Central Administrative Tribunal - Delhi
Rakesh Kumar vs M/O Railways on 20 January, 2025
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Item No.82/ C- V O.A. No.1358/2019
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.1358/2019
This the 20th day of January, 2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. Rakesh Kumar, Aged- 35 Years, 'C' S/o Sh.
Balraj, Working as Gateman under SSE,
Bhadurgarh, in Delhi Division. R/o V.P.O.
Atail,Tehsil Sampla, Distt. Rohtak
(Haryana)124526
2. Parveen Kumar, Aged- 29 Years, 'C' S/o
Sh. Rajbir, Working as Gateman under SSE,
Bhadurgarh, in Delhi Division. R/o V.P.O.
Asadudha (Siwan), Tehsil Bhadurgarh, Distt.
Jhajjar Haryana-124505
3. Satyavir Singh, Aged- 56 Years, 'C' S/o Sh.
Ram Mehar, Working as Gateman in Northern
Railway, Delhi Division. R/o V.P.O, Loharheri
Tehsil B.Garh,
Distt. Jhajjar (Haryana)
4. Ishwar Singh, Aged- 59 Years, 'C' S/o Sh.
Shiv Ram, Working as Gateman in Northern
Railway, Delhi Division. R/o H.No.943, Chhaju
Puram Colony (Behind S.D.M. Resi),
Mahendergarh (Haryana)
5. Bishamber Dayal, Aged- 53 Years, 'C' S/o
Sh. Jai Ram, Working as Gateman in Northern
Railway, Delhi Division. R/o Vill. Amadalpur,
P.O. Machhrauli, Tehsil Jhajjar, Distt. Jhajjar
(Haryana)
6. Naveen, Aged- 23 Years, 'C' S/o Sh.
Rambir, Working as Gateman in Northern
Railway, Delhi Division. R/o V.P.O. Ismaila-9B,
Tehsil Sampla, Distt. Rohtak, State Haryana-
124517
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Item No.82/ C- V O.A. No.1358/2019
7. Monu, Aged- 26 Years, 'C' S/o Sh. Med
Singh, Working as Gateman in Northern
Railway, Delhi Division. R/o V.P.O. Kharawar
Distt. Rohtak, Tehsil Sampla, Haryana
8. Sunil Kumar, Aged-32 Years, S/o Sh.
Bhadur Singh, Working as Gateman in
Northern Railway, Delhi Division. R/o V.P.O.
Gandhva Distt. Rohtak, Tehsil Sampla
(Haryana-124501)
9. Yogender Kumar, Aged- 27 Years, 'C' S/o Sh.
Subhash Chand, Working as Gateman in
Northern Railway, Delhi Division. R/o V.P.O.
Bhainsru Kalan, Tehsil Sampla, Distt. Rohtak
(Haryana)
10. Sandeep Kumar, Aged- 28 Years, 'C' S/o
Sh. Raj Singh, Working as Gateman in
Northern Railway, Delhi Division. R/o V.P.O.
Kharhar, Distt. Jhajjar, Tehsil Bahadurgarh
(Haryana)
11. Jitender, Aged- 29 Years, 'C' S/o Sh. Ajit
Singh, Working as Gateman in Northern
Railway, Delhi Division. R/o V.P.O. Road,
Tehsil Bhadurgarh, Distt. Jhajjar (Haryana)
12. Pradeep Kumar, Aged- 31 Years, 'C' S/o
Sh. Rambir Singh, Working as Gateman in
Northern Railway, Delhi Division. R/o V.P.O.
