Central Administrative Tribunal - Delhi
Heera Lal vs M/O Railways on 9 May, 2019
Central Administrative Tribunal
Principal Bench
OA No. 250/2017
Order reserved on: 10.04.2019
Order pronounced on : 09.05.2019
Hon'ble Mr. Pradeep Kumar, Member (A)
1. Hira Lal,
S/o Shri Mahatam Prasad,
Aged 42 year,
Working as A.C.
Helper (Group C).
2. Shri Bansi Lal,
S/o Shri Bihari Lal,
Age about 52 year,
Working as A.C.
Helper (Group C).
3. Shri Dukhi Ram,
S/o Shri Ram Garib
Aged about 54 year,
Working as A.C.
Helper (Group C).
4. Shri Satish Kumar,
S/o Shri Prakash Chand,
Aged 41 year,
Working as A.C.
Technician-II (Group C)
5. Shri Ram Naryan,
S/o Shri Kishan Lal
Aged 52 year,
Working as A.C.
Technician-I (Group C).
6. Shri Furqan Ahmad,
S/o Shri Mohd Ahmad,
Aged 47 year,
Working as A.C
Technician-II (Group C)
2 OA No.250/2017
7. Shri Ramesh Kumar,
S/o Shri Ram Singh,
Aged 45 year,
Working as A.C
Helper (Group C).
8. Shri Pawan Kumar,
S/o Shri Om Prakash Sharma,
Aged 47 year,
Working as A.C
Technician-II (Group C).
9. Shri Raja Ram,
S/o Shri Ram Sanjeewan,
Aged 52 year,
Working as A.C
Helper (Group C)
10. Shri Abhay Raj,
S/o Shri Ram Kishore,
Aged 52 year,
Working as A.C
Helper (Group C).
11. Shri Daulat Ram,
S/o Shri Kishore Lal,
Aged 59 year,
Working as A.C
Technician-I (Group C).
12. Shri Lokmani,
S/o Shri Ram Dutt Joshi,
Aged 54 year,
Working as A.C
Helper (Group C).
13. Shri Surjeet Kumar,
S/o Shri Girdhari Lal
Aged 47 year,
Working as A.C
Helper (Group C).
14. Shri Rishi Pal,
S/o Shri Shadi Singh,
Aged 47 year,
Working as A.C
Technician-I (Group C).
3 OA No.250/2017
15. Shri Chhotey Lal,
S/o Shri Ram Khilawan,
Aged 58 year,
Working as A.C
Helper (Group C)
16. Shri Jai Prakash,
S/o Shri Malkhan Singh,
Aged 58 year,
Working as A.C
Technician-I (Group C)
17. Shri Dinesh Kumar,
S/o Shri Phool Singh,
Aged 54 year,
Working as A.C
Helper (Group C).
18. Shri RakeshKumar,
S/o Shri Ram Chandra Sharma,
Aged 52 year,
Working as A.C.
Helper (Group C).
19. Shri Ved Prakash,
S/o Shri Gulaba Ram
Aged 58 year,
Working as A.C
Technician-I (Group C)
20. Shri Raghubir Singh,
S/o Devi Dass,
Age about 55 year,
Working as A.C.
Technician-I (Group C)
All applicants working under Senior Section A.C. Coaching
Northern Railway, Old Delhi, Delhi.
... Applicants
(By Advocate: Sh. Manjeet Singh Reen)
Versus
Union of India & Others : through
1. The General Manager,
Northern Railway,
Baroda House, New Delhi.
4 OA No.250/2017
2. The Divisional Railway Manager,
Northern Railway,
State Entry Road,
New Delhi.
3. The Senior Section Engineer,
Northern Railway, AC Coaching,
Old Delhi, Delhi.
... Respondents
(By Advocate: Sh. S.M.Arif)
ORDER
The applicants are working in Delhi Division of Northern Railway as Air Condition (AC) Technician-I, AC Technician-II, AC Helper in AC coaches of passenger/express trains. They are deputed in AC coaches of these trains and perform their duties during onward journey from originating station to the destination station and thereafter during the return journey from destination station to the originating station. The train rake is handed over for maintenance, at the destination station to a different set of staff and thereafter it is taken over again for the return journey.
