Joginder Lal & Ors. vs Union Of India & Ors.

Per: RAMESH SINGH THAKUR, MEMBER (J):

The present Original Application under Section 19 of the Administrative Tribunals Act, 1985, has been filed by the applicants assailing order dated 04.08.2021 (Annexure A-6), whereby their claim for grant of Over Time Allowance (OTA) for the period during which they were required to perform duties beyond eight hours per day was rejected by the respondents. The applicants have prayed for reliefs as under:

Facts of the case in brief are that the applicants are working as Gatemen at different roadside level crossings under the Senior Section Engineer, P. Way, Northern Railway, Ambala. It is their case that they have been performing twelve hours of duty daily without payment of OTA, though it is asserted that their employment does not satisfy the requirements of “Essentially Intermittent” employment under the Railway Servants (Hours of Work and Period of Rest) Rules, 2005 (hereinafter referred to as the “2005 Rules”). Relying upon Rules 7 and 8 thereof, the applicants contend that their employment is “Continuous” and that they are required to work only eight hours per day, with OTA being payable for the additional hours under Rule 10. The relevant provisions of the 2005 Rules have been placed on record as Annexure A-2.

The applicants assert that the nature of their duties requires continuous alertness and sustained attention in the interest of train and public safety and that their duty does not afford the periods of inaction contemplated for “Essentially Intermittent” employment. They further contend that they are not covered by the conditions relating to Gateman “C” or residential accommodation within 0.5 kilometer of the place of duty, which is pleaded to form the basis for permitting additional hours of work under Rule 8(4)(a) of the 2005 Rules.

The applicants also dispute the classification of the relevant level crossings as “C” Class. They rely upon Para 902(2) and the TVU particulars placed on record as Annexure A-7 and Annexure A-8 respectively. It is pleaded that the TVU at Gate No. C-118, where Applicant No.1 was posted, was 1,82,015 per day, while that at Gate No. C-129, where Applicant Nos.2 and 3 had worked, was 1,74,433 per day, and that the said crossings consequently fall within the Special Class criteria. The applicants further dispute the availability of residential accommodation within 0.5 kilometer of their places of duty.

The applicants state that they had sought grant of OTA through representation dated 05.03.2018 (Annexure A-3), followed by legal notice dated 04.11.2019 (Annexure A-4). Thereafter, this Tribunal, vide order dated 05.03.2021 (Annexure A-5), directed consideration of their representation in accordance with the applicable rules, instructions and judgments relied upon by them. Pursuant thereto, the respondents passed the impugned order dated 04.08.2021 (Annexure A-6), rejecting their claim. The applicants contend that reliance placed therein upon the Railway Board decision dated 28.06.2012 is misplaced and contrary to the 2005 Rules. They have also relied upon the judgment of the Hon’ble High Court of Delhi dated 18.02.2013 in W.P.(C) No.7164/2011, Union of India & Ors. Vs. Om Prakash & Anr. (Annexure A-9), and the order dated 16.09.2011 in OA No.3378/2011, Dharambir Vs. Union of India & Ors. (Annexure A-10).

Per contra, the respondents have opposed the Original Application. At the outset, they contend that the applicants have suppressed material facts, stating that the applicants had earlier instituted OA No.060/00572/2017, disposed of on 30.05.2017, pursuant to which a speaking order dated 17.07.2017 was passed, but the same was never challenged. It is contended that the applicants thereafter filed OA No.060/00264/2021 seeking a similar direction for consideration of their representation and did not disclose the earlier proceedings and order. Reliance has been placed upon Dalip Singh Vs. State of U.P. & Ors., (2010) 2 SCC 114.

