SECURITY PRINTING CORPORATION OF INDIA LTD AND ORS ETC. vs. VIJAY D. KASBE AND ORS ETC

1 For short, “Corporation” 1

2 Government of India, directing that the shop-floor and the ministerial staff, falling under the category of non-gazetted supervisory staff of the Presses and Security Paper Mill would be compensated for extended hours of work at certain rates. The order indicated that the category of staff mentioned therein would be entitled to a special allowance to be paid in lieu of overtime allowance, at the rate of Rs.600/- per month for working of 9 hours and at the rates of Rs.1,000/- per month and Rs.1,400/- per month for working of 10 hours and 11 hours respectively. (iv) By a subsequent order issued by the Government of India on 11.4.2000, it was clarified that the staff whose basic pay exceeded the ceiling limit of Rs.2,200/- per month in the pre-revised scales of pay, will not be entitled to any overtime allowance. (v) In the year 1988, a group of eight persons working as Supervisors, Works Engineer, Section Officer, etc., in the Currency Note Press, Nashik, filed a writ petition on the file of the High Court of Judicature at Bombay in Writ Petition No.3150 of 1988, claiming overtime allowance. The writ petition was transferred to Central Administrative Tribunal in the year 1995. It was tagged along with a few original applications directly filed before the Tribunal and by a common order dated 25.7.1997, the Central Administrative Tribunal dismissed all the applications, on the ground that it had no jurisdiction to deal with a claim 3 relating to overtime allowance arising under the Factories 2 Act, 1948 . (vi) Challenging the said order of the Tribunal dated 25.7.1997, a few writ petitions came to be filed on the file of the High Court of Judicature at Bombay. During the pendency of the writ petitions, one more group of supervisory employees (A.K. Biswas and 20 others) filed an application in O.A. No.26 of 2000 on the file of the Central Administrative Tribunal claiming the same reliefs. This application was also dismissed by the Tribunal by an order dated 19.1.2001 following the order passed on 25.7.1997 in the other cases. (vii) Therefore, A.K. Biswas and 20 others filed a writ petition on the file of the High Court. By an order dated 27.1.2005, the High Court remanded the matter (A.K. Biswas and others) back to the Tribunal for a fresh consideration. After remand, the Tribunal allowed the application filed by A.K. Biswas and others by an order dated 4.4.2005. But this order was set aside by the High Court in a writ petition filed by the Union of India, on the ground that an amendment to Section 70 of the Bombay Shops and Establishments Act was not considered by the Tribunal. This order of the High Court remanding the matter back to the Tribunal for a second time was dated 31.1.2006. (viii) Following the second order of remand passed by the High Court on 31.1.2006 in the case filed by A.K. Biswas and others, the writ petitions already pending and arising out 2 For short, “1948 Act” 4 of earliest writ petition of the year 1988 were also allowed and the matter remanded back to the Tribunal for a fresh consideration. (ix) Unfortunately, after the remand, the Tribunal first took up for consideration O.A. No.26 of 2000 filed by A.K. Biswas and others and dismissed the same by an order dated 15.9.2006. (x) After nearly four years of disposal of the application filed by A.K. Biswas and others, the Tribunal took up all other applications, pending from 1995 onwards (and one of which related to the writ petition of the year 1988 and which got transferred to the Tribunal in the year 1995). By a common order dated 9.6.2010, the Central Administrative Tribunal held that the applicants therein were entitled to Double Over Time Allowance in terms of Section 59(1) of the 1948 Act. After holding so, the Tribunal confined the relief, only to a period of two years prior to the filing of the respective original applications, insofar as arrears were concerned. (xi) Aggrieved by the dismissal of their application in O.A. No.26 of 2000 by the Tribunal by an order dated 15.9.2006, A.K. Biswas and others filed a writ petition in Writ Petition No.2603 of 2007 on the file of the High Court. (xii) In the meantime, the Corporation had come into existence and, hence, the Union of India as well as the Corporation, along with the India Security Press and Currency Note Press filed a batch of writ petitions challenging the second 5 order of the Central Administrative Tribunal dated 9.6.2010. (xiii) In other words, the rejection by the Tribunal of the claim of one set of employees (A.K.Biswas and others) was the subject matter of one writ petition and the grant of relief by the Tribunal in favour of the other group of employees was the subject matter of a separate batch of writ petitions. (xiv) By a common order dated 28.6.2018, the