Central Administrative Tribunal - Kolkata
Surajit Banerjee vs S E Railway on 22 June, 2023
2 OA 338/2018 48. HIMANSHU PATRA 49. GOUTAM SARKAR 50. BASUDEB DAS 51. RAJESH PRASAD GUPTA 52. ASHOK THAKUR 53. MRINAL KANTI MONDAL 54. SADHAN KUMAR BISWAS 55. MRITUNJOY CHATTERJEE 56. PRIDYUMNA KUMAR SWAIN 57. SANJAY KUMAR VERMA Allthe applicants are performing duties and functions as AC Coach Mechanics (ACCMs) and AC Coach Attendants (ACCAs) --Applicants -VS- 1. Union of india, service through the Secretary, Ministry of Railway, Government of India, Rail Bhavan, Rafi Marg, New Delhi --- 110001. 2. The General Manager, South Eastern Railway, 11 Garden Reach Road, Kolkata 700043. 3. The Divisional Railway Manager, South Eastern Railway, Kharagpur Division, Kharagpur, West Midnapur, Pin 721301, --Respondents For The Applicant(s): Mr. P. C. Das, counsel Ms. T. Maity, counsel For The Respondent(s): Mr. P. N. Sharma, counsel ORDER(ORAL) Per: Manish Garg, Member (J):
The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:-
"a) Leave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as the applicants have a common grievance;
b) To quash and/or set aside the impugned speaking order No. SER/P-
KOP/CC/S65/0A-1591/16/S.B. & Ors. dated 06.07.2017 issued by Divisional Railway Manager, South Eastern Railway, Kharagpur by which the claim of the applicants has been rejected on the ground which is not at all sustainable in the eye of law which is clearly laid down by the Hon'ble Supreme Court in a constitutional bench reported (L&S) in 1998 SCC, Page 226 in the case of P.C. Sharma -vs- Union of India L & ors., as because the railway respondents did not grant and/or extend the benefit of the judgment passed
2. 3 OA 338/2018 by the coordinate bench of the Learned Central Administrative Tribunal, Bombay Bench to the present applicants which was affirmed by the Hon'ble High Court of Judicature at Bombay and subsequently affirmed by the Hon'ble Supreme Court and which was duly implemented by the Railway Board but the respondent No. 3 did not follow that order and passed the impugned order dated 06.07.2017 which is not all justified being Annexure A- 13 of this original application
c) To pass an appropriate order directing upon the respondent authority to grant the proper Overtime Wages to ACCMs (Air-conditioned Coach Mechanics} and ACCAS (Air-conditioned Coach Attendants) for the halt period as they re not relieved off from their duties within when the train is halted:
d) To pass an appropriate order directing upon the respondent authority to pay the arrears of pay/wages related to overtime wages for the halt period with interest thereon in favour of the present applicants.
é) To pass an appropriate order directing upon the respondent authority to extend the benefit of the judgment as decided by the Learned Central Administrative Tribunal, Bombay Bench in O.A. No. 117 of 2008 which was upheld by the Hon'ble High Court of Judicature at Bombay in Writ Petition No. 9227 of 2011 as well as Hon'ble Supreme Court in SLP (C) No. 18333 of 2012 in favour of the present applicants since all the present applicants are similarly circumstanced persons vis-a-vis to the applicants before the Learned Central Administrative Tribunal, Bombay Bench in O.A. No. 117 of 2008 and to pay the arrears of pay/wages related to overtime wages for the halt period along with consequential benefits.
f) Costs;
g) Any other appropriate relief or reliefs as you Lordships may deem fit and proper."
To buttress his arguments, Id. counsel for the applicants rely upon the decision rendered by CAT Bombay bench in 0O.A/117/2008 dated 07.03.2011, wherein he draws reference to para 13 &14 of the said order, which reads as under:
"13. Turning to the facts of the present case, it is noted from the pleadings and records that the applicants are not only never relieved after they take charge of the train at Mumbai Central till they return back after return journey, but they are also required to guard the AC Coach and help the secondary maintenance staff for setting right any defect which could have developed during the outward journey in order to avoid complications in return journey back to Mumbai Central. The contents of the letter dated 28.02.2002 are extremely relevant, although written by Sr. operations Section Engineer under whom the major operations take place. The respondents have not brought out any material to prove that there is any handing over or taking over from the applicants at the destination where the train halts considerable period before returning to Mumbai. In fact, the applicants, i.e, ACCMS and ACCAS, are not allowed to leave the train unguarded and go anywhere. It amply proves that they are on duty throughout till they return to Mumbai Central and hand over the charge.4 OA 338/2018
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 halt period. However, the claim of the applicants to get actual arrears is restricted to three years prior to the filing of the present O.A. 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."
