Central Administrative Tribunal - Ernakulam
V.K. Pradeepkumar vs Union Of India Represented By The ... on 7 April, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00885/2015
Original Application No. 180/00948/2015
Original Application No. 180/00988/2015
Friday, this the 7th day of April, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
1. Original Application No. 180/00885/2015 -
1. V.K. Pradeepkumar, aged 54 years, S/o. V.K. Kuttanpillai,
Sr. Technician/AC, Trivandrum Central, Trivandrum Division,
Southern Railway, residing at Advaitham, Chempazhanthi P.O.,
Trivandrum-695587.
2. D. Arockiam, aged 52 years, S/o. Devasahayam, Sr. Technician/AC,
Trivandrum Central, Trivandrum Division, Southern Railway,
Residing at E.W.S/ 76, TNHB Colon, Phase II, Perumalpuram,
Tirunelveli-627007.
3. R. Satheesan, aged 60 years, S/o. P.N. Raghavan, Retired
Technician I, AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Puthenpurail House, Kadappakada P.O., Kollam-
691008.
4. M. Devadhanam, aged 55 years, S/o. Madhavan, Technician I,
AC/TVC, O/o. Sr. Section Engineer (AC), Southern Railway,
Residing at Chalai P.O. Trivandrum-695036.
5. T. Asokan, aged 36 years, S/o. Arumugham, Technician/I/AC/KCVL,
Trivandrum Division, Southern Railway, Residing at Amritha
Bhavan, Kurioothmala, Vettithatta P.O., Kollam.
6. Jaikrishnan Narayan, aged 45 years, S/o. Narayanan,
Technician/I/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Chandradhanus, Paraniyam, Poovar P.O. Trivandrum.
7. A. Gopakumar, aged 56 years, S/o. N. Appukkuttan Nair,
Technician/I/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Kochuveedu, Thevally P.O., Kollam.
8. Abraham Mathew, aged 56 years, S/o. Cheriyan Mathew,
Technician/I/AC/KCVL, Trivandrum Division, Southern Railway
Residing at Thevarvalady House, Thuruthi P.O, Changanacherry
Kottayam District.
9. C. Manoharan, aged 50 years, S/o. Chandran, AC Technician
Grade II, Trivandrum Central, Trivandrum Division, Southern
Railway, Residing at Kunnuvila Veed, Kurakkada P.O., Ambedkar
Gramam, Kizhuvilam, Trivandrum.
10. G. Sivasankara Pillai, aged 53 years, S/o. Gopinathapillai,
Technician/II/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Koyipurathu Veedu, Kareepra, Kuzhimathicadu P.O.,
Kundara, Kollam.
11. C. Raveendran, aged 48 years, S/o. K. Chellappan Pillai,
Technician/II/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Muthvangal Veedu, Vakkom P.O., Trivandrum
12. S. Sureshkumar, aged 35 years, S/o. K.Sasidharan Nair,
Technician/II/AC/TVC, Trivandrum Division, Southern Railway
Residing at Nandanam, Kanjavally P.O., Prakulam, Kollam.
13. K.P. Manoj, aged 35 years, S/o. Kesavan Nair,
Technician/II/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Anupam, Venpakkal P.O., Neyyattinkara.
14. P.S. Sasidharan, aged 48 years, S/o. P.K. Sankaran,
Technician/III/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Railway Qrs. No.139-B, Thambanoor, Trivandrum.
15. S. Sreejith, aged 29 years, S/o. Sasidharan Nair,
Technician/III/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Devi Nivas, TC 36/299, Manava Nagar, Trivandrum.
16. K.K. Omanakuttan Pillai, aged 53 years. S/o. Kunjan Pllai,
ACCA/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Vazhapallil Thekkethil, Vengai P.O., Sasthamkotta,
Kollam.
17. P.S. Manoj Kumar, aged 39 years, S/o. Sankara,
ACCA/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Ayyamangalam, Thiruvallam P.O., Trivandrum.
18. R. Sajeesh, aged 38 years, S/o. S.Raghavan,
ACCA/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Pranavam, Nethaji Puram, Santhigiri P.O.,
Trivandrum.
19. J.S. Ajith, aged 37 years, S/o. Jayadevan Nair,
ACCA/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Krishnalayam, Muttapalam P.O., Varkala.
Trivandrum.
