Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation & Ors vs Sumit Paul & Ors on 27 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 11
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
MAT 1636 of 2022
i.
The Kolkata Municipal Corporation & Ors.
-Vs-
Sumit Paul & Ors.
For the Appellant : Mr. Alok Kumar Ghosh, Adv.,
Mr. Arijit Dey, Adv.
For the State : Mr. Lalit Mohan Maha, AGP,
Mr. Rudranil De, Adv.
For the Respondents/
Writ Petitioners : Mr. Raghunath Chakraborty, Adv.,
Mr. Mahaboob Ahamed, Adv.,
Ms. Mohana Das, Adv.
Heard on : 02.08.2024, 27.08.2024 & 27.09.2024
Judgment on : 27.09.2024
Joymalya Bagchi, J. :-
1. Writ petitioners/respondents are employed as Sub-Assistant
Engineers at Indira Gandhi Water Treatment Plant and other water
generating and busting pumping stations including drainage pumping
stations.
2. By Circular No.30 of 1997-98 dated 16.06.1997, the Corporation noted
Sub-Assistant Engineers in pumping stations have been declared as
workers within the meaning of Section 2(1) of the Factories Act, 1948 by
the Joint Chief Inspector of Factories, Government of West Bengal. In
light of such declaration, it was clarified, the said Engineers would be
entitled to overtime pay.
3. Thereafter, by Circular No.45 of 2008-09 dated 08.12.2008, the
Municipal Commissioner while laying down the guidelines for payment of
extra remuneration for performing extra work by employees in the cadre
of Sub-Assistant Engineers, inter alia, held wherever Factories Act is
applicable the mode of calculation of overtime allowance shall be as per
Circular No.10 of 2003-04 dated 02.07.2003.
4. Writ petitioners/respondents contend they were receiving overtime
allowance in terms of Circular No.45 of 2008-09. Suddenly, on
23.09.2011 Municipal Commissioner issued a Circular bearing No.35 of
2011-12 dated 23.09.2011 which stated Sub-Assistant Engineers working
on holidays or over staying beyond a complete shift of eight hours, shall
be entitled to tiffin allowance subject to a ceiling of Rs.700/-.
5. Relying on the aforesaid Circular, the overtime allowance of the writ
petitioners/respondents who were working at various pumping station of
the Corporation was stopped. Writ petitioners/respondents made
repeated representations before the Corporation Authorities as well as the
Inspector of Factories. Pursuant to their representation, Inspector of
Factories by letter dated 04.11.2011 called upon the Municipal
Authorities to release overtime pay to the Sub-Assistant Engineers of
Indira Gandhi Water Treatment Plant. Notwithstanding such direction,
overtime allowance was not released and writ petitioners/respondents
approached this Court, inter alia, praying for release of overtime
allowance with reference to Section 59 of the Factories Act and Circular
No.45 dated 08.12.2008.
6. After hearing the parties, the Hon'ble Single Judge by the impugned
order allowed the writ petition.
7. Mr. Ghosh for Corporation contends apart from Indira Gandhi Water
Treatment Plant, no other pumping station has been declared a factory
and the writ petitioners/respondents working in pumping stations other
than Indira Gandhi Water Treatment Plant are not entitled to protection
under the Factories Act. They were granted overtime in terms of Circular
No.45 dated 08.12.2008 which was subsequently revised by the
Municipal Commissioner by Circular No.35 dated 23.09.2011. Municipal
Commissioner has ample power to modify or alter an earlier circular in
respect of grant of overtime allowances to employees of the Corporation.
8. On the other hand Mr. Chakraborty for the writ
petitioners/respondents refers to Circular No.30 dated 16.06.1997 to
demonstrate Sub-Assistant Engineers working in the pumping stations
under the Kolkata Municipal Corporation were declared as 'worker' under
Section 2(1) of the Factories Act by the Joint Inspector of Factories. The
declaration has not been modified or recalled. Failure of Kolkata
Municipal Corporation to renew licences with regard to various pumping
stations under the Factories Act would not entitle them to avoid the
liability under the Act. Circular No.30 dated 16.06.1997 read with
Circular No.45 dated 08.12.2008 clearly acknowledges Sub-Assistant
Engineers working in pumping stations are covered by the Factories Act
and form a separate class from Sub-Assistant Engineers in other
departments of the Corporation. Overtime allowance granted to them
could not have been unilaterally reduced or modified by the Municipal
Commissioner in derogation of the Factories Act.