High Court of Judicature at Bombay dismissed all the writ petitions filed by the Union of India and the Corporation. Coming to the writ petition filed by A.K. Biswas and others, the High Court found that the employees were similarly placed and that they were entitled to the same benefits as given to the other employees. However, the High Court found that some of the employees had already compromised the matter with the Management and that therefore the relief should be confined only to those employees who had not compromised. Accordingly, the High Court allowed the writ petition filed by A.K. Biswas and others, granting relief only to those employees who had not compromised the matter with the management. (xv) It is against the said common order passed by the High Court on 28.6.2018 that the Corporation has come up with the above appeals. 5. From the narration of facts provided above, it will be clear that the only question which falls for our consideration is: as to whether 6 persons employed as Supervisors are entitled or not, to Double Over Time Allowance in terms of Section 59(1) of the 1948 Act? 6. For coming to the conclusion that the employees are entitled to Double Over Time Allowance, the Tribunal started with two presumptions, namely (i) that the India Security Press, Currency Note Press and India Government Mint would fall within the definition of the expression “factory” as defined in Section 2(m) of the 1948 Act; and (ii) that the employees would fall within the definition of the expression “worker” as defined in Section 2(l) of the 1948 Act. As a sequitur, the Tribunal held that these Supervisors, will, in the normal course, be entitled to extra wages for overtime in terms of Section 59(1) of the 1948 Act. 7. But it was argued on behalf of the Union of India that under Section 64(1) of the 1948 Act, the State Government was entitled to make Rules exempting the application of the provisions of Chapter VI of the Act to certain categories of workers. In exercise of the power conferred by Section 64(1), the State of Maharashtra had 3 issued a set of Rules known as Maharashtra Factories Rules, 1963 , Rule 100 of which exempted Supervisors from the application of the provisions of Chapter VI, provided they were not required to perform 3 For short, “1963 Rules” 7

8 excluded from the benefit conferred by Section 59(1) of the 1948 Act. 10. Thus, the Central Administrative Tribunal reached diametrically opposite findings of fact, in two different sets of cases filed by employees who were identically placed and discharging identical duties and responsibilities. The reason why we record this fact is that in normal circumstances, the High Court exercising supervisory jurisdiction under Article 226/227 and this Court exercising jurisdiction under Article 136, will not be inclined to interfere with the findings of fact recorded by a Tribunal. But in this case, there are two diametrically opposite set of findings, both of which cannot co-exist. 11. Keeping the above aspect in mind, let us now proceed to consider the rival contentions. 12. Shri Dhruv Mehta, learned senior counsel appearing for the appellants contended, (i) that a perusal of the list of duties assigned to the respondents, as reflected by the ACRs clearly show that the respondents were performing supervisory duties, exercising control over 50 to 100 workers; (ii) that as per the law laid down by this Court in Burmah Shell Oil Storage and Distribution Company 9 of India Ltd. vs. The Burma Shell Management Staff 4 Association & Ors. , a person whose predominant nature of work is supervisory, will not be qualified as a workman merely because he also carries on clerical/mechanical work incidental to his supervisory work; (iii) that the Tribunal as well as the High Court failed to appreciate the scope of Rule 100 of the 1963 Rules in the proper perspective; and (iv) that the Supervisors enjoying higher scales of pay than workers, cannot claim the benefit of overtime allowance as extended to workers. 13. In response, it is contended by Shri K. Parameswar, learned counsel appearing for the respondents, (i) that the decision in Burmah Shell Oil Storage and Distribution Company of India Ltd. (supra) cannot have any application to the case on hand, since the definition of the expression “workman” under the Industrial 5 Disputes Act, 1947 is quite different from the definition of the same expression under the 1948 Act; (ii) that therefore the dominant nature test propounded in Burmah Shell Oil Storage and Distribution Company of India Ltd. is not applicable here; (iii) that the Tribunal and the High Court have found on evidence that the respondents are performing manual labour or clerical work 4 1970 (3) SCC 378 5 For short, “1947 Act” 10 as a regular part of their duties and, hence, Rule 100 of the 1963 Rules has no application; and (iv) that the findings of fact recorded by a quasi-judicial tribunal cannot be interfered with lightly. 