2.1. Further he submits that the said O.A was taken before the Hon'ble High Court in Bombay in Writ Petition No. 9227/2011, and an order was passed on 17.01.2012, which reads as under:
"2. 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 casts."
Wherein it was held that the applicant is entitled to OTA.
2.2. Thereafter, the matter was taken before the Hon'ble Apex Court in SLP No. 18333/2012 and the same was dismissed on merit.
Ld. counsel for the applicants submits that after the dismissal of SLP, the decision was implemented by the Central Railway vide order dated 10.04.2015.
2.3. The case of the applicants is that they are praying for grant of OTA qua working as ACCM & ACCA.
2.4. Applicants have challenged the impugned speaking order dated 06.07.2017, relevant para reads as under:
"In obedience to the Hon'ble CAT/CAL's above order, | the undersigned working as Divisional Railway Manager/ S.E. Railway / Kharagpur and Respondent No. 3 in the instant O.A. have carefully examined your representations dated 14/12/2015 and dated 17/08/2015 respectively mentioned in the order with available relied upon documents Vis-a-vis relevant circular and pass the following remarks:-
a"
<7 $trag,' Me, o 5 OA 338/2018 i. Duty hours of the Air-conditioned Coach Attendants is 104 hours as Per HOER Roster on linked basis viz. 104 hours on 14 days basis including two days' rest.
ii. Applicants are not required to perform any duty during half period at outstation.
iii) The said staff are to wait at destination station for several hours (not beyond the rostered duty hours) for joining down trip journey. This lying over period tantamount to inaction period and as such overtime allowance is not paid for such non-duty period. The staff spend the above period in the AC Coach for which they are paid travelling allowance. During this period, the coach remains under the custody of Maintenance Department staff and RPF Guards.
iv. They are paid TA and Night Duty Allowance for the entire period including rest period at destination station.
v) OTA is paid as per extant instructions and as per provisions of HOER. vi. Total 04 hours on PAC time allowed.
vii. No provision has been made in ...(not legible) 156/85 that the ACC staff are entitled to get OTA for 100% lie over period at destination station.
Considering the material facts and circumstances stated hereinabove, there is no scope to extend as claimed in your appeals dated 14/12/2015 and 17/08/2015. Hence the same are disposes off without extension any benefits."
3. Ld. counsel for the respondents vehemently opposing the grant of relief in the present case, relies upon the averment made in counter reply, to state that, the applicants having different category in Air Condition wing of Electrical General Services, are working in running trains i.e. Mail, Express and other valuable trains for escorting Air Condition Coaches attached to the outbound trains as Air Condition Coach Attendant (ACCA) and Air Condition Coach Maintainer (ACCM) apart from the staff designated ACCA which has been modified by re- designated as Passenger Attendant Gr. 1.
A gist of nature of job and facility availed thereof by the ACCA & ACCM while on duty for better appreciation is as follows:-
1) The duty hours of Air Conditioned Coach Escorting Staff (ACCA & ACCM) is 104 hrs as per roster in 14 (fourteen) days including two days rest.
2) The said staff are enjoyed/given one hour additional time (preparatory) at terminus station and one hour (complementary) after the arrival at destination in each trip i.e. 4 (four) hrs. as duty for the purpose of 6 OA 338/2018 overtime allowance as during the halt period they are not required to perform any official duty which can be counted for calculating overtime wages. In fact, they are not required to perform any duty during the halt period as they are taking rest in coach itself. Over Time Allowance is paid as per extant instructions and provisions of HOER i.e. the concerned staff are entitled to enjoy OTA beyond 104 duty hrs in 14 days spell.
3) The said staff are to wait at destination for several hours (not beyond the roster duty hrs.) for joining "Down Trip" journey. This lying over period tantamount to inaction period and over time allowance is not paid for such non-duty period. The staff spend the above period in the AC Coach for which they are paid travelling allowance. During this period, the Coach remains under the custody of Maintenance Department staff and RPF guards.
4) The said staff are not required to guard the AC Coach. After handing over the coach to the staff of destination station or after locking the coach at the destination station, there is no responsibility with the ACCES (Air Conditioned Coach Escorting Staff) to guard and they become free and are at liberty to go anywhere. The guarding is the responsibility of either the maintenance staff of destination or with RPF destination station.