20. V. Suresh, aged 58 years, S/o. Velukutty, ACCA/AC/KCVL,
Trivandrum Division, Southern Railway, Residing at Palachira P.O.,
Varkalam, Trivandrum.
21. R. Rajendran, aged 51 years, S/o. K. Ramasamy, ACCA/AC/KCVL,
Trivandrum Division, Southern Railway, Residing at Door No.14,
Karttam Palayam Main street, Vengamdur, Erode.
22. Joseph Mathew, aged 38 years, S/o. P.M. Mathew,
ACCA/AC/KCVL, Trivandrum Division, Southern Railway, residing
at Pullukadu House, Cheeanchera P.O., Changanachery, Kottayam.
23. S. Thulaseedharan Pillai, aged 56 years, S/o. Sankaran Pillai,
ACCA/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Nandu Bhavan, Parithiara, Odanavattom P.O., Kollam
District.
24. Sijin T, aged 28 years, S/o. R. Thulasi, ACCA/AC/KCVL,
Trivandrum Division, Southern Railway, residing at S.S. Mandiram,
Thundathil P.O., Karyavattom, Trivandrum.
25. K.K. Mohanan Nair, aged 56 years, S/o. Kesavan Nair,
ACCA/AC/TVC, Trivandrum Division, Southern Railway
Residing at Pulluvelil, Punnathara West, Ettumanoor.
26. S. Vinayan, aged 37 years, S/o. Sadasivan, ACCA/AC/KCVL,
Trivandrum Division, Southern Railway, residing at Moolayil Veedu,
Vilayilkulam, Kazhakoottam, Trivandrum.
27. S. Rajeshkumar, aged 38 years, S/o. Sivasankaran Nair,
ACCA/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Sivashilam, P.V. Road, Pattoor, Trivandrum.
28. R. Rajesh, aged 35 years, S/o. Rajendran, ACCA/AC/KCVL,
Trivandrum Division, Southern Railway, residing at R.S. Bhavan,
Kanjikkal, Valathungal, Kollam.
29. S. Baiju, aged 39 years, S/o. Sudhakaran, ACCA/AC/KCVL,
Trivandrum Division, Southern Railway, Residing at Kodiyil House,
Nehru Junction, Kazhakoottam, Trivandrum.
30. S. Gopakumar, aged 36 years, S/o. V. Sivan Nair, ACCA/AC/KCVL,
Trivandrum Division, Southern Railway, residing at Ambadi,
Kizhemalakat, Kizhakkum Bhagam, Trivandrum. . . . Applicants
(By Advocate : M/s. Varkey & Martin)
Versus
1. Union of India represented by The General Manager,
South Railway, Park Town, Chennai - 600 003.
2. The Divisional Personnel Officer, South Railway,
Trivandrum Division, Trivandrum-14. ... Respondents
(By Advocate : Mrs. K. Girija)
2. Original Application No. 180/00948/2015 -
1. V.K. Sasikumar, aged 56 years, S/o. V. Kesavan,
Sr. Technician, O/o. Sr. Section Engineer/EL/AC/ Trivandrum
Central, Trivandrum Division, Southern Railway, residing at
Kochupurayil House, Theodical, Thiruvalla, Pathanamthitta District-
699107.
2. T. Muniraj, aged 55 years, S/o. Thyagaraju,, Sr. Technician/AC,
Trivandrum Central, Trivandrum Division, Southern Railway,
Residing at 2.G/342-A, Rajiv Nagar, 7th Street North, Tuticorin.
3. A. Suresh, aged 52 years, S/o P. Damodaran Nair,
Senior Technician AC/TVC,
Trivandrum Division, Southern Railway,
Residing at Nandana House, Villunniyal,
Thenjipalam P.O, Malappuram.
4. Ashok Kumar, aged 58 years, S/o. Chandrasekharan Nair,
Technician Gr.I/AC/TVC, Trivandrum Division,
Southern Railway, Residing Pengattu Parambil House,
TC/1002 NNRA-145, Kawdiar P.O, Trivadnrum.
5. Johnson I, aged 49 years, S/o. Idichandy .Y,
Technician/I/AC/TVC, Trivandrum Division,
Southern Railway, Residing Plachivila Jisha Villa,
East Kundara, Kollam.
6. Devakumar Varma R, aged 48 years, S/o. K. Ravivarma,
Technician/I/AC/TVC, Trivandrum Division, Southern Railway,
Residing at Sudarasanam, Panachipara,
Poonjar P.O, Kottayam
7. Manoharan V, aged 56 years, S/o. late Velappan,
Technician/II/AC/TVC, Trivandrum Division, Southern Railway,
Residing TC 28/1207, Vettukada Junction,
Thaikkad P.O, Trivandrum.