14. Shri S.S. Deshmukh, learned counsel appearing for some of the respondents contended, (i) that the proviso to Section 64(1) of the 1948 Act carves out an exception, in the case of persons drawing rate of wages not exceeding the limit specified in Section 6 1(6) of the Payment of Wages Act, 1936 , insofar as the claim for extra wages for overtime work is concerned; (ii) that therefore Rule 100 of the 1963 Rules has no application to the case of the respondents in view of the said proviso to Section 64(1); and (iii) that the Central Administrative Tribunal itself had passed orders in several applications, in favour of employees identically placed and working as Supervisors, the details of which are provided in paragraph 5 of the counter affidavit filed by A.K. Biswas in the above appeals and that therefore the orders of the Tribunal and the High Court do not call for any interference. 15. We have carefully considered the rival contentions. 6 For short, “1936 Act” 11 16. At the outset, it should be noted that the claim of the respondents for payment of Double Over Time Allowance arose entirely during the period from 1988 to 2005. Since the ‘Corporation’ was incorporated only on 13.1.2006 and all the nine production units coming under the control of the Currency and Coinage Division of the Department of Economic Affairs, Ministry of Finance, Government of India were transferred to the Corporation only with effect from 10.2.2006, the claim of the respondents obviously arose at the time when they were Central Government servants. In other words, their claim should be considered to have arisen only in relation to “service matters” of persons appointed to “a service in connection with the affairs of the Union” or in relation to “holders of civil post.” 17. The definition of the expression “service matters” , is provided 7 in Section 3(q) of the Administrative Tribunals Act, 1985 and it reads as follows:- “ 3. Definitions .—In this Act, unless the context otherwise requires,— xxx xxx xxx (q) “service matters”, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State 7 For short, “1985 Act” 12 or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects— (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever;” 18. It is seen from sub-clause (i) of clause (q) of Section 3 extracted above that any issue relating to remuneration including allowances, is a service matter. The respondents herein, at least during the period from 1988 till the year 2006, were either holders of civil posts under the Union or appointed to the civil services of the Union. 19. This is why the respondents approached the Central Administrative Tribunal, for the adjudication of their service matter. The respondents did not go either before the Labour Court constituted under the 1947 Act or before the Authorities empowered under other labour welfare legislations, despite Section 28 of the 1985 Act not excluding the jurisdiction of the Industrial Tribunal or the Labour Court. Keeping this in mind, let us now address a more fundamental question. 20. Primarily, the terms and conditions of service of persons in the civil services of the Union or the State and persons holding civil 13 posts under the Union or the State, are regulated either by the Acts of the appropriate Legislature passed in terms of Article 309 or by the Rules framed in exercise of the power conferred by the proviso to Article 309 of the Constitution. Therefore, whenever a dispute relating to a service matter, which includes a claim for allowances, is raised before the Administrative Tribunal, the primary duty of the Tribunal is to see what is provided by the relevant Act issued under the main part of Article 309 or the Rules issued under the Proviso to Article 309. 21. It must be kept in mind that appointment either to a civil post or in the civil services of the Union or the State, is one of a status. It is not an employment governed strictly by a contract of service or solely by labour welfare legislations, but by statute or statutory rules issued under Article 309 or its proviso. 22. In fact, the history of civil service in India is more than a century old and there were Rules in force, such as the Fundamental Rules and the Supplementary Rules (FRSR) issued way back in the year 1922, with effect from 1.1.1922. Article 313 of the Constitution declares that until other provision is made under the Constitution, all the laws in force immediately before the commencement of the Constitution and applicable to any public service or post, shall 14 continue in force. This is why the Fundamental Rules of the year 1922 continue to apply even now, to the holders of civil posts and those in the civil services of the Union or the State. 