Central Administrative Tribunal - Chandigarh
Ram Gopal vs M/O Railways on 25 January, 2024
1- O.A. No. 555/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/00555/2018
Pronounced on: 25.01.2024
Reserved on:16.01.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
1. Ram Gopal aged 52 years son of Shri Mohan Lal resident of House
No. R/47, RTP, Ropar.
2. Harvir aged 48 years son of Late Shri Jagar Singh, resident of House
No. R/5, RTP, Ropar.
3. Om Parkash Kesri, aged 27 years, son of Shri Jai Parkash Kesri,
resident of House No. R/12, RTP, Ropar.
4. Jagdish Kumar aged 52 years son of Shri Rattan Lal, resident of
House No. R/11, RTP Ropar.
5. Rajpal aged 59 years son of Shri Rula Singh, resident of Ghanoli,
Ropar.
6. Raj Kumar aged 52 years son of Shri Ram Kishan, resident of
R/H.No. 03, RTP, Ropar.
7. Eklakh aged 23 years son of Abdul Hakim, resident of House No. R/8,
RTP Ropar.
8. Baxinder aged 26 years son of Shri Sher Singh, resident of House No.
R/15, RTP, Ropar.
9. Jasvir Singh aged 55 years, son of Shri Narata Singh, resident of
Ahmadpur, Ropar.
All Applicants are Group D employees
.... Applicants
(By Advocate: Mr. Rakesh Verma for Sh. Sushil Saini)
Versus
1. The Divisional Railway Manager, Northern Railway, Ambala
Cantt.
2. The Senior Divisional Operating Manager, Northern Railway,
Ambala Cantt.
... .Respondents
2- O.A. No. 555/2018
(By Advocate: Mr. Ashwani Kumar Sharma, Sr. Panel Counsel)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
(i) To quash the impugned order dated 05.02.2018 (Annexure A-
5) passed by the respondent no. 3 vide which the claim of the applicants has been illegally rejected.
(ii) To grant of overtime allowance for the duty hour excess of the Roster Hours to the applicants for the duty rendered by the applicants w.e.f. 17.01.2016 up todate along with the arrears of pay with interest @ 12% since its accrual till the actual payment.
2. The facts of the case, in brief, are that the applicants are regular employees having worked for 04 to 20 years, as Pointsman. The Sr. Divisional Operating Manager (G) Northern Railway, Ambala issued the duty roster specifying the operation duties of the staff mentioned therein vide order dated 29.05.2015 which was effective from 06.06.2015 (Annexure A-1). The duty roster of the applicants was also changed and they were ordered to do the job in two shifts daily each of 12 hours on the basis of Railway Board Letter No.E(LL)/73, HER/33/Pt.AII dated 28.06.1974 (Annexure A-2). The contention of the applicant is that though the said letter dated 28.06.1974 pertains to the category of Station Master, yet the applicants, who belong to the category of Pointsman, were ordered to do the job in two shifts daily each of 12 hours.
3. The grievance of the applicants is that though they are rendering their duties in excess of the duty hours as per rules, they were not being 3- O.A. No. 555/2018 paid overtime allowance to which they are eligible under Section 132 of the Indian Railway Act read with the provisions of the Railway Servants (Hours of Work and Period of Rest) Rules 2005 (hereinafter referred to as HOER 2005) (Annexure A-3). The applicants filed representation seeking regulation of their duties as per Rules and grant of the overtime allowance. Non-consideration of the representation compelled the applicants to approach this Tribunal by filing O.A. No. 060/1422/2017 which was disposed vide order dated 05.12.2017(Annexure A-4) with the direction to the respondents to decide the claim of the applicants. Pursuant to the directions of this Tribunal, the respondents passed the order dated 05.02.2018 rejecting the claim of the applicants. The applicants contends that the order dated 05.02.2018 passed by the respondents is a dubious order which makes no head and tail. It has been submitted that 08 hours a day and 48 hours a weeks have been prescribed for a blue collared workers by the World health Organization to which India is a signatory and it is necessary corrolary of the fact that any work taken from the applicant as worker beyond 8 hours are entitled to be compensated in the form of overtime and denial thereof is contrary to the Railway Rules as well as International convention. Reliance has been placed upon a judgment of the Hon'ble High Court of Delhi in the case of Union of India and Ors. Vs. Om Prakash and Another (W.P. (C) No. 7164/2011 decided on 18.02.2013).
