IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FITEENTH DAY OF MARCH TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S. NARAYANA WRIT PETITION NO : 1625 of 2004 Between: 1. The Chairman, RailwayBoard and the Principal Secretary to Ministry of Railways, Government of India, Raj Bhavan, New Delhi- 110 001. 2. The GeneralManager,South Central Railway, 3rd Floor, Railnilayam, Secunderabad – 500 071. 3. The Chief Personnel Officer, South Central Railway, 4th Floor, Railnilayam, Secunderabad – 500 071. ..... PETITIONERS AND 1. T. Vittal Rao s/o T. Govindarajulu, Aged 59 years, R/o Hyderabad. 2. S. Balraj s/o Late S. Ramaiah, Aged 50 years, R/o Hyderabad. 3. T. Ramachander Rao, S/o T. Rama Rao, aged 58 years, R/o Secunderabad. 4. G.V.Shankar Rao s/o late G.V. Subba Rao, aged 56 years, R/o Secunderabad. 5. A.V.V.S. Prasad S/o A.N. Murthy, Aged 57 years, R/o Secunderabad. 6. Srikanth s/o late S.Y. Mane, aged 41 years, R/o Secunderabad. 7. B. Hariprasada Rao s/o late B. Chalapathi Rao, Aged 42 years, R/o Secunderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of certiorari and call for the records relating to the Order dated: 03.10.2003 passed in O.A.No. 13 of 2003 on the file of Central Administrative Tribunal, Hyderabad Bench, Hyderabad and quash the same. Counsel for the Petitioner: MR. S.R. ASHOK & MR. C.V. VINITHA REDDY Counsel for the Respondents: Mr. S.K. PADMA RAO, Mr. NINARTHI M.S. MR. T. VENUGOPAL REDDY The Court made the following: J U D G M E N T : (per G. Bikshapathy J) 1. The Writ Petition is filed by the South Central Railway challenging the Order passed by the Central Administrative Tribunal, Hyderabad in O.A.NO. 13 of 2003, dated: 3.10.2003. 2. Respondents in the Writ Petition are the applicants before the tribunal approached the tribunal seeking payment of over time allowances to them for the period from 2.8.1984 to 11.4.2001, during which period they worked as train superintendents, other than Rajdhani Express such as Andhra Pradesh Express etc. 3. It is the case of applicants that they are the permanent raiway servants working under South Central Railway as Train Superintendents attached to Secunderabad Division. They were posted on Superfast expresses Andhra Pradesh Express, Falaknmuma Express, Konark Express, Minar E$xpress, Cochin Express, Rajkot Express, Charmina Express and Dakshin Express etc. Various super fast expresses run from Secunderabad to various places and reach the destination. 4. It is the case of the applicants that they are required to go along with the trains and return along with the train putting in continuous working hours without any rest. They have given the details of their work Superintendents in various trains. It is their case that they commence their duty from Secunderabad Station and return back to original station without any rest or relief. Some times, they have to take diverted route if any obstructions on regular route is created. They are also required to attend V.I.Ps. and V.V.I.Ps. during their journey. According to the Railway Service Hours of Employment Rules, they are categorised as continuous employees and in respect of the continuous workmen, they were required to put in not more than 108 hours including preparation and complementary time. If the duty hours are more than 108 hours, they are entitled for over time allowance as applicable to the running staff. Since they had worked for more than the prescribed hours under the Railway hours of Employment Rules, 1961, they sought for appropriate directions. It is their case that the Railway Board on 2.8.1984 had clarified that Train Superintendents in all grades working on any train are covered by Entry 106 (Train Superintendent attached to Rajdhani Express). It is also further their case that the Train Superintendents other than the Rajdhani Express are working in lower grades Rs. 370-475/- scale. In order to avoid an ambiguity, the railways has clarified the situation in Circular No. E(LL) 79/HER/1-13, dated: 2.8.1984 to the effect that the Train Superintendents in the grade Rs. 370-475/- and higher working in any trains are covered in Entry No.106. The effect of Entry No.106 is that Train Superintendents falls under supervisory cadre and that he is entitled for any over time allowance. However, the said clarification was withdrawn by a letter dated: 11.4.2001 and it has been further directed by the Railways that the intervening period 2.8.1984 till 11.4.2001, the practise followed on each individual by the Railway, in regard to classification of Train Superintendents and Train Superintendents other than Rajdhani Express Supervisory and non-supervisory as the case may be effected. Consequent on this clarification, the case of the applicants that they have become entitled for over time allowance from 2.8.1984 to 11.4.2001. It is also their case consequent on the issue of the case, the South Central Railways intimated the concerned Officers to send over time allowance of all the eligible candidates. In pursuance of the said circular, the applicants also submitted their respective claims. But, there was no response and therefore, they made representation to the authorities and having exhausted the remedy before the South Central Railway, they filed O.A.NO. 13 of 2003 for positive direction. 