Sumit Paul And Others vs The Kolkata Municipal ...
2022 Latest Caselaw 6371 Cal

                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE

      Before:
      The Hon'ble Justice Hiranmay Bhattacharyya

                            WPA 11677 OF 2017

                      Sumit Paul and others
                                vs.
           The Kolkata Municipal Corporation and others.


      For the Petitioners      : Mr. Raghunath Chakraborty,
                                 Mr. M Ahmed
                                                      .......advocates

      For the KMC              : Mr. Aloke Ghosh,
                                 Mr. Arijit Dey
                                                         .........advocates

      For the State            : Ms. Debasree Dhamali,
                                 Ms. Riya Ghosh
                                                         .........advocates

      Heard on                 : 22.06.2022

      Judgment on              : 08.09.2022

     Hiranmay Bhattacharyya, J.:-

1.

The Sub-Assistant Engineers (for short "SAE") at Indira Gandhi Water Treatment Plant and other water generation and boosting pumping stations including drainage pumping stations of Kolkata

Municipal Corporation have filed this writ petition praying for issuance of a writ of mandamus to set aside and quash the circular no. 35 of 2011-2012 dated September 23, 2011 and to direct the corporation to grant overtime allowance and holiday allowance in terms of DMC(P)'s circular nos. 45 of 2008-09 dated 08.12.2008 and Municipal Commissioner circular 14 of 2009-2010 dated June 8, 2009.

2. The petitioners claimed that they are working in the cadre of SAE at Indira Gandhi Water Treatment Plant (for short "IGWTP") and other water generation and boosting pumping stations including drainage pumping stations and are bound to do their duties in shift cycle and general maintenance. They are required to perform their duties to operate the pumping machineries, operating the switch gears, motors and to operate and control different valves to maintain the normal supply of water in the city round the clock and also to combat the drainage system. They also have to combat acute emergency maintenance work. The petitioners claim that the Kolkata Municipal Corporation (for short "KMC") issued a circular being DMC(P)'s circular no. 45 of 2008-09 dated December 8, 2008 making a provision for special allowance for the SAE's of the KMC for performing duties beyond scheduled hours. Thereafter, Municipal Commissioner circular no. 14 of 2009-2010 dated June 8, 2009 was issued whereby the Municipal Commissioner Circular no. 2 of 2009-2010 was kept in abeyance with status quo ante being restored. Subsequently, Municipal Commissioner, KMC issued

Municipal Commissioner Circular no. 35 of 2011-12 dated September 23, 2011 providing a tiffin allowance subject to a ceiling limit. The petitioners submitted several representations before the Deputy Chief Inspector of Factory, the Directorate of Factories, the Executive Engineer IGWTP, Joint Municipal Commissioner and others authorities of KMC. Since the KMC did not communicate their decision on the petitioner's representation they were compelled to file this writ petition.

3. The stand of the KMC in its affidavit-in-opposition is that the SAE's in different departments of KMC are posted to pumping stations under the water supply department in usual course of business. While working in the pumping stations they are required to work beyond normal working hours and also on holidays. Considering the fact that such SAE's are required to perform extra duties beyond the schedule working hours and also on holidays, KMC issued circulars from time to time making provisions for special allowances for the SAE's cadre of the KMC for performing duties beyond scheduled hours and on holidays. The Municipal Circular no. 35 of 2011-2012 dated September 23, 2011 was issued providing a tiffin allowance and the said circular is still in force. It was specifically stated in the said affidavit that the writ petition is a belated one as the same was filed more than six years after issuance of the circular dated September 23, 2011 and as such the writ petition is liable to be dismissed on such ground. It was also contended that since the writ petitioners claim that they are

workers under the Factories Act and are entitled to the benefits under the said Act, they should agitate their grievances before the appropriate forum provided under the Factories Act and this writ petition should not be entertained.

4. Mr. Chakraborty, learned advocate for the petitioner contended that the treatment of water at IGWTP and other water generation and boosting pumping stations of KMC constitute a manufacturing process within the meaning under the Factories Act, 1948 (for short "the 1948 Act"). He further contended that since more than ten persons are working at the IGWTP and other water generation and boosting pumping stations, and a license has been issued to the water treatment plant of the KMC by registering it as a factory, the SAE's working thereat are entitled to the benefits under the Factories Act. He contended that the authorities of the KMC are duty bound to comply with the provisions laid down under Section 59 of 1948 Act which provides for extra wages for overtime. By placing reliance upon Section 599 of the Kolkata Municipal Corporation Act, 1980 (for short "the KMC Act") Mr. Chakraborty contended that the KMC cannot disregard the provisions laid down under the 1948 Act.

