IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : OVERTIME ALLOWANCES
W.P.(C) 3404/2001
DATE OF DECISION February 6, 2006
RAJINDER SINGH BISHT ..... Petitioner
Through Ms. Maninder Acharya, Advocate
versus
DSLDC. ..... Respondent
Through Ms. Anusuya Salwan, Advocate
S. RAVINDRA BHAT, J. (Open Court)
1. The petitioner here claims a direction to the respondent (hereafter called the “DSIDC”) for grant of overtime allowance for the period he had to work on Sundays and other holidays, and after normal working hours.
2. The petitioner, an employee of the first respondent (hereafter referred to as “DSIDC”) claims that he was asked to work in the liquor vends maintained by his employer. During such assignments, the DSIDC requires its employees to often work for beyond duty hours and also report for duty on weekly and certain other holidays. This based upon the exigencies of the work.
3. Learned counsel for the petitioner has relied upon Rule 34 of the Delhi State Industrial Development Corporation Limited (Staff Service) Rules, 1978 which provides that the Corporation may grant overtime allowance to its employees in Group-C or Group-D posts who are required to work on Sundays or holidays or have put in extra hours of work on week days in connection with the Corporation's work at the rates applicable to Central Government employees from time to time.
4. Learned counsel submitted that the timings notified by the Commissioner of Excise are such that the liquor vends are kept open for long periods of time, often upto 9-10 p.m. It is submitted that the petitioner had to work beyond duty hours and also on certain holidays. A chart has been enclosed as Annexure 'P-3' indicating such attendance for the period August 1998 to April 2001.
5. Learned counsel for the respondent submitted that as per the conditions of service, employees working in liquor vends beyond duty hours or on Sundays/holidays are entitled to compensatory leave. She relied upon the circular dated 15.1.1985. The material portion of that circular reads as under:
“ i) The staff who are required to perform ovetime duty for the full prescribed hours or work on Sundays (or other weekly off days or second Saturdays) or other holidays/public holidays should as a rule be granted compensatory leave in lieu. Employees who are required to work on such days beyond a full day may be allowed a days' Compensatory Leave in lieu of the full day work and paid overtime allowance for the excess time put by them minus one hour free duty. In cases where an employee is required to work for half-day or less, e.g. From the time the office open till lunch time, two such half days should be taken as equivalent to one full day for the purpose of grant of Compensatory Leave. Where necessary half-a-day's Compensatory Leave may be given. Cash compensation in the form of 'Overtime Allowance' for duty on Sundays/Weekly off days/second Saturdays/Public Holiday may be granted only in very exceptional circumstances where an officer not below the rank of G.M./C.I.A./F.C. Is satisfied and certifies that it is not possible to grant Compensatory Leave.”
6. It was submitted that by virtue of a notification dated 22.11.1999, those employees who were to work at liquor shops if one reason or another were unwilling, were to indicate their willingness or unwillingness within 10 days from the date of the issuance of the circular. It is claimed that the petitioner never chose to opt out of the assignment and never applied for special casual leave admissible by virtue of the circular/order dated 15.1.1985.
7. Learned counsel for the petitioner submitted that the circulars dated 15.1.1985 and 22.11.1999 were produced after the filing of the counter affidavit, and through an additional affidavit after submissions were made during the course of hearing in these proceedings on 13.3.2003. Learned counsel for the respondent states upon instructions that at best the petitioner can claim the benefit of casual leave and the Corporation is willing to give benefit for the unavailed leave for the period in question.
8. Rule 34 enables the DSIDC to pay overtime allowance. It is not in imperative terms and does not cast an obligation to disburse the amounts. However, as a model employer, it is expected that if extra work is sought form an employee, the DSIDC being an authority and being a State would give reasonable treatment in that regard. The circular dated 15.1.1985 mandates that in the event of employees-not merely those required to work in liquor vends-having to work overtime or put in extra service by way of work after on duty holidays, would be entitled to compensatory leave. The formula for working out such benefit had been indicated. Overtime allowance too has been provided for; it can be given in exceptional situations. It had been contended that these circulars as well as the circular dated 22.11.1999 was not known and that in any event they do not bar the payment of overtime allowance.
9. In my opinion, the petitioner was under a duty to discharge the work assigned to him by the DSIDC. Nevertheless, the fact remains that he was made to work far beyond what are considered as normal duty hours; on several instances he was also required to report for duties on holidays. There seems to be some substance in the grievances that the circular dated 22.11.1999 was not known and as result the petitioner could not avail the compensatory casual leave.
10. The provision of Rule 34 as well as the conditions indicated in the circular dated 15.1.1985 do not oblige the DSIDC to disburse the overtime allowance but enable the corporation to give it. If the corporation chooses to fairly and uniformly to extend compensatory leave and not grant overtime allowances in the normal circumstances, where employees are made to work beyond normal duty hours or asked to report for work on holidays, that policy cannot be termed arbitrary. This is, however, not meant to suggest that indicated in the circular itself, overtime is not admissible; in exceptional cases it can be granted.
11. Having regard to the facts and circumstances of this case I am of the view that the respondent DSIDC should grant the facility of the extra compensatory leave for the period the petitioner had worked between 1999-2001 deducting the special/extra compensatory leave already availed as per the circular governing the issue. This facility shall be extended during the current year as also for the next year. An order shall be communicated to the petitioner as to his entitlement for such compensatory leave, for the relevant period within eight weeks from today. The petitioner shall be granted this facility for the year 2006-2007. A direction to that effect is issued.
The writ petition is disposed off in the above terms. No costs.
Sd./-
S.RAVINDRA BHAT, J
FEBRUARY 06, 2006
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