Jaikrishan Narayan & Ors. vs Union Of India & Ors.

Applicants, 62 in number, are/were working as AC Coach Attendants/AC technicians in Trivandrum Division of Southern Railway; except applicant Nos. 43 and 55 who have retired from service, all are still in service. Their grievance is that they are being engaged by the respondents for out-bound long distance Superfast trains from Kochuveli/Trivandrum Central to different destinations like New Delhi, Kolkata, Hapa, Veraval, Kurla/Mumbai, Korba, etc. Though classified as “continuous” workers rostered to work eight hours each for six days with one day rest in a week, in fact they are made to work through the journey of such trains from starting point to destination, that is, for almost three days; they are not relieved at the destination station and hand over the charge only when the train returns back to Kochuveli/Trivandrum. They are on duty even after reaching the destination till the commencement of the return journey. The intervening period in railway parlance is known as halt period; such halt period is treated as duty and they are given benefits such as TA/DA. But the said period is not reckoned for granting overtime allowance. Once they board the train from the headquarters, they remain on duty till reach back to the headquarters in the same train. Even after arriving at the destination station they are in charge of all electrical equipments, AC plant and public amenities such as linen etc. They have to guard AC coaches also and help secondary maintenance staff for setting right defects developed during onward journey to avoid any complaint in return journey. The grievance of the applicants is that even though they are on continuous duty from the time of commencement of the train till it reaches back, they are not paid overtime for the halt period. It is illegal. On a similar application the Bombay Bench of this Tribunal had found that employees similarly placed should be paid overtime allowance for the halt period. Though the respondents had taken up the matter with the Hon'ble High Court of Bombay, the OP(CAT) was dismissed. Thereafter an SLP filed before the Hon'ble Apex Court stands dismissed. On these lines, the first applicant had submitted a representation to the 3^rd respondent, the Senior Divisional Personnel Officer, Southern Railway, Trivandrum Division on 22.05.2018 but it has not yet been considered at all. Other applicants had also submitted similar representations but of no avail. Thus they seek a declaration that the applicants are eligible for overtime allowance for the halt period and consequential reliefs.

On behalf of the respondents reply statement has been filed stating that the application is barred by limitation; except the first applicant other applicants did not file any representation as claimed. Referring to an order passed by the Principal Bench of this Tribunal in O.A 250/2017, they pointed out that the Principal Bench had disallowed a similar claim and therefore the application is liable to be dismissed.

I heard learned counsel for the applicants and also learned SCGSC for the respondents. The learned counsel for the applicants submitted that if ever the employees are expected to work for more than 96 hours a week, they are entitled to get overtime allowance, that payment of DA will not amount to duplication of the claim. He said that daily allowance and overtime allowance are different concepts. According to learned counsel, the applicants are similarly placed as that of the petitioners in Annexure A1, they are on continuous duty till the train reaches back the boarding station/headquarters and that they do not hand over charge at the place of destination. According to him, the Hyderabad Bench of this Tribunal has also passed an order on the lines of Annexure A1. Now the Hon'ble Apex Court has also favoured the order so that there cannot be any impediment in allowing the legitimate claims of the applicants.

Learned SCGSC for the respondents submitted that except the first applicant others have not given any such representation. According to her, after the train reaches the destination station, the AC Coach Attendants/ AC Technicians are relieved, are made free so that the period of halt cannot be reckoned for granting overtime allowance. The learned counsel for the applicants has disputed this argument. According to him this aspect has not been stated in the reply statement despite the fact that the applicants had positively averred that they are not relieved till they reach back the boarding station.

After hearing counsel on both sides, I am of the definite view that the claims raised by the applicants are really formidable. It is not disputed that they are employees belonging to the AC Coach Attendants/AC Technicians who are in charge of the AC coaches from the place of commencement of journey till the train reaches back the headquarters. In Annexure A1 the learned Tribunal has elaborately quoted the duties and responsibilities of AC Coach Mechanics and AC Coach Attendants which clearly indicate that they are on duty throughout the journey, accompanying the train till it reaches back the boarding station.

Secondly it is positively averred in the petition that the applicants continue to perform the duties and sign off only after reaching the headquarters; in other words from the headquarters till the train reaches back the place after completing journey, they are expected to be on board, attending the duties assigned to them. Reckoning the same they are given TA and DA. According to the respondents, for the purpose of payment of overtime allowance, they are relieved at the place of destination. But that does not stand to reason. As adverted to earlier, they have been given specific duties. AC Technicians/AC Attendants are expected to be in charge of the safe custody and maintenance of all the fittings and other materials such as linen etc., provided in the coach, in satisfactory condition. There is nothing on record to say that at the place of destination or at the halt period they are made free or relieved and such valuables and materials are put in charge of somebody from the time of arrival till the time of departure at the place of destination. As noticed earlier, the positive averments that they are in continuous charge of the materials and machinery including AC equipments are not rebutted by the respondents.

During the course of argument, it has also come out that unlike in the case of Locopilots, TTEs, Guards, this category of employees like AC Mechanics and AC Attendants have to be on board the train throughout the journey and they get relieved only after the train reaches back to the boarding station. They are not provided any rest room on the way or on the place of halt destination but have to remain in the coach itself, taking care of the materials and machineries entrusted with them.

Learned Bombay Bench of this Tribunal has elaborately considered the nature of duties assigned to employees similarly placed and came to the conclusion that they are entitled to get overtime allowance. The Tribunal also had taken into consideration an order passed by the Central Government Industrial Tribunal (CGIT) where the High Scale Electric Fitters, AC Coach Attendants and Helper Khalasis had claimed overtime allowance. It was noticed that they were found entitled for overtime allowance since they are working round the clock and are not relieved at any point of time during the period of operation. The finding of the CGIT was upheld by the High Court and then by the Apex Court.

Here also Annexure A1 order was challenged before the High Court of Bombay; when the order was confirmed by the Hon'ble Bombay High Court, the Union of India preferred SLP before the Hon'ble Apex Court and by Annexure A2 order the SLP was also dismissed. In other words, Annexure A1 order has become final and the question has become fait accompli.

Even though some technical objections were raised by the respondents, I am not satisfied that those contentions like barred by limitation, etc., do not require serious consideration.

On an evaluation of the materials on record, I have no doubt that the applicants are entitled to get a declaration that they are eligible to claim overtime allowance at the destination station for the halt period. The respondents shall reckon such halt period for payment of overtime allowance and shall pay such allowances due to the applicants as per law. However, it is made clear that such claim shall be limited to the past three years prior to date of filing of this O.A.

O.A is allowed as above. No costs.