5. Mr. Chakraborty relied upon a decision of the Hon'ble Supreme Court in the case of Union of India and others vs. Tarsem Singh reported at (2008) 8 SCC 648 in support of his contention that in case of a continuing wrong, a writ petition cannot be dismissed on the ground of delay. He also relied upon a decision of the Hon'ble

Supreme Court of India in the case of State of Tripura vs. Manoranjan Chakraborty and others reported at (2001) 10 SCC 740 to support his contention that the petitioner should not be relegated to other forum.

6. Mr. Ghosh learned counsel representing the KMC contended that this writ petition is liable to be dismissed on the ground of unexplained delay and laches since the same was filed more than six years after issuance of the circular dated September 23, 2011. He further contended that this court should not entertain this writ petition in view of alternative efficacious remedy available to the petitioner under the 1948 Act as it is the contention of the petitioner that they are workers under the Factories Act and are entitled to the benefits under the 1948 Act.

7. Mr. Ghosh relied upon the decisions of the Hon'ble Supreme Court of India in the case of Transport and Dock Workers Union and Others vs. Mumbai port Trust and Another reported at (2011) 2 SCC 575 in support of his contention that statutory remedy cannot be bypassed. He also referred to a decision of the Hon'ble Supreme Court of India in the case of Kanaiyalal Lalchand Sachdev and Othes vs. State of Maharashtra and Others reported at (2011) 2 SCC 782 in support of his contention that the Writ Court should not entertain a writ petition if the petitioner has any alternative and efficacious remedy or that the petitioner is guilty of unexplained delay and laches.

8. Heard the learned advocates for the parties and perused the materials placed.

9. The petitioners are SAE's working at IGWTP and other pumping stations of the KMC. The Government of West Bengal issued a license to IGWTP to work as a factory. The Deputy Municipal Commissioner (Personnel) issued D.M.C.(P)'s circular no. 30 of 1997-98 dated June 16, 1997 wherefrom it appears that the SAE's employed at the pumping stations of the KMC have been declared as worker within the meaning of Section 2(1) of the 1948 Act by the Joint Chief Inspector of Factories, Government of West Bengal. KMC after taking note of the said declaration issued the circular dated June 16, 1997 allowing the SAE's to get the payment of overtime work as per the existing rule. The said circular further clarified that according to the opinion of the Joint Chief Inspector of Factories, SAE of other establishment will not be treated as worker. Therefore, the KMC after accepting the declaration that the SAE's working at IGWTP are workers under the Factories Act have acted upon such declaration.

10. In view of the declaration made by the Joint Chief Inspector of Factories, Government of West Bengal as would be evident from the DMC(P)'s circular no. 30 of 1997-98 dated June 16, 1997, this court is of the considered view that the writ petitioners are workers within the meaning of Section 2(1) of the Factories Act, 1948 and are entitled to benefits under the 1948 Act.

11. The issue as to admissibility of overtime allowance/ holiday allowance for SAE cadre consequent upon revision of pay scale of such cadre of the KMC was considered by a committee which recommended the guidelines to be adhered to in respect of extra remuneration for performing extra period of work by the SAE cadre of the KMC irrespective of the scale of pay. The Deputy Municipal Commissioner (Personnel) issued DMC(P)''s circular no. 45 of 2008- 09 dated December 8, 2008 thereby laying done the guideline that is to be adhered to in respect of cadre remuneration for performing extra period of work by the SAE cadre. It was provided therein that where the Factory Act is applicable, the existing mode of calculation of overtime allowance as per circular no. 10 of 2003-04 dated 2nd July 2003 will prevail. However, maximum overtime hours per quarter (every three months) shall directly be acted as per the DMC(P)'s circular no. dated June 16, 1997.

12. The writ petitioners claimed that they are not getting payment on account of holiday and overtime wages from May, 2011.

13. The Municipal Circular no. 2 of 2009-2010 dated April 7, 2009 was revisited by the Municipal Commissioner by issuing the circular no. 14 of 2009-2010 dated June 8, 2009. By the said circular dated June 8, 2009 the Municipal Circular no. 2 of 2009-2010 was kept in abeyance with status quo ante being restored till such time the committee decides the issues of standardization and economization of special allowance/ holiday allowance/ tiffin allowance/ OT incentive of KMC employees in non-engineering cadres.

14. It was clarified in the said circular that till finalisation of the aforesaid issue calculation of the aforesaid allowances will be made as per existing rate on revised scale of pay as prevailing in March 2009 for technical and non-technical employees for both engineering and non-engineering cadres save and except the SAE's for whom the matter has been settled and is fait accompli.

15. Thus it is evident from the aforesaid clarification that the issue as to payment of special allowances for SAE cadres of the KMC for performing duties beyond scheduled hours as per the circular dated December 8, 2008 is a settled issue.

