Central Administrative Tribunal - Kolkata
Amar Nath Ghosh vs Eastern Railway on 21 June, 2023
wai Meee M2022: Ky 2 OA! 474.22 and ors 6. Additional Chief Health Director, Department of Pathology, B. R. Singh Hospital, Eastern Railway, Sealdah - 700014. qf. Divisional Medical Officer, Blood Bank, B. R. Singh Hospital, Eastern Railway, Sealdah 700014. beens eeeeenee teens Respondents For The Applicant(s): Mr. C. Sinha, counsel For The Respondent(s): Mr. S. Chakraborty, counsel ORDER(ORAL) Per: Manish Garg, Member (J):
Heard Ld. Counsel for both sides.
tay,
2. This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal.
As common question of facts and law govern these matters, these cases are being heard out analogously, upon due notice and with consent of all the sides, to be disposed of by this common order.
For the sake of brevity, facts of OA. No. 350/474/2022 is being delineated and discussed hereunder.
3. The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) To set aside and quash impugned Speaking Order dated 24.02.2022 issued by respondent No. 5 as communicated vide letter No. E-21/MED/TA&OT/SM/II dated 24.02.2022.
b) Ta direct the respondents to make payment and/or disburse the overtime allowance against the overtime allowance bills (Annexure -A1) as submitted by the applicant and forwarded vide letters under Annexure 'A2' forthwith to the applicant.
c) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
. 3 OA/ 474.22 and ors ~~
4. Ld. Counsel for the applicant draws to annexure 1 colly wherein he has drawn reference to various actions. He contends that the applicants are entitled for OTA. He would draw attention to page 3 of the O.A where the period of overtime allowance due, as it appears from the O.T bill submitted is summarized as below:
i) 20.11.2017 to 03.12.2017
ii) 01.01.2018 to 14.01.2018 iit) 12.02.2018 to 25.02.2018
iv) 26.03.2018 to 08.04.2018
v) 07.05.2018 to 20.05.2018
vi) 04.06.2018 to 17.06.2018
vii) 13.08.2018 to 26.08.2018
viii) 24.09.2018 to 07.10.2018
ix) 05.11.2018 to 18.11.2018
x) 17.12.2018 to 30.12.2018
xi) 28.01.2019 to 10.02.2019
xii) 11.03.2019 to 24.03.2019 4.1. The applicant made a representation on 15.1.2020 further reminder on 2.3.2020 which was forwarded by the competent authority vide letter dated 03.03.2020. He submits that this is the second round of litigation. The earlier OA 1430/2021 was disposed of vide order dated 24.11.2021. That pursuant to Order dated 24.11.2021 a Speaking Order dated 24.02.2022 was issued by the respondent No. 5 as communication vide letter dated 24.02.2022. The said Speaking order reads as under:
"It is observed that the applicant is working in a supervisory position by holding a supervisory post as Chief Lab Superintendent. As per extant rule and procedure as well as Para 1504 of IREC Vol. I, supervisors are not entitled for any OT as they are excluded cadre staff.
The applicant is thus not entitled to get OT allowance being supervisor."
That your applicant states that the Speaking Order dated 24.02.2022 is cryptic and non-reasoned and there is no application of mind in issuing the same.
< he 4 OAS 474.22 and ors The only reason that has been assigned for not granting the overtime allowance to the applicant for which they have rendered their duties as allotted to them apart from the scheduled duty, is that the applicant is working as Chief Lab Superintendent under a supervisory capacity. That, in this context, reference has been drawn to Para 1504 of IREC. It is stated that the duties and responsibilities of the entire hierarchy of Laboratory Staff in the Indian Railway from Laboratory Assistant to Chief Laboratory Superintendent has been elaborated at Para 5.1 of the Advance Correction slip to Para 203 of IRMM 2000 as circulated vide letter dated 15.10.2015 and would draw reference to Advance Correction Slip which reads as under:
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a) "3.7 LABORATORY SUPERINTENDENT / CHEMIST / ASSISTANT CHEMIST / ~ LABORATORY ASSISTANT OR LABORATORY TECHNICIAN: WILL
i) be responsible for the proper maintenance of laboratory equipment and instruments.
fi) be responsible for Collection of blood and other samples for hematological, biochemical and ather laboratory tests and conduct various tests as required. ifi) carry out chemical analysis of food stuffs and their ingredients, and give report under quality control other than FSSAI
iv) conduct bacteriological examination of food products including drinking water, aerated water, milk products, etc., and give opinion about their quality being satisfactory or unsatisfactory as per prescribed standard under quality control other than FSSAIT
v) Annual Maintenance Contract/Comprehensive Maintenance Contract of all Lab equipment and their upkeep.
vi) conduct various haematological, biochemical, microbiological and immunological tests etc. on all kinds of samples i.e. on blood, body fluids as per latest techniques and standards vii) fook after the clerical duties pertaining to the laboratory and maintain records up to date.
vill} prepare and submit indents pertaining to the laboratory.