5) The said staff are not required to perform any duty during halt period at outstation while they are taking rest in coach if not possible to provide them in rest room.
6) The said staff are paid Travelling Allowance Night Duty Allowance for the entire period including rest period at destination station. TA /DA is granted for staying outside the Headquarter even if no work is performed for certain hours. Grant of TA/DA does not mean that the staff was performing work. The period of rest at outstation is not counted as "work"
for any other categories including the staff attending AC coaches. Absence of formal handing over and taking over does not make the entire outstation as "work".
7) Further, the said staff remain in train from the point same is in ignorance of the fact that the said staff are staying in train for their rest in absence of rest rcoms at the outstations and where there is no facility made available, then they are allowed to stay at AC Coaches and this clearly shows that there is no compulsion for the AC Coach staff to remain in the coach itself is that allowing the staff to remain in the Coach itself is only in the event that there is no availability of rest rooms at 4 vf] A\e'| 7 OA 338/2018 outstation and this arrangement is only to facilitate the staff and it is also pertinent that during the halt period, their movement is not controlled by the administration.
8) After handed over the Coach to the outstation maintenance staff with loose items under their possession i.e. linen, tumblers, flasks etc. there is no work of safety and security of the Coach to be performed by the ACCA/ACCM and even where the Coach is not handed over to the maintenance staff, the AC staff is supposed to only lock the Coach and no more security is required. Thus, after handing over or locking it, the AC staff become free and are at liberty to go anywhere.
3.1. Ld. counsel for the respondents further draws attention to decision wnitliay " he . a reanad®
8) rendered by the Principal Bench of CAT in similar circumstance matter in aes Heera Lal vs Railways in O.A 250/2017, where the relief has been denied. He submits that the issue in the present matter is entirely different as the decision rendered by the Hon'ble Apex Court and the present case is not applicable to the present facts and circumstances.
3.2, Ld. counsel for the respondents further submits that issue in the Bombay Bench was on the basis of Round of Clock duty by the staffs. Here, the question is whether the applicants are entitled to Overtime Allowance (OTA) for the halt period at the destination of the train, and, therefore, the decision of Heera Lal is squarely applicable to the present case. He draws reference to para 14, 16,17 & 18 of the order in Heera Lal vs Railways in O.A 250/2017, which is reproduced as under:
"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). [t 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.1 17/2008 are not applicable straightaway to all such staff in all situations as a routine. The applicants are required to submit a certificate, if separate sct of maintenance staff does nol 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 decision in OA No.117/2008 is not applicable 8 OA 338/2018 merely because the designation and duties of petitioners in OA No.117/2008 and in the instant OA, happens (o be the same.
Accordingly, it + as pleaded that OA is required to be dismissed.
15. Matter has been heard at length. Sh. Manject 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 sct 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 arc on duty. However, whenever the other set of maintenance stalf is not available, the policy directives dated 27.06.1985 itsclf permits the halt period to be treated as on duty and requesicd relief in this OA gcts automatically granted, on production of specified certificate by said staff,
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 cach journey as per actuals."
4, Having heard the Id. counsel for the parties and perused the materials on record.
ANALYSIS
5. A reference is also drawn to Railway Servant (Hours of Work and Period of Rest) Rules, 2005. For ready reference, Classification of Employment and Hours of Work, have been prescribed in the said Rules, Clause 3, 4, 5, 6 & 7 are reproduced for the purpose of adjudication as under:
"CLASSIFICATION OF EMPLOYMENT AND HOURS OF WORK
3. Prescribed authority to classify the employment of railway servant.--
(1) The power to declare the employment of railway servants as 'intensive' or essentially intermittent' within the meaning of section 130 shall vest in the Head of the Railway Administration:
Provided that the Head of the Railway Administration may, in his discretion, delegate the power vested in him under this sub-rule to the Chief Personnel Officer:
Provided further that during the period of emergency such as flood, accident, the power vested in the competent authority can be exercised by an officer not below the rank of senior scale.
ANS Tray a 'ty 9 OA 338/2018 (2) A copy of every declaration made by the prescribed authority under sub-rule (1) shall, as soon as may be, sent to the Regional Labour Commissioner concerned and, in case the declaration is made by an officer other than the Head of the Railway Administration, to the Head of the Railway Administration or the Chief Personnel Officer, as the case may be.
