all the staff of the Transport Department of the State of Haryana is one establishment and bifurcating them into three different categories, whereby one category works for five days in a week with two holidays and the other works through the week is discriminatory in nature, and therefore, the benefit of reimbursement granted by the Tribunal to the respondents is legal and valid.
We have heard learned counsel for the parties and have gone through the case file with their able assistance.
8 It may be noticed that within a particular department, employees may be handed over with different kinds of duties and they can be bifurcated, keeping in view the requirement of their work. A driver working in a bus is required to perform the duties as and when required during the week as compared to a clerk who has a desk job to be performed from 09 a.m. to 05 p.m.
In the present case, the Transport Department is required to function round the clock so as to keep the buses operational. A driver may be required to perform duties even on Saturdays or Sundays and beyond the normal duty hours, depending upon the nature of duties assigned to him. Similarly, once the operational staff is working, the technical staff is also required to remain available to ensure that the buses/ are repaired and are in a in running condition so as to ensure that such buses can be operated on Saturday and Sunday or even on holidays/gazetted holidays.
That being so, the benefit of five-days a week to the ministerial staff and duties based upon roster in operational and technical staff cannot be held as discriminatory in nature.
It has come on record that the ministerial staff does not perform duties on Saturdays and Sundays and works only for five days in a week.
The question arises for consideration is whether the technical and operational staff, having different kinds of duties, can be equated with the ministerial staff so as to claim Saturday as a holiday and in case, they are asked to work on Saturday, whether or not they would be entitled for the overtime pay for the said day.
It is a settled principle of law that keeping in view the nature of duties, qualifications and requirements of service, different pay-scales and service conditions can be prescribed for different cadres, even though such cadres may be working in the same institution.
As per the judgment passed by the Hon’ble Supreme Court of India in Airways Corporation versus British Overseas Airways Corporation, (1961) 1 L. L. J. 157, wherein it has been held that working hours for those who are working in the office is 36 hours a week and the working hours for operational staff is 39-42 hours a week. So different set of working hours can be provided looking fox the exigencies of the situation and efficient working of the establishment.
The relevant paragraphs of the said judgment is as under:-
“3.In this connection, Mr Sastri referred us to the fact that it was common ground between the parties that under the existing arrangements, the employees of the respondent were classified into three categories, one of which worked for 36 hours, the other 39 hours and the last 42 hours The first category consisted of employees in the accounts, sales, press liaison assistants, despatch, secretaries, stenographers and typists. This category was non-rostered. The second category which consisted of the rostered staff included those employees in reservations, traffic, operations, engineering, supplies and motor transport and the last was concerned with communications and cargo as well as Peons. The argument was that there was no justification for increasing the normal weekly hours of work and the change affected in the existing arrangement should, therefore, be set aside.
4.In dealing with this argument, it is necessary to bear in mind certain distinguishing features of the work carried on by the appellants under the respondent's employment. The head office of the respondent Corporation is in England and all the units in the several countries of the world are controlled by a Board in England. The conditions in which its staff has to work and the way in which airlines have to be operated differ widely from those in other industries particularly in factories, shops and offices. The staff which handles aircrafts, their passengers and cargo are not engaged in a continuous process of manufacture as in a factory nor are they continuously at the roster duty. It is well known that though the aircrafts' scheduled time of arrival and departure is known in advance, owing to vagaries of weather and technical defects which the aircrafts are liable to disclose from time to time, dislocation in the schedule is caused several times. That is why it is only for about of an hour before arrival and for a like period after the departure of an aircraft the staff has to do such work as is available to be done, but otherwise the members of the staff have to stand by. Even after the aircraft arrives, it is detained for repair work if a mechanical trouble is disclosed and this work may last sometimes as long as 24 hours That is the reason why unlike in other establishments, the problem of regulating the hours of work of the respondent's employees becomes complicated particularly in a small aircraft station like Delhi.”
Further, keeping in view the requirements of work to be performed by a particular category of staff, different duty hours can be fixed. Once there is no work to be performed by the ministerial staff on Saturdays and Sundays, such staff may be governed by five-days a week and on the other hand, keeping in view the nature of duties of the operational and technical staff, they are required to work as per roster on any day of a week. But such roster is prepared where rest is inherent even on a week day.
Further, it has come on record that the aforesaid arrangement is not fixed today but is there, since the year 1979, whereby the competent authority has prescribed five-days a week for the ministerial staff, whereas the technical and operational staff have been required to work for six days in a week. For the last four decades, the same rule is made applicable.
The question which arises for consideration is whether one particular category of employees can claim the benefit extended to another category by ignoring the nature of duties and the requirements of work to be performed by the particular category of employees.