Bhadani, Distt & Tehsil Jhajjar, (Haryana)
13. Suresh Kumar, Aged- 57 Years, 'C' S/o Sh.
Mähender Singh, Working as Gateman in
Northern Railway, Delhi Division. R/o Mahivir
Park, Gali No.4, House No.21/23, B.garh-
124507
14. Chhuttan Lai, A ged-42 Years, 'C' S/o Sh.
Ram Shai, Working as Gateman in Northern
Railway, Delhi Division. R/o V.P.O. Namnher,
Tehsil Sikrai, Distt. Dossa (Rajasthan)
15. Jagpal, Aged- 56 Years 'C' S/o Sh. Suraj
Bhan, Working as Gateman in Northern
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Item No.82/ C- V O.A. No.1358/2019
Railway, Delhi Division. R/o Rewari Khera
Tehsil Bahadurgarh, Distt. Jhajjar (Haryana)
16. Dileep Kumar, Aged- 28 Years, 'C' S/o Sh.
Ram Kishan, Working as Gateman in Northern
Railway, Delhi Division. R/o Vill Saraiya, PO
Kauwa, Distt, Etawah (U.P.)
17.Ramesh Kumar, Aged- 53 Years, 'C' S/o
Late Sh. Ram Kishan, Working as Gateman in
Northern Railway, Delhi Division. R/o VPO
Kasni Teh.& Distt. Jhajjar Haryana-124109
18. Hemant, Aged- 31 Years, 'C' S/o Sh. Tale
Ram, Working as Gateman in Northern
Railway, Delhi Division. R/o VPO Kheri Sadh
Tehsil & Distt. Rohtak,
19. Deep Chand, Aged- 58 Years, 'C' S/o Sh.
Jai Narayan, Working as Gateman in Northern
Railway, Delhi Division. R/o H.No.410, Mast
Nath Colony, Satrod Kalan Nisar Cantt.
20. Ramesh Lai, Aged- 57 Years, 'C' S/o Sh. Jai
Karan, Working as Gateman in Northern
Railway, Delhi Division. R/o VPO Nigana,
Tehsil Kalanour, Distt. Rohtak-124115
21. Alam, Aged- 30 Years, 'C' S/o Sh. Shipat
Rahaman, Working as Gateman in Northern
Railway, Delhi Division. R/o RZF-441, Gautam
Budh Nagar, Raj Nagar, Palam Colony, New
Delhi-110077
22. Ishwar Singh, Aged- 58 Years, 'C' S/o Sh.
Chiranji Lai, Working as Gateman in Northern
Railway, Delhi Division. R/o VPO Baliana
Tehsil Sampla, Distt. Rohtak (Haryana)
23. Pawan, Aged- 25 Years, S/o Sh. Wazir
Singh, Working as Gateman in Northern
Railway, Delhi Division. R/o VPO Kheri Sadh,
Tehsil Sampla, Distt. Rohtak (Har.)
24. Sandeep, Aged- 26 Years, S/o Sh. Jagbir,
Working as Gateman in Northern Railway,
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Item No.82/ C- V O.A. No.1358/2019
Delhi Division. R/o VPO Chuliana, Tehsil
Sampla, Distt. Rohtak (Haryana-124527)
...Applicants
(By Advocates : Mr. Yogesh Sharma with
Ms. Vaishali Sulkhlan)
Versus
1. Union of India through the General
Manager, Northern Railway, Baroda House,
New Delhi.
2. The Divisional Railway Manager, Northern
Railway, State Entry Road, New Delhi.
3. The Sr.Divisional Personal Officer, Northern
Railway, Delhi Division, State Entiy Road, New
Delhi.
4. The Assistant Divisional Engineer, Northern
Railway, Rohtak (Haryana)
...Respondents
(By Advocates : Ms. Dharam Deshna)
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Item No.82/ C- V O.A. No.1358/2019
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following reliefs:-
"(i)That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 27.10.2018 (Annex.A/1) declaring to the effect that the action of the respondents preparing 12 hours per day/75 hours weekly roaster for the applicant who is working as Gateman is illegal, arbitrary, against the rules and consequently pass an order directing the respondents to prepare 8 hours per day/48 hours weekly roaster for the Gatemen.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to grant of over time allowances to the applicant for 4 hours over time daily from the date of posting of the applicant as Gateman with all the consequential benefits including the arrear of over time allowances with interest.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
2. Learned counsel for the applicants takes us through the brief history and background of the case and informs that the applicants are working on the post of Gateman in Delhi Division and presently posted between Delhi-Rohtak Section under SSE Bhadurgarh. They are performing 12 hours duty without any short break daily and without any over 6 Item No.82/ C- V O.A. No.1358/2019 time allowances by treating them as Essentially intermittent category.