4. Appeals against classification. --
{1) Any railway servant aggrieved by the declaration of classification made under rule 3 may, within ninety days from the date of such declaration, prefer an appeal to the Regional Labour Commissioner, who, after scrutiny of relevant documents or if considered necessary, after a fresh job analysis, may order for a change in the classification.
(2) Any railway servant or Railway Administration aggrieved by a decision of the Regional Labour Commissioner may, before the expiry of ninety days from the date on which the decision of the Regional Labour Commissioner is communicated to him, prefer an appeal to the Secretary to the Government of India in the Ministry of Labour who will dispose it off after hearing the parties concerned.
5. Supervisory staff.
(1) The Ministry of Labour shall, by order in writing, specify the railway servants or classes of Railway servants who shall be treated as supervisory staff under sub-clause (iv) of clause (c) of section 130 on the ground that the Railway servant holds a position of responsibility, is employed on duties mainly of a supervisory character and is, from the nature of his work and position, comparatively free to adjust his hours of duty or work during such hours:
Provided that the railway servants who on the date of publication of these rules are treated as supervisory staff under these rules shall continue to be treated as such until the orders specifying the railway servants or classes of railway servants as supervisory staff is issued under this sub-rule.
(2) A copy of every such order issued under sub-rule (1) shall be furnished to the Chief Labour Commissioner (Central), New Dethi.
6. Excluded staff.-
The following categories of staff of the Health and Medical Department shall be treated as 'excluded' under sub-clause (v) of clause (c) of Section 130, namely :--
(a) Matrons:
(b} Sisters-in-charge;
(c) Midwives who are not posted on regular shift duty in Railway Haspitals
(d) Health Educators and District Extension Educators (Male and Female) {e) Family Planning Field Workers (Male and Female);
(f) Lady Health Visitors;
(g) Auxiliary Nurses-cum-Midwives;
(h) Projectionists.
In addition to the above, the Ministry of Railways may, by order in writing, spec-any other category of railway staff in any of the Departments of the Indian Railways who shall be treated as 'Excluded' on the consideration that such staff are available on call.
7. Criteria for determining classification of railway servants-
(1} Continuous : All employments of Railway servants except those exclude: from the purview of the Hours of Employment Regulations are assumed to be 'Continuous'.
istry"
ov 'be 10 OA 338/2018 Thereafter, on the basis of factual job analysis, the employment ma. be classified either as 'intensive! or 'essentially intermittent', as the case may be (2) Intensive : The two important factors in declaring an employment as 'Intensive' under clause (d) of section 130 of the Act are :--
(i) strenuous nature of the work tending to cause mental or physical strain; and (if) continuous application to such work with little or no periods of relaxation Explanation I:- The term' continued concentration' in clause (d) of the Section 130 is intended to convey that the attention demanded of the Railway servant concern&:: for a particular nature of job should be exclusive not to allow any other thought or idea to enter the mind and must be of such nature as to cause strain (physical or mental or both) upon the Railway servant concerned as a result of continuous application to such work over certain period without reasonable periods of respite, Thus, having regard to the entire period of duty and nature of work, the prescribed authority shall before declaring any employment as 'Intensive', satisfy itself that the above factors are present in the job concerned. In other words, the prescribed authority shall consider whether the job is of such a character that it demands continued concentration without any reasonable periods of relaxation.
Explanation [l:- Factor (ii) should be considered te have been satisfied where the periods of rest, inaction or relaxation do not aggregate 6 hours or more ina cycle of 24 hours or one hour or more ina shift of 8 hours.
(3) Essentially Intermittent: The work of an employee is to be regarded as essentially . intermittent' if his daily duty hours which should be assumed to be twelve hours per day include
(a) one period of inaction of not less than one hour, or two such periods of no-less than half an hour each, and ({b) various periods of inaction including the period of inaction specified in clause (a) aggregating 50 per cent or more, during which he is not generally called upon to display either physical activities or sustained attention.
Note : In assessing the work-load of the 'essentially intermittent' classification in accordance with sub-section (b) of Section 130, periods of inaction of less than S minutes shall be ignored."
6.1. For the sake of the present matter as per the Clause 5 of the aforesaid Rules i.e. Classification Of Employment and Hours of Work, it is the Ministry of Labour which shall by an order in writing specify the railway servants of class who shall be treated as Supervisory staff under the Sub Clause 4 Class C of Section 130 on the ground that, the aforesaid position of responsibility of requirement of duty mainly of supervisory category is a form of nature of work position comparatively free to adjust his hours of duty.