4. The respondents have filed written statement contesting the claim of the applicants. They have raised the preliminary objection that this Tribunal has no jurisdiction over the issue in hand. It has been stated that the dispute in this case is in relation to change in classification which can be raised by filing an appeal before the Regional Labour Commissioner, as per HOER, 2005 and therefore, the jurisdiction 4- O.A. No. 555/2018 of this Tribunal is excluded. Reliance, in the context, has been placed upon judgment of the Hon'ble Supreme Court in the case of Krishna Prasad Gupta Vs. Controller, Printing and Stationery, JT 1995 (7) SC 522 and P.C. Chandra and Ors Vs. Union of India and Ors, ATJ 2002(3) 74, a Full Bench decision of the Hyderabad Bench of the Tribunal in the case of A. Padmavally and Others Vs. CPWD, 1999 (1) ATJ 187 and a decision of the Allahabad Bench of the Tribunal in the case of Deo Das Gupta and Ors Vs. Union of India and Ors, 1999 (2) SLJ (CAT) 49.
5. On merits, the respondents stated that the category of Points Men was classified as Essentially Intermittent in view of the factual job analysis conducted from 16.01.2018 to 19.01.2018 and as per Rule 8, the Essentially Intermittent class has to discharge duties as per the factual job analysis for 72 consecutive hours. It has further been stated that pursuant to the directions of this Tribunal, the competent authority has passed a reasoned and speaking order which calls for no interference by this Tribunal in view of the fact that the category of the applicants was declared/classified as Essentially Intermittent in view of the job analysis conducted from 16.01.2018 to 19.01.2018 and in view of HOER 2005. According to Regulation 8(3) read with Regulation 4 of HOER 2005, the Railway Servants classified as Essentially Intermittent Class on employment shall be called upon to work for 24 additional hours per week, as per Rule 8(2)(ii). There is no challenge to the classification of Essentially Intermittent category. Nor the Rule is under challenge. It has been stated that the applicants are not entitled to any additional benefit over and above the emoluments drawn by them and have to perform the duty as per the Roster and for the hours as prescribed under HOER 2005.
5- O.A. No. 555/2018
6. The applicants have filed written arguments denying the applicability of judgments relied upon by the respondents over the point of jurisdiction. The applicants have relied upon the judgment of the Hon'ble High Court of Calcutta in the case of Pashupati Sardar & Others Vs. Union of India and Others (WPCT No. 345 of 2012 decided on 11.04.2013), a judgment of the Hon'ble High Court of Delhi in the case of Union of India and Ors Vs. Om Prakash & Anr. (WP(C) 7164/2011 decided on 18.02.2013) and a decision of this Tribunal in the case of Vishakha Singh Vs. Union of India and Others (OA No. 539/PB/2012 decided on 22.05.2013).
7. I have gone through the pleadings and considered the rival contentions of learned counsel for both sides.
8. The claim of the applicants, who are regular employees of Railways, is for grant of overtime allowance for the additional hours of duty being rendered by them. The preliminary objection raised by the respondents is with regard to the jurisdiction of this Tribunal over the issue in hand. The contention of the respondents is that since the issue herein is with regard to the classification of the applicants according to which the payment of overtime is regulated under the provisions of the HOER 2005 under the Indian Railway Act 1890, therefore, the appeal against the classification lies before the Authority prescribed under Rule 4 of HOER 2005. In respect of contention of lack of jurisdiction, the respondents have placed reliance on few judgments. I have carefully gone through these judgments. In the case of Krishan Kumar Gupta (supra), the issue before the Hon'ble Apex Court was as to whether the appeal pending in the Court of District Judge under Section 17 of the Payment of Wages Act, were liable to be transferred to the Administrative Tribunals under Section 29 for disposal on merits or the 6- O.A. No. 555/2018 jurisdiction of the authority under Section 15 and that of the District Judge under Section 17 of the Payment of Wages Act to hear and decide the claim cases and appeal? The Hon'ble Apex Court has held that the jurisdiction of the Authority constituted u/s 15 of the Payment of Wages Act to entertain and decide claim cases is not affected by the establishment of the Administrative Tribunals Act 1985. The Hon'ble Supreme Court allowed the appeal of the petitioner setting aside the judgment and order dated 04.07.94 passed by the Administrative Tribunal and directed that the appeal papers shall be transmitted forthwith to the District Judge, Chandigarh for disposal on merits.
