G. Appukuttan v. Union Of India

K. George Joseph, Administrative Member:— The applicant who entered service as Substitute Gangman on 21.5.1968 under the respondents was absorbed in regular service on 1.8.1977 He volunteered for the post of Lubricator Khalasi and was appointed so with effect from 6.7.1980 Later he was promoted as Permanent Way Lubricator Fitter on 8.9.1981 As a Lubricate Fitter he was deputed to attend to the lubrication of Permanent Way at Coonoor which was his headquarters and some times to other sections in the Palghat Division. He had filed this Original Application for the following reliefs:—

“i) direct the respondent to pay the overtime allowance mentioned with 12% interest from the date of Annexure A6 till the actual payment.

ii) direct the respondent to consider Annexure A6 representation and pass appropriate orders, and grant such other remedies.

iii) to grant such other further reliefs as this Hon'ble Tribunal may deem just, fit and proper in the circumstances of the case.”

2. This Tribunal dismissed this Original Application vide order dated 27.1.2009 as under:—

“11. I have heard the learned counsel on both sides. It is seen that the claims relate to the years 1980 to 1992. The first time the applicant has claimed the overtime allowances for the aforesaid period only in the year 1994 by approaching the Labour Court. The overtime allowance has to be claimed periodically. He should have submitted the claims in the prescribed proforma duty countersigned by his supervisor officer. A statement showing the alleged overtime performed by the applicant submitted after several years without proper verification by the authority authorized him to perform such duties cannot be entertained by the Department. Undoubtedly, the application is highly belated and time barred. On merits, the applicant has not established that the time taken by him for travelling to attend the place of duties has to be treated as overtime as in the case of running staff. In my considered view, the O.A is highly belated and it is to be dismissed on the ground of limitation. As regards the merits of the case, it is found that he has no legitimate right. Copies of the instructions filed along with the O.A are not relevant in this case. Unless the applicant establish the claim based on certain rules/instructions, the same cannot be accepted. In view of the above facts and circumstances of the case, the O.A is dismissed both on the ground of limitation and merit. There shall be no order as to costs.”.

3. The applicant challenged the above said order of this Tribunal in OP (CAT) No. 283 of 2011. The Hon'ble High Court set aside the order of this Tribunal and directed as under:—

“For the aforesaid reasons, the impugned order is set aside. This means that OA No. 512 of 2007 on the file of the Central Administrative Tribunal, Ernakulam Bench will stand restored. The parties are directed to mark appearance before the Tribunal on 31.7.2013 All issues other than the question of delay are left open. The Tribunal is requested to make an earnest effort to expeditiously consider and decide the OA on the merits after hearing the parties in accordance with law. The Original Petition is ordered accordingly.”

4. Accordingly, this Original Application was finally heard on 13.12.2013

5. The applicant contended that he is entitled for overtime allowance. He had filed Annexure A6 representation before the Divisional Personnel Officer, Southern Railway, Palghat which is not replied so far. The applicant retired from the service in 1997. During his service he had been engaged to work overtime but the respondents have denied him overtime allowance. He relied upon Annexure A2(11) to Annexure A2(15) circulars issued by the respondents regarding payment of overtime allowance to Railway employees.