11 OA 338/2018However in the present case, no such order in writing of the Ministry of Labour has been produced on record regarding the classification of the present applicants being supervisory staff. Reliance place on the Rule 1504 by the respondent is misplaced and cannot be strictly apply on the present case in the light of the Clause 4 of IREM establishment 4 cannot supersede the rules and the act which holds water and precedence over the core. Neither there is a declaration by the respondents, neither it is the case of the respondents as to justify whether the case is intensive or essentially intermittent within the meaning of Section 30 wherein the duty rest to the head of the Railway administration. No such record has been produced on record there is no declaration in terms of the Rule Clause 3 regarding copy of declaration to be made under sub rule 1 to the Regional Labour Commissioner and, in case, the declaration is made by officer other than the railway administration to the head of railway administration or the Chief Personnel Officer as the case may be .
6.2. No doubt fixation of hour of work is prerogative of the respondents in terms of the aforesaid Rule 2 of 2005. The criteria are also well defined under the said rules. It is also been noticeable in the said rules that standard hours of duty is different to the classification of railway servants have been treated as incentive 42 hrs, continuous 48 hrs, essential intermittent 48 hrs. Furthermore, as noticeable under rule 10 there is a principle of averaging payment overtime. Even Rule 9 of the said rule also contemplates duty to make temporary exemption. No such exemption has been on record by the respondents. Furthermore there is also clarity under the aforesaid Rule 205 where it applies to running staff, operating staff and shift staff and those other railway servants whose work is connected to the work of any railway servants. As already held above since there is no appropriate order passed by the competent authority or approved by the Ministry of Labour and it is 12 OA 338/2018 also noticeable that for the said period the work has already been undertaken.
6.3. In absence of any such notification regarding categorisation of the present applicants, keeping in view the nature of duties and exigencies of work, more particularly, they being employed in the railway their duties may be running nature or requiring shift for which appropriate decision has to be taken. In case if emergency where railway accident or some mishap occur their service may be required 24/7.
6.4. Be that as it may be, the discretion rest in the competent authority for wistra oo eres ta ( categorisation and the present application for the supervisory category is ey) altogether different which has not been done in the present case. Drawing the stand Rule 1504 has no force in the present case.
7. It is also noticeable in a decision rendered by the Hon'ble High Court of Delhi in the case of Union Of India vs Shri Dharambir & Ors. [W.P.(C.) No. 5510 of 2014], the following decision has been made:
"Before proceeding further, we consider il appropriate to set out the relevant Rules.
3. Rule 7(3) of the Railway Servants (Hours of Work & Period of Rests) Rules, 2005 (hereinafier referred to as, 'the Rules') provides as follows:
"3. Essentially latermittent:
The work of an employee is to be regarded a 'essentially intermittent' if his daily duty hours which should be assumed to be twelve hours per day include-
a. one period of inaction of not less than one hour, or two such periods of not Iess than half an hour cach and b. various periods of inaction including the period of inaction specified in Clause (a) aggregating 50 percent or more, during which he is not generally called upon to display either physical activities or sustained aticniion. Note: In assessing the work-load of the 'essentially mtcrmitient' classification in accordance with sub-section (b) of section 130, periods of inaction of less than 5 minutes shall be ignored."
4. Rule 8 provides for fixation of hours of work, Rule 8(3) & 8(4) provide as follows:
"3, The standard hours of duty for different classes of employment of Railway servants shall be as under:
a. Intensive - 42 hours a week;
b. Continuous - 48 hours a week; and "Canney OBS OP RY tt strag S y ' i (:( 'o oA .
frund') <3 13 OA 338/2018 c. Essentially intermittent - 48 hours a week;
4. (a) Railway servants having essentially intermittent class of employment shall called upon to work as per rule 8(2)(ii) additional hours as indicated below:
(i) Gatemen 'C' Caretakers of Rest - 24 additional houses and Reservoirs Etc, hours per week.
Chowkidars and Saloon attendants.
(ii) Railway servants posted to work - ~do-
in Essentially Intermittent employment at road-side stations and provided with residential quarters within 0.5 from their place of duty.
(1ii)Rest of the employees posted to - 12 additional work in Essentially Intermittent hours per week, class of employment b. such additional hours of work shall be reflected in the duty rosters of the Railway servants concerned."