8. Ramalingam, aged 56 years, S/o. Marimuthu,
Technician/II/AC/TVC, Trivandrum Division, Southern Railway
Residing at 2/243 A, Church Road, Dr. Ambedkar Nagar,
Manapakam P.O, Chennai - 125.
9. M. Surendran, aged 53 years, S/o. K. Madhavan,
Technician/II/AC/TVC, Trivandrum Division, Southern Railway,
Residing at Nimishalayam, Altharamoodu,
Chirayinkeezhu P.O, Thiruvananthapuram.
10. C.S. Mohanan Nair, aged 57 years, S/o. Sivaraman Nair,
AC Coach Attendant, Trivandrum Division, Southern Railway,
Residing at Chakkalayil House, Thamallakkal North,
Thamallakkal P.O, Haripad, Alappuzha District.
11. M.G. Umamaheshwaran, aged 57 years, S/o. M.D. Ganapathy Devar,
AC Coach Attendant, Trivandrum Division, Southern Railway,
Residing at No.20/Majeed back street, S.Kodiyoor P.O,
Jolarpettah, Tamil Nadu.
12. K.K. Muraleedharan, aged 48 years, S/o. Narayanan Nair,
AC Coach Attendant, Trivandrum Division, Southern Railway
Residing at Kakkat Adakka Parambil. Ullanam North,
Parappanangadi, Malappuram District.
13. P. Hari Haran, aged 47 years, S/o. Ramakrishnan,
AC Coach Attendant, Trivandrum Division, Southern Railway,
Residing at Mahamayee Bhavan, Parappuram P.O,
Kanjur, Ernakulam District .
14. I. Ramesh, aged 55 years, S/o. Sankara Narayana Iyer,
AC Coach Attendant, Trivandrum Division, Southern Railway,
Residing at Sree Vignesh, TC 72/721, ALRANo.10,
Aruvikkara Lane, Manakkad P.O, Trivandrum.
15. T.O, Antony, aged 53 years, S/o. Ouseph,
AC Coach Attendant, Trivandrum Division, Southern Railway,
Residing at Thekkekkara House, Ammadam P.O,
Thrissur. ... Applicants
(By Advocate : M/s. Varkey & Martin)
Versus
1. Union of India represented by The General Manager,
South Railway, Park Town, Chennai - 600 003.
2. The Divisional Personnel Officer, South Railway,
Trivandrum Division, Trivandrum-14. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
3. Original Application No. 180/00988/2015 -
1. T. Gopakumaran Nair, aged 56 years, S/o. Thanupilla,
Sr. Technician/AC, Trivandrum Central, Trivandrum Division,
Southern Railway, residing at TC/21/288(3),
Nadavanam JNRA-D-48, Karamana P.O, Trivandrum.
2. K. Sugathan Achary, aged 52 years, S/o. Kunjuraman Achary,
Sr. Technician/I/AC, KCVL, Trivandrum Division, Southern
Railway,
Residing at Adavikuzhiyil Kallely P.O, Konny, Pathanamthitta.
3. A. Binulal, aged 39 years, S/o Appukuttan Pillai,
Senior Technician/I/AC/TVC, Trivandrum Division, Southern
Railway, Residing at Gouri Krishna, Thekkumkara,
Pullichira P.O, Kollam
4. V. Sasikumar, aged 54 years, S/o. Velayudhan,
Technician Gr.II/AC/TVC, Trivandrum Division, Southern Railway,
Residing Saranyalayam, Karumom P.O, Trivandrum.
5. A.C. Sudhakaran, aged 56 years, S/o. Kochucherukkan,
TechnicianGr. III/AC/TVC, Trivandrum Division,
Southern Railway, Residing Krishna Geetham, Karikuttikara P.O,
Vamanapuram Via, Trivandrum.
6. P.R. Pushparaj, aged 55 years, S/o. Ramakrishnan, Technician
Gr.III/AC/KCVL, Trivandrum Division, Southern Railway,
Residing at Pulikkal House, Arimbur P.O, Thrissur.
7. K. Sanalkumar, aged 57 years, S/o. Krishnapillai,
ACCA/TVC, Trivandrum Division, Southern Railway,
Residing Thanivila, Vedivechankoil, Thiruvananthapuram.
