Central Administrative Tribunal - Delhi
Khazan Singh vs M/O Railways on 26 July, 2024
1
OA No.2542/18
Item No.65 (Ct-4)
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.2542/2018
Order reserved on 18.07.2024
Order pronounced on 26.07.2024
Hon'ble Mr. Manish Garg, Member (J)
1. Khazan Singh, Aged-60 Years,
S/o Sh. Ram Kishan,
Under Senior Section Engineer(P. Way),
Bhadurgarh, Retired to the post of Gateman,
R/o Vill. Kharawar, Tesh. Sampla, Distt. Rohtak
(Haryana).
2. Dharambir Singh, Aged-59 Years,
S/o Sh. Munshi Ram,
Retired to the post of Gateman,
Under Senior Section Engineer(P. Way),
Bhadurgarh, R/o Vill. Kharawar, Tesh. Sampla,
Distt. Rohtak (Haryana)
3. Surat Singh, Aged-63 Years,
S/o Sh. Baldeva,
Under Senior Section Engineer(P. Way),
Bhadurgarh, Retired to the post of Gateman,
R/o Dev Nagar, Ward No.1, Kheri Sampla,
Distt. Rohtak (Haryana)
4. Rati Ram, Aged-64 Years,
S/o Sh. Bikhu Ram,
Under Senior Section Engineer(P. Way),
Bhadurgarh, Retired to the post of Gateman,
R/o Vill. Thaska, Tesh. Gohana,
Distt. Sonepat (Haryana)
5. Shri Ram, Aged-62 Years,
S/o Sh. Chothi Ram,
Retired to the post of Gateman,
Under Senior Section Engineer(P. Way),
Bhadurgarh, R/o Gali No.3, Subhash Nagar,
Linepar, Bhadurgarh (Haryana)
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OA No.2542/18
Item No.65 (Ct-4)
6. Birbal, Aged- 54 Years,
S/o Sh. Narayan Dass,
Retired to the post of Gateman,
Under Senior Section Engineer(P. Way),
Bhadurgarh, R/o H.No. 1492/2, New Patel Park,
Linepar, Bhadurgarh, Distt. Jhajjar (Haryana)
7. Karan Singh, Aged-57 Years,
S/o Sh. Matadin,
Retired to the post of Gateman,
Under Senior Section Engineer(P. Way),
Bhadurgarh, R/o vill. Kasan, Tesh. Manesar,
Distt. Gurgaon
8. Rampal, aged 58 years
S/o Sh. Lakhi Ram, Retired Gateman
Under Sr. Section Engineer(P. Way), Bahadurgarh
R/o vill. Karawad, PO Kirawad, Distt.
Rohtak(Har.)
..Applicants
(By Advocate: Mr. Yogesh Sharma)
Vs
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. Assistant Divisional Engineer
Northern Railway, Delhi Division
Railway Station, Rohtak(Har).
...Respondents
(By Advocate: Mr. L.C. Singhi)
ORDER
In the instant OA the applicants seek the following relief:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned orders dated 12.4.2018 and order dated 31.1.2018 3 OA No.2542/18 Item No.65 (Ct-4) (Annex.A/1 & A/2) and all other orders referred in the same, declaring to the effect that the action of the respondents preparing 12 hours per day/75 hours weekly roaster for the post of 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 applicants for 4 hours over time daily from the date of posting of the applicants as Gateman with all the consequential benefits including the arrear of over time allowances with interest."
2. The claim of the applicants relates to grant of Over Time Allowance to Gateman 'C' category which has been rejected by the respondents vide the impugned order dated 12.04.2018. Learned counsel for the applicants states that in a similar case in OA No.643/2015 titled Hari Ram and Ors. v. UOI and Ors. vide Order dated 29.08.2017, it has been held that the job assigned to Gateman is of continuous nature and not 'Essentially Intermittent'. He refers to para 4 of the said Order which reads as under:-
"4. The applicants in support of their claim have urged the following grounds:
i) They do not come in the category of 'Essentially Intermittent' category as per the 2005 Rules and that they come under the category of 'Continuous' and, therefore, their 12 hours working roster should be amended to 08 hours and they are entitled for OT allowance for extra hours of working under Rule 10 of the 20 Rules.4 OA No.2542/18
Item No.65 (Ct-4)
ii) The applicants have been working for 12 hours daily but no OTA has been paid to them. As per Railway Board's instructions, the staff, who are required to work for more than the ceiling limit of hours of employment, shall get OTA for the period of work beyond the prescribed limit.