9. In support of his arguments Mr. Chakraborty refers to Salary
Calculation System formulated as per Circular No.10 dated 02.07.2003
wherein under serial No.16 'overtime allowance under Factories Act' was
paid to the writ petitioners/respondents till the impugned Circular No.35
dated 23.09.2011 was issued.
10. In view of the aforesaid submission made at the Bar, we called
upon the Municipal Commissioner to file an affidavit clarifying whether
the writ petitioners/respondents employed at various pumping stations
had been treated as 'workers' under the Factories Act and released
'overtime allowance under Factories Act' under serial No.16 of the Salary
Calculation System in terms of Circular No.10 dated 02.07.2003.
11. Affidavit has been placed on record wherein it is unequivocally
admitted by the Municipal Commissioner that the writ petitioner Nos.6 to
11 working at different pumping stations enjoyed overtime allowance at
the same rate as the Sub-Assistant Engineers working in Indira Gandhi
Water Treatment Plant and they received such allowance under the
heading 'overtime allowance under Factories Act' at serial No.16 of the
Salary Calculation System formulated as per Circular No.10 dated
02.07.2003.
12. Exception to the affidavit filed by the writ petitioners/respondents
discloses communication from the Joint Chief Inspector of Factories, West
Bengal to the Commissioner, Kolkata Municipal Corporation calling upon
the latter to renew the factory licenses of the other pumping stations.
13. This reinforces the case of the writ petitioners/respondents that the
pumping stations under Kolkata Municipal Corporation are declared as
factory under the Factories Act and the Sub-Assistant Engineers working
in the pumping stations are 'workers' under Section 2(1) of the said Act.
14. Circular No.30 dated 16.06.1997 reads as follows:-
"D.M.C.(P)'s Circular No.30 of 1997-98.
Sub-Assistant Engineers employed in the Pumping Stations
and the Calcutta Municipal Corporation have been declared as
Work (sic) within the meaning of Section 2(1) of the Factories
Act, 1948 by the Joint
Chief Inspector of Factories, Govt. of West Bengal.
In view of this clarification, they are now allowed to the
payment of over-time work as per existing rule subject to the
matter of 48 hours in a quarter including Sundays and
holidays and all subject to the following conditions:-
1. Pumping Station under any circumstances should not run
without the presence of the Assistant Engineer in shifting duty-
2. The Sub-Assistant Engineer should be absent from duty
without prior approval of leave by the leave sanctioning
authority-
3. It may be clarified further that according to the opinion of
Joint Chief Inspector of Factories, Govt. of West Bengal, S.A.E.
of other establishment will not be treated as worker."
15. In the said circular, the Deputy Municipal Commissioner noted the
declaration of the Joint Chief Inspector of Factories, Government of West
Bengal that the Sub-Assistant Engineers employed at the pumping
stations of the Kolkata Municipal Corporation are 'workers' under Section
2(1) of the Factories Act. Accordingly, they allowed overtime pay as per
existing rule commensurate to such declaration.
16. To wriggle out of the said circular, Mr. Ghosh argues though license
was obtained under the Factories Act in respect of Indira Gandhi Water
Treatment Plant, no license was obtained with regard to other pumping
stations under the said Act. This argument is wholly fallacious. From the
documents annexed the exception taken by the writ
petitioners/respondents to the affidavit of Municipal Commissioner it
appears by letter dated 21.09.2023 Joint Chief Inspector of Factories,
West Bengal had called upon the Kolkata Municipal Corporation to renew
the licenses issued to all pumping stations under the Factories Act. This
establishes beyond any shadow of doubt that the other pumping stations
in addition to Indira Gandhi Water Treatment Plant were treated as
'factory' under the Factories Act and the Sub-Assistant Engineers
employed therein had been declared as 'worker' under Section 2(1) of the
said Act. Failure on the part of the Kolkata Municipal Corporation to
renew the licenses of the said pumping stations by no stretch of
imagination can deprive the writ petitioners/respondents of the beneficial
provisions of the social legislation.
17. Mr. Ghosh also argues overtime allowance was paid to the writ
petitioners/respondents in terms of departmental circulars which the
Municipal Commission had power to alter or vary.