The respondents have further raised objections regarding jurisdiction and limitation. Their case is that the applicants seek to question their classification as “Essentially Intermittent” and the consequential twelve-hour roster, for which the 2005 Rules provide a specific appellate remedy before the Regional Labour Commissioner under Rules 3 and 4. It is contended that such classification cannot be reopened in the present proceedings. The respondents have relied upon Krishan Prasad Gupta Vs. Controller, Printing and Stationery, (1996) 1 SCC 69 and other decisions cited in the reply. They also contend that the claim is stale, the earlier speaking order dated 17.07.2017 having remained unchallenged, and that the subsequent direction dated 05.03.2021 to consider a representation did not revive the cause of action. Reliance has been placed upon C. Jacob Vs. Director of Geology & Mining, (2008) 10 SCC 115, S.S. Rathore Vs. State of Madhya Pradesh, (1989) 4 SCC 582, Union of India & Ors. Vs. M.K. Sarkar, (2010) 2 SCC 59 and State of Uttaranchal & Anr. Vs. Shiv Charan Singh Bhandari & Ors., (2013) 12 SCC 179.

On merits, the respondents maintain that the applicants were posted at “C” Class Level Crossings and were classified as “Essentially Intermittent”. They rely upon the decision dated 28.06.2012 and contend that the applicants were required to perform twelve hours of duty in accordance with the prescribed roster and did not work beyond the rostered hours. Consequently, the respondents assert that no OTA becomes payable. They dispute the reliance of the applicants upon Para 902(2), Annexures A-7 and A-8 and contend that the classification of the level crossings had been made after considering the relevant parameters, including traffic volume, visibility and the applicable provisions of the Indian Railway Permanent Way Manual.

The respondents further dispute the assertion of the applicants regarding residential accommodation and contend that accommodation within 0.5 kilometer of the place of duty was available. They also submit that the duties of a Gateman, though safety-sensitive, are governed by the Indian Railway Permanent Way Manual, Station Working Rules and the prescribed roster, and that the safety aspect does not by itself alter the classification as “Essentially Intermittent” or entitle the applicants to an eight-hour roster.

The respondents have also disputed the applicability of the judgments relied upon by the applicants. It is asserted that the judgment dated 18.02.2013 in W.P.(C) No.7164/2011 (Annexure A-9) related to a different category and did not adjudicate upon the decision dated 28.06.2012, while the order dated 16.09.2011 in OA No.3378/2011 (Annexure A-10) did not decide the claim on merits. It is further contended that Gate No. C-129 was closed in December 2019 on account of construction of a limited-height subway and, therefore, no continuing cause of action survives in respect of Applicant Nos.2 and 3. The respondents accordingly maintain that the impugned order dated 04.08.2021 (Annexure A-6) is a reasoned and speaking order and calls for no interference.

In rejoinder, the applicants deny suppression of material facts and dispute the assertion of the respondents regarding the earlier proceedings. They contend that the present proceedings arise from and challenge the speaking order dated 04.08.2021 (Annexure A-6) passed pursuant to the Tribunal’s order dated 05.03.2021 (Annexure A-5). They further contend that the present OA is within limitation and that the authorities relied upon by the respondents are distinguishable.

The applicants also dispute the objection that the present proceedings amount to a challenge to their classification. They contend that their claim is for OTA arising from actual work performed beyond eight hours and that the issue has already been considered in the judicial pronouncements relied upon by them. They maintain that the decision dated 28.06.2012 cannot defeat their entitlement under the 2005 Rules and reiterate their objection to the classification of the relevant level crossings as “C” Class and to the assertion of the respondents regarding availability of residential accommodation.

I have heard learned counsel for the parties and carefully perused the material on record.

The controversy in the present OA is essentially as to whether the applicants, while working as Gatemen, are entitled to Over Time Allowance for the period during which they were required to work beyond eight hours per day. The respondents seek to justify the twelve-hour roster on the basis that the applicants were classified as “Essentially Intermittent” and were posted at “C” Class Level Crossings. The applicants, on the other hand, rely upon the 2005 Rules and the judicial pronouncements referred to in the pleadings to contend that Gatemen are required to work for eight hours and are entitled to OTA for the additional hours.

The issue is no longer res integra. In the case of Om Prakash & Anr. Vs. Union of India & Ors., and thereafter in Rohtas & Anr. Vs. Union of India & Ors. and Prem Singh & Ors. Vs. Union of India & Ors., it has been consistently held that a Gateman does not fall within the category of “Essentially Intermittent” employment and is required to work for eight hours per day. Consequently, where a Gateman is made to work for twelve hours per day, he is entitled to OTA for the additional four hours of work.