8. A. Ambujakshan, aged 47 years, S/o. Anandan,
ACCA/TVC, Trivandrum Division, Southern Railway
Residing at Deepa Bhavan, TC 43/1370, Muttathara,
Vallakadavu,Trivandrum.
9. J. Mohammed Ajim Mohaideen, aged 42 years, S/o. Jamal
Mohaideen, ACCA/KCVL, Trivandrum Division, Southern Railway,
Residing at TC 39/1129(1) RRWA-65, Attakulangara,
Chalai P.O, Trivandrum.
10. A. Mohan, aged 55 years, S/o. Arumugam,
ACCA/KCVL, Trivandrum Division, Southern Railway,
Residing at Mettuchakkarkuppam, Reddiyar post,
Jolar Pettai, Vellore district, Tamil Nadu.
11. Madhu P. aged 45 years, S/o. Prakasan,
ACCA/KCVL, Trivandrum Division, Southern Railway,
Residing at M.S. Bhavan, Sree Badra Line,
Chempazhanthi P.O, Trivandrum
12. C. Sivankutty Nair, aged 56 years, S/o. Chellappan Nair,
AC Coach Attendant, Trivandrum Division, Southern Railway
Residing at Kadapuzhakizhakkathil, Chavara South, Kollam District.
13. E. Rajendran, aged 51 years, S/o. Elayan,
ACCA/KCVL, Trivandrum Division, Southern Railway,
Residing at No.4/1253, Kamber Street, Anna Nagar, Chennai
14. M. Soundara Raju, aged 55 years, S/o. Muthu Samy,
AC Coach Attendant, Trivandrum Division, Southern Railway,
Residing at Raghu Colony, Amman Nagar, Pattathanam, Kollam.
15. T.C. Sugumaran, aged 52 years, S/o. Chandran,
AC Coach Attendant/KCVL , Trivandrum Division, Southern
Railway, Residing at Thai parambil House, Edadu P.O,
Moolamattom, Idukki.
16. B. Lalu, aged 54 years, S/o Bhargavan,
AC Coach Attendant/KCVL , Trivandrum Division, Southern
Railway, Residing at TC 32/63/9, Karikkam P.O, Trivandrum.
17. K. Vijaya Kumar, aged 39 years, S/o Krishnan Kutty,
AC Coach Attendant/KCVL , Trivandrum Division, Southern
Railway, Residing at Sruthi Nivas, Pongil Mavinmoodu,
Kallambalam, Trivandrum.
18. A. Robert, aged 39 years, S/o Anthoniraj,
AC Coach Attendant/TVC , Trivandrum Division, Southern Railway,
Residing at 17/147D, Kannanguzhi Junction,
Amaravilla P.O, Trivandrum
19. M. Vijayakumar, aged 49 years, S/o K. Narayanan Nair,
AC Coach Attendant/TVC, Trivandrum Division, Southern Railway,
Residing at Sandhya Nivas, Ponnumangalam, Nemom, Trivandrum.
20. R. Unnikrishnan, aged 44 years, S/o Raghavan,
AC Coach Attendant/TVC , Trivandrum Division, Southern Railway,
Residing at Rajanmandiram, Bharatheepuram P.O,
Pathady, Anchal P.O, Kollam
21. V. Ganesan, aged 53 years, S/o Vaidyanathan,
AC Coach Attendant/TVC, Trivandrum Division, Southern Railway,
Residing at A-1 Pathmavathi Homes, VOC Nagar,
Tirumullai Voil, Chennai.
22. R. Renjith, aged 28 years, S/o Raveendran Pillai,
ACCA/KCVL, Trivandrum Division, Southern Railway,
Residing at Kuttikallum Purath, Valiyapadam,
Vilanthara, Sasthamkotta, Kollam. ... Applicants
(By Advocate : M/s. Varkey & Martin)
Versus
1. Union of India represented by The General Manager,
South Railway, Park Town, Chennai - 600 003.
2. The Divisional Personnel Officer, South Railway,
Trivandrum Division, Trivandrum-14. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
These applications having been heard on 04.04.2017, the Tribunal on
07.04.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicants in these cases were working as Technician /AC Coach Attendants in the Trivandrum Division of Southern Railway. They have approached this Tribunal seeking a direction to the respondents to extend the benefits granted by the co-ordinate Bench of this Tribunal at Madras in OA No. 1158 of 2012 as the applicants in these three cases also are similarly situated.