9. In the case of P.C. Chandra (supra) before the Mumbai Bench of this Tribunal, the issue was as to whether the Tribunal has jurisdiction to entertain the application claiming over time allowance. It was held therein that the Tribunal lacks in jurisdiction and the O.A. was returned to the applicants for being filed before the appropriate forum. It is noticed that the applicants before the Mumbai Bench in that case were the Group 'C' (workmen) non-industrial employees of the High Explosives factory under the Factory Act 1948 who were claiming OTA under the Factory Act, whereas the applicants herein are regular employees of the Railways under the relevant rules and jurisdiction of service matters including pay and allowances etc. of the railway employees lies with the Central Administrative Tribunal.
10. For jurisdiction over the issue of overtime allowance of the railway employees, the judgment of the Hon'ble High Court in the case of Pashupati Sardar and Others (supra) has direct bearing on the case in hand. While setting aside the order of the Tribunal, the Hon'ble High Court allowed the appeal of the petitioners holding that the 7- O.A. No. 555/2018 Tribunal has jurisdiction over the matter. The relevant extract of the judgment is reproduced hereunder:-
"11. We are unable to accept this submission of Mr. Basu for the respondents. The interpretation sought to be placed by him on the provisions of Section 28 is not in tune with the object of the Act. The Administrative Tribunals Act has been enacted to provide a forum for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed in public services and posts in connection with the affairs of the Union of India or of a State or of any local or other authority or under the control of the Government of India or any corporation or society owned or controlled by the Government in pursuance of Article 323 A of the Constitution and for matters connected therewith or incidental thereto. As we have noted earlier payment of overtime allowance is a service matter and, therefore, the Administrative Tribunal does have jurisdiction to decide grievances of employees of the railways which is a body controlled by the Government of India. It is no doubt true that the employees who are workmen and who are working in the railways could file applications either before the Payment of Wages Act or the Labour Court under Section 33C (2) to claim overtime allowance where it is only a question of computation of the allowance. However, in the present case the entitlement of the petitioners to the allowance was in issue and, therefore, the petitioners would have to raise an Industrial Dispute to have their entitlement decided.
12. In the case of Telecom District Manager and others (supra) the Supreme Court had held where an employee files a writ petition not only on the ground of violation of the equality clause enshrined under Article 14 of the Constitution of India but also on the ground of a violation of the provisions of the Industrial Disputes Act, he has an option to choose his own forum. The Court has held that Section 28 of the Administrative Tribunals Act does not bar the jurisdiction of the Central Administrative Tribunal; it in fact saves the jurisdiction of the Industrial Tribunal. The Court has further concluded that an 8- O.A. No. 555/2018 employee, who claims that he is a workman, therefore would have a right of election in the matter of the choice of forum. The judgement of the Supreme Court in the case of Council of Scientific and Industrial Research and Another (supra) relied on by Mr. Basu, does not in any manner indicate that the jurisdiction of the Administrative Tribunal is ousted if a matter can be filed before the Industrial Tribunal or Labour Court. The Court has approved of a judgement of the full bench of the Administrative Tribunal where the Tribunal has held that if an applicant seeks relief under the provisions of the Industrial Disputes Act he must ordinarily exhaust the remedy available under that Act. The Court has also accepted the finding of the full bench that those matters over which the Labour Court or Industrial Tribunal or other authorities had jurisdiction under the Industrial Disputes Act "do not automatically become vested in the Administrative Tribunal for adjudication". The Court then concluded that the Council of Scientific and Industrial Research and Another (supra) was an industry as defined under Section 2
(k) of the Industrial Disputes Act.