The AC staff is required to report one hour before the departure of the train and is relieved from duty after one hour of arrival at the station. This time is required for pre- departure cooling of coach and other formalities as well as for post arrival accountal etc. The applicants plead that their duties include to check that AC plants are working 5 OA No.250/2017 satisfactorily, both alternators are working in good condition, checking and repairing internal fittings during the train journey to ensure comfort of passengers. At the destination station, sometimes the other set of staff does not turn up and in such situation they have to do the maintenance at destination station also during the halt period.
It is also pleaded that at most of the destination station, a separate resting place is not provided and as such, they have to stay inside the nominated coach in the train rake itself at destination station. It was pleaded that since they have to stay in the coach throughout from start to return, they are required to be treated on duty from start of train journey at originating station till it returns back to the originating station after completion of onward and return journey.
The respondents-Railway is however not counting the halt period at destination station as duty and thus not paying them any overtime allowance for such duration of halt at the destination station. The applicants had made a representation dated 02.05.2016, however, the same has remain unreplied. Feeling aggrieved, the applicants had preferred the OA No.1919/2016.
6 OA No.250/2017
2. The applicants relied upon the decision in OA No.117/2008 by Mumbai Bench of the Tribunal in respect of the same issue for the same category of staff working in Mumbai Division of Central Railway. This OA was allowed vide order dated 07.03.2011. The operative part reads as under:
"14. In view of the above facts and circumstances as revealed from the pleadings and materials placed by both the parties before the Tribunal, the applicants are held entitled to claim Overtime wages for the said half period. However, the claim of the applicants to get actual arrears is restricted to three years prior to the filing of the present OA. It is further directed that members of Applicant No. 1's association shall present to the respondents relevant details of their travelling including the halt period in question, within a period of two months from the date of passing of this order and the respondents shall calculate the overtime wages according to rules and pay the arrears to the applicants within a period of another two months thereafter, duly taking into consideration the halt period in question."
3. This order was challenged by the Respondent-Railway in Hon'ble High Court of Mumbai in WP (C) No.9227/2011 which was dismissed vide orders dated 17.01.2012. The Hon'ble High Court observed as under:
"The order passed by the Tribunal is a well considered order. The Tribunal has considered the provisions of Rule 1502 in paragraph 9 of its order. It has recorded a finding in paragraph 13 that when the train halts, the Respondents are actually guarding the train and also helping the subordinate staff in carrying out the maintenance operation. Therefore, it is clear that during the halt time also, the staff is working and therefore they have been rightly held entitled to over time allowance. No interference is called for in the impugned order. The Petition is rejected. No costs."7 OA No.250/2017
4. The decision by the Hon'ble High Court was challenged in Hon'ble Apex Court in SLP No.10333/2012. The SLP was dismissed on 23.02.2015. Thus the order by Tribunal obtained finality (para 2 supra).
5. It was pleaded that applicants are similarly placed with same designations and duties under Railways. However, they are still not being given the same benefit. The applicants made representation dated 02.05.2016. This was not replied and feeling aggrieved, they filed OA No.1919/2016. This was decided vide orders dated 31.05.2016. The operative part of the judgment reads as under:
"5. In view of the limited prayer made by the applicants, this OA is disposed of at the admission stage itself without issuing notices to the respondents with a direction to the respondents that the representation dated 02.05.2016 of the applicants herein may be considered by them and in case it is found that the applicants herein are similarly situated as applicants in OA No. 117/2008, then they shall be extended the same benefits as were granted to the applicants of OA No. 117/2008. In any case, respondents shall communicate their decision to the applicants by means of a reasoned and speaking order within a period of 60 days. No costs."
6. Since these orders were not complied with, the applicants preferred CP No.464/2016. During pendency of the CP, the respondents passed an order dated 14.10.2016 wherein the demand was rejected. The operative part of this speaking order reads as under:
8 OA No.250/2017
"xxx xxx
1. The respective applicants are working as AC/Technicians & AC/H. Khalasis in various grade at ACC Depot/DLI under Elect. Chg. Deptt.DLI Divn./N.Rly. They are deputed for both maintenance functions (which are non-travelling in nature) and escorting functions (which are travelling in nature with respective trains). As per Rly. Board's letter no. E(LL)83/HER/1-2 dated 27/06/1985, AC/Technicians (ACCI) and AC/H. Khalasi (ACCA) during their escorting duties are allowed one hour before the commencement of the train journey for completing the pre- departure taking over formalities. At the out stations (destinations) at the end of their outward journey, they are allowed more one hour to complete the procedure for handing over the coach to the outstation maintenance staff.