iii) Rule 8 (3) of the 2005 Rules prescribes 48 hours of working in a week for the workers coming under the Essentially Intermittent' category. However, as per Rule 8 (4)(a)(i)&(ii) only 24 additional hours of working have been prescribed for those who fulfil the conditions (i) i.e. Gateman 'C' and (ii) those provided residential quarter within 0.5 kilometre from their place of duty. Both these conditions are not applicable to the applicants.
iv) A Gateman performs sensitive duty as he is required to remain alert during his working hours. He is required to take immediate action in a situation where he apprehends any danger to the train operation. He thus comes in the category of 'safety staff'.
v) The applicants' case is fully covered by the orders of this Hon'ble Tribunal in the case of Rohtas & Another. v. Union of India & Ors., [OA No.2509/2008, decided on 21.01.2011] and in the case of Om Prakash & Ors. v. Union of India & Ors., [OA No. 107/2009, decided on 21.01 2011)."
3. He further reiterates that the case of Hari Singh (supra) was challenged before the Hon'ble High Court in Writ Petition(C) No.8408/2018 along with a Review Petition. However, both the Writ Petition as well as the Review Petition were dismissed vide order dated 09.02.2024 which reads as under:-
"2. We have been informed that the judgment of the Co-ordinate Bench in Prem Singh (supra), has been implemented by the respondents inasmuch as the respondents have granted overtime to personnel who have worked beyond 8 (eight) hours as Pointsman.5 OA No.2542/18
Item No.65 (Ct-4)
3. If that be so, we are of the view that the review of the orders dated March 20, 2019 and April, 2019 in the above writ petitions, is without merit. The review petitions are dismissed along with pending application."
4. Learned counsel for the applicants states that this is the second round of litigation. The impugned order herein dated 12.04.2018 has been passed pursuant to the directions contained in the earlier round of litigation in OA No.2437/2017 dated 25.07.2017 which reads as under:-
"OA is disposed of with the direction to respondent No.2 to decide the pending Anenxure A/7 (colly) Legal Notice of the applicants and pass reasoned and speaking order, within a period of two months from the date of receipt of a copy of this order."
5. He further reiterates that the impugned order clearly stipulates that since it has been decided that the regular working hours of the applicants are 12 hours and the applicants performed duty for the same hours, thus no overtime is due to them.
6. Learned counsel for the applicants contends that since it has been held that Gatemen perform 'Continuous' and not 'Essentially Intermittent' duty, hence, the applicants herein also are entitled to the benefit of OTA for extra four hours.
6OA No.2542/18 Item No.65 (Ct-4)
7. Learned counsel for the applicants further relies upon the Railway Servants (Hours of Work and Period of Rest) Rules, 2005, in which Rule 7(1) it has been clearly mentioned that "employments of Railway servants except those excluded from the purview of the Hours of Employment Regulations are assumed to be 'Continuous'. Thereafter, on the basis of factual job analysis, the employment may be classified either as 'intensive' or 'essentially intermittent', as the case may be. Also, "Essentially Intermittent" has been defined in Rule 7(3), which reads as under:-
"The work of an employee is to be regarded as 'essentially intermittent' if his daily duty hourse 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 period of not less than half an hour each, and
(b) Various periods of inaction including the priod of inaction specified in clause (a) aggregating 50% of more, during which he is not generally called upon to display either physical activities or sustained attention."
Therefore, the Hon'ble High Court also taking note of the said rule position held that the persons employed as Gateman are held to be 'continuous' and not 'Essentially Intermittent'. It is also stated that since 7 OA No.2542/18 Item No.65 (Ct-4) this is the second round litigation, hence, the issue of limitation does not arise.
8. He further relies upon the decision of this very Bench in Balbir Singh and Ors. v. UOI and Ors. in OA No.1208/2018 dated 07.03.2023 wherein this Tribunal while allowing the OA held as under:-
"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 hall also be entitled to interest @6% till the date of actual payment."
