Union of India & Ors Vs. Suresh C. Baskey
& Ors  INSC 667 (13 November 1995)
Singh (J) Kuldip Singh (J) Hansaria B.L. (J) Kuldip Singh,J.
1996 AIR 849 JT 1995 (9) 661 1995 SCALE (6)328
question before the Central Administrative Tribunal Calcutta Bench (the
Tribunal) was whether the employees (workmen) working in the Government-Mint, Alipur,
Calcutta - who were allottees of Government accommodation and as such were not
being paid house rent allowance - were entitled to compute the over-time
allowance payable to them after taking into account, nationally, the element of
house rent allowance. Following its earlier decision in OA 13 of 1987 (decided
on April 17, 1990) the Tribunal answered the question by the impugned judgment
dated September 6, 1990 in the affirmative and decided the same in favour of
the employees. This appeal, by the Union of India is against the judgment of
not necessary for us to go into the chequered history of litigation on the
question whether the employees of Government-Mint were entitled to the
not disputed before us that the employees of the Government-Mint who come
within the definition of workmen under the Factories Act, 1948 (the Act) are
entitled to extra wages for over-time under Section 59 of the Act. It is
further not disputed that all those employees who have not been allotted
Government accommodation and are in receipt of house rent allowance are
entitled to commute the over-time allowance by including house rent allowance
into the "ordinary rate of wages." The short question before us is
whether the employees who are occupying Government accommodation and as such
are not being paid house rent allowance, are entitled to compute the "ordinary
rate of wages" by nationally adding the amount of house rent allowance
which they would have got, had they not been allotted the Government
Tribunal accepted the contention of the respondents-applicants before it that
they were entitled to similar relief as was given to the employees of the
Government-Mint in OA 13 of 1987. On the concession of the learned counsel for
the Union of India, the Tribunal allowed the application by the impugned order
in the following terms "Mr. C.R. Bag very fairly concedes that the facts
of this case are identical with those in OA 13 of 87 (Nirmal Ch. Bhowmich & Ors VS Union of India & Ors) In
that view of the matter, we dispose of this application at the admission stage
itself with a direction to the respondents to dispose of the representation of
the applicants dated 8.12.86 (Annexure-C) in the light of the aforesaid two
judgments and pass an appropriate order giving the same benefits within 60 days
from today." We may, therefore, examine the judgment of the Tribunal in OA
13 of 1987. It would be useful to reproduce the operative part of the judgment:
is the grievance of the applicants that although an order has been made on 11th November, 1985 directing that overtime should be
calculated inclusive of house rent allowance, the respondents are not
implementing the same. This application has been taken out for implementation
of the order dated 11th
November, 1985 read
with order dated 28th
September, 1984 and
Mint Diary Order No.130/84 dated 26th October, 1984.
Ghosh appearing for the applicants invites my attention to annexure `A' at page
22 of the application which is the letter dated 11th November, 1985. The subject matter of this letter is
"Computation of Overtime allowance on the basis of emoluments including
house rent allowance - payment of arrears regarding...". This letter is
addressed to The General Manager, India Govt.
Bombay/Hyderabad/Calcutta and is written by the Under Secretary to the Govt. Of
India, Ministry of Finance, Department of
Economic Affairs. This letter reads as follows:- "I am directed to convey
the approval of the Govt. of India, Ministry of Finance, Department of Economic
Affairs, for making payments of arrears of overtime allowance from 1.1.1956
onwards on the basis of emoluments including house rent allownce to the
industrial employees as well as the classified staff of the India Government
Mints at Bombay, Calcutta and Hyderabad.
xx xx xx
This issues with the approval of IFA in the department vide their U.O. No.