Similarly, before returning from the destination stations, they are allowed one hour to take charge of the coach from the maintenance staff of the destination stations and again they are allowed one hour more after the arrival of the train at their base stations for completing the handing over procedures. Hence, they are given the credit of additional 04 hrs. towards taking over and handing over proceedings. Accordingly, duty rosters of electrical staff for their escorting duties are fixed as 52 hrs. per week/ 104 hrs. per 14 days. However, when they are deployed for maintenance duties, their duty rosters are fixed as 48 hrs. per week/ 96 hrs. per 14 days.
As per above procedure & schedule, the respective applicants, after handing over the charge of the respective coach/es to the outstation maintenance staff at their destination stations, remains non-active towards their coach duties till the times they again take over the charge of the respective coach/es on the return journey of the respective trains. During the period of their non-active duty hours, they are not supposed to do any coach related works and the remain ideal (sic.) and take rest during this period.
As per the above procedure/schedule, they are relieved from their active duty functions at their destination stations and they are not supposed to perform on their respective coaches during their said non-active duty hours. However, since they are officially on duty outside their HQ, it is ensured that a credit of minimum 8 hrs. be given in a calendar day in case of their non-active duties. It means during their out station duties, they are given the credit of either actual active duty hrs. or minimum 08 hrs. whichever is higher per calendar day.
Nature of functions are almost similar but the said staff of this deptt./Divn./Rly. are performing duties as per Rly. Board's above schedule which does not specify round the 9 OA No.250/2017 trip continuous active duties of the electrical escorting staff.
2. The referred orders of CAT/Bombay Bench dated 07/3/2011 passed in OA No. 117/2008 were mainly on the bases of round the trip active duty hrs. of respective staff during their escorting duties, but in the case of applicants as explained above, there is no case of round the trip active duties during their escorting functions. However, they are given the credit of minimum 8 hrs. if their active duty hrs. are less than 8 hrs. in a calendar day during their out station duties.
Xxx xxx xxx
5. As explained under para 1 & 2 above, here in the matter of the applicants/staff of this Deptt./Divn./Rly., there is no case of round the trip active duties during escorting functions. Hence, the credit of duties as allowed under the orders of OA No. 117/2008 filed before CAT/Bombay may not be extended to the applicants.
Xxx xxx xxx In view of the above, they may not be extended the benefit as were ordered to the applicants of referred OA No.117/2008 passed by CAT Bombay bench.
The above speaking orders has the approval of competent authority."
7. With this, the CP was discharged on 08.12.2016 with the following orders:
"2. The respondents have filed the compliance affidavit annexing thereto copy of an order dated 14.10.2016, whereby the claim of the applicants has been denied holding that they are not similarly situated. ......
2. In this view of the matter, the Order of this Tribunal stands complied with. The applicants are at liberty to seek remedial measures, in the event they are still aggrieved with the order of compliance. Hence, the contempt proceedings are dropped. Notices issued to the alleged contemnors are discharged."
8. Feeling aggrieved, the applicants have filed the instant OA.
10 OA No.250/2017
9. The applicants pleaded that the overtime benefit is admissible as per Railway Board's policy directives dated 27.06.1985 which was relied upon by the Mumbai Bench of the Tribunal, while granting relief in OA No.117/2008 (para 2 supra). The operative part of this policy dated 27.06.1985 reads as under:
"The question of laying down uniform procedure for computation of duty hours of AC attendants and Incharges from the time they take over charge at the commencement of journey to the time of handing over charge after completing the trip has been under the examination of the Ministry of Railways.
It has been decided that in the computation of duty hours of these categories of staff, the following procedure should henceforth be adopted.
i. The ACC Attendants and the Incharges may be allowed one hour before the commencement of the train journey for completing the pre-departure formalities. Similarly, they may be allowed one hour more after the arrival of the train at their base station for completion the handing over procedures.