3. The respondents had approached the Tribunal by filing OA No.3378/2011 on the basis that they were working on the posts of Gatemen on different roadside gates al Rohtak Station, The respondents claimed that they were performing 12 hours duty without any overtime allowance. The respondents raised the plea that they were categorized as in 'essentially intermittent' employment. Their submission was that the standard hours of work under Rule 8(3) is 48 hours per week, and additional hours of work can be taken as per Rule 8(4) only. The respondents contended that their cases were not covered by Rule 8(4)(a)(i) or (ii). Therefore, they could not be required to work for 48 + 24 ic. 72 hours per week. They could, at best, be subjected to 12 hours of extra duty under clause 8(4)(a\(iii). The second relief sought in the Original Application was to seck a direction to the petitioner to grant overtime allowance to the applicants for four hours overtime daily, on account of the fact that they were assigned 12 hours of duty on a daily basis as opposed to 8 hours duty which they were bound to render as a term of their employment.
6. The aforesaid O.A. No. 3378/2011 was disposed of on 16.09.2011 by the Tribunal, The respondents relicd upon carlicr orders of the Tribunal in Rohtas & Others Vs. Union of India and others and Om Prakash and another Vs. Union of India and others in O.A. No. 107/2009 decided on 2t.0L.2011. The 'Tribunal disposed of the said O.A. with a direction to the petitioner to consider the respondent's claim having regard to the order of the Tribunal in Om Prakash and another (supra),
7. 'The petitioner, consequently, passed an order dated 01.12.2011 wherein the petitioner stated as follows:
"In reference to above subject Gangman's are informed that the judgment of the Hon'ble CAT, New Delhi is based on the judgment in the case of Sh. Om Parkash S/o Shri Nath R/o Q.No. 6D, Maha Laxmi Garden, Gurgaon Vs. Union of India s m we] 14 OA 338/2018 CAT/NDLS January, 2011. The duty roster of Sh. Om Parkash is stated to be eight hours whereas your duty roster is twelve hours and thereforc, over time is not payable to you this is for your information."
&. In consequenec thereof, the respondents preferred O.A. No. 3054/2012 which has been disposed of by the Tribunal. The order of the Tribunal reads as follows:
"Heard the matter in great detail.
The respondents raised a preliminary objection that applicant should have approached to Regional Manager for his gricvance redressal as provided in the Act tusclf but since tin Administrative 'Irtbunals Act, 1985 also some provision is available it falls within the pattern of choice which is available.
After hearing both the counsel, it appears that the matter is covered by an carlicr order of this Court in O.A. 1097/2009 dated 21.01.2011 (sic O.A. 107/2009). It is also to be noted that the same case was taken to Hon'ble High Court of Delhi in WP(C) No. 7164/2011 and was heard along with other maticrs of similar nature and it was found that Tribunal has reached on the correet conclusion and directed the respondents thercin, who are the applicants earlier were entitled to overtime wages. Therefore, the same is the case also here. Judicial propricty demands thai we follow the dictum. Therefore, the OA is allowed to the same extent. No order as to costs."
9. From the aforesaid, it would be scen that the 'Tribunal entirely relied upon the carlier order in O.A. No. 07/2009 in the case of Om Prakash and Anr. (supra).
10, The Tribunal takes noie of the fact that the said order (which was passed in case of Om Prakash & Karan Singh Vs. Union of India had becn upheld by this Court in WP(C} No. 7164/2011 and several other matters.
11. At this stage, we may refer to the decision in Om Prakash & Karan Singh Vs. Union of India in O.A. No. 107/2009, decided on 21.01.2011, In that case as well, the issue of classification of the petitioners' cmployment has been raised. The petitioner had defended the classification of the applicants Om Prakash & Karan Singh who were also working as Gatemen, as being cmployed 'essentially intermittent' employment. The Tribunal, however, found in favour of the applicants and in the operative part, held as follows:
"Therefore, the O.A. is allowed. It is hereby declared that the 'A' class Gatemen are bound to work 8 hours duty and in case of additional working hours, they are to be paid the overtime allowance, as stipulaicd under the rules. It is pointed out that Rule 10 of the Rules ibid prescribes the method of calculating the overtime allowance. It shall be taken note of by the respondents as a methodology. It is made clear that within the three months next, the respondents shall calculate the overtime allowance payable to the applicants from the date of institution of the OA and make it available to the applicants. No costs."
12. 'The said decision of the Tribunal was assailed before this Court along with another similar decision of the Tribunal in O.A. No. 2509/2008 in the case of Rohtas and Mange Ram.
