Central Administrative Tribunal - Delhi
Mata Deen vs M/O Railways on 9 July, 2024
1
Item No. 41(C-3)
O.A. No. 2006/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2006/2019
This the 09th day of July, 2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
1.Mata Deen, Aged- 60 Years,
S/o Sh. Nandu Ram,
Retired as Cabinman from
Northern Railway, Delhi Division, R/o Ward No.1,
Near Sanpla Railway Station, District Rohtak,
Haryana
2. Krishan Pal, Aged- 61 Years,
S/o Sh. Ram Gopal,
Retired as Cabinman from
Northern Railway, Delhi Division, R/o Ward No.1,
Near Sanpla Railway Station, District Rohtak,
Haryana
3. Bant Singh, Aged- 58 Years,
S/o Sh. Kehar Singh,
Working as Cabinman at Northern Railway Station,
Manani (Delhi Division) R/o Railway Quarter No.7B,
Railway Station, Manani (Samli Section) U.P.
4. Ram Kumar, Aged- 58 Years, C
S/o Sh. Bhalle Ram,
Working as Cabinman at Northern Railway Station,
Manani (Delhi Division) R/o Railway Quarter No.T2,
Railway Station, Manani (Samli Section) U.P.
5. Mahipal, Aged-55 Years,
S/o Sh. Jaharu,
2
Item No. 41(C-3)
O.A. No. 2006/2019
Working as Cabinman at Northern Railway Station,
Manani (Delhi Division) R/o Railway Quarter No.5D,
Railway Station, Manani (Samli Section) U.P.
6. Monu Kumar, Aged-27 Years,'
S/o Sh. Samay Singh,
Working as Cabinman at Northern Railway Station,
Manani (Delhi Division) R/o Railway Colony, Railway
Station, Manani (Samli Section) U.P.
..Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Union of India through The General Manager,
Northern Railway, Baroda House, New Delhi.
2. The Divisional Railway Manager, Northern Railway,
Delhi Division, State Entry Road, New Delhi.
3. The Senior Divisional Personnel Officer, Northern
Railway, Delhi Division, New Delhi.
...Respondents
(By Advocate: Mr. Rupinder Pal Singh)
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Item No. 41(C-3)
O.A. No. 2006/2019
O R D E R (ORAL)
The applicant Nos. 1 and 2 are retired employees of Railways as Cabinman and applicant Nos. 3 to 6 at the relevant point in time were working as Cabinman with the respondents.
2. Briefly stating, the applicants, in terms of the R.B.E. Circular No. 131/2015 (Annexure A/2) placed at page 21, are required to perform duties of 8 hours and beyond the said working hours, they are entitled for Over Time Allowance (OTA). With respect to their claim, the applicants preferred representations (Annexure A/19). Learned counsel for the applicants confirms that all the applicants have preferred the representations, which were pending consideration at the relevant point in time and those are pending consideration till today even after five years of filing of the present OA. Accordingly, the applicants have filed this OA seeking the following relief:
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order declaring to the effect that the action of the respondents preparing 12 hours per day/75 hours weekly roaster for the applicants (Cabinman) at Northern Railway Station Manani is illegal, 4 Item No. 41(C-3) O.A. No. 2006/2019 arbitrary, against the rules and consequently pass an order directing the respondents to prepare 8 hours per day/48 hours weekly roaster for the Cabinman.
(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 overtime daily from the date of their posting as Cabinman on the station with all consequential benefits including the arrear of overtime 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."
3. Learned counsel for the applicants explains that all employees belonging to the category as of the applicants are governed by the Railway Servants (Hours of Employment) Rules 1961, and have been classified in 4 categories :-
1. Intensive
2. Essentially Intermittent
3. Excluded Staff
4. Continuous
4. He submits that Rules of 1961 were amended in the year 2005 and notified by virtue of R.B.E. Circular No. 131/2015 annexed at page 21. He submits that since the 5 Item No. 41(C-3) O.A. No. 2006/2019 applicants fall in the 4th category i.e. "Continuous" on the basis of their factual job, they are entitled to the OTA for the period they have worked beyond eight hours each day.
In support of his claim, he draws strength from the judgment of a Coordinate Bench of this Tribunal in OA No. 643/2015 decided on 29.08.2017 annexed at page 32.
This order was assailed by the respondents before the Hon'ble High Court of Delhi by way of Writ Petition No. 8408/2018 and Writ Petition No.8628/2018, which came to be dismissed by a common order on 20.03.2019 (Annexure A/4). The respondents have preferred Review Application against the order, which also came to be dismissed.
