Vinoj K.M vs Union Of India & Ors.

Sunil Thomas, Member J

Order on the preliminary issue of maintainability –

The applicant is working as a Senior Section Engineer/OHE under the Southern Railway. According to him he was working as Depot In-charge with independent charge from 18.4.2023 to 7.9.2024 in the office at Kottayam. The duty roster showed the applicant as excluded category due to his position as Depot In-charge. As per Railway Servants (Hours of Work and Period of Rest) Rules, 2005 [HOER Rules, 2005], the employment of Railway servants are divided into four categories, with standard duties of different class of employment of Railway servants fixed under Section 3 of HOER Rules, 2005. Though, for the categories of intensive, continuous and essentially intermittent, the duty hours per week is fixed, in the case of fourth category namely excluded category, there is no fixed hours. However, they have the freedom to adjust duty hours as provided in HOER Rules, 2005. Earlier, aggrieved by the duty timings allotted to him, applicant had approached the Regional Labour Commissioner, the statutory authority raising his grievances in 2012, 2015 and 2022 evidenced by Annexures A4, A6 and A8.

While so, on 7.9.2024 the applicant was relieved from the responsibility of Depot In-charge. He was posted to work under the control of SSE/TRD/KTYM. He claims that accordingly, he is entitled for duty hours and rest period as if he is a continuous category of employee as he was relieved from the supervisory responsibility of the Depot In-charge. However, when Annexure A1 duty register was issued it indicated that he was not given the mandatory rest period as per HOER Rules, 2005. He submitted detailed representation. Since no action was taken the applicant has approached this Tribunal contending that Annexure A1 is illegal and liable to be set aside. The grievance is to the extent of considering the applicant as an excluded category of employee.

The respondents appeared and raised a preliminary objection that the application is prima facie not maintainable. In the objection it was contended by the respondents that the claim of the applicant was that he falls under the continuous category and as per the impugned Annexure A1, he is included in the excluded category and he shall be allowed to continue in the continuous category. Hence, the core issue of the OA is with regard to classification of the employee. It was contended that as per Rule 4 of Annexure A3 HOER Rules, 2005, any appeal against the declaration of classification made under Rule 3 has to be raised before the Regional Labour Commissioner within 90 days. Hence, the applicant has a stipulated channel of appeal against the impugned order as per the Rules applicable to him. His right is to appeal against the impugned order before the Regional Labour Commissioner (Central) regarding his alleged grievances. To substantiate this contention the learned Standing Counsel for the Railways relied on Annexure R3 in which the Ministry of Labour and Employment had issued a list of staff classified as supervisory. In Annexure R3 it was interalia, stated that Inspectors of all departments employed mainly on supervisory duties and the electricians in the electrical department in the prescribed scale of pay and above when employed in supervisory duties are classified as supervisory for the purpose of Rule 5 of Railway Servants (Hours of Employment) Rules, 1961. Later by Annexure R4 communication dated 28.1.1972 it prescribed the list of supervisory staff in which under Part VI Electrical Inspectors and Electrical Supervisors (erstwhile SSE/Electrical) are classified as supervisory category (serial Nos. 7, 19 and 28). Supervisory staff are placed under excluded category since they are free to adjust the hours of work beyond such hours.

It was contended that the applicant’s version was that he was exercising supervisory powers being the Depot In-charge or as In-charge and hence once he is relieved from that charge he does not fall within the category of excluded category. It was contended by the respondents that a reading of Annexure A10 duty roster issued to the applicant dated 16.2.2017 does not make any distinction as a categorization within the category of SSE/JE. To substantiate the contention that such an application is not maintainable before this Tribunal, the learned Standing Counsel relied on the decision of the Principal Bench of the Tribunal in OA No. 2370 of 2013.

Heard both sides on the question of maintainability.

The precise contention of the learned counsel for the Railways is that a dispute relating to inclusion in a particular category is outside the scope of jurisdiction of this Tribunal in the light of specific provisions under Rule 4 of Annexure A3 Railway Servants (Hours of Work and Period of Rest) Rules, 2005. This contention is answered by the learned counsel for the applicant on the specific premise that the applicant is not challenging the categorization, but only fixation of duty hours by virtue of Annexure A1, treating him as an excluded category of employee.