3. Learned counsel for the applicants relies upon the following case laws:-
(i) OA No.643/2015 titled Hari Ram & ors. vs. UOI & ors. dated 29.08.2017 of this Tribunal and the same has been upheld vide Order dated 09.02.2024 by the Hon'ble High Court of Delhi;
(ii) OA No.1208/2018 titled Balbir Singh & ors. vs. UOI & ors. dated 07.03.2023 of this Tribunal.
4. Per contra, learned counsel for the respondents opposing the Original Application contends that the applicants have not exhausted alternative remedies as contemplated under Rule ibid, thus the present original application is not maintainable. He submits that the applicants ought to have approached the Regional Labour Commissioner concerned, who is an Appropriate Authority in terms of Rule 2(f), 3 and 4 of Rules ibid. If the applicants are not satisfied with the decision rendered by Competent Authority, only then they should have approached the Tribunal. He further submits that till date no representation has been submitted by the applicants, which is also 7 Item No.82/ C- V O.A. No.1358/2019 contrary to the provision of the Section 21 of the CAT Rules, 1985.
5. Learned counsel for the respondents further draws our attention to the additional affidavit filed on behalf of the respondents, wherein the following contentions have been made:-
"1. That the present additional affidavit is being filed in continuation of earlier affidavit which had already been filed in the Hon'ble Tribunal. It is stated that the applicants are working as gateman in Delhi Division posted between Delhi Rohtak Section under SSE/P.Way/BGZ under ADENlROK on different road side gates. That it is submitted that as per rules standard 2005 hours of duty of essential intermittent employee is 48 hours + 24 additional hours per week and the applicants are also classification of essential intermittent Therefore, they had to perform the duty of 12 hours in accordance with the SWR and duty roaster. It is further submitted that the Work on these gates are neither heavy nor Continuous as stated by the applicants and the gateman are not classified as continuous workers.
2. That the Essentially intermittent employee is to be regard as essential intermittent, if his daily duty hours which should be assumed to be 12 Hours per day. It is submitted that as per job study conducted, the level crossings for which applicants have claimed over time allowances, were classified as B or C classes, to be manned by two gateman each in 12 hours shift) as per Para 904, Indian Railway, P. Way Manual. Thus, the applicants are mandated to work 12 hours shift as per gate classification. The class of level crossing and minimum number of gate keeper have been enumerated in Railway Board Letter No. 2012/E(LL/HER/23 dated 28/0612012 and which categorically states Railway are not required to carry out any Factual Job Analysis/Work Study for deciding the minimum number of gate keepers at a level crossing. So over time allowance is not payable.8
Item No.82/ C- V O.A. No.1358/2019 3.1t is submitted that as per safety rule on the arrival of train the gate system is control by signals and telephone, which are provided by railway. It is submitted that the gatemen on these gates have to work for 12 hours and therefore they are not entitled for any over time allowances according to the rule. It is further submitted that aU gates are classified as per job/study analysis conducted by P. Way office which determines Traffic Vehicle Unit (TVU) is volume of rail and road traffic at the LC gate. The applicants have worked at "C" category gates mostly, which generally implies lowest amount of traffic (except for D' class).