5. The matter was contested by the Railways that they are not eligible for over time allowance as they fall within the category of supervisors and by virtue of entry No.106 they fall outside the purview and they are exempted employees and it is also stated and the claim of the petitioners is wholly time barred and that no claim as made by the applicants could be verified with reference to the records, as the records were destroyed long ago. Further, it is stated that the Train Superintendents are provided with six-berth compartment and they can avail rest room facility at outstation. They denied that they are treated as classified as workers under hours of Employment Rules, 1961. 6. Considering the respective contentions, the learned Central Administrative Tribunal recorded a finding that the applicants are governed by the hours of Employment Rules and that they had to put in more than 108 roster hours and thus they are entitled for over time allowance in accordance with the rules. The tribunal also observed that the Central Government Industrial Tribunal at Bombay also allowed such applications. Further, it is observed that the Railways issued a letter dated: 20.9.2001 stating that as per Railway Board letter dated: 11.4.2001 the posts of Train Superintendents of all trains other than Rajdhani Express are treated as non-supervisory posts. With regard to the limitation also, the tribunal observed that the rights became accrued to the applicants only from the date of issuance of letter dated: 11.4.2001 and therefore, it cannot be said to be beyond time and accordingly allowed the O.A. by an Order dated: 3.10.2002, against which the present Writ Petition has been filed by the South Central Railway. 7. The learned counsel appearing for the Railways vehemently submits that the Order passed by the tribunal is wholly illegal and without jurisdiction. The tribunal ought not to have entertained the highly belated claim namely over time allowance claimed for the period from 2.8.1984 to 11.4.2001. Further at this distant of time, the Railways also do not have the necessary registers/documents to compare or verify the actual hours drawn by him or on what trains the applicants were engaged. In the absence of all these details, the tribunal ought not to have allowed the application. The learned counsel also submits that as per the Circular issued by the Railways, travelling allowance bills, the duties performed register only are required to be retained for three years. Since, the claim is beyond three years, the duty performed records showing the duty performed could not be preserved and they could not have been traced and therefore, the tribunal has erred in allowing the claim of the petitioners. 8. The learned counsel for the petitioners would submit that if the applicants are entitled for any over time allowance from 1984, it is not understood as to why they could not make any claims during the period from 2.8.1984 to 11.4.2001 and there is no necessity for the applicants to wait till 2001, when the Railways has issued a circular and he submits that there are no bona fides on the part of the applicants and the Order passed by the tribunal is liable to be set aside. 9. On the other hand, the learned counsel for the respondents-workmen submit that all the applicants are working in the Railways and it is their claim that they are continuous workers and they are deputed on trains other than Rajdhain Express and what was exempted from the hours of Employment Rules, the post of Train Superintendents attached to Rajdhani Express. Under those circumstances, the tribunal has correctly come to the conclusion that the Train Superintendents other than the Train Superintendent attached to the Rajdhani Express are entitled for over time allowance and the South Central Railway also clarified that the applicants fall in non-supervisory category. It is also stated that after the clarification was given in 2001, Circular was issued to submit the over time allowance in respect of the persons, who became eligible in pursuance of the clarification. Hence, the Order of the tribunal is quite legal and valid and the same is unassailable. 