2. The grievance of the applicants in these OAs is that instead of granting Over Time Allowance (for short OTA) for the extra hours of work performed by them in excess of 96 hours of duty in a fortnight they are given only Compensatory Rest (for short, CR) which according to them is a denial of their statutory right of getting OTA as per Railway Servants (Hours of Work & Period of Rest) Rules, 2005 [for short, HOER Rules]. As the issue involved in these three cases are common, a common order is being passed in these cases.
3. The respondents resisted the OA raising several different objections. According to them the applicants have not submitted the details of the extra hours of work performed by them over the ceiling limit of the duty hours, total hours of overtime done and the total hours eligible for grant of OTA and the total number of CR granted against each of them in lieu of OTA. They have not even furnished their employment numbers to check the available records and in the absence of these details the allegations of the applicants are not ascertainable and hence the OAs are to be dismissed.
4. The second contention of the respondents is that no application for permitting the applicants to join together was filed. Moreover, this Tribunal lacks jurisdiction in view of Rule 17(3) of HOER Rules because if any Railway servant is adversely affected by any such modification made under sub-rule (1) he may prefer an appeal before the expiry of 90 days from the date of effecting such modification to the Ministry of Railways whose decision thereon shall be final. According to the respondents HOER Rules is being implemented taking into account of the local working condition and the administrative necessity and there is no illegality in giving CR in addition to the applicable OTA. Section 132(2) of the Railways Act, 1989 prescribes that the Railway servants whose employment is continuous shall not be employed for more than 54 hours a week on an average in a two weekly period of 14 days. Section 133 of the Act provides for CR when employees in the 'continuous' category are necessitated to work to avoid serious interference with the ordinary working of the Railway in addition to OTA at double the ordinary rate. Therefore, OTA cannot be granted as a matter of routine. It is not the case of the applicant that they had worked on temporarily exempted conditions as mentioned in Section 132(4) of the Railways Act, 1989. The nature of work of the applicants includes maintenance of the AC coaches and to attend minor faults of the running train from the originating station to the intended station and to come back since there is no link like the link available for TTE, Goods Guard, etc. so as to enable them to get down at the station after completion of 8 hours of duty where reliever is available as per the link made. Due to this reason only after completion of their prescribed duty hours of 48 hours in a week and 104 hours in fortnight they were granted compensatory off in addition to OTA for the periods they worked extra. Since the OTA is being paid in double the ordinary rate and nature of work involves not any strenuous hard work applicants are insisting to grant OTA duly forgoing mandatory CR. Some of the applicants are in receipt of OTA for nearly 200 hours in a month and the total amount of OTA involved are more or less equal to double their salary in a month and sometimes it exceeds double the salary also. In the OM dated 19 th March, 1991 issued by the DoP&T it was advised to organise the work in all offices in such a way as to complete it during the normal working hours. However, in exceptional circumstances where compensatory off cannot be given and it is inescapable to employee staff on overtime week, after satisfying that the work is of such an urgent nature that it cannot be postponed in the public interest till the next working day, the competent authority shall as far as possible, specify before hand the time up to which a Government servant may be required to perform overtime work and the maximum OTA admissible to an employee in a month shall not exceed the amount corresponding to OTA payable for 1/3 rd of monthly working hours.
5. It is further contended by the respondents that as the applicants are classified as 'continuous' category of workers as per the HOER Rules the Railway servants who are declared as 'continuous' have to work for 48+6 hours per week. The time required to do preparatory or complementary work or both for the continuous category stay is 6 hours per week and the same must necessarily be carried out outside the standard hours of 48 hours. As such the staff in the continuous category must render duty of 54 hours per week and 108 hours in two weeks time for being eligible for OTA.
6. According to the respondents provisions under Sections 132 and 133 of the Railway Act, 1989 are only to avoid misuse of the provisions of granting unlimited OTA and to arrest the money outflow and to avoid exploitation of labours. Referring to Section 64(4)(ii) of the Factories Act, 1948, the respondents contend that the total number of hours of work in a week including over time shall not exceed 60 . Section 64(iv) of that Act prescribes that total number of work in a week, including over time shall not exceed 60 and Section 64(4)(iv) prescribes that the total number of hours of overtime shall not exceed 54 hours in any one quarter. According to respondents applicants are being paid eligible OTA in addition to CR as indicated in the table annexed to the reply statement. It is also contended by the respondents that the revised muster rolls was not challenged by the applicants and without challenging the muster rolls the relief sought by them cannot be granted. Respondents contend that besides granting CR for the periods of rest foregone during the fortnight they are granted OTA as per HOER Rules, 2005 also. Respondents pray for rejecting the OAs.
7. Heard Mr. Martin G. Thottan, learned counsel appearing for the applicants and Mrs. R. Girija and Mr. Sunil Jacob Jose, learned Standing Counsel appearing for the respondents in these cases. Perused the record. Since the relief sought by the individual applicants in these three OAs are common in nature this Tribunal allows them to join together for prosecuting their case.
8. At the outset of his arguments Shri Martin G. Thottan submitted that the issue regarding non-payment of OTA and placing the employees working as Technicians/Railway Coach Attendants and the revised roster issued by the respondents herein was the subject matter of challenge in OA No. 1158 of 2012 before the co-ordinate bench of this Tribunal at Madras. Shri Martin G. Thottan submitted that in that case the applicants therein were similarly situated AC Coach Attendants, Technicians/AC Technicians working in the Nagarcoil Junction of Southern Railway coming under the very same Trivandrum Division arraigned in these three OAs. He pointed out that their grievances were akin to those of the applicants in these OAs. When they approached the Madras Bench of this Tribunal having territorial jurisdiction over the Nagercoil Junction, the respondents had stated before that Bench that the modified roster was not implemented. The relevant part of the Annexure A/1 order dated 12.4.2013 of the Madras bench is extracted below:
'8. The short question that arises for consideration is whether the applicants are entitled for the relief viz., payment of OTA for extra duty hours exceeding 96 hours for two weeks instead of giving CR for extra hours of duty as claimed in this OA.
9. There is no dispute that the applicants are coming under the staff category classified as 'Continuous' and they are entitled for Over Time Allowance as per Rule 10 of Railway Servants (Hours of Work and Period of Rest) Rules, 2005 and they have been granted OTA so far. It is only due to the issue of modified roster which came into effect from 25.12.2011 and subsequently came into effect from 1.1.2012, there appears to be some change in payment of OTA and the applicants are granted extra hours of compensatory rest instead of OTA. In this regard it is relevant to peruse Rule 10 of Railway Servants (Hours of Work and Period of Rest) Rules, 2005, which reads as follows:
Rule 10. Principle of averaging and payment of overtime allowance.
(1) Where a Railway servant is required to render extra hours of duty beyond the rostered 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 rule (2).
(2) Averaging shall be done by averaging of the hours of work over the averaging periods as specified in Section 132 which has been adopted to provide a reasonable measure of elasticity as essential in railway working for certain classes of Railway servants and it shall apply to-
(i) running staff
(ii) operation staff,
(iii) Shift workers; and
(iv) those other Railway servants whose work is connected with the work of any of the categories of railway servants mentioned in clauses (i), (ii) and (iii).......
(4) The hourly rate of overtime shall be worked out on the basis of rostered hours over the relevant averaging period...........' Thus it is clear that the applicants are entitled for OTA beyond the rostered hours fixed in accordance with Rule 8(3)(b). The standard hour of duty for the category of 'Continuous' in which the applicants are working is 48 hours per week and 96 hours bi weekly. This is a common and uniform rule adopted by the railways in various divisions of the Railways and there can not be a separate modified roster by the southern Railway alone. The submission made by the respondents in the reply that the applicants have to render duty for 54 hours per week and 108 hours in two weeks time for being eligible for Over Time Allowance is not correct as the rostered hours fixed in accordance with rule 8 of HOER Rules, 2005 stipulates 48 hours in a week and 96 hours in a fortnight and where a railway servant is required to render extra hours of duty beyond this period is entitled for OTA subject to the principle of averaging as specified in sub rule (2) supra.
10. That apart, a careful perusal of communication dated 23.12.2011 at Annexure A-6 page No. 28 of the OA reveals that for the better utilization of man power economically, the existing roster for AC accompanying staff has been Modified. This communication is issued from the Divisional Office, Electrical Branch, Thiruvananthapuram Division where the applicants are working. A further perusal of the impugned order dated 4.6.2012 (Annexure A1 at page 9 of the OA reveals that in the case of AC staff, no change of classification took place and only the link has been revised with the existing classification. Further, third paragraph of the communication dated 4.6.2012 reveals that there is no violation of the provisions notified in the case of AC staff at NC. The respondents have not mentioned about the modified roster anywhere in the impugned order and only in the last paragraph of the communication, the respondents have denied compliance of modified roster (emphasis added). Also the respondents can not modify the roster for Thiruvananthapuram division alone without following the principles of HOER Rules, 2005.
11. Under the circumstances, I am of the opinion that there is no necessity to interfere with the impugned order dated 4.6.2012 as the respondents themselves agreed that they have not complied with the modified roster. Further the respondents have to adopt uniform method to grant OTA for the employees of all divisions without restricting it to a particular division which is violative of the guidelines in HOER Rules, 2005. Accordingly, I hold that the applicants are entitled for over time allowance for excess hours of duty performed in excess of 96 hours + 8 P&C hours in a fortnight in terms of Rule 10 of Hour of Work and Period of Rest) Rules, 2005 and the respondents are further directed to pay OTA to the applicants for extra duty hours exceeding 96 hours for two weeks instead of giving CR for extra hours of duty. OA is allowed. NO order as to cost.'
9. As the facts in these three OAs are akin to the case in Annexure A/1 order, this Tribunal is bound to follow Annexure A1 order as the same has attained finality. It was submitted by learned counsel for the applicants that Annexure A1 order was unsuccessfully challenged in the Madras High Court and the SLP filed against the judgment of the Madras High Court was also dismissed. This aspect is evidenced in Annexure A4/2 communication (running page No. 25 in OA No. 180/885/2015) obtained by one of the applicants herein by invoking the provisions of Right to Information Act, 2005. The Railway had filed WP(C) No. 22338/2013 before the High Court of Madras and the judgment dismissing the Writ Petition was passed by the High Court of Madras on 27.1.2014. It further reveals that SLP No. 10433/2014 filed by the Railway in the Supreme Court also was dismissed on 18.7.2014. By Annexure A4 communication it is seen that the respondents have implemented Annexure A1 order of the Madras Bench of this Tribunal.
10. In the above circumstances the subject matter of the lis in these cases having been decided by Annexure A1 and as Annexure A1 has attained finality, it goes without saying that the aforesaid decision is only to be followed by the respondents in respect of the applicants in these cases also. Therefore, the different legal contentions raised by the respondents in these three cases have become totally inconsequential and redundant the moment when Annexure A1 order has attained finality.
11. Nevertheless, in view of the contentions of the respondents pointing out the grant of OTA to some of the applicants mentioned in the tabulated form in the reply statements filed by the respondents, it has to be examined whether the OTA already received by the applicants has to be set off from the OTA due to them in terms of the decision in Annexure A1 order.
12. Although the applicants contend that they have made representations to the respondents to implement Annexure A1 order no positive action was taken by the respondents. According to the respondents Annexure A1 judgment is in personam to the original applicants therein and therefore it is not applicable to the applicants in these OAs. As observed above, steps have been taken by the very same division of the Southern Railway to implement Annexure A1 judgment to the applicants therein. The stand off towards the applicants in these three OAs who are similarly situated is untenable.
13. In the result, the OAs are allowed in terms of Annexure A1 order, subject to a verification by the respondents regarding the quantum of OTA already obtained by the applicants in respect of the period mentioned in these OAs and deducting those amounts from the quantum of OTA payable to them. For this purpose the applicants (some of them have already retired) are directed to submit the due - drawn statement in respect of the period during which they have worked overtime, to the Divisional Personnel Officer, Trivandrum Division of the Southern Railway. Such statements shall contain the name, post held by the applicants and period during which the over time is claimed, the OTA if any already received and also the trains in which they were engaged for work. Such statements filed shall reach the office of the Divisional Personnel Officer within three months from the date of receipt of a copy this order. The Divisional Personnel Officer shall then examine the claims with reference to the records available with the respondents and shall make arrangements to pay the OTA less already paid. The aforesaid official shall furnish the details of the OTA so calculated with reference to the statements made by the applicants, to each of them. This exercise, including payment of OTA in terms of Annexure A/1 order, shall be completed by the Divisional Personnel Officer within two months from the last date prescribed for receiving the statements as directed above.
14. The OA are allowed as above. No order as to costs.
15. Registry is directed to incorporate a copy each of this order in the files of the OAs captioned above.
(U. SARATHCHANDRAN) JUDICIAL MEMBER ''SA''