The aforesaid view has further received affirmation from the Hon’ble High Court of Delhi in W.P.(C) No.8088/2016, arising out of the decision in Rohtas & Anr.. The High Court, while dealing with the challenge to the directions for payment of OTA beyond eight hours, upheld the finding that the respondents were required to work for eight hours and that the directions for payment of OTA for work beyond eight hours were required to be complied with. The respondents have not brought on record any subsequent judgment whereby the aforesaid position has been reversed or unsettled.

The reliance placed by the respondents upon the decision in Vijay Pal Singh & Ors. Vs. Union of India & Anr., OA No.2370/2013, decided on 15.05.2017, does not advance their case. The issue considered therein was the reclassification of Noli Railway Station from “Essentially Intermittent” to “Continuous”, whereas the controversy in the present case concerns entitlement to OTA for work performed beyond eight hours. The said decision, therefore, cannot be treated as an answer to the judicial pronouncements specifically dealing with payment of OTA to Gatemen.

The objection that the applicants in claiming OTA are in substance challenging their classification and were required to avail the appellate remedy under Rules 3 and 4 of the 2005 Rules also does not persuade this Tribunal. The relief sought by the applicants is founded upon the hours of work actually required of them and their consequential entitlement to OTA. More importantly, the question of entitlement of Gatemen to OTA for work beyond eight hours has already been considered in the aforesaid decisions of the Tribunal, including the decision which was upheld by the Hon’ble High Court of Delhi. The respondents cannot, therefore, defeat the claim of the applicants merely by reiterating the classification as “Essentially Intermittent”, when the issue governing entitlement to OTA has already been judicially considered.

The reliance of the respondents upon the decision dated 28.06.2012 and the classification of the relevant level crossings as “C” Class also does not alter the position. The present claim is not required to be adjudicated afresh on the question of classification of the level crossings, inasmuch as the entitlement of Gatemen to OTA for work beyond eight hours stands governed by the aforesaid judicial pronouncements. The contention that the applicants worked only in accordance with the twelve-hour roster likewise cannot, by itself, defeat the claim, since the very legality of requiring Gatemen to work beyond eight hours is the issue which stands answered by the said decisions. Further, the contention regarding closure of Gate No. C-129 in December 2019 also does not defeat the claim for the period during which Applicant Nos.2 and 3 had admittedly been working there. Closure of the level crossing may bring the period of actual deployment to an end, but it cannot retrospectively extinguish any OTA otherwise found payable for the period during which the applicants performed the duties in question.

Upon consideration of the pleadings and the material on record, this Tribunal finds that the case of the applicants is squarely covered by the judicial view taken in Om Prakash & Anr., Rohtas & Anr. and Prem Singh & Ors. (supra), as noticed and followed by the Principal Bench in OA No.643/2015 titled Hari Ram & Ors. Vs. Union of India & Ors, and subsequent judgments. The respondents have not placed any subsequent judicial pronouncement or other material before this Tribunal warranting a different view. The impugned order dated 04.08.2021 (Annexure A-6), insofar as it denies the applicants OTA on the basis of their being treated as “Essentially Intermittent” Gatemen working on a twelve-hour roster, therefore cannot be sustained.

In view of the discussion hereinabove, the impugned order dated 04.08.2021 (Annexure A-6) is quashed and set aside to the extent it denies the applicants entitlement to OTA. The respondents are directed to pay OTA to the applicants for the period during which they were required to work beyond eight hours per day, in accordance with the applicable rules and the judicial pronouncements governing such entitlement as discussed hereinabove, after verifying the relevant service/roster records. The consequential arrears shall be released within a period of three months from the date of receipt of a certified copy of this order. The claim for interest @ 12% per annum is not found justified in the facts and circumstances of the case and the same is accordingly declined.

The Original Application is disposed of in the above terms. Pending Miscellaneous Applications, if any, shall stand disposed of accordingly. No order as to costs.