5. Notices were issued and the respondents have filed their reply.
6. Sh. Rupinder Pal Singh, learned counsel who appears on advance service on behalf of respondents vehemently opposes the OA. He submits that the applicants have earlier approached this Tribunal and in compliance of the decision of this Tribunal, the respondents have issued the impugned order. He draws strength from para 4 and 5 of the counter reply and submits that the applicants were 6 Item No. 41(C-3) O.A. No. 2006/2019 performing 12 hours duty roster as per the SWR issued by the Competent Authority. He states that as per the Rules, the applicants were working at Gate No.134C as 'Essentially Intermittent' Classification and, therefore, since they were allotted railway quarter within 0.5 kilometer of MNZ Station in terms of the R.B.E. Circular No. 131/2015, the applicants are not entitled to OTA.
Further referring to a judgment of Coordinate Bench of this Tribunal in OA 1167/2018 decided on 06.02.2020, he submits that while disposing of the matter, the Tribunal remitted the matter back to the respondents to decide the pending representation and accordingly, he states that in the instant OA also, a direction be issued on the similar lines. Relevant para 16 of the same is reproduced here in below:
"Hence, this OA is disposed of accordingly. The impugned order dated 04.08.2017 is set aside. The applicants are permitted to give their representation individually clearly indicating the category of Gateman to which they belong, their place of posting as well as the status of residential accommodation provided to them within 30 days from the date of receipt of a certified copy of this order. Thereafter the respondents shall consider the same and pass a reasoned and speaking order keeping in view the position of rules and law as well as instructions on the subject, within a period of 7 Item No. 41(C-3) O.A. No. 2006/2019 90 days from the date of receipt of such representations from the applicants"
7. I have heard the learned counsel for the parties.
8. To summarize, it is not in dispute that the applicants were working as Cabinman. In terms of the R.B.E. Circular No. 131/2015 para 7 - Criteria for determining classification of the Railway Servants, there are 3 categories mentioned, which apply to all the employees of the Railways on the basis of factual job. Admittedly, the circular applies to the applicants.
9. The issue before me is whether the applicants belong to Intermittent Category or the Continuous Category. In case the applicants were to be treated as 'Essentially Intermittent', they would be covered by clause -4 II of the R.B.E. Circular No. 131/2015 while if they were to be treated under the 'Continuous Category', there are no such conditions which could prevent the respondents to extend them the relief sought for. I have examined the relied upon judgment in OA No.643/2015 and have no hesitation in concluding that the issue in the instant OA, has been conclusively decided by the Tribunal and the decision is confirmed by the Hon'ble High Court of Delhi. For the sake 8 Item No. 41(C-3) O.A. No. 2006/2019 of better appreciation, the order in OA No.643/2015 is reproduced hereinbelow verbatim :-
"MA-534/2015 filed by the applicants for joining together in single application, under Rule 4 (5) (a) of Central Administrative Tribunal (Procedure) Rules, 1987, is allowed in the interest of justice.
2. Through the medium of this OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for the following main relief:
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order declaring to the effect that the action of the respondents preparing 12 hours per day/75 hours weekly roaster for the applicants (Gate man A & B) is illegal, arbitrary, against the rules and consequently pass an order directing the respondents to grant the over time allowances to the applicants for 4 hours over time daily from the date of notification of new 2005 rules with all the consequential benefits including the arrear of over time allowances with interest".
3. The factual matrix of this case is as under:
3.1 The applicant nos.1, 2, 3, & 4 have retired from the posts of Gateman in the Delhi Division of the Northern Railway whereas applicant no.5 is still serving as a Gateman under SSE, (PWI), Jind in the Northern Railway.
3.2 Their claim is in regard to grant of Overtime Allowance (OTA) to them. The Railway Servants (Hours of Work and period of Rest) Rules, 2005 (in short, the 2005 Rules), deals with working hours of the railway servants. The said rule is extracted below:9
Item No. 41(C-3) O.A. No. 2006/2019 "7 (3) 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 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 of more, during which he is not generally called upon to display either physical activities or sustained attention".
3.3 The applicants' claim is that they are covered by this Rule and as such their duty hours are assumed to be 'Continuous' and hence they are entitled for the OTA. Since the respondents have denied grant of OTA to them, they have filed the instant OA, praying for the relief as indicated in para-2 supra.
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 OTA allowance for extra hours of working under Rule 10 of the 2005 Rules.
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) 10 Item No. 41(C-3) O.A. No. 2006/2019 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].
5 O.A. No.643/2015 M.A. No. 534/2015 5.Pursuant to the notices issued, the respondents entered appearance and filed reply, in which they have made the following averments:
a) A Gateman coming under Gateman 'C' category is provided with residential quarter within 0.5 km. from his place of duty.
b) Since a Gateman comes under the 'Essentially Intermittent' category, he is required to work for fixed 72 hours in a week.