23. It must also be borne in mind that there are three different categories of employment, if not more, in the country. They are, (i) employment which is statutorily protected under labour welfare legislations, so as to prevent exploitation and unfair labour practices; (ii) employment which falls outside the purview of the labour welfare legislations and hence, governed solely by the terms of the contract; and (iii) employment of persons to civil posts or in the civil services of the Union or the State. Any Court or Tribunal adjudicating a dispute relating to conditions of service of an employee, should keep in mind the different parameters applicable to these three different categories of employment. 24. Unlike those employed in factories and industrial establishments, persons in public service who are holders of civil posts or in the civil services of the Union or the State are required to place themselves at the disposal of the Government all the time. Rule 11 of the Fundamental Rules reads as under:- “Unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at 15

16 Act do not enjoy the benefit of automatic wage revision through periodic Pay Commissions like those in Government service. Persons holding civil posts or in the civil services of the State enjoy certain privileges and hence, the claim made by the respondents ought to have been tested by the Tribunal and the High Court, in the proper perspective to see whether it is an attempt to get the best of both the worlds. 28. Admittedly, the State Government is conferred with the power under Section 64(1) to make exempting Rules. In exercise of the power so conferred, the State of Maharashtra has framed Rule 100, which reads as follows:-

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18 32. The chart of duties indicated in the ACRs does not show that the respondents are required to perform manual labour or clerical work as a regular part of their duties. 33. The High Court fell into an error in holding that the performance of certain functions, such as setting right malfunctioning of feeder, side-lay, double-sheet detector, photocell, etc., to ensure uninterrupted running of the machinery, are manual functions. But we do not think so. 34. In any case, the respondents, who are holders of civil posts or in the civil services of the State till the year 2006, could not have claimed the benefits of the provisions of Chapter VI of the 1948 Act, dehors the service rules. 35. Though the decision in Burmah Shell Oil Storage and Distribution Company of India Ltd. is heavily relied upon by Shri Dhruv Mehta, learned senior counsel appearing for the appellants, we do not think that the same has any application to the case on hand. This is for the reason that the definition of “workman” in Section 2(s) of the 1947 Act specifically excludes persons employed in a supervisory capacity. But such an exclusion 19 is not there in the definition of the very same word “worker” in Section 2(l) of the 1948 Act. 36. The distinction can be well understood if these definitions are presented in a tabular form side by side:-

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“ 1. Short title, extent, commencement and application. — xxx xxx xxx 21 (6) Nothing in this Act shall apply to wages payable in respect of a wage-period which over such wage-period, average one thousand six hundred rupees a month or more.” 39. But in the case on hand, the distinction made by the Government of India in their Office Order dated 21.12.1988 related to persons drawing a basic pay of more than Rs.2,200/-. Therefore, the provisions of the Payment of Wages Act, were not applicable to the respondents herein and as a sequitur, the Proviso to Section 64(1) of the 1948 Act cannot be pressed into service. 40. Thus, we find (i) that the Tribunal as well as the High Court did not consider the distinction between persons in Government service and those in private service and the effect of the statutory rules upon the conditions of service of the respondents, including their liability to work for extra hours; (ii) that the Tribunal reached diametrically opposite findings of fact in respect of persons holding similar supervisory posts; and (iii) that therefore, the orders of the Tribunal and the High Court are unsustainable. 41. In view of the above, all the appeals are allowed and the impugned order of the High Court is set aside. However, we find that some of the employees have retired, some have passed away and in respect of some who have passed away, the appeals have 22 been abated. Therefore, even while allowing the appeals and setting aside the impugned order of the High Court, we direct the appellants not to effect any recovery from those to whom payments have already been made. No order as to costs. Pending application(s), if any, stands disposed of accordingly. …………………………….. J. (V. RAMASUBRAMANIAN) ………………………….. J. (PANKAJ MITHAL) New Delhi; April 18, 2023 23