Union of India v. Shri Dharambir & Ors.

1. The petitioner – Union of India through the General Manager, Northern Railways, has preferred the present writ petition under Article 226 of the Constitution of India to assail the orders dated 27.08.2013 passed in O.A. No. 3054/2012 and dated 02.06.2014 passed in R.A. No. 88/2014 in O.A. No. 3054/2012, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short, ‘the Tribunal’). The Tribunal by the later order dated 02.06.2014 dismissed the petitioners’ review application against the earlier order dated 27.08.2013 passed in the Original Application. The Tribunal had allowed the Original Application preferred by the respondents on the basis that the matter is covered by the order of the Tribunal in O.A. No. 1097/2009 dated 21.01.2011, which has been affirmed by this Court in WP(C) No. 7164/2011, and held that the respondents’ 2014:DHC:4275-DB entitled to overtime allowance.

2. Before proceeding further, we consider it appropriate to set out the relevant Rules.

3. Rule 7(3) of the Railway Servants (Hours of Work & Period of Rests) Rules, 2005 (hereinafter referred to as, ‘the Rules’) provides as follows: “3. Essentially Intermittent: The work of an employee is to be regarded a ‘essentially intermittent’ if his daily duty hours which should be assumed to be twelve hours per day includea. 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 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.”

4. Rule 8 provides for fixation of hours of work. Rule 8(3) & 8(4) provide as follows: “3. The standard hours of duty for different classes of employment of Railway servants shall be as under: a. Intensive - 42 hours a week; b. Continuous - 48 hours a week; and c. Essentially intermittent - 48 hours a week;

4. (a) Railway servants having essentially intermittent class of employment shall called upon to work as per rule 8(2)(ii) additional hours as indicated below:

(i) Gatemen ‘C’ Caretakers of Rest houses and Reservoirs Etc.

(ii) Railway servants posted to work in Essentially Intermittent employment at road-side stations and provided with residential quarters within 0.[5] from their place of duty. - -do-

(iii) Rest of the employees posted to work in Essentially Intermittent class of employment - 12 additional hours per week. b. such additional hours of work shall be reflected in the duty rosters of the Railway servants concerned.”

5. The respondents had approached the Tribunal by filing OA No.3378/2011 on the basis that they were working on the posts of Gatemen on different roadside gates at Rohtak Station. The respondents claimed that they were performing 12 hours duty without any overtime allowance. The respondents raised the plea that they were categorized as in ‘essentially intermittent’ employment. Their submission was that the standard hours of work under Rule 8(3) is 48 hours per week, and additional hours of work can be taken as per Rule 8(4) only. The respondents contended that their cases were not covered by Rule 8(4)(a)(i) or (ii). Therefore, they could not be required to work for 48 + 24 i.e. 72 hours per week. They could, at best, be subjected to 12 hours of extra duty under clause 8(4)(a)(iii). The second relief sought in the Original Application was to seek a direction to the petitioner to grant overtime allowance to the applicants for four hours overtime daily, on account of the fact that they were assigned 12 hours of duty on a daily basis as opposed to 8 hours duty which they were bound to render as a term of their employment.

6. The aforesaid O.A. No. 3378/2011 was disposed of on 16.09.2011 by the Tribunal. The respondents relied upon earlier orders of the Tribunal in Rohtas & Others Vs. Union of India and others and Om Prakash and another Vs. Union of India and others in O.A. No. 107/2009 decided on 21.01.2011. The Tribunal disposed of the said O.A. with a direction to the petitioner to consider the respondent’s claim having regard to the order of the Tribunal in Om Prakash and another (supra).

7. The petitioner, consequently, passed an order dated 01.12.2011 wherein the petitioner stated as follows: “In reference to above subject Gangman’s are informed that the judgment of the Hon’ble CAT, New Delhi is based on the judgment in the case of Sh. Om Parkash S/o Shri Nath R/o Q.No. 6D, Maha Laxmi Garden, Gurgaon Vs. Union of India CAT/NDLS January, 2011. The duty roster of Sh. Om Parkash is stated to be eight hours whereas your duty roster is twelve hours and therefore, over time is not payable to you this is for your information.”

8. In consequence thereof, the respondents preferred O.A. NO. 3054/2012 which has been disposed of by the Tribunal. The order of the Tribunal reads as follows: “Heard the matter in great detail. The respondents raised a preliminary objection that applicant should have approached to Regional Manager for his grievance redressal as provided in the Act itself but since in Administrative Tribunals Act, 1985 also some provision is available it falls within the pattern of choice which is available. After hearing both the counsel, it appears that the matter is covered by an earlier order of this Court in O.A. 1097/2009 dated 21.01.2011 (sic O.A. 107/2009). It is also to be noted that the same case was taken to Hon’ble High Court of Delhi in WP(C) No. 7164/2011 and was heard along with other matters of similar nature and it was found that Tribunal has reached on the correct conclusion and directed the respondents therein, who are the applicants earlier were entitled to overtime wages. Therefore, the same is the case also here. Judicial propriety demands that we follow the dictum. Therefore, the OA is allowed to the same extent. No order as to costs.”

9. From the aforesaid, it would be seen that the Tribunal entirely relied upon the earlier order in O.A. No. 107/2009 in the case of Om Prakash and Anr. (supra).

10. The Tribunal takes note of the fact that the said order (which was passed in case of Om Prakash & Karan Singh Vs. Union of India had been upheld by this Court in WP(C) No. 7164/2011 and several other matters.

11. At this stage, we may refer to the decision in Om Prakash & Karan Singh Vs. Union of India in O.A. No. 107/2009, decided on 21.01.2011. In that case as well, the issue of classification of the petitioners’ employment has been raised. The petitioner had defended the classification of the applicants Om Prakash & Karan Singh who were also working as Gatemen, as being employed ‘essentially intermittent’ employment. The Tribunal, however, found in favour of the applicants and in the operative part, held as follows: “Therefore, the O.A. is allowed. It is hereby declared that the ‘A’ class Gatemen are bound to work 8 hours duty and in case of additional working hours, they are to be paid the overtime allowance, as stipulated under the rules. It is pointed out that Rule 10 of the Rules ibid prescribes the method of calculating the overtime allowance. It shall be taken note of by the respondents as a methodology. It is made clear that within the three months next, the respondents shall calculate the overtime allowance payable to the applicants from the date of institution of the OA and make it available to the applicants. No costs.”