For services extending over long distances such as Howrah- Delhi/Amritsar, New Delhi-Bombay, Madras-New Delhi etc, in order that the working hours of staff are not unduly extended, the links of the staff booked for such services should be so arranged so that staff are booked off at a convenient intermediate station and fresh set booked for further journey. Such arrangements at Mughalsarai on the Howrah-Delhi route, Ratlam on Delhi-Bombay route, Kazipet/Kanpur on the G.T. route etc., should be considered.
ii. At outstation, at the end of their outward journey, they may be allowed one hour to complete the procedure for handing over the coach to the outstation maintenance staff. They will hand over the loose items under their possession, e.g. linen, tumblers, flasks etc. to the maintenance staff and take over the same when they take over charge at the commencement of train journey. They may take rest in the AC coach itself wherever rest facilities have not been made available to them in the nature of a running/rest room. They may be allowed one hour to take charge of the coach from the maintenance staff before the commencement of train journey.11 OA No.250/2017
iii. As regard AC coaches detached enroute as being mechanically sick, the ACC Attendant should remain with the coach till the coach is attended, made fit and also for the period the coach is moved thereafter to either the base depot or any other terminal from where it is to work a service. The ACC Incharge will, however, return by the first available train to the base depot. No night duty allowance will be payable for this period, but 25% of time spent in journey while returning to base station will be counted towards duty for the purpose of overtime. ACC/ACCI detained at the outstation enroute will also be given credit of 25% of the time so spent on such occasion.
As regards AC coaches marked sick at the outstation after the arrival at the outstation, in addition to the duty allowed in (ii) above, the specific period for which they are required to be present the coach for attention of the defects, may be reckoned at duty hours for the purpose of overtime allowance."
10. In view of the foregoing, the applicants plead that they are required to be treated on duty right from start of the onward journey of the train till it reaches back after completion of return journey and overtime is required to be paid.
11. The respondents opposed the OA. Following has been pleaded in their counter reply:
"A. That the applicants are posted/working as AC Technician & AC Khalasi in various Grades at ACC Depot/Delhi under Electrical Coaching Department/Delhi Divison (NR). They are deputed for excorting functions.
These functions include taking care of concerned fixtures & functions, attending complaints and performing trouble-shooting on route in the AC coaches during respective train journey. These functions are to be called as active duty functions.
Xxx xxx xxx C. That accordingly, duty roster of Electrical Coaching Staff for their excorting duties are fixed as 52 hours per week/104 hours per 14 days.12 OA No.250/2017
However, when they are deployed for Station/Maintenance duties their duty roster are fixed as 48 hours per week/96 hours per 14 days.
D. That as per above procedure/schedules, escorting staff of this department are relieved from their said active duty functions at the respective destination station for the period till the restart of inward journey from destination station.
This intervening period is to be called as non-active duty. It is further submitted that Escorting Staff of this department are not supposed to perform on their respective coaches during their non-active duty hours/period.
However, since they are officially on duty outside their HQ, it is ensured that a credit of minimum 08 hrs. be given in a calendar year in case of their non-active duties and they remain idle and take rest during this period.
Xxx xxx xxx
H. That in view of the above it is clear that all applicants are
given due credits against their all duties and their OTA claims are accepted for all the hours over and above the maximum hours of their duty roster which include all hrs. against their active duties and minimum 08 hrs./ per calendar day against their non-active duties."
12. It was pleaded that the policy directives by Railway Board issued on 27.06.1985 are being strictly followed. The applicants perform their duties from start of onward train journey till they reach the destination station. At destination, they hand over the train to another set of staff and they are allowed to stay inside the coach, if the separate resting place is not available. They do not perform any duty during this halt period. Towards this end, the policy directives dated 27.06.1985 were subsequently clarified also on 29.10.2001 which reads as under:
13 OA No.250/2017
"In continuation with the Board's letter no. E(LL) 83/HER/1-2 dated 27.6.85, it is reiterated that escorting staff attached with AC coaches may take rest in the AC coach itself wherever rest facilities are not available in the nature of running/rest room. To avoid any harassment during stay in AC coaches, it is advised that Zonal Railways shall issue identity cards with authorisation to all AC escorting staff permitting them to take rest only at destination stations in one of the AC coach of the train, earmarked for the purpose by the Railway.
This issues in consultation with Security Dte of Railway Board."
13. In view of this, there is no justification that the halt period at destination station should also be added to the duty period of the staff and for it to be counted for overtime.