3825/IFA/85 dated 7.11.1985." The letter dated 28th September, 1984 at page 23 of the application is addressed to Shri
H.N. Gupta, General Manager, India Govt. Mint, Calcutta. Paragraph 1 of this letter states
as follows:- "Please refer to the correspondence resting with our letter
of even number dated 28th June, 1984 regarding computation of O.T.A on the
basis of emoluments including H.R.A. addressed to the General Manager, India
Govt. Mint, a copy of which has been endorsed to you." The third letter
annexed to the application at page 24 is dated 26th October, 1984, the subject
matter of which is - "Computation of overtime allowance on the basis of
emoluments including house rent allowance for work between 37 1/2 and 48 hours
a day". This letter records as follows:- "Computation of overtime
allowance on the basis of emoluments including house rent allowance was under
consideration of the Government of India, Ministry of Finance (D.E.A.) since
quite some time. It has now been decided by the Government that overtime
allowance will be computed on the basis of emoluments including house rent
allowance with effect from 9th May, 1984
for work done between 37 1/2 hours to 48 hours per week in respect of all
employees of the three (3) Mints." Going through the annexures to the
application, the correctness of which has not been disputed by the respondents,
I have no doubt in my mind that overtime allowance payable to the applicants
must be computed inclusive of house rent allowance." The Tribunal,
thereafter, allowed OA 13 of 1987 in the following terms :
view of the facts stated above, this application is allowed. The respondents
are directed to give effect to the Government Order dated 11th November, 1985
read with order dated 28th September, 1984 and Mint Diary Order No.130/84 dated
26th October, 1984, as appended in annexure `A' of the application
collectively, so far as the applicants are concerned the respondents are
directed to draw and disburse the overtime allowance in terms of the said
order. This order should be complied with within three months from date. All
arrears payable to the applicant be paid to them within the said period.
is disposed of. There will be no order as to costs." Special leave
petition 4854 of 1990 filed against the above quoted judgment of the Tribunal
in OA 13 of 1987 was dismissed by this Court on February 26, 1990 by the
find no grounds to condone the delay. Interlocutory application for condonation
of delay is dismissed.
the special leave petition is dismissed as barred by time." The judgment
of the Tribunal in OA 13 of 1987 shows that the Tribunal, after quoting the
three Government instructions, directed the Union of India to give effect to
the said instructions. It is no doubt correct that the Government instructions
specifically provide that "over-time allowance will be computed on the
basis of emoluments including house rent allowance", but it is no where
provided in the said instructions that even those employees who are occupying
Government houses and as such are not being paid the house rent allowance, are
also entitled to include House Rent Allowance, nationally, in their wages for
the purposes of computing the over-time allowance. We are of the view that on
the plain reading of the instructions relied upon by the Tribunal it is not
possible to interpret the same to mean that the employees of the
Government-Mint who are occupying Government accommodation and as such are not
being paid house rent allowance, are entitled to compute the over- time
allowance by including the house rent allowance - nationally - in their
emoluments. Since the Tribunal in tis judgment in OA 13 of 1987 did not
interpret the Government instructions the same shall be read in the light of
the interpretation given by us.
Court on July 26, 1994 passed the following order:
No.1837/91 This appeal is directed against the judgment of the Central
Administrative Tribunal, Calcutta Bench dated September 6, 1990 in O.A. No.983/90. The Tribunal in turn relied upon its
earlier judgment in O.A. No.13/87 decided on September 1, 1989.
Leave Petition against the judgment of the Tribunal in O.A. No.13/87 was
dismissed by this Court on the ground of delay.
this Court has granted leave to appeal against the judgment of the Calcutta
Bench in O.A. No.983/90, the matter has to be finally decided on merits. There
is a connected appeal on the same point from the judgment of the Central
Administrative Tribunal, Bombay.
Prima facie of the view that any decision on merits in these two appeals is
likely to affect the respondents in SLP (C)... (CC No.23481) filed against the
judgment of the Central Administrative Tribunal, Calcutta Bench, in O.A.