13. The Learned Counsel for the petitioner submits that the essence of the judgement in Council of Scientific and Industrial Research (supra) is that the Supreme Court has held that Council of Scientific and Industrial Research is an industry and any observations made by the Supreme Court relating to the jurisdiction of the Administrative Tribunal must be read in conjunction with the finding of the Supreme Court that the Council of Scientific and Industrial Research is an Industry. He relies on the decision of the Supreme Court in the case of State of Orissa and Ors. vs Md. Illiyas reported in AIR 2006 SC 258 wherein the Court has held that every observation in a judgment is not binding ; the binding force attaches only to the ratio decidendi of a judgment. The Learned Counsel has also relied on the judgement of the Supreme Court in the case of N. Bhargavan Pillai (Dead) by Lrs. & Anr. vs. State of Kerala reported in (2004) 13 SCC 217 to submit that when a judgement expresses a view without analysing the statutory 9- O.A. No. 555/2018 provision it cannot be treated as a binding precedent and would have to be considered as having been rendered per incurium.
14. It is true that the judgement of the Supreme Court in the case of Council of Scientific and Industrial Research (supra) was not cited before the Supreme Court when it decided Telecom District Manager and others (supra). However a close scrutiny of the judgment in Council of Scientific and Industrial Research (supra) would indicate that the Supreme Court had merely approved of a judgment of the Central Administrative Tribunal Hyderabad Bench rendered by five members in which it was held that Administrative Tribunals are not substitutes for authorities under the Industrial Disputes Act and, therefore, the Administrative Tribunal does not exercise concurrent jurisdiction with those authorities. This judgement cannot create an impediment in the way of petitioners from approaching the Tribunal. It cannot be gainsaid that the Administrative Tribunals are not substitutes for authorities under the Industrial Disputes Act. However the issue before us is whether when a remedy is available to an employee, both under the Administrative Tribunals Act and the Industrial Disputes Act, the jurisdiction of the Administrative Tribunal would be ousted. As we have noted earlier the Supreme Court in Telecom District Manager and others (supra) has held that it is for an employee to opt for or to elect the remedy available to him. In the present case the petitioners have claimed overtime allowance based on a circular of the Railway Board and the judgements of the Supreme Court as well as the Tribunals regarding payment of overtime allowance. Their entitlement to the overtime allowance is in question. Therefore, although they are industrial workers, their claim cannot be filed under Section 33C (2) of the Industrial Disputes Act. Apart from this it is not an alternative remedy at all as observed by the Tribunal because the entitlement of, in contra-distinction to, the computation of overtime allowance is the subject matter in dispute. A demand would have to be raised and referred for adjudication before the Industrial Tribunal. Such a demand may or may not be referred for 10- O.A. No. 555/2018 adjudication by the Appropriate Government. Thus it cannot be regarded as an alternative remedy.
15. Considering the matter from any angle and in the light of the observation of the Supreme Court in Telecom District Manager and others (supra) we are convinced that the Central Administrative Tribunal has the jurisdiction to entertain matters relating to the entitlement and payment of overtime allowance to railway employees. However this does not mean that the jurisdiction of the authorities under the Industrial Disputes Act or the Payment of Wages and similar legislations have been ousted in the case of workmen employed with an authority under the control of the Government of India or a Corporation or Society owned or controlled by the Government of India."
11. In view of the law settled by the Hon'ble Court in the judgments aforementioned, the matter of jurisdiction over the issue of overtime is decided in favour the applicants. I hold that this Tribunal has jurisdiction to decide the matter of overtime allowance of the applicants herein, who are the regular employees of Railways Department and the claim is covered under the definition of 'Service Matters' as defined under Section 3(q)(i) of the Administrative Tribunals Act, 1985.
12. On merits, the respondents have resisted the claim of the applicants for over time allowance on the ground that the category of Pointsman, to which the applicants belong, has been classified as Essentially Intermittent (in short 'EI) and as per Rule 8(4)(a) of HOER Rules, 2005, such employees are bound to work for 12 additional hours per weeks. For better appreciation of the issue, I perused the HOER Rules 2005 with regard to classification of employment of railway servants, which is reproduced under:-
"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 11- O.A. No. 555/2018 (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 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 II:- 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. Further Rule 8 provides as under:-
8. Fixation of hours of work. The hours of work of a Railway servant as per roster (hereinafter referred to as the rostered hours of work) may be continuous or may have short interval for rest, or breaks due to exigencies of service or deployment.
(1) Subject to the limit specified in section 132 and having regard to the requirement of the service and the nature of work, the Railway Administration shall fix the normal rostered hours of work for the various categories of railway servants in the manner indicated in these rules.