13. As noticed above, the said writ petition including WP(C) No. 7164/2011 arising from the 'Tribunal's order in the case of Om Prakash were dismissed. However, in paragraph 14 of the said order, this Court recorded as follows:
"For record we would note that it is the admitted case of the parties that 12 hours shift is permissible without extra wages if the intermittent breaks during working hours i.c. the nature of work is such thata person can take rest at stretches not less than 30 minutes."
Ad C s 45 OA 338/2018 [4. Rule 8(3) prescribes standard hours of duty of 'essentially intermittent' category as 48 hours a week even for the 'continuous' classification. The standard hours are prescribed as 48 hours a week.
Gatemen and the Railway servants posted to work in 'essentially intermittent' cmployment in roadside stations can be assigned additional duty of 24 hours per week if the condition stipulated in Rule 8(4)(a)(i) are satisfied. In all other cases- not covered by Rule 8(4)(a)(ii) or (iii), the number of additional hours that work could be assigned is limited to 12 hours per week. Since the standard hours of duty is 48 hours per week, the total number of hours per week would translate to 60 hours per week or 10 hours per day for a 6 day week.
[5. The aspect of payment of overtime allowance is dealt with in Rule 10 of the Rules. Rule 10(1) reads as follows:
"10(1) Where a Railway servant is required to render extra hours of duty beyond the roster hours fixed in accordance with rule 8 or beyond the limits specified for different classes of Railway servant under Section 132 he shall be paid overtime for such extra hours of work subject to the principle of averaging as specified in sub- samira. rule (2).0
16. From the aforesaid, it ts evident that if railway servant is required to render extra hours of duty beyond the roster hours fixed in aceordance with Rule 8, or beyond the limits specified for different classes of railway servants, he shall be paid overtime for such extra hours of work subject, to the principles of averaging as specified in sub-rule (2). This being the position, we hil to appreciate as to how the petitioner can contend that the respondents would not be entitled to overiime allowance for services rendered beyond 60 hours per week to be calculated as per Rule 10 of the Rules. We find that the issue raised by the petitioner is covered by the earlier decision of the Tribunal which has been affirmed by this Court."
7.1. The admitted position is that, the AC attendants are normally categorized as running maintenance staff, lt is also noticeable from the circular dated 24.05.2017 regarding Payment of Over Time Allowance to the JEs (AC) performing running/ maintenance duties on Rajdhani/Shatabdi Trains- similar relief has been granted by virtue of office order dated 04.05.2017 wherein the matter was considered and since it was the case of running staff they were extended the similar benefits, such orders dated 24.05.2017 and 04.05.2017 are reproduced as under for ready reference:
"NFIR National Federation of Indian Railwaymen 3, Chelmsford Road, New Delhi - 110055 Dated: 24.05.2017 No. 1/8/Part | "Me. Ay \/ _ a a y oO 16 OA 338/2018 The Secretary (E) Railway Board New Delhi Dear Sir, Sub: Ref: General Manager (Personnel), Eastern Railway's letter No. E, 740/0/Migo (Policy) dated 04/05/2017 to Railway Board.
se eR fee st Hea sk On Eastern Railway, the Jr. Engineers (AC) GP 4200/- (6th CPC}/Pay Level 6 (7th CPC) are deployed to man Rajdhani/Shatabdi Trains along with the team of staff.for ensuring safe and efficient maintenance standards. Unfortunately, these JEs are deniéd payment of Over Time Allowance since the last over three months, while the staff work under them on running maintenance are granted Over Time Allowance.
In the above context, the General Manager (P), Eastern Railway has addressed a letter to Railway Board: vide No. E. 740/0/Misc (Policy) dated! 04/05/2017 seeking Railway Boardl's approval for allowing payment of OTA to the Electrical JEs escorting the Rajdhani/Shatabdi Express Trains.and discharging duties.
The Federation wants the Railway Board to appreciate that the role of Electrical JEs on Rajdhani/Shatabdi trains are not to be compared with other Supervisors so far as nature of duties are concerned as these JEs while discharging their duties of leading the team on Rajdhani/Shatabdi Trains, are always engaged and confined to their work under severe stress and tension to ensure safety, punctuality and efficient running and maintenance on the entire train formation to the comfort of passengers, thus they are not free to adjust their duties while on board, unlike those Supervisors who perform stationary duties. The CEE, Eastern Railway has also confirmed this view as mentioned in Eastern Railway's letter dated 04th May 2017.
NFIR further states that the Board's letter No, E(LL)70/HER/16 dated 04th January 1972 classifying Electrical Chargemen in scale Rs. 250-380 (AS) or above as Supervisor under HOER is not relevant to the category of Electrical JEs who perform duties on running trains i.e. Rajdhani and Shatabdi and whose duties are totally different to that of those Supervisors of GP 4200/Level 6 (7h CPC) performing duties in the Sheds/Depots.
