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Judgment
Om Prakash - VII, Member – J
The applicants have filed this OA for quashing the impugned order dated 15.02.2019 by which the representations of applicants for payment of overtime allowance has been rejected by the respondent NO.5. They have further prayed a direction be issued to the respondents to make the payment of the pending claim/OT dues of the four hours extra work done by the applicants from the year 2005-2011 due date in the department of Signal and Information, North Eastern Railway, Varanasi in accordance with the roaster which was made legally in the year 1982 under the provisions of law.
Brief facts of the case are that the applicant No.1, is the widow of late Kripa Shankar Tripathi, who was initially appointed on the post of Helper (Khalalsi) on 11.04.1985. After one year's training the services of Kripa Shankar Tripathi was regularised on the post of Electrical Signal Man (ESM). Thereafter he was promoted to the post of ESM-III, ESM-II, ESM-I and subsequently he was promoted to the post of Master Craft Man (MCM). Husband of the applicant No.1, Retired on 31.12.2013 from the post of Master Craft Man (MCM). The husband of the applicant No.1 died on 06.08.2018 due to the brain hemorrhage, leaving behind his wife Maya Tripathi the applicant No.1 and two sons namely Ram Ji Tripathi and Avinash Tripathi, as his legal heirs. Similarly the applicant No.2 joined his duties on the post of Helper (Khalasi) 23.08.1984 on permanent basis. He retired in the month of June, 2011 from the post of Helper (Khalasi) in the Department of Signal North Eastern Railway, Varanasi. The employees of the Signal Department were doing 08 hours duty in accordance with the roster issued by the Indian Railway Department dated 20.08.1982. North Eastern Railway issued a duty roster dated 16.05.2005 fixing total working period in 72 hours in a week and rest 30 hours without following the procedure prescribed under the Indian Railway Act, 1989 and Rule 130 of the Indian Railway Rules. Some of the employees objected the working period in the department of Signal and Information, North Eastern Railway, Varanasi filed a complaint before the respondent No. 4. It is stated that they were working on the said post continuously for 12 hours every day in a week and they had also made several complaints to this effect but the respondents did not pay any heed. It has been alleged that the applicants were neither given rest nor they were paid overtime allowance as per rules. Applicants sent representations dated 09.03.2018 to the respondent NO.5 praying therein to make the payment of overtime allowance. They had also sent a reminder to the respondent No.2 for payment of overtime bills. When representations of the applicants have not been decided, they approached this Tribunal by way of OA No. 1164 of 2018. The Tribunal vide order dated 2.11.2018 disposed of the OA whereby directed the respondents to decide the representation of the applicants by a reasoned and speaking order. Since the order of the Tribunal has not been complied with, applicants filed contempt petition No. 330/26 of 2019 before this Tribunal. Later-on in compliance of the Tribunal, respondents passed the impugned order dated 15.02.2019 whereby rejected the claim of the applicants, which was challenged in this OA.
In reply, the respondents have denied the contentions of applicant by filing counter affidavit. It is stated in the counter affidavit that the duty roster dated 20.08.1982 was applicable till 18.09.1996. Subsequently in the year 1996, the competent authority has issued New Essential Intermitted (10+2) hours duty roster which was applicable with prospective effect. There is no change in the roster and roster issued in the year 1996 is applicable till today. Thus the applicants were not entitled for overtime allowance.
In the rejoinder, the applicants reiterated the averments made in the OA and further stated that they had continuously worked for 12 hours per day without rest under duress conditions and therefore they are entitled for overtime allowance.
I have heard Shri Uma Shankar Singh, learned counsel for the applicant and Shri Pramod Kumar Rai, learned counsel for the respondents and perused the record.
Submission of the learned counsel for the applicants is that applicants are entitled for payment of the overtime allowances due for the four hours extra OT duties in accordance with the roster issued in the year 1982. Learned counsel for the applicants submitted that North Eastern Railway's duty roster issued on 16.05.2005, appears to be in violation of the Indian Railway Act, 1989, and Rule 130 of the Indian Railway Rules. The roster fixes the total working period at 72 hours in a week and rest for 30 hours, which may not be in compliance with the prescribed regulations. Learned counsel for the applicants further submitted that they had worked 12 hours a day in a week. Applicants were not paid overtime allowance as per rules. They had made repeated demand for payment of overtime, which were ignored by the respondents. Learned counsel for the applicants has relied upon para 1502 of the Indian Railway Establishment Code, which is as under:-
“1502. Overtime allowance is an allowance paid to railway servants for actual time work in excess of the hours of employment prescribed by any law or rule”.
In rebuttal, learned counsel for the respondents argued that the duty roster dated 20.08.1982 was applicable until 18.09.1996. They have further argued that a new Essential Intermitted (10+2) hours duty roster was introduced in 1996, effective prospectively. The 1996 roster remains unchanged and applicable till today. Thus, applicants are not entitled to overtime allowance since they did not work beyond prescribed hours per day.
I have considered the arguments advanced by the learned counsel for the parties and have perused the records.
From the perusal of record, it appears that the applicants had earlier filed OA NO. 1164 of 2018 seeking overtime allowance and the aforesaid OA was disposed of, directing respondents to decide the applicants' representations dated 09.03.2018 regarding non-payment of overtime allowance for extra duty (4 hours per day). When respondents failed to decide on applicants' representations, applicants filed a contempt petition against respondents for non-compliance with the order dated 02.11.2018. The said representation of the applicants was rejected by the respondents vide impugned order dated 15.02.2019 stating therein that in compliance with the order of Tribunal passed in OA No. 330/01164/2018 on 05.11.2018, respondents have examined the claim of the applicant and thereafter rejected the representations given by the applicants in which they had demanded payment of overtime allowance. It is clear from the perusal of impugned order that vide letter of CSE/Sig/Varanasi, the duty roster of the employees of the signal department of Varanasi City Station is of 12 hours, which was implemented on 16.05.05 after taking approval of the competent authority. The roster in Varanasi City was of 12 hours and duty was also taken for 12 hours. Therefore, as per the roster, no overtime allowance of any kind is made out in favour of the applicants.
After thoroughly perusal of para 1502 of Indian Railway Establishment Code, when employees are required to work beyond actual hours stipulated for duty, they are entitled to overtime allowance as a form of financial recognition for the additional effort and time spent but in this case I am of the view that in the case of employees of Signal Department, it is for 12 hours duty. In this regard a roster dated 16.05.2005 was issued, which was duly approved by the competent authority, thus, in my considered opinion applicants are not entitled for overtime allowance as they are related to the Signal Department and as per aforesaid duty roster working hours of employees of Signal Department are 12 hours a day.
In view of the aforesaid deliberation mentioned hereinabove, OA is liable to be dismissed and the applicants are not entitled to overtime allowance for the period they actually worked beyond 8 hours in a day. Accordingly, OA is dismissed. No order as to costs. All associated MAs are disposed of.