18. In light of the aforesaid document placed on record, we are unable
to agree with Mr. Ghosh that the Circular No.30 dated 16.06.1997-98,
unequivocally records the declaration of the Joint Chief Inspector of
Factories that Sub-Assistant Engineers employed at pumping stations of
Kolkata Municipal Corporation are 'workers' under Section 2(1) of the
Factories Act. In terms of the said circular, Municipal Commissioner while
fixing the overtime scale for the Sub-Assistant Engineers cadre in Circular
No.45 dated 08.12.2006, inter alia, carved out an exception for the Sub-
Assistant Engineers employed at pumping stations where the Factories
Act was explicable vis-a-vis other Sub-Assistant Engineers in the
following manner :-
" xxx xxx xxx
3) Where the Factory Act is applicable the existing mode of
calculation of O.T. Allowance as per Circular No.10 of 2003-04
dated 2nd July, 2003 will prevail. However, maximum O.T.
hours per quarter (every three months) shall strictly be guided
as per the DMC (P)'s Circular No.30 dated 16.06.1997.
4) Where the Factory Act is not applicable, individual Hourly
rate of O.T. Allowance will be calculated on Basic Pay +
Dearness Pay + 41% D.A. as on date subject to the ceiling of
Rs.700/- for 8 hours shift. However, total O.T. hours will not
exceed 96 hours in any quarter (every three months)."
19. The circular carves out an exception with regard to grant of
overtime allowance to the Sub-Assistant Engineers in departments where
Factories Act applies i.e. pumping stations vis-a-vis Sub Assistant
Engineers in other departments. This classification is based on a clear
differentia and has a reasonable nexus with the applicability of Factories
Act to pumping stations which are covered under the Factories Act in
comparison to other departments.
20. When the scheme envisaged under the aforesaid circular was to
grant overtime allowance to Sub-Assistant Engineers employed at
pumping stations at a higher rate by treating them as 'worker' under the
Factories Act, it was impermissible on the part of the Municipal
Commissioner to issue the impugned Circular No.35 dated 23.09.2011
and deprive them of such benefit by treating them on par with other Sub-
Assistant Engineers.
21. In doing so, it was incumbent on the Municipal Commissioner to
approach the authorities under the Factories Act and seek exemption of
the pumping stations from the operation of the said Act which had not
been done. Finally, it is argued this Court under Article 226 of the
Constitution of India can neither decide applicability of Section 59 of the
Factories Act to pumping stations nor determine the quantum of overtime
allowance payable under the said Act. These matters are to be
adjudicated by the industrial adjudication.
22. Fact that the Sub-Assistant Engineers working at pumping stations
have been declared as workers under the Factories Act by the Joint Chief
Inspector of Factories is acknowledged by the Corporation in its Circular
No.50 dated 16.06.1997. Subsequent to the impugned Circular No.35
dated 23.09.2011, Inspector of Factories directed the Corporation to
release overtime allowance under the Factories Act to engineers employed
at Indira Gandhi Water Treatment Plant. Other pumping stations were
also declared as factories under the Factories Act but the Corporation
negligently did not renew their licences. It is nobody's case the pumping
stations had been exempted from the operation of the Factories Act.
23. On the other hand, it is admitted by the Municipal Commissioner in
his affidavit averred that the writ petitioner nos.6 to 11 working in other
pumping stations were drawing overtime allowance on par with those
employed at Indira Gandhi Water Treatment Plant.
24. In such view of the matter, there is no dispute on facts which would
require adjudication before the Industrial Tribunal with regard to
entitlement of the writ petitioners working at various pumping stations to
extra pay i.e. overtime allowance for extra work. In fact they had been
enjoying overtime allowance under the Factories Act as per Circular No.45
dated 08.12.2008 till it was illegally discontinued as per impugned
Circular No.35 dated 23.09.2011.
25. In this factual matrix, Hon'ble Single Judge rightly directed the
overtime allowances be paid to the writ petitioners/respondents in terms
of Circular No.10 dated 02.07.2003 as reiterated in Circular No.45 dated
08.12.2008.
26. In light of the aforesaid discussion, we uphold the impugned
judgment and order.
27. We direct the outstanding dues as per Circular No. 45 dated
08.12.2008 shall be paid to the respondents/writ petitioners within three
months from date.
28. With this direction, the appeal is dismissed.
29. There shall be no order as to costs.
30. Photostat certified copy of this judgment, if applied for, be given to
the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
as