The claim of the applicants for the grant of OTA is completely misplaced.
6. The applicants have filed their rejoinder to the reply filed on behalf of the respondents in which by and large, they have affirmed their averments in the OA.
7. With the completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties on 14.07.2017. Arguments of Shri Yogesh 11 Item No. 41(C-3) O.A. No. 2006/2019 Sharma, learned counsel for the applicants and that of Shri Kripa Shankar Prasad, learned counsel for the respondents were heard.
8. The main contention of the learned counsel for the applicants was that the case of the applicants is fully covered by the judgment of this Hon'ble Tribunal in the case of Om Prakash & Another (supra), wherein it has been held that the Gatemen are entitled for payment of OTA.
8.1 Shri Sharma further submitted that similar view taken by this Tribunal in the case of Rohtas and Another (supra), which was challenged by the respondents in Writ Petition (Civil) No.8088/2016 before the Hon'ble High Court of Delhi, who was pleased to dismiss the said Writ Petition.
8.2 Shri Sharma also submitted a copy of the order of this Tribunal in OA No.4516/2013 in the case of Prem Singh & Ors. v. Union of India & Ors., [OA No.4516/2013, decided on 18.03.2015] and argued that even in this order the Tribunal has held that a Gateman is required to work only for 08 hours and thus is entitled for OTA for the 04 hours per day since the prescribed working hours for him are 12 hours per day (72 hours per week). Shri Sharma thus pleaded for allowing the OA.
9. Per contra, Shri Kripa Shankar Prasad, learned counsel for the respondents submitted that a similar matter has been considered by the Tribunal in the case of Vijay Pal Singh & Ors. v. Union of India & Another, [OA No.2370/2013, decided on 15.05.2017], wherein it has been held that the applicants therein are not entitled for OTA.
10. I have considered the arguments of the learned counsel for the parties and have also perused the pleadings and documents annexed thereto. I find that the Tribunal has clearly held in Om Prakash & Another, Rohtas and 12 Item No. 41(C-3) O.A. No. 2006/2019 Another and Prem Singh & Others (supra) that a Gateman does not come under the 'Essentially Intermittent' category and is thus required to work for only 08 hours a day. Since he is made to work for 12 hours per day, he is entitled for the grant of OTA for 04 hours of extra work per day. The judgment of the Tribunal in the case of Rohtas and Another (supra) has been upheld by the Hon'ble High Court of Delhi in Writ Petition (C) No.8088/2016, the operative part of which reads as under:
"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."
11. The respondents have not challenged the ibid judgment of the Hon'ble High Court of Delhi and thus the said judgment and so also the orders of the Tribunal mentioned supra have attained finality.
12. The sole contention of the learned counsel for the respondents was that the applicants come under the 'Essentially Intermittent' category and that in terms of the order of this Tribunal in Vijay Pal Singh & Ors. (supra), they are not entitled for OTA.
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13. I have considered the order of the Tribunal in Vijay Pal Singh && Ors. (supra). The issue involved therein was entirely different. The applicants therein were seeking reclassification of Noli Railway Station, where they were working, from Essentially Intermittent' to Continuous. The Tribunal, however, did not find any merit in their contention and dismissed the OA vide order dated 15.05.2017. The relevant portion of the order is extracted below:
14. OA No. 107/2009 (supra), OA No.3378/2011 (supra) and W.P. (C) No.7164/2011 (supra) all pertained to payment or overtime allowance whereas the applicants are seeking reclassification of Noli Station from "essentially intermittent to "continuous". Therefore, these orders/judgments do not help the applicants in any manner as they are not applicable at all.
Secondly, as the respondents have pointed out, the Railway Servants (Hours of Work and Period of Rest) Rules, 2005, and specifically Rules 3 and 4 provide for channels of appeal. In case an employee is dissatisfied with the declaration of the employment of the Railway servant as "intensive" or "essentially intermittent" the same can be challenged under Rule 3 by filing an appeal before the Regional Labour Commissioner within 90 days. If he is aggrieved by the decision of the Regional Labour Commissioner then, under Rule 4, he may prefer an appeal to the Secretary to the Government of India in the Ministry of Labour within a further period of 90 days. The applicants have not done so and approached this Tribunal directly. Moreover, the learned counsel for the respondents has correctly pointed out that there is enormous delay on the part of the applicants in filing this OA, which is not adequately explained.
15. In view of above, I am of the opinion that the OA is not maintainable as being violative of 14 Item No. 41(C-3) O.A. No. 2006/2019 both Sections 20 and 21 of the Act and is, therefore, dismissed. No costs."