No.13/87. The Special leave petition was dismissed on the ground of delay on
February 26, 1990. We direct the Registry to issue notices to the respondents
in S.L.P.(C) No...(CC No.23481) which was dismissed on February 26, 1990. The
notice shall be returnable on September 7, 1994. The Union of India to obtain dasti
process in addition to serve those respondets".
response to the above quoted order, Nirmal Ch. Bhowmich has filed affidavit on
behalf of the respondents in SLP 4854/90.
have heard learned counsel for the parties. We agree with the contention of the
learned counsel for the appellant that a bare reading of the Government
instructions relied upon by the Tribunal goes to show that the said
instructions do not give any right to the respondents and others similarly
situated to have the house rent amount included in their emoluments for the
purpose of computing over-time allowance.
otherwise the Government instructions have to be read in conformity with the
provisions of the Act. The claim of the respondents for grant of over-time
allowance is based on Section 59 of the Act. Sub-Section (1) and (2) of Section
59 of the Act, which are relevant, are as under :
wages for over-time - (1) Where a worker works in a factory for more than nine
hours in any day or for more than forty eight hours in any week, he shall, in
respect of overtime work, be entitled to wages at the rate of twice his
ordinary rate of wages.
For the purposes of sub-section (1), `ordinary rate of wages' means the basic
wages plus such allowances, including the cash equivalent of the advantage
accruing through the concessional sale to workers of foodgrains and other
articles, as the worker is for the time being entitled to, but does not include
a bonus and wages for overtime work".
over-time allowance has to be computed on the basis of the "ordinary rate
of wages". Sub-section (2) of Section 59 of the Act defines "ordinary
rate of wages" to mean the basic wages plus such allowances as the worker
is for the time being entitled to, but does not include the bonus and wages for
over-time work. In other words, the ordinary rate of wages is the basic wages
plus the allowances to which a worker is entitled for the time being. If a
worker is not entitled to a particular allowance the same cannot be included in
the "ordinary rate of wages". In the present case, admittedly, the
respondents are not entitled to the house rent allowance and as such the same
cannot be included while determining the ordinary rate of wages. It would be
wholly fallacious to include an allowance `nationally' which has been excluded
specifically. The legislature in its wisdom included the cash equivalent of the
advantage accruing through the concessional sale to workers of foodgrains and
other articles in the definition of "ordinary rate of wages'. The legislature
has not done so in respect of the house rent allowance.
respectfully agree with the law laid down by this Court in Govind Bapu Salvi
and Others vs. Vishwanath Janardhan Joshi and Others 1995 Supp. (1) SCC 148 and
in The Master of the Mint vs. Kashi Nath Dutta and another, in C.A. Nos.
2376-2377/77 decided on October
inclined to agree with the learned counsel for the appellant that despite the
respondents getting a slightly lessor rate for computing the over-time
allowance they are placed in an advantageous position as compared to those who
are not in occupation of Government accommodation.
additional affidavit filed on behalf of the Union of India, multiple benefits
which accrue to a Government employee, who is allotted Government accommodation,
have been shown as under:
Nominal Licence fee exorbitant rent up to 10% of basis pay incremental at the
mercy of landlord.
HRA payable -HRA admissible approx Rs. 250/- for this category of employees.
the vincity of -Far from Mint.
expenditure -some expenditure on transport. on transport and inconvenience.
Little time taken -some time taken to reach Mint to reach Mint.
Free maintenance -minor maintenance by Government has to be attended by the allottee
- all other mainten- ance by the land- lord at his convenience.
One can live till -at the mercy of age of superannu- landlord. ation and 6
case of 'die in -No such harness' the quarte provisions is allotted to exists. deceased
therefore, hold that the respondents and others employees of the
Government-Mint who are occupying Government accommodation are not entitled to
include the house rent allowance as a part of the "ordinary rate of
wages" for computing the over-time allowance.
allow the appeals, set aside the impugned judgments of the Tribunal. We,
however, direct that the respondets or other employees of the Government-Mint
similarly situated who have already been paid over-time allowance in terms of
the Tribunal judgments shall not be asked to refund the same.
13 of 1987 the Tribunal directed that the Government instructions relied upon
by the Tribunal be implemented. Since we have interpreted the Government
instructions and also the provisions of Section 59 of the Act, it would be in
the interest of justice that the law laid down by us be made applicable to the
applicants in OA 13 of 1987 (respondents in SLP 4854/90) prospectively from the
date of this judgment. No costs.