9. Opposing grant of any relief in the OA, learned counsel for the respondents relies upon the averments contained in the counter affidavit. He states that the applicants herein have already retired in the year 2013-2014 and their claim relates to 1984 when these rules were not in force. Hence, these rules cannot be applied to the facts of the present case.
10. He further relies upon the Railway Servants (Hours of Employment and Period of Rest Rules 2005) have been framed by the respondents. As is evident 8 OA No.2542/18 Item No.65 (Ct-4) from the Annexure - A-8 dated 08.07.2006 there is clear stipulation that 3( three) Engineering Gatemen in 8 hrs shift ( 24/3).
11. 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 such classification needs to 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 a Railway employee 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 evident from the Annexure - A-8 dated 8.7.2006 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 9 OA No.2542/18 Item No.65 (Ct-4) classified as a Railway employee Intensive or Essentially Intermittent by the Competent Authority. The impugned Annexure A-1 order dated 12.4.2018 has not taken into account the Annexure-A-8 dated 8.7.2006 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 the same was formulated by a Committee of three senior officials of Railways. Even the study conducted as mentioned in the impugned order has been placed on record to justify the stand taken by the respondents. It is also not clear from the impugned order that applicants were given any opportunity of being heard.
12. It is also noticeable that the respondent have also failed to take into consideration RBE No.67/2016 dated Dt.16.06.2016 wherein it has been approved that even in cases of intensive category of staff, efforts 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 :- 10 OA No.2542/18
Item No.65 (Ct-4) "RBE No.67/2016 GOVERNMENT 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 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 11 OA No.2542/18 Item No.65 (Ct-4) 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.No Days Employee A Employee B Employee C From to Duty Rest From to Duty Rest From to Hour Hours Hours Hours Hours Hours Hours 1 Sunday 0-6 6 12 18-24 6 36 12-18 2 Monday Rest 42 18-24 6 18 12-18 3 Tuesday 0-6 6 18-24 6 18 12-18 4 Wednesday 0-6 6 18 18-24 6 18 Rest 5 Thursday 0-6 6 18 Rest 42 12-18 6 Friday 0-6 6 18 18-24 6 12-18 12 OA No.2542/18 Item No.65 (Ct-4) 7 Saturday 0-6 6 18 18-24 6 18 12-18 Total --- 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 A. After every week nobody remains on duty continuesly for day/night."
The above roaster contemplates 36 hours of duty in a week for all group "A", "B", " C", and " D" category of employee. No distinction is made thereto in different category of employee.
13. In Union of India & Ors. vs Om Prakash & Anr.-W.P.(C) 7164/2011, the Hon'ble High of Delhi held as under:-
"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 13 OA No.2542/18 Item No.65 (Ct-4) 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."
14. Furthermore, in Union of India & Ors. vs Prem Singh & Ors.-W.P.(C)No.8088/2016 & CM No. 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.
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 14 OA No.2542/18 Item No.65 (Ct-4) 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. "
15. The contentions of the respondents' counsel for delay and latches cannot be accepted inasmuch as it is only by vitrue of decision rendered in case 1208/2018(supra), the issue that Gatemen services have been put to rest that the work performed by them are continuous and not extremely intermittent. This also gain its significance in light of their own circular i.e. RBE 67/2016 dated 16.6.2016 which had to be applied across the board.
15OA No.2542/18 Item No.65 (Ct-4) CONCLUSION
16. In view of the above discussion, the impugned Annexure-A1 order dated 12.04.2018 and Annexure A- 2 order dated 31.01.2018 are hereby quashed and set aside. The respondents are directed to implement their own notifications dated 08.07.2006 and also RBE.67/2016 dated 16.6.2016. It is further directed that respondents to pay overtime allowances admissible to the applicants for three years as all the applicants have already superannuated long back for the services rendered beyond 8 hours a day. The said directions shall be complied with within a period of 2 months from the date of receipt of a certified copy of this order, failing which, they shall be entitled to interest @ 6 % after expiry of period of two months till the date of actual payment.
17. The OA is allowed in aforesaid terms. No order as to costs. Pending MA(s), if any, also stand disposed of.
(Manish Garg) Member(J) /vb/