Raj Dev Rai vs Union Of India And Ors

Through the medium of this O.A., the applicant has prayed for the following reliefs:-

"(1) That the Hon"ble Tribunal may graciously be pleased to pass an order of directing the respondents to grant the overtime allowance to the applicant from the date of his posting as running rule cook at Panipat or at least w.e.f. 03.03.2009 till the date of retirement with all consequential benefits including the arrears with interest.

(ii) That the Hon"ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 15.1.2014 and 19.7.2013 and consequently, pass an order of granting the over time allowances to the applicant from due date with all the consequential benefits."

The factual matrix of the case, as noticed from the records, is as under:-

The applicant was appointed as a Gangman in the Railway Department on 15.07.1983. He was subsequently de-categorized as Running Room Bearer (RRB) on 18.12.1999 and posted under Senior Crew Controller, Panipat. He retired from service on 31.03.2013. His claim is that although his duty as RRB was classified as "essentially intermittent" in terms of Rule 7 (3) of the Railway Servants (Hours of work and period of rest) Rules, 2005 (for short "Rules 2005") but, in fact, it should have been put under "continuous"category given the nature of the duty. Thus, he is entitled for grant of over time allowance (OTA) for his duties beyond 48 hours in a week. In support of his claim, the applicant has primarily raised the following two grounds:-

(a) That in terms of Rule 7 (1) of the Rules 2005, all employments of railway servants, except those excluded from the purview of the Hours of Employment Regulations, are assumed to be "continuous". Further, that in terms of Rule 8 (3) of the Rules 2005, for the "essentially intermittent"category also, the working hours are fixed as 48 hours a week. Rule 8 (4) (a) (i) & (ii) of the Rules 2005, however, states as under:-

"8. (4) (a) Railway servants having essentially intermittent class of employment shall be 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., Chowkidars and Saloon  Attendants

(ii) Railway servants posted to work in Essentially Intermittent employment at road-side stations and provided with | residential quarters with | 0.5 Kms. From their place of duty

-24 additional hours per week

(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."

(b) The respondents themselves have got a job analysis done in the year 2009, according to which, RRB should come under "continuous"category.

The respondents, in their reply, have broadly stated as under:-

3.1 As per the Rules 2005, the post of RRB comes under "essentially intermittent"category having duty roster 12 hours per day. The authority competent to upgrade/downgrade the classification is General Manager of the Railways.

3.2 A factual job analyses (FJA) was conducted by the Divisional Railway Manager Office, New Delhi regarding the implementation of 8 hours duty to the running room staff, i.e., RRB and Running Room Cook (RRC) at Panipat from 03.03.2009 to 05/06.03.2009 and thereafter from 17.03.2009 to 20.03.2009. The FJA report recommended for changing the classification to RRB & RRC from "essentially intermittent"to "continuous". Accordingly, the report was implemented and a letter to that effect was issued to 22.04.2015 stipulating therein that 8 hours duty roster for RRC & RRB should be implemented with retrospective effect from 10.11.2014.

3.3 Since the applicant retired from service on 31.03.2013, he could not be given the benefits of the ibid classification, which came into effect from 10.11.2014.

Arguments of learned counsel for applicant were heard on 09.03.2018. There was no representation on behalf of respondents, thus the matter was taken up in terms of Rule 16 of CAT (Procedure) Rules, 1987.

I have considered the arguments of learned counsel for applicant and perused the reply filed by the respondents.

The applicant, who initially joined as Gangman on 15.07.1983, was re-categorized as RRB only on 18.12.1999. At that time, RRB was categorized as "essentially intermittent"in terms of the Rules 2005. The applicants claims that in terms of Rule 8 (4) (iii) of the Rules 2005, he was required to work only additional 12 hours per week, i.e., 8+2 = 10 hours daily and that his case is not covered under Rule 8 (4) (a) (i) & (ii) of the Rules 2005. This has not been controverted by the respondents. On the other hand, the respondents themselves have admitted that FJA in respect of duties of RRB & RRC was commissioned by them in the year 2009 and that the report recommended for changing the classification of RRB & RRC from "essentially intermittent"to "continuous", which has been implemented by the respondents w.e.f. 10.11.2014 vide communication dated 22.04.2015. The sole ground for denying the OTA to the applicant for the duty performed by him beyond 10 hours per day is that by the time the change of classification would be communicated vide letter dated 22.04.2015, the applicant had retired from service on 31.03.2013.

Pertinent to observe that the nature of duties of RRB & RRC have not undergone any change. What underwent change was the assessment of the nature of duties of RRB & RRC by the respondents. It is not in dispute that the applicant was not given the official quarter within a distance of half kilometer from his place of work at Panipat.

In this view of the matter, I am of the view that the applicant is entitled for OTA for his duty beyond 8 hours per day, and thus he would be entitled for OTA for such extra hours of work. Since the FJA was commissioned in March 2009 and the applicant has claimed OTA from 03.03.2009 and till the date of his retirement, I am of the view that the ends of justice would meet by granting him the OTA for this period @ 2 hours per working day.

In the conspectus of discussions in the foregoing paragraphs, this O.A. is allowed. The respondents are directed to pay OTA to the applicant from 03.03.2009 and till the date of his retirement @ 2 hours per working day, in accordance with the extant Rules / Standing Orders. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.