Supreme Court of India
Secretary, Public Works Department vs Tukaram Pandurang Saraf on 19 September, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
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,
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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 Gazetted4
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.
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(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.
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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,
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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 DepartmentGovernment Resolution No. LAB-1080/1047(119)-A(14)
Mantralaya, Mumbai- 400 032 Date- 12th September, 1980Read: –
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
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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.
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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
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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
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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
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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
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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.
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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-
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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
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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.
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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
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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.
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27. Pending application(s), if any, shall stand disposed of.
..………………….……….J.
(SANDEEP MEHTA)
..………………………….J.
(R. MAHADEVAN)
New Delhi;
September 19, 2024.
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