SUMIT PAUL Vs. KOLKATA MUNICIPAL CORPORATION

JUDGEMENT

(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 dtd. 8/12/2008 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.