16. The Municipal Commissioner Circular no. 35 of 2011-12 dated September 23, 2011 provides for tiffin allowance SAE's who are deployed for supervision of works in emergencies in different utilities including pumping stations. The same cannot be said to apply to SAE's who are employed in the pumping stations of the KMC. This finding gets support from Clause III of the circular dated September 23, 2011 which provides that all such deployment of SAE's for supervision of works in emergencies in different utilities shall require prior approval of Municipal Commissioner/Joint Municipal Commissioner (D&G).

17. Thus, the said circular providing for tiffin allowance is applicable to SAE's deployed only in case of emergencies with prior approval of the aforesaid authorities. A plain reading of the said Circular shows

that it stands on its own footing and was not issued for the purpose of modifying any earlier Circular issued by KMC authority.

18. For the reasons as aforesaid this court holds that the Municipal Commissioner Circular no. 35 of 2011-12 dated September 23, 2011 did not override the circulars dated December 8, 2008 and June 8, 2009 and the said circulars dated December 8, 2008 and June 8, 2009 are still in force and the writ petitioners are entitled to the benefits under the said circulars. The Circular dated September 23, 2011 did not curtail the rights of the petitioners to get the benefits which they were enjoying in terms of the earlier Circulars.

19. Record reveals that the petitioners submitted a representation before the Deputy Chief Inspector of factory on October 22, 2011 alleging non-payment of wages against overtime and holiday duties as per the Factories Act and also before the executive engineer IGWTP, KMC on October 19, 2012. The aforesaid representation was followed by various other representations from time to time including the letter dated July 16, 2013 demanding justice from the Municipal Commissioner, KMC.

20. It further appears from the record that the Deputy Chief Inspector of Factories sought certain qualifications from the executive engineer IGWTP, KMC on the representation made by the petitioner in respect of non-payment of wages against overtime work. Therefore, it cannot be said that the writ petitioners are guilty of

unexplained delay and laches as sought to be argued by Mr. Ghosh learned advocate for the KMC.

21. In Tarsem Singh (supra), the Hon'ble Supreme Court of India held that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy. It was further held therein that if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties.

22. In the case on hand the issue relates to payment of overtime allowance and holiday allowance. Such claim of the petitioners is based on a continuing wrong and the same also does not affect third party rights and by applying the ratio laid down in Tarsem Singh (supra), this Court holds that this writ petition is not liable to be dismissed on the ground of alleged delay and laches.

23. It is well settled that the doctrine of exhaustion of statutory remedies is a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion. Despite existence of an alternative remedy, the High Court in its discretion can grant relief under Article 226 of the Constitution of India in exceptional circumstances.

24. In Manoranjan Chakraborty (supra), three Hon'ble Judges of the Supreme Court of India observed that if gross injustice is done and it can be shown that there are good reasons that the Court should interfere, then notwithstanding the existence of alternative

statutory remedies, a Writ Court can in an appropriate case exercise its jurisdiction to do substantive justice.

25. In the case on hand, the writ petitioners have prayed for implementation of the circulars issued by the Deputy Municipal Commissioner (Personnel) dated December 8, 2008 and the Municipal Commissioner Circular dated June 8, 2009 and for the inaction on the part of the KMC in not extending the benefits to the petitioners in terms of the said circulars.

26. For all the aforesaid reasons this court is inclined to exercise the discretion and decide the instant writ petition in order to substantive justice as the writ petitioner claim that they are not getting the benefits in terms of the said Circulars on and from May, 2011. In the facts and circumstances of this case this Court does not deem fit and proper to relegate the petitioner to any other forum.

27. There is, however, no quarrel to the proposition of law laid down by the Hon'ble Supreme Court in the case of Mumbai Port Trust (supra) and Kanaiyalal (supra) that the writ petition may not be entertained in view of existence of alternative efficacious remedy under the relevant statute. There is also no quarrel to the decision of the Hon'ble Supreme Court in the case of Kanaiyalal (supra) wherein the Hon'ble Supreme Court has held that the Writ Court is duty bound to consider whether the petitioner is guilty of unexplained delay and latches. However, in the facts and circumstances of this

case and in view of the aforesaid observations of this Court, the aforesaid decisions are of no assistance to the KMC.

28. For the reasons as aforesaid this court holds that the petitioners are entitled to overtime allowance and other benefits in terms of the DMC(P)'s circular no. 45 of 2008-09 dated December 8, 2008 and the Municipal Commissioner Circular 14 of 2009-10 dated 08.06.2009 and the authorities of the KMC are directed to release the entire benefits which the petitioners are entitled to as per the aforesaid circulars as expeditiously as possible but positively within a period of 8 weeks from the date of communication of this order. Writ petition accordingly stands allowed.

29. There shall be, however, no order as to costs.

30. Urgent photostat certified copy of this judgment be given to the parties upon compliance of all formalities.

(Hiranmay Bhattacharyya, J.)

(P.A.-Sanchita)