The duties performed by the ministerial staff are totally different from the duties performed by the technical and operational staff, as they are required to operate the buses and make sure that the buses remain operational throughout the week. Consequently, they work on a roster basis and do not work by fix office hours i.e. from 9:00 a.m. to 5:00 p.m., while such working hours are observed by the ministerial staff. Once the operational duties are performed within a roster basis and the ministerial staff works on fixed office hours, the technical and operational staff cannot claim parity with the ministerial staff merely for the purpose of claiming five-days a week and overtime pay for the Saturday.
Hence, the directions issued by the Tribunal in placing all the employees in one bracket and directing that there should be either five-days a week or a six-day week for all employees and any employee, who is asked to work on Saturday, is entitled for the compensatory overtime pay for such day, cannot be sustained in the eyes of law.
At this stage, learned counsel for the respondents submits that a few drivers who are not working as drivers of buses but they are working as car drivers or as drivers in training schools are being granted the benefit of five-days a week.
It may be noticed that such operational staff, who work from 9:00 a.m. to 5:00 p.m. instead of working on a roster basis, have been extended the benefit of five-days a week.
Learned counsel for the respondent agrees that as per the schedule maintained, any employee working with the transport department, duty hours do not exceed 48 hours in a week. Any employee irrespective of posting in operational wing, ministerial wing or technical wing if works beyond 48 hours in a week, he/she is paid overtime wages. Once, the working hours of all the employee is 48 hours in a week, there is no discrimination being done. Tribunal misdirected itself on the point of working on weekends. Once, duty hours of ministerial staff is fixed for 9 a.m. to 5 p. m. in week day which comes in total to 48 hours in a week, same is being made applicable upon the employee of operational/technical wing as their duties are fixed based upon the roster.
Learned counsel for the respondent has not been able to prove that as per roster, they are required to perform duties beyond 48 hours in a week . Hence, discrimination being alleged by the employees of operational cadre/technical cadre, as accepted by the Tribunal, is incorrect, hence, the said view of the Tribunal is needed to be set-aside. Further, any employee working in any cadre, if performs duties beyond 48 hours in a week, overtime compensation for such hours of working beyond 48 hours, as directed by Tribunal to be paid for such work is incorrect, as such duties might be fixed for only 48 hours qua technical/operational wing.
Even as per the settled principle of law, where an employee is required to work on a holiday and is granted compensatory rest in between the shifts, such employee is not entitled to get the salary for that extra working day. Hence, the drivers of the operational and technical staff are working on a roster basis and the said roster is prepared in such a manner that adequate rest is provided to them in between the two shifts, hence, a claim for compensatory holiday or compensatory salary only on account of working on Saturday is impermissible. Thus, the Tribunal has ignored this fact while granting relief to the employees/respondents by clubbing all the categories into one bracket and holding that there should be either five-days a week or six-days a week for all employees. Such direction is incorrect and is also beyond the jurisdiction of the learned Tribunal.
Further, it is not the case that while working for six-days a week, the drivers and technical staff in the operational wing do not get the rest. Sufficient rest is inherent in the roster system, which is a conceded fact even before this Court during the course of hearing that such rosters do not envisage more than 48 hours of working in a week. Hence, once compensatory rest is provided to the staff working in the operational and technical wings, their claim for payment merely on the ground that they have worked on Saturday or Sunday, cannot be accepted. A driver of operational and technical wings who works on Saturday and Sunday under the roster system may enjoy holidays on Monday and Tuesday or Tuesday and Wednesday, as the case may be.
Keeping in view the totality of the facts and circumstances, the impugned order dated 26.10.2021 (Annexure P-1) passed by the Tribunal, directing the petitioners to treat all the three wings in one bracket, despite their different nature of duties and different working hours, cannot be sustained. The said order is not based upon the actual working pattern of the department and therefore, the same is incorrect and accordingly, the impugned order dated 26.10.2021 (Annexure P-1) is hereby set aside.
Further, it may be noticed that it has already come on record that the employees, are required to work for a period of 48 hours in a week and such 48 hours gets completed in six days a week. In case, any employee/respondents, whether working on a daily-shift basis or on a roster basis, is required to perform duties beyond 48 hours in a week and such fact is duly proved, the extra work performed by the employee/respondents beyond 48 hours should be compensated by the grant of compensatory leave or by compensatory salary. In case, any respondents/employee concerned, who have worked beyond 48 hours in a week, in case, not paid, will be at liberty to file an appropriate application before the Tribunal claiming such compensatory salary by proving that he/she had worked beyond 48 hours in a week and had not been granted compensatory leave or other permissible compensation for such extra work, therefore, overtime payment should be paid to such employee.
Hence, the impugned order dated 26.10.2021 (Annexure P-1) passed by the Tribunal is hereby set-aside and consequently, the bunch of writ petitions are allowed in above terms with aforesaid liberty to the respondents-employees.
27 Pending civil miscellaneous application(s), if any, stand disposed of.
A photocopy of this order be placed on the file of other connected case(s).