6. The respondents contested the OA. They submitted that the applicant has not stated any rule or order entitling him to claim overtime allowance. The circulars at Annexure A2(11) to A2(15) are not relevant to his case as they are applicable to cases where the employees were getting weightage for travelling spare on duty prior to 1.8.1974 While accepting the recommendations of the Commission in regard to payment of overtime, Government of India (Ministry of Railways) had clarified that they will be applicable to only such staff who are already in receipt of overtime allowance prior to 1.8.1974 The applicant was not in receipt of overtime allowance prior to 1.8.1974 For the staff who are travelling on duty other than spare on duty and provided with accommodation in trains, the period of travel will not count as duty. It is not the case of the applicant that he was not provided with travelling facilities. Payment of overtime for traveling time counted as duty for staff who were provided with travelling facilities is not admissible as per rules as is clear from the order dated 29.1.1976 [Annexure A2(12)]. It is specified therein that the benefit of counting of travelling time as time spent on duty will not be applicable to those staff who are not already getting the benefit before 1.8.1974 The applicant was never booked as spare on duty. He was a Lubricating Fitter of Engineering Department and is not coming under the purview of the definition of crew. The applicant was on receipt of travelling allowance for out station duties and periods of travel. Double benefits of both TA and overtime allowance for the same period cannot be admitted. In fact the running staff termed as a crew and performing duties directly earmarked with running trains are eligible for running allowance but excluded from payment of special compensatory allowance such as TA or OT allowance. The question of providing employees like the applicant who are concerned with the maintenance of the track, with crew rest van does not arise at all. The applicant has performed only actual duty assigned to him during his rostered hours when deputed to outstation also. He has not worked beyond duty rosters, to make him eligible for the grant of OT allowance. The applicant at the relevant period of time never made any representation to any higher authority regarding non-receipt of overtime allowance though he claimed travelling allowance and was paid the same every month. There are specific provisions in the Hours of Employment Regulations regarding overtime work, claiming of overtime allowance, sanction of competent authority, payment of overtime allowance etc. There are also specific instructions that overtime allowance should be claimed immediately after the fortnight rostered to do overtime. The overtime claims for years cannot be clubbed together. The applicant has no case that he has submitted over time claims within the prescribed time limit. The maximum preservation period of records pertaining to overtime allowance is three years. The eligible pay and allowance attached to the post held by the applicant has been disbursed to him and received by him from time to time without any demur.

7. We have heard the learned counsel for the parties and perused the records.

8. The applicant's claim is that he had been engaged to work overtime while he was deputed to work at various stations but he has been denied overtime allowance which he is entitled to. His claim for overtime allowance for the period from 1980 to 1992 is 6,60,408/-. He has relied upon Annexure A2(11) to Annexure A2(15) circulars of the respondents/Railway Board with regard to grant of overtime allowance to Railway employees. But they are not relevant to his case since the said instructions are applicable only to those cases where the employees were getting weightage for traveling spare on duty prior to 1.8.1974 As per Annexure A2(11) to A2(15) only such staff who have been enjoying the benefit of overtime allowance prior to 1.8.1974 i.e before the implementation of the Miabhoy Tribunal award. The reliance of the applicant on the circulars at Annexure A2(11) to A2(15) is misplaced. He has not produced any rule or order by which he is entitled to overtime allowance.

9. The applicant who claims now overtime allowance from the year 1980 onwards had no grievance regarding payment of overtime allowance till 1992. If at all he was eligible for overtime allowance the reason for not claiming it in time is not stated by the applicant. The applicant has no claim that he had submitted the overtime claims within the prescribed time limit. The records pertaining to overtime allowance are not retained beyond three years. The applicant hasn't stated what prevented him from claiming overtime allowance if at all he was entitled to the same, before the records were destroyed. The applicant has not proved that he belongs to that category of employees who are classified as ‘continuous’ to be eligible for payment of overtime. The applicant does not belong to the category of running staff to become entitled to the facility of crew rest van. Therefore, the question of counting travelling time as duty due to the non-availability of crew rest van does not apply at all. The applicant has been paid travelling/daily allowance whenever he proceeded on tour. Double benefits of TA and overtime allowance for the same period are not permissible. He has not proved that he has done any work beyond his rostered hours of employment. The tour diary regarding payment of travelling allowance/daily allowance cannot be treated as a statutory basis for granting over time allowance. The applicant has not provided full details of overtime showing the date, day worked, number of hours of overtime work if any performed etc. The applicant has no case that any other Permanent Way Lubricating Fitters has been paid over time allowance. We do not find any basis or justification for the claim made by the applicant for payment of overtime allowance.

10. Annexure A6 representation made by the applicant has not been replied to by the respondents which is not justifiable. In the light of the finding rendered above as to the eligibility of the applciant for overtime allowance, it will not serve any useful purpose if the respondents are directed now to give a reply to his representation. Therefore, we refrain ourselfs from doing so.

11. Bereft of merits the OA is dismissed. No costs.