4. That as per study conducted, this crossing was determined as "C" class to be manned by two gateman (leach in 12 hous shift). Thus, they are mandated to work 12 hours shift as per gate classification. It then stands to be implied that there is no overtime due to them. Further, it was also noted that regarding the submission that railway quarters have not been provided it was found that a number of respondents are currently residing in railway accommodation near to these gates i.e the place of their duties. It is further submitted that Competent Railway authority has considered the dated notice applicants legal 2111112016 followed by representation an dated 23/1 0/20 18 and passed an appropriate & reasoned speaking order dated 27/10/2018 in compliance to the by order dated 07/09/2018 passed by Hon'ble CAT New Delhi"
6. We have heard learned counsel for both parties and perused the material available on record. We observe that the applicants are working as Gateman, Therefore, no distinction can be drawn between different categories of gatemen. We draw reference o the decision rendered in Balbir Singh (supra), which is reproduced herein below:-
"10. ANALYSIS 10.2 The applicants have placed on record Annexure-II to Appendix "A" to the Station Working Rules for Gurgoan Station, Delhi Division issued on 9 Item No.82/ C- V O.A. No.1358/2019 08.07.2006 (annexed at Annexure A/5), which is reproduced herein below:-
""NORTHERN RAILWAY ANNEXURE -II TO APPENDIX 'A' DELHI DIVISION TO THE STATION WORKING RULES. Date issued 08.07.2006 FOR GURGAON STATION Date introduced 20.x.2006 WORKING OF ENGG: L-XING GATE.
1.0 working instruction for interlocked engineering level
crossing gate No.23 'A' Class
(a) No. of level crossing : 23
(b) Class : 'A' Class.
(c) Situated : KM. 28/ 3-4 between
BWSN -GGN
(d) Manned by each : 3(Three) Engineering
Gatemen in 8/- hr. shift
(e) Communication S.M. on : Telephonic
` communication is
provided between
duty at GGN and
Gateman on duty.
(f) Normal Position : 'Open' to Road Traffic.
It is an interlocked gate provided with lifting barriers. Gate Signals and Distant/Warner Signals are provided on either sides of the gate to be worked from the 5 Levers frame installed in the Gate lodge 'G' marker is provided on the post of UP & DN, Gate Signals, Warning Boards have also been provided at a distance of 1.4 K.M. from the Distant / Warner Signal on either side of both old & new converted line Sr.DSTE (Co-ord.) Sr.DEN-V Sr.DOM New Delhi New Delhi New Delhi"
HOER Rules (Hours of Employment and Period of Rest Rules 2005) have been framed by the respondents. As is evident from the Annexure - A/5 dated 8.7.2006, there is clear stipulation that 3 (three) Engineering Gatemen in 8 /- hrs shift (24 /3).
10.3 The Authority to Classify /Power to declare the employment of a Railway employee Intensive or Essentially Intermittent vests with Head of the Railway Administration which can be delegated to Chief Personnel Officer. During emergency situations it can be exercised by an Officer not below the rank of Senior Scale. A copy of every declaration of classification shall be sent to Regional Labour Commissioner and if it is made by an Officer (Sr. Scale) a copy to be sent to Head of the Railway Administration and Chief Personnel Officer. There is nothing on record to show that the applicants have been classified as Railway employees under the category of Intensive or Essentially Intermittent nor there is anything on record to show that a copy of every declaration of classification has been sent to concerned Regional Labour Commissioner. To the contrary, as is 10 Item No.82/ C- V O.A. No.1358/2019 evident from the said Annexure A/5, there is clear stipulation that 3 (three) Engineering Gatemen in 8 /- hrs shift ( 24 /3), which goes to show that the applicants have not been classified as Railway employees under Intensive or Essentially Intermittent category by Competent Authority. The impugned order, i.e., Annexure -A1 dated 27.7.2017 has not taken into account the said Annexure A-5 nor there is anything on record to show that the same has been modified or rescinded till date. It is also pertinent to note that same was formulated by Committee of three senior officials of Railways.
