Central Administrative Tribunal - Ernakulam
D.N.Eswaradas vs Union Of India Represented By on 21 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.836/2009
Friday, this the 21st day of January, 2011.
C O R A M :
HON'BLE Ms K.NOORJEHAN, ADMINISTRATIVE MEMBER
HON'BLE Mr V AJAY KUMAR, JUDICIAL MEMBER
D.N.Eswaradas,
Station Master/III/Tripunithura Railway Station
Residing at: SARIGA,
Cherthala South PO
Alapuzha-688 552. ...Applicant
(By Advocate Mr M.P.Varkey)
Versus
1. Union of India represented by
General Manager,
Southern Railway,
Chennai-600 003.
2. Additional Divisional Railway Manager,
Southern Railway,
Trivandrum-695 014.
3. Sr. Divisional Operations Manager,
Southern Railway,
Trivandrum-695 014.
4. Senior Divisional Personnel Officer,
Southern Railway,
Trivandrum-695 014.
5. Regional Labour Commissioner(Central),
Kendriya Shram Sadan, Kakkanad,
Kochi-682 030. ...Respondents
(By Advocate Mr Thomas Mathew Nellimoottil)
This application having been heard on 17.01.2011 the Tribunal on
21.01.2011 delivered the following :-
O R D E R
HON'BLE Mr V AJAY KUMAR, JUDICIAL MEMBER The applicant who is working as Station Master-III at Tripunithura Railway Station filed the present O.A seeking for a declaration that he is entitled for Over Time Allowance from 23.6.1996 to 21.6.1997 as per the bills submitted along with Annexure A-2 in terms of Annexure A-1 Memorandum No.V/P.349/III/KUMM-HAD dated 26.5.1997 and for consequential direction for payment of the same with penal interest.
2. The applicant would submit that while he was working at Thuravur Station as a Station Master, the 4th respondent issued Annexure A-1 memorandum stating that sanction has been accorded for the reclassification of the post of SMs/ASMs of Thuravur Station from "Essentially Intermittent" to "Continuous" under HOER on the basis of job analysis conducted. He submits that in view of the various documents annexed to the O.A, the Over Time Allowance should be paid with retrospective effect i.e. with effect from the date on which the job analysis has been done with reference to the date of sanction. He submits that there were demands way back from 1985 onwards to reclassify the post at Turavur Station from "Essentially Intermittent" to "Continuous" roster. Accordingly the Railway administration conducted a job analysis at Thuravur on 8.5.1995 to 11.5.1995 and as per the said job analysis, the Thuravur station is classified "Continuous" vide Annexure A-1 memorandum dated 26.5.1997. As the extra hours have been recorded with effect from 23.6.1996, he made the claim vide Annexure A-2 for payment of OTA with effect from 23.6.1996 to 21.6.1997 and he is entitled for the same. In support of his case, the applicant filed Annexure A-9 recommendations of the Railway Labour Tribunal which reviewed the Hours of Employment Regulations in respect of classification of workers, weekly hours rest, number of average actual hours for the purpose of OTA etc. wherein it was recommended that OTA should be paid from the date of job analysis. Annexure A-10 confirmed that the recommendations made under Annexure A-9 were accepted in toto by Government. These Annexures support the view that the OTA to the employees is to be paid from the date of conducting of job analysis without reference to the date of sanction.
3. The applicant would submit that though he submitted his OTA bills along with Annexure A-2, to the 3rd respondent on 22.9.1998 and when the same is not settled, he approached the Labour and Enforcement Officer (Central), Ernakulam vide Annexure A-3 and vide Annexure A-4, the Labour Enforcement Officer informed the applicant that the respondents have taken a stand that the classification can be changed only from the date of sanction and hence OTA prior to June 1997 cannot be paid and further suggested to approach the competent Labour Court. The applicant further pursued the issue with the Regional Labour Commissioner(Central), Ernakulam to whom the Labour Enforcement Officer (Central), Ernakulam is a subordinate and that the Regional Labour Commissioner vide Annexure A-5 informed the applicant that he has already taken up the issue with the 4th respondent. Inspite of that when nothing fruitful is coming out, the applicant made application under the Right to Information Act 2005. Thereafter, the respondents vide the impugned letter dated 20.7.2009 Annexure A-7 informed the applicant that reclassification order was with prospective effect only and the claim of the applicant pertaining to the period before the reclassification order and since the sanction does not accord any retrospective effect the applicant's claim cannot be considered and further that the claim is pertaining to 1996-97 and hence could not be verified at this distance of time. This answer was given by the respondents for the first time though while disposing of an application under the Right to Information Act.
4. The applicant would submit that as the Annexure A-7 impugned order is the first rejection order of his claim for OTA and hence he questioned the same by filing this O.A.
5. The respondents filed a reply mainly contending that the Anenxure A-2 is issued with prospective effect only and that there is no retrospective effect is granted and hence the applicant is not entitled for any OTA prior to the period of Annexure A-1. The respondents further stated that the O.A is filed questioning an order issued under the RTI Act and hence this Tribunal has no jurisdiction to entertain the present O.A. The respondents also submitted that the claim of the applicant is barred by limitation.
6. The applicant filed a rejoinder to the reply wherein he also filed Annexures A-11 and A-12 in support of his case. Annexure A-12 is a reply given by the Divisional personnel Officer and also Public Information Officer under the RTI Act whrein he has stated that the applicant's request regarding non-payment of officiating allowance and OTA is being examined considering it as a representation for redressal of grievances and the same is dated 18.1.2008. The impugned order is issued in continuation of Annexure A-12 only. Hence, once the respondents considered the application under RTI Act as representation and disposed of the same by way of impugned Annexure A-7 it can be said that the O.A is filed within limitation and also that the same is filed questioning the order rejecting the claim of the applicant but not the order under the RTI Act.
7. Hence the only question remain to be answered is that whether the applicant is entitled for payment of the OTA retrospectively from the date of conducting of the job analysis in respect of reclassification of the post of Thuravur Station in terms of memorandum dated 26.5.1997. Though the respondents submitted that OTA can be paid from the date of sanction of reclassification but not prior to that date but failed to answer the support taken by the applicant under Annexure A-9 and A-10 which clearly mandate the respondents to pay the OTA from the date of conducting of the job analysis. Further, the respondents have not denied the authentication of Annexure A-9 and A-10 and it is also not the case of the respondents that the job analysis in respect of Thuravur Station is not conducted in May 1995. The respondents cannot deny the legitimate right of the applicant on the ground that the claim is pertaining to the period from 23.6.1996 to 21.6.1997 as they have not even answered the claim of the applicant either way at any point of time and forced the applicant to approach various authorities time and again.
8. In the circumstances, the O.A is allowed and the letter No.V/PCo- Ord/RTIA/A-16/2009 dated 20.7.2009 (Annexure A-7) is quashed and a direction is issued to the respondents to consider the OTA claim made by the applicant in Annexure A-2 in terms of the observations made above and to pay the same within two months from the date of receipt of this order. No order as to costs.
V AJAY KUMAR K.NOORJEHAN JUDICIAL MEMBER ADMINISTRATIVE MEMBER trs