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Judgment
K. Haripal, Member J
Four persons working in the category of Pointsman-A/Cabinman-A/Gate Keeper at Kundara Station within Madurai division of the Southern Railway have joined together challenging the non-feasance on the part of the respondents in denying them overtime allowance for the extra hours of duty performed, during given periods. The 1st applicant claims that he had done extra hours of duty without break in L.C. Gate No.528 located between Kundara and Kilikollur during the period between 13.05.2018 and 14.07.2019. The 2nd applicant claims overtime allowance for the duty performed in the said gate during the period between 19.04.2017 to 14.07.2019. Similarly, applicants 3 and 4 had worked in L.C. Gate No.527 located between Kundara and Kilikollur from 19.04.2017 to 14.07.2019. Even though they made repeated representations for granting overtime allowance for the said period, the respondents have not considered the claim and that made them to approach this Tribunal seeking a declaration that they are entitled to be paid overtime allowance between 13.05.2018 and 14.07.2019 as regards the 1st applicant and between 19.04.2017 and 14.07.2019 as regards the other applicants. They seek a further direction to the respondents to pay overtime allowance for the extra hours of duty performed by them with interest at 9% per annum.
According to the applicants, both the gates are classified as 'special class' level crossing, requiring deployment of minimum three gate keepers. Till 19.04.2017 there was no night service in the route but after introducing night service with effect from 19.04.2017, the applicants were made to work for twelve hours a day, whereas they were expected to work only 8 hours a day and 96 hours per fortnight. Thereafter they made representations to the respondents for the excess work done by them during the aforementioned period, which were not considered.
Referring to Section 132 of the Railways Act and provisions of Railway Servants (Hours of Work and Period of Rest) Rules 2005, Annexure-A2, it is submitted that LC gate Nos.527 and 528 have been classified as special class gates, hours of employment of gate keepers were to be classified as being in 'continuous' roster, which means they needed to work only 48 hours a week. Therefore, as per the Act and Rules, they are entitled to be paid overtime allowance for the extra work. Denial of such allowance is arbitrary and discriminatory.
Disputing the contentions, one Sudhagaran, Senior Divisional Personal Officer filed reply on behalf of all the respondents. According to him, even though the said LC gates were classified as a special class, the duty of the Gate Keepers is classified as 'essentially intermittent' as per Annexure-A2 Rules. Annexure-R1 series documents were also produced stating that the applicants had performed duty as per roster, which is within the limit of duty hours fixed by the statute. It is also stated that applicants were allotted to each gate in conformity with Annexure-A1 circular of the Railway Board. According to the respondents, the applicants were put in 'essentially intermittent' roster and even in the current roster, duties of gate keepers have been classified as 'essentially intermittent'. It is further stated that if the applicants had claim for overtime allowance, they should have submitted it in proper format. Thus the O.A. has been sought to be dismissed.
Applicants filed a rejoinder and asserted that the duty of Gate Keepers in L.C. Gate Nos.527 and 528 is 'continuous', the version that the Gate Keepers were classified as 'essentially intermittent' is misleading and factually untrue. The respondents were put to proof regarding the claim that it is 'essentially intermittent'.
Counsel on both sides were heard in detail. The controversy revolved around the question whether the nature of duty performed by the applicants during the period in question fell within the classification of 'continuous' or 'essentially intermittent'. Initially, the contentions were mutually exclusive.
It is not disputed that as per the Annexure-A1 communication of the Railway Board, a 'special class' level crossing requires to be manned by three Gate Keepers. Once a classification as stated in Annexure-A1 is done, it is made clear that, any Factual Job Analysis/work study is not required for deciding the minimum number of Gate Keepers at a level crossing. Annexure-A3 communication shows that LC Gate Nos.527 and 528 are categorised as special level crossings so that it requires to be manned by minimum three Gate Keepers.
As pointed out by the learned counsel, Chapter XIV of the Railways Act governs the hours of work and period of rest of Railway employees. Annexure-A2 Rules were issued in terms of Section 136 of the Act. Rule 7 makes it clear that unless specifically notified, all employments of the Railway servants are 'continuous'. An employee categorised as continuous needs to work only for 48 hours a week and 96 hours per fortnight. It is the specific case of the applicants that in accordance with Rule 8(3) of Annexure-A2, they were discharging duty classified as 'continuous', 48 hours a week. According to Rule 10, where a Railway servant is required to render extra hours of duty beyond the rostered hours fixed in accordance with Rule 8 or beyond the limits specified for different classes of Railway servant under Section 132, he shall be paid overtime for such extra hours of work, subject to the principle of averaging.
The applicants have consistently pleaded that during the given period, there were only two persons in the gates as against the required number of three, that they had performed extra duty for which they are entitled to get overtime allowance. Initially, the respondents took the plea that they were classified as 'essentially intermittent' and were not doing 'continuous' work so that they are not entitled to get extra allowance. Even though they stuck to the said stand at the initial stage of hearing, no document was produced to support the contention that notification was issued by the General Manager or his delegate to prove that the duty of Gate Keepers in the said gate was classified as 'essentially intermittent'. The correctness of Annexures-R1 and R2 were also disputed. But subsequently, realising the mistake, the 3rd respondent Sri.T.Sankaran has filed affidavit tendering apology for the mistake. According to him, there was an error in issuing Annexures-R1 and R2, which was inadvertently listed as 'essentially intermittent' instead of 'continuous'. It is further submitted that on verification of official records, they found that the roster was as 'continuous' from 16.12.2016 till the implementation of the new roster on 27.06.2019. It is further stated that there was no wilful laches on his part.
That means, the applicants were performing 'continuous' work in the said gates and are entitled to get overtime allowance till 27.06.2019 for the duties done beyond 8 hours a day or 96 hours a fortnight.
To put it in other words, there is justification in claiming overtime allowance for the works done by the 1st applicant from 13.05.2018 till 27.06.2019. Similarly, applicants 2 to 4 are entitled to get overtime allowance for the period from 19.04.2017 till 27.06.2019. Declared accordingly. The respondents are directed to draw and disburse overtime allowance to the applicants at the appropriate rates within 60 days from the date of receipt of a copy of this order. It is made clear that if the amounts are not released within the said time frame, the respondents shall pay interest at the rate of 9% from the date of entitlement.
Before parting with, even though the 3rd respondent sought an apology, it requires to be stated that the earlier reply filed by the respondents demonstrates perfunctory manner in which the matter was dealt with. When the claim was decided to be contested, they should have shown the elementary sense of responsibility to verify the records and study the papers with diligence, expected from responsible officers. Such a conduct is liable to be deprecated. I take strong exception to the manner in which the case was dealt with at the official level. The 1st respondent is directed to look into the matter and initiate appropriate action against the erring officials.
The Original Application is allowed in the above terms, with costs.
(Dated this the 18th June, 2024)