10.4 Even the study conducted, as mentioned in the Impugned Order dated 27.7.2017, has been placed on record to justify the stand taken by the respondents. It is also not clear from the impugned order as to whether the applicants were given opportunity of personal hearing. 10.5 It is also noticeable that the respondents have also failed to take into consideration RBE No.67/2016 dated 16.06.2016, wherein it has been approved that the rosters of the staff of intensive category should be made in such a way that they don't work on all seven days in a week and also get a weekly rest of 40 hours minimum. Zonal Railways may be asked by the Ministry of Railways to modify their rosters for "Intensive" Category staff accordingly, the said notification is reproduced as under :-
"RBE No.67/2016GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) No.2016/E(LL)/HPC/5 New Delhi Dt.16.06.2016 The General Manager(P) All India Railways & Pus Sub: Recommendations of the High Power Committee to review the duty hours of running & other safety related categories of staff - rosters of intensive category of staff.
The High Power Committee, constituted to review the duty hours of running and other safety related categories of staff, had recommended on roster of intensive category of staff as under:
"The rosters for Intensive category staff should be made in such a way that they don't work on all seven days in a week and also get a weekly rest of 40 hours minimum. Zonal Railways may be asked by the Ministry of Railways to modify their rosters for "Intensive"Category staff accordingly. A copy of the modified roster received by the 11 Item No.82/ C- V O.A. No.1358/2019 committee from North Western Railway may be circulated to them along with this letter for guidance (Para 5.4)".
The above recommendation has been duly considered by the Board and in modification of previous instructions on the subject, the following decision has been taken:
"Rosters may be revised on the basis of model roster of NWR to provide better quality of periodical rest to affected categories of staff."
A Copy of the model roster from NWR recommended by the committee is enclosed. Railways may consider the feasibility of adopting the above roster without creating additional posts so that they get proper rest in a week.
The existing provisions of the Railways Act, 1989 and Railway Servants (Hours of Work & period of Rest) Rules 2005 will continue to be applicable.
This issues with the concurrence of Finance directorate of the Ministry of Railways.
Please acknowledge the receipt.
DA:As above.
(D.V.Rao) Director Estt.(LL) Railway Board Annexure - XI Proposed roster received from North Western Railway for "Intensive" Category Staff S. Days Employee A Employee B Employee C Employee D No From Duty Rest From Duty Rest From Duty Rest From Duty Rest to Hours Hours to Hours Hours to Hour Hours to Hours Hours Hour Hours Hours Hours s 1 Sunday 0-6 6 12 18-24 6 36 12-18 6 12 6-12 6 12 2 Monday Rest 42 18-24 6 18 12-18 6 18 06-12 6 18 3 Tuesday 0-6 6 18-24 6 18 12-18 6 18 Rest 42 4 Wednesday 0-6 6 18 18-24 6 18 Rest 6 42 06-12 6 5 Thursday 0-6 6 18 Rest 42 12-18 6 06-12 6 18 6 Friday 0-6 6 18 18-24 6 12-18 6 18 06-12 6 18 7 Saturday 0-6 6 18 18-24 6 18 12-18 6 18 06-12 6 18 Total --- 36 --- ----- 36 --- ----- 36 --- ----- 36 ---
Note: 1. One additional rest giver will be required with two spare working days.
2. A Will pick up roster of B,B will pick up roster of C,C will Pickup roster of D & D will pickup roster of 12 Item No.82/ C- V O.A. No.1358/2019 A. After every week no body remains on duty continues for day/night."
10.6 The above roaster contemplates 36 hours of duty in a week for all group "A", "B", "C", and "D" category of employees. No distinction is made thereto in different category of employees. 10.7 In Union of India & Ors. Vs. Om Prakash & Anr. - W.P.(C) 7164/2011, the Hon'ble High Court of Delhi has held as follows:-
"12. We highlight survey report resulting in the order dated July 08, 2006 being issued when the level crossing manned by Rohtas and Mange Ram i.e. level crossing No.23 having gate No.23A came under the jurisdiction of the Delhi Division. Pertaining to the work at the interlocked engineering level crossing gate No.23A, with respect to the traffic the order records that the crossing has to be manned by : '3 (Three) Engineering Gatemen in 8 hours shift'.