14. In view of the discussions in the foregoing paras, I am of the considered opinion that the case of the applicants is fully covered by the orders of this Tribunal in the cases of Om Prakash & Another, Rohtas and Another and Prem Singh & Others (supra).
The Tribunal has consistently held that Gatemen perform 'Continuous' and not 'Essentially Intermittent' duty and thus are entitled for OTA for extra hours of work beyond 08 hours per day. The OA is, therefore, allowed in terms of the order of this Tribunal in the case of Om Prakash & Another (supra).
15. No order as to costs."
10. The order in OA No.643/2015 was assailed by the respondents in Writ Petition before the Hon'ble High Court of Delhi. While considering the Writ Petition, Hon'ble High Court upheld the Order of this Tribunal in OA No.643/2015. Relevant portion of the judgment of Hon'ble High Court reads as under :-
"4. The Tribunal took note of the issue in question in Para 5 to the effect as to whether Pointsman would come under 'continuous' category or essentially intermittent' category. Thereafter, the Tribunal took note of the duty list of Pointsman and took note of the fact that like Asst. Station Master and Cabinman the petitioners are also working continuously for 8 hours without rest and they have not been provided with any residential accommodation and came to the conclusion that Pointsman 15 Item No. 41(C-3) O.A. No. 2006/2019 work continuously. The duty list of Pointsman indicate that they work continuously for 8 hours or more and therefore it was classified as continuous nature of work.
5. The aforesaid order of the Tribunal is challenged before us and it is stated that the Tribunal in classifying the work as 'continuous' has committed an error. It is tried to be indicated that the work is not continuous in nature and once the Railway Administration has classified the work based on the duty performed, the Tribunal could not have gone into the matter. However, we find that before the Tribunal the main objection raised was that the issue should be raised in appeal before the competent authority, namely, the Regional Labour Commissioner. We find that the Tribunal has taken note of the nature of duty i.e. the duty list of the Pointsman and given a decision.
Today, before us, a judgment of the Co-ordinate Bench of this Court in the case of Unton of India & Ors. v. Prem Singh & Ors., W.P.(C) 8088/2016 is pointed out by learned counsel for the respondents wherein also similar question pertaining to classification of employees in the category as has been done in the present case and the issue of remedy available under Clause 4 of the Railway Servants (Hours of Work and Period of Rest) Rules, 2005 have been considered and in Paras 3, 4 and 5 the issue has been decided by the Co-ordinate Bench in the following manner:
"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, 16 Item No. 41(C-3) O.A. No. 2006/2019 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.
4. This decision was challenged by the petitioners in W.P.(C) No. 7164/2011 and W.P.(C) No.7172/2011. The High Court by a common order dated 18.02.2013 upheld the order of the Tribunal observing 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 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 (sic, got) 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. 17 Item No. 41(C-3) O.A. No. 2006/2019 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.
16. The writ petitions are dismissed but without any order as to costs."
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."
7. As is evident from the aforesaid, for doing so, reliance has been placed on earlier judgments rendered in the two petitions, namely, W.P.(C) 7164/2011 & W.P.(C) 7172/2011 decided on 18.02.2013 and in our considered view if the Tribunal in the present case has categorized the nature of work based on the duty list of the Pointsman, there is no error in the same. The issue stands covered by both the judgments as detailed hereinabove and we find no reason to take a different view.
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8. Both the writ petitions are dismissed. However, we make it clear that this order shall be made applicable only in the case of the applicants who had approached the Tribunal and would not apply in cases where the persons have not invoked the jurisdiction of the Tribunal."
11. In view of the fact that the issue at stake has been conclusively decided by the Hon'ble High Court of Delhi, the judicial precedent binds me and no divergent view can be taken in the instant matter. With respect to the submission made by the learned counsel for the respondents that the matter be remitted back to the respondents to decide the pending representation, I am of the considered view that two of the applicants have already retired and the OA pertains to the year 2019, and the respondents have chosen not to decide the pending representations of the applicants for the last five years.
12. In the fitness of things, we do not find any reason that the matter be remitted back to the respondents.
Accordingly, the OA is Allowed. The respondents are directed to treat the applicants under the category 'Continuous' and not under the category 'Essentially Intermittent'. The applicants shall be entitled for OTA for the extra hours, on which they have worked beyond 8 19 Item No. 41(C-3) O.A. No. 2006/2019 hours per day. The amounts of OTA be calculated and released to the applicants within a period of 12 weeks from the date of receipt of a certified copy of this order.
13. The present OA is allowed. No order as to costs.
(Pratima K. Gupta) Member (J) /arti/rk/