10. The issue that arises for consideration is whether the Order of the tribunal is sustainable in law? 11. What is claimed before the tribunal is over time allowance consequent on the Circular issued by the Railway Board dated: 11.4.2001. It is also not in dispute that hours of Employment Rules, Entry No. 106 covers Train Superintendents attached to Rajdhani Express by which entry the Train Superintendents attached to Rajdhani Express falls in supervisory category and he is not entitled for over time allowance. However, on 3.8.1984, it was clarified that the Train Superintendents in all grades Rs. 370-475/- and higher working on any trains covered by Entry No.106. But, however, it appears that representations were made by the staff and meetings were held in that regard for clarifying the situation. Therefore, basing on the outcome of such meetings, the Railway Board issued a circular dated: 11.4.2001 which is extracted below: “Reference is invited to the instructions contained in board’s letter No. E(LL) 79/HER/1-13, dated: 2.8.1984 wherein it had been clarified that Train Superintendents in all grades (i.e. Rs. 370-475 and higher) working on any Train are covered by Entry 106 (Train Superintendent attached to Rajdhani Express) at Page 9 of the detailed list of the Railway Servants who are classified as “Supervisory” under Rule 5(2) of the Railway Servants (Hours of Employment) Rules , 1961 as forwarded vide Board’s letter No. E(LL) 70/HER/16, dated: 4.1.1972. It has been represented by Staff side in JCM/DC meeting that the clarificatory instructions contained in Board’s letter dated: 2.8.1984 referred to above were issued without following the proper procedure laid down in this regard, i.e. without consultation with the two recognised staff federations. Pending question of classification of Train Superintendents on trains other than Rajdhani Express being discussed further with the Federations, the matter has been carefully considered by Board and it has been decided as under:- (i) Instructions contained in Board’s letter No. E(LL) 79/HER/1-13, dated: 2.8.1984 are withdrawn with immediate effect. (ii) For the intervening period from 2.8.1984 till 11.4.2001 (i.e. the date of issue of this letter), the practice followed on each individual railway in regard to classification of Train Superintendents on trains other than Rajdhani Express as Supervisory or non-supervisory shall remain effective. (iii) The matter regarding classification as “Supervisory” of Train Superintendents on trains other than Rajdhani Express shall be finalised expeditiously in consultation with the two recognised staff Federations. XXX XXXX XXX” By virtue of the aforesaid clarification, the situation as existing prior to 2.8.1984 was restored back namely that the Train Superintendents other than the Rajdhani Express became entitled for over time allowance being non-supervisory cadre and it is also the case of the applicants that prior to the clarification on 2.8.1984 they have drawn the over time allowance having worked as Train Superintendents in various trains. It is also further their case that after clarification was issued, they continued to draw the over time allowance treating them as non-supervisory cadre attached to the super fast express other than Rajdhani Express. There is also a reference to the letter issued by the South Central Railway dated: 20.9.2001 to the effect that the persons, who became eligible for over time allowance in pursuance of the clarification to submit their over time allowance claims. The learned counsel for the railways submit that whether they worked earlier as Train Superintendents and whether they draw the over time allowance is beyond verification as records were not preserved as under the Rules, T.A. Bills are required to be preserved only for three years. Therefore, even though they made such averments, it cannot be acted upon to establish that they have drawn the over time allowance. But, however, the assertion of the applicants that they had drawn the over time allowance from the date of the clarification is not being disputed. Under those circumstances, it cannot be said that they are only supervisory cadre and not entitled for over time allowance. It is one thing to say that they are not entitled for over time allowance being excluded category, but another thing to say that the claim is time barred. The tribunal has gone into this aspect and considered that consequent on the clarification issued vide letter referred to above namely 11.4.2001, they became eligible not only for the arrears, but also they continued to draw over time allowance even till today. The contention of the learned counsel for the railways that the claimed made to them is beyond limitation and nothing could have prevented them from claiming the over time allowance if they are really entitled for over time allowance cannot be accepted as by virtue of the clarification dated: 2.5.1984, they were under the impression that they were grouped in supervision category. But, the railways themselves have clarified basing on the representation and meetings with J.C.M. at the staff level. Under those circumstances, it cannot be