(ix) responsible for maintenance of discipline amongst the staff under him/her."
A bare perusal of the same does not categorized the applicant as supervisory staff as the duties and responsibilities from the bottom level of the hierarchy till the apex of the said hierarchy is one and the same and as such applicant in no stretch of imagination can be categorized as supervisory staff falling within the domain of Para 1504 of IREC Vol. II.
AL @ nbt try, 5 OA/ 474.22 and ors 5, Ld. Counsel for the respondents opposing the plea for grant of OTA would produce a communication dated 20.06.2023, which reads as under:
"EASTERN RAILWAY SEALDAH No; E-21/MED/TA&OT/SM Date:- 20/06/2023 Sri Suman Chakraborty Railway Advocate CAT/KOL Sub: OA No.474/2022,475/2022 & 480/2022.
Ref: 1) HOER 2005
2) Railway Board letter no 2017/E(LL)/Misc (OTA)/2 dt. 14.02.2019
3) Railway Board letter no.2015-B-235 dt. 16/10/2017.
4) Railway Board's letter No.2014/H- 1/10/18/Para Medical Staff dated 15.10.2015- S.No.-03 Health 2075.
Sir, As Hours of Employment and Period of Rest,2005 mentioned under ref-1, Part Il point no 5/1) "The Railway servant holds a position of responsibility, is employed on duties mainly of a supervisory character and is, from nature of his work and position, comparatively free to adjust his hours of duty or work during such hours". The applicant is holding a supervisory post as Chief Lab Superintendent and as per extant rules, he is not entitled for any OT allowance.. The applicant is an official of excluded panel! staff as per Railway rule.
Moreover, Reference 4) above, pt.No,. 5.0 Laboratory Staff -5.1 for Laboratory Superintendent duties are assigned from pt. i) to ix) clearly states the responsibility for ihe proper maintenance of laboratory equipment, collection of blood, AMC, various examinations, supervision of clerical duties, preparation and submitting indents and above all, they are responsible for maintenance of discipline amongst the staff under him/her. So, Railway Board's guideline clearly enunciates the job of responsibility of Chief Laboratory Superintendents, so they are the supervisors.
Ref 2 above, as per Railway Board's letter no. 2017/E(LL)/Misc (OTA)/2 dt. 14.02.2019 mentioned under ref -2 "In view of the above, the Railway's proposal to grant Overtine Allowance to Supervisory Staff working in shift duties and performing extra hours than prescribed in "Continuous" Roster is not tenable.
As per Railway Board letter no 2015-B-235 dt. 16/10/2017 mentioned under ref-3 "OTA ta be strictly controlied". As the applicant comes under the purview of supervisor category, so he is not eligible to OT allowances.
DA:- as mentioned above.
for Sr. Divisional Personnel Officer, Eastern Railway, Sealdah"
5.1. Ld. counsel for the respondents relies upon rule 1504 sub rule (1), which reads as under:
o BINO 6 OA/ 474.22 and ors "(1) A railway administration is also under an obligation to pay overtime allowance to staff (other than those who hold positions of supervision or management or are engaged in a confidential capacity) who are employed in such workshops or printing presses as have been declared to be factories under the Factories Act, 1948, when they are required to work in excess of the number of hours prescribed in that Act."
6. Having heard the Id. Counsel and perused the materials on record ANALYSIS
7. 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.
(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.
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a oy NmaTh gonltrany '~ ? OA/ 474.22 and ors (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 unti] 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 Delhi.
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 Hospitals
(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'. 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
(ii) continuous application to such work with little or no periods of relaxation Explanation |:- 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 shal! 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.
CAIN?
8 OA/ 474.22 and ors Expianation Il:- Factor (ii) should be considered to have been satisfied where the periods of rest, inaction or relaxation do not aggregate 6 hours or more in a cycle of 24 hours or one hour or more in a 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 5 minutes shall be ignored."