14. It was pleaded that the relief granted by the Mumbai Bench of the Tribunal in OA No.117/2008 was in the nature of in personam relief, as it sometimes happen that the other set of staff is not available for taking over maintenance at the destination station and it is in such eventualities that petitioner therein were directed to provide details for payment of overtime (para 2 supra). It was in keeping with this that the policy directives dated 27.06.1985 was upheld and not interfered also by Tribunal.
Accordingly, the directives in OA No.117/2008 are not applicable straightaway to all such staff in all situations as a routine. The applicants are required to submit a certificate, if separate set of maintenance staff does not take over at the destination station and in such situations, the halt period is also to be added to the duty hours. In view of this, the 14 OA No.250/2017 decision in OA No.117/2008 is not applicable merely because the designation and duties of petitioners in OA No.117/2008 and in the instant OA, happens to be the same.
Accordingly, it was pleaded that OA is required to be dismissed.
15. Matter has been heard at length. Sh. Manjeet Singh Reen, learned counsel represented the applicants and Sh. S.M.Arif, learned counsel represented the respondents.
16. The policy directives which govern the duty hours were issued by Railway Board on 27.06.1985 and thereafter certain clarifications were also issued on 27.10.2001. These policy directives are in the nature of procedure to be followed to work out the total duty hours. In case the applicants hand over the train to another set of maintenance staff at the destination station, they cannot be treated on duty in this duration of halt. Merely because they are permitted to stay inside the coach for such halt duration, cannot also mean that they are on duty. However, whenever the other set of maintenance staff is not available, the policy directives dated 27.06.1985 itself permits the halt period to be treated as on duty and requested relief in this OA gets automatically granted, on production of specified certificate by said staff. 15 OA No.250/2017
17. In keeping with this, OA No.117/2008 is in the context of continuous duty for entire period and its ratio is taken to be attracted in such situations only and not as a routine in all journeys.
18. Therefore, payment of overtime allowance in all cases invariably, was not directed. It will depend upon the circumstances of each journey as per actuals.
19. Applicants also drew attention that in case they are not available at the destination station during halt period, they are issued a chargesheet which indicates that they are expected to be on duty even in this period. Else, such chargesheet cannot be issued if the respondents were actually treating them to be off duty in such halt period. In support of this contention, the applicants drew attention to a charge sheet issued to one Sh. Pankaj Sharma, AC Technician-II on 30.06.2016. The imputation of charge reads as under:
"कमचार ी पंकज शमा पु ी रामकुमार तक. वतीय (वाता.) अधीन व र. ख. अ भ. को./ द ल के व ध लगाये गए आरोप का ववरण ǀ आप दनांक 16.09.16 को गाड़ी सं. 14056 मपु मेल के वातानक ु ू लत यान के साथ ए को टग यट ू पर थे ǀ दनांक 19.09.16 को गाड़ी सं. 14056 मपु मेल ड गू ढ़ पहुंची ǀ इस गाड़ी का रख-रखाव काय ड ग ू ढ़ वा शंग लाइन म 16.00 बजे से था तथा इसका थान समय 23.10 बजे नधा रत है ǀ आप गाड़ी के रख-रखाव के दौरान वातानक ु ू लत यान पर उपि थत नह ं थे और गाड़ी के थान के समय तक आप वातानक ु ू लत संयं , लाइट एवं पंखे चलाने म असमथ रहे ǀ व र. ख. अ भ./ ड ग ू ढ़ वारा आपके थान पर अ य टाफ को ए को टग के लए चलाना पड़ा और गाड़ी सं. 14055 मपु मेल ड ग ू ढ़ से लगभग 15 मनट वलंब से रवाना हो सक ǀ उ त त य से आपक यट ू के त घोर लापरवाह द शत होती है ǀ 16 OA No.250/2017 अतः आपने रे ल सेवा आचरण नयम 1966 के 3.1 (ii) (iii) का उ लंघन कया है ǀ"
20. A close reading of the above imputation indicates that the said staff was not available to take over duty for the return journey from Dibrugarh and was unable to start the AC etc. for which they were required to be on duty one hour before the departure of the train. Under such situation, alternative staff had to be arranged at a short notice. It is under such conditions that the said charge sheet was issued. In no way does this reflect that staff was to be on duty during halt period which ends one hour before scheduled departure of the train. Therefore, this plea of applicants is not acceptable.
21. In view of the foregoing, there is no merit in the OA and the same is dismissed. No order as to costs.
(Pradeep Kumar) Member (A) 'sd'