Annexure R4 is the list of Railway servants who shall only be classified as supervisory under Rule 5(2) of the Railway Servants (Hours of Employment) Rules, 1961. In clause VI items 7, 19 and 28 are stated to be applicable to the applicant. Item 7 deals with Electrical Inspector, item 19 with Electrical Inspector of a different pay scale who while on supervisory duties fall within the excluded category. On the other hand in the case of item 28 Electrical Supervisor of pay scale of Rs. 250-380/- or above fall within the excluded category.

It is pertinent to note that Rule 4 of Annexure A3 provides as follows:

“4. Appeals against classification.-

(1) Any railway servant aggrieved by the declaration of classification made under rule 3 may, within ninety days from the date of such declaration, prefer an appeal to the Regional Labour Commissioner, who, after scrutiny of relevant documents or if considered necessary, after a fresh job analysis, may order for a change in the classification.

(2) Any railway servant or Railway Administration aggrieved by a decision of the Regional Labour Commissioner may, before the expiry of ninety days from the date on which the decision of the Regional Labour Commissioner is communicated to him, prefer an appeal to the Secretary to the Government of India in the Ministry of Labour who will dispose it off after hearing the parties concerned.”

As per Rule 3 of Annexure A3, the prescribed authority to classify the employment of Railway servant is the competent authority i.e. the head of Railway administration. A reference to Annexure A1 which is under challenge shows that it is the roster for Senior Technician/Technician/I/II/III and Assistant (SSE/JE are involved in excluded category). Virtually when Annexure A1 is assailed the inclusion of SSE and JE in the excluded category is the basic ground on which Annexure A1 is impugned. The learned counsel for the applicant tried to salvage the issue by contending that the applicant is not challenging the inclusion but only challenging the timing fixed since he does not fall within the excluded category. On the other hand, the prayer (1) in the OA itself is to set aside the duty roster issued by respondent No. 1 “classifying the applicant as an excluded category employee and allow to continue the duty roster issued by respondent No. 1 as Annexure A10”. This clearly shows that the classification itself is under challenge. Though the learned counsel for the applicant vehemently contended that he is challenging only the timings, the question whether he falls within the excluded category and whether he was exercising supervisory functions even after relieving him of the duty of Depot In-charge is a matter which needs to be considered on an analysis of job. Essentially it points that the applicant is challenging the inclusion in the excluded category.

In the earlier representations submitted by the applicant as Annexure A4, A5 and A6, it was contended that the duty roster was not as per Section 8 of the Rules, and the applicant had approached the Regional Labour Commissioner (Central), Bangalore. Evidently, in an exactly identical situation the applicant had earlier opted the mode of appeal as contemplated under the Rules. In the above circumstances, the contention of the learned counsel for the Railways is sustainable.

To supplement the contention the learned counsel for the Railways, he specifically relied on the decision of the Central Administrative Tribunal, Principal Bench in OA No. 2370 of 2013. That was a case wherein the applicants contending that they were forced to work for 12 hours a day approached the Central Administrative Tribunal, Principal Bench. The maintainability of the OA was challenged in the light of Rule 3 and Rule 4 of the Railway Servants (Hours of Work and Period of Rest) Rules, 2005. After detailed consideration of the issue, the Principal Bench by Annexure R2 order held that if the employee is dissatisfied with the declaration of the employment of the Railway servant as intensive or essentially intermittent, the same can be challenged under Rule 3 by filing an appeal before the Regional Labour Commissioner within 90 days. If he is aggrieved by the decision of the Regional Labour Commissioner then, under Rule 4, he may prefer an appeal to the Secretary to the Government of India in the Ministry of Labour. It was held that the applicants have not adopted that procedure and approached the Tribunal directly. Hence, the OA was not maintainable as being violative of Sections 20 and 21 of the Administrative Tribunals Act.

The facts of the above case are directly applicable to the facts herein.

Having held so we are inclined to accept the preliminary contention set up by the learned counsel for the Railways that the OA is not maintainable being violative of Sections of 20 and 21 of the Administrative Tribunals Act, 1985. The point is answered in favour of the Railways. The Original Application is hence not maintainable.