13. Now, the numeral '3' is succeeded by the number being typed in words. Further, on the assumption that instead of typing '2' followed by writing 'two' somebody erroneously typed '3' followed by writing 'three', it remains unexplainable as to how come it was then typed '8 hours shift'. For the reason if the traffic was less and as a consequence the gateman enough rest period in between requiring normal duty hours to be 12 hours, it had then to be recorded 'in 12 hours shift' and not 'in 8 hours shift'.
14. 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.e. the nature of work is such that a person can take rest at stretches not less than 30 minutes.
15. We dismiss the writ petition highlighting that twice traffic volume was determined and the authorities categorically wrote that the level crossing(s) had to be manned by three gatemen with 8 hours shift and thus the Tribunal has reached the correct conclusion. Indeed, the respondents would be entitled to overtime wages directed to be paid."
10.8 Furthermore, in Union of India & Ors.. Vs. Prem Singh & Ors. - W.P.(C) 8088/2016 & CM 33515/2016 (stay), the Hon'ble High Court of Delhi repelled similar contentions raised by the respondents observing as under:-
"2. Learned counsel for the petitioners submits that the said directions could not have been issued in view of Clause 4 of the Railway Servants (Hours of Work and Period of Rest) Rules, 2005.13
Item No.82/ C- V O.A. No.1358/2019
3. We have considered the said contention but do not find any merit in the submission. Clause 4 relates to appeals against classification. In the present case, the issue of classification was adjudicated and decided by the Tribunal in OA No.2509/2008 titled "Rohtas and Another v. Union of India through the General Manager, Northern Railway and Others vide order dated 21.01.2014 in favour of the respondents holding that the respondents being a Class 'A' Gateman were bound to work for 8 hours and in case of additional working hours, they were entitled to be paid overtime allowance as stipulated in the rules. xxxxx
5. In view of the findings recorded by the High Court above, the petitioners cannot now agitate and rely upon the aforesaid Rules. The question of filing an appeal etc. is foreclosed and decided by the aforesaid decision which would operate as res judicata. The clear finding of the High Court was that the respondents can work for 8 hours. The directions given by the Tribunal in their order dated 21.01.2014 that the respondents would be paid overtime allowances over and above the work for 8 hours had to be complied with. It is unfortunate that the petitioners did not comply with the said directions, compelling the respondents to file a fresh OA. This OA has been rightly allowed by the Tribunal, being in violation of the directions and the findings recorded by the High Court in their order dated 18.02.2013.
6. The writ petition has no merits and is accordingly dismissed."
11. CONCLUSION 11.1 In view of the above discussions, the impugned order dated 27.07.2017 (Annexure-A/1) is hereby quashed and set aside. The respondents are directed to implement their own notification dated Annexure-II dated 8.7.2006 (annexed at Annexure A-5) and also RBE.67/2016 dated 16.6.2016. It is further directed that respondents shall pay overtime allowances admissible to the applicants for the services rendered beyond 8 hours a day. The said directions are to be complied with by the respondents, within a period of two months from the date of receipt of a certified copy of this Order, failing which the applicants shall also be entitled to interest @ 6 % till the date of actual payment.
11.2 The OA is allowed in aforesaid terms. 11.3 No orders as to costs."
14Item No.82/ C- V O.A. No.1358/2019
7. Accordingly, in view of the above discussions, the impugned order dated 27.10.2018 (Annexure-
A/1) is hereby quashed and set aside. The respondents are directed to implement their own notification dated Annexure-II dated 8.7.2006 (annexed at Annexure A-5) and also RBE.67/2016 dated 16.6.2016. It is further directed that respondents shall pay overtime allowances admissible to the applicants for the services rendered beyond 8 hours a day. The said directions are to be complied with by the respondents, within a period of two months from the date of receipt of a certified copy of this Order, failing which the applicants shall also be entitled to interest @ 6 % till the date of actual payment.
8. The OA is allowed in aforesaid terms.
9. No orders as to costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sm/