(2) The rostered hours of work of Railway servants shall consist of-
(i) standard hours of duty;12- O.A. No. 555/2018
(ii) additional hours as may be prescribed in the case of certain categories classified as essentially intermittent; and
(iii) time required to do preparatory or complementary work or both for those who are required to do such work. (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 be called upon to work as per rule 8(2)(ii) additional hours as indicated below :
(i) Gatemen 'C' Caretakers of Rest Houses and Reservoirs, etc., Chowkidars and Saloon Attendants
(ii) Railway servants posted to work in Essentially Intermittent employment at road-side stations and provided with residential quarters with 0.5 Kms from their place of duty.
-----------24 additional hours per week
(iii) Rest of the employees posted to work in Essentially Intermittent class of employment per week. ------12 additional hours per week
(b) Such additional hours of work shall be reflected in the duty rosters of the Railway servants concerned."
13. From the perusal of the Rules 7 & 8 of the Railway Servants HOER Rules, 2005 governing the applicants, it is evident that the railway servants classified as EI are the class of employees, whose standard duty hours are 48 hours a week, however, they shall be called upon to work for additional 24 hours or 12 hours per week depending upon their employment as categorised in Rule 8(4) (i) (ii) &
(iii) ibid. It is also to be noted that the EI is a kind of employment where the railway servant can take intermittent rest of one period not less than one hour, or two such periods of not less than half an hour each, during 12 hours shift. The stand of the respondents is that the applicants fall under the Essentially Intermittent classification and therefore, they are bound to work for 72 hours duty per week as per the HOER Rules 2005. The contention of the respondents is fully supported by the HOER Rules, 2005.
13- O.A. No. 555/2018
14. Moreover, the respondents, after the direction of this Tribunal in earlier O.A. (No. 1422/2017) to decide the claim of the applicants for overtime allowance, conducted the factual job analysis from 16.01.2018 to 19.01.2018 for 72 consecutive hours, which resulted into that the applicants, who are working as Points Men under Chief Yard Master, RTP, Ropar under category Essentially Intermittent, do not warrant ay change in classification i.e. Essentially Intermittent and it will retain as 'Status Quo'. From the perusal of the order dated 05.02.2018, it is clear that the applicants, even earlier to the job analysis, were under the category of Essentially Intermittent. It is not that their classification has now been changed to EI after the job analysis. For the railway servants under the employment classification of EI, as per roaster under HOER Rules, 2005, 12 hours shift is permissible without extra wages. It is not the case of the applicants that they do not fall under the category of Essentially Intermittent. The contention of the respondents about the classification of the applicants as EI has also not been disputed or denied by the applicants in the rejoinder. Once the classification of applicants as EI is accepted, they are bound by the relevant Rules with respect to the standard duty hours and additional duty hours prescribed for this category of employment.
15. The applicants have made an effort to seek support from a decision of this Tribunal in the case of Vishakha Singh (supra). In the case aforementioned, the applicants are gates man who challenged their shift of duty hours of 12 hours and claimed it to be of 8 hours raising the contention of vehicular traffic on the railway crossings manned by them. The case of the applicants for change of their duty hours from 12 hours shift to 08 hours shift was accepted and overtime 14- O.A. No. 555/2018 for extra duty hours was granted to them. It was also observed therein that the various railway crossings, which are manned are put in different categories depending upon the volume of traffic to be handled i.e. the railway crossing to be closed for vehicular traffic. No such contention of heavy vehicular traffic at the railway crossing, handled by the applicants herein, warranting 08 hours shift duty has been raised before me in the present O.A. Nor the decision of job analysis declaring them EI category, which bound them to render 24 additional hours duty per week, is under challenge in this O.A. Therefore, the judgment in the relied upon case has been given on the basis of the facts and contentions raised therein and cannot be made applicable to the present case. Thus, the applicants could not make out a case warranting interference in the impugned order.
16. In view of the above, I do not find any illegality in the order dated 05.02.2018 passed by the respondents rejecting the claim of the applicants for over time allowance, being in consonance with the HOER, Rules 2005. The Original Application is dismissed being devoid of any merit. No costs.
(SURESH KUMAR BATRA) MEMBER (J) 'mw'