NFIR, therefore, requests the Railway Board to accord approval for payment of OT Allowance to Electrical JEs escorting Rajdhani/Shatabdi Express Trains for ensuring running maintenance and accordingly issue instructions to the General Manager, Eastern Railway etc., to ensure payment of Over Time Allowance.
DA/As above Yours faithfully, (Dr. M. Raghavaiah) General Secretary"
Eastern Railway circular dated 04.05.2017, which is reproduced as under:
"Eastern Railway (Personnel Department) 17, N.S. Road, Kolkata -700 001 No. E.740/0/Misc (Policy) hel 17 OA 338/2018 Kalkata, Dated : 04.05.2017 Director Estt.(LL} Ministry of Railways (Railway Board) Govt. of India New Dethi, sub: Grant of Overtime Allowance to Supervisors.
ne ok ko A doubt has been arisen regarding the entitlement of Overtime Allowance {OTA} to the category of Junior Engineers in GP Rs, 4200 {Level-6} working under Electrical Department deployed in Rajdhani/Shatabdi Exp. along with maintenance &. AC staff. The matter has been considered in consultation with Electrical Department of this Railway (CEE/ER), keeping in view the extant guidelines mentioned as under: --
a).In terms of extant provisions laid down in RS (Hours of work and period of rest) Rules, 2005, Railway servants classified as "Supervisors" and "Excluded" under Hours of Employment Regulations are holding a position of responsibility and are employed mainly in a supervisory character and comparatively free to adjust their hours of duty & work during such hours and are thus not entitled to overtime allowance, b}.As per Boardl's letter no. E(LL)7O/HER/16 dated 04/01/1972, the category of Electrical Chargeman in Rs, 250-380 (AS) or above, in-charge of electrical examination and maintenance units has been classified as 'Supervisor' under HOER,
2.However, the CEE/ER is of view that nature of the duty of an Electrical JEs, as escorting Supervisors, is in no way comparable to those who are working as such on stationary duties because while discharging the duties af leading the team in a train like Rajdhani/Shatabdi Exp, they are always engaged and confined with their work under severe stress and tension to run train maintaining safety, punctuality and requisite passengers' comfort and thus, not free to adjust their duty hours while on board. Hence they should be entitled to "Single (BARE) Rate Overtime".
3. As the issue involves pan Indian Railways implications, Board is requested to examine the entitlement to OTA to Electrical JEs deployed in Rajdhani/Shatabdi Exp. to be calculated' as per Para 2(c) of RBE No, 29/2010 in its true perspective and communicate the decision in this regard, This issues with the approval of CPO {Admn.) and Accounts and in consultation with associated Accounts.
U. Lahiri, ;
Dy.Chief Personne! officer/R, for General Manager (p) Phone No.24103 (Rly.)"
Further we have settled by the decision taken by Bombay Bench which was upheld by the Hon'ble Apex Court.
9. Ld. counsel for the respondents vehemently opposed the grant of relief cited decision rendered by the coordinate bench in Heera Lal supra. We are carefully examining the issue. In that issue, the matter pertains to issuance of ~~ i vad ay \ jd 18 OA 338/2018 chargesheet and not as is reflected. The said facts of the case of Heeralal is distinctive and separate. It is also noticeable in para 17 &18 of the decision in Heera Lal supra, which is reproduced as under for the sake of clarity "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 [8. Therefore, payment of overtime allowance in all cases invariably, was not directed. It will depend upon the circumstances of each journey as pe actuals."
anistray CONCLUSION ig "QQ Ess :
AG ee
a) 10. In the light of the factual scenario since there is no clarification or pnae categorization, dehors the Rule 205, the speaking order as such is bad in law. Therefore, the said impugned order is liable to be quashed and set aside. The respondents in terms of Annexure A-1 to the present O.A are directed to pass a reasoned and speaking order directing to grant Overtime Allowance for the relevant period as described in Annexure A-1 colly and the respective period within 2 months from the date of receipt of certified copy of this order and release the OTA as per the rules in terms of Annexure A-1 and A-2.
We make it clear that respondents authorities are free to frame policy decision and take appropriate call upon in consonance with the Rule 205
11. O.A stands disposed of. No costs \ .
(suomi Das) (Manish Garg) Mem ler (A) Member (J) ss