7.1. 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. However 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 AY 9 OA! 474.22 and ors 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 .
7.2. 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 also noticeable that for the said period the work has already been undertaken.
7.3. 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.
7.4. Be that as it may be, the discretion rest in the competent authority for categorisation and the present application for the supervisory category is altogether different which has not been done in the present case. Drawing the stand Rule 1504 has no force in the present case.
AN?
10 OA/ 474.22 and ors
8. 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 it appropriate to set out the relevant Rulcs.
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 Intermittent:
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 onc hour, or two such periods of not less than half an hour each 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 cither physical activities or sustained attention. Note: In assessing the work-load of the 'essentially intermittent' classification in accordance with sub-scction (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 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.
(iii)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."
yt | KI ° 11 OA/ 474.22 and ors
5. 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 at 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. 'heir 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 duly 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 ihey were assigned !2 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 relied upon ecarlicr 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 21.01.2011, 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 CAT/NDLS January, 2011. The duty roster of Sh, Om Parkash is stated to be cight hours whereas your duty roster is twelve hours and therefore, over time is not payable to you this is for your information."
8. In consequence 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 grievance redressal as provided in the Act itself but since in Admimisirative Tribunals 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 earlier order of this Court in O.A, 1097/2009 dated 21.01.2011 (sic O.A. 107/2009). I1 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 matters of similar nature and it was found that Tribunal has reached on the correct conclusion and directed the respondents therein, who are the applicants earlier were entitled to overtime wages. Therefore, the same is the case also here. Judicial propricty demands that 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 seen that the Tribunal entirely relicd upon the earlier order in O.A. No. 107/2009 in the case of Om Prakash and Anr. (supra).
10. The Tribunal takes note of the fact that the said order (which was passed in case of Om Prakash & Karan Singh Vs. Union of India had been 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' employment has been raised. The petitioner had 8.1 12 OA/ 474.22 and ors defended the classification of the applicants Om Prakash & Karan Singh who were also working as Gatemen, as being employed 'essentially intermittent' employment. 'The Tribunal, however, found in favour of the applicanis and in the operative part, held as follows:
"Therefore, the O.A. ts 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 overlime allowance, as stipulated under the rules. It is pointed out that Rule 10 of the Rules ibid prescribes the method of calculating the overtime allowance. Lt shall be taken note of by the respondents as a methodology. I 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 !4 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 that a person can take rest al stretches not less than 30 minutes."
14. 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' employment in roadside stations can be assigned additional duty of 24 hours per week if the condition stipulated in Rule 8(4)(a)(ii) are satisfied. In all other cases-not covered by Rule 8(4)(a)(it) or Git), 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.
15. 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-rule (2).
16. From the aforesaid, it is evident that if 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 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 fail to appreciate as to how the petitioner can contend ihat the respondents would not be entitled to overtime 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 carlier decision of the Tribunal which has been affirmed by this Court."
Here itself, the admitted position is that, the AC attendants are normally categorized as running maintenance staff.
ern 13 OA! 474.22 and ors 8.2. It 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 | 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.
SRR KOR HOR ke 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 denied 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 Board'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 O4th 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 <7 an 14 OA! 474.22 and ors 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) Kolkata, Dated : 04.05.2017 "4\ Director Estt.(LL} Ministry of Railways (Railway Board) Govt. of india New Delhi.
Sub; Grant of Overtime Allowance to Supervisors.
oe ka oe 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 & wark during such hours and are thus not entitled to overtime allowance.
b).As per Board's letter no. E(LL}70/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 of teading 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, oo o\hl 4) 15 OA/ 474.22 and ors 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.)"
CONLUSION_
9. In view of the above, the OA is to be allowed to the extent that respondents authorities are directed to grant OTA as stated in the relevant period hereinabove. Appropriate order for grant of OTA for the said period shall be passed within 45 days from the date of receipt of certified copy of this order and the OTA shall be granted in accordance with the rule position. Needless to mention that respondents are always at liberty to categorise the present applicant in whatever they feel so if so desires. . The impugned order is liable to be set aside.
9.1. The above 0.As are disposed of. No costs.
9.2. It is made clear that in the present case decision has been rendered in peculiar facts and circumstances of the case, may not be construed to be a precedent unless except for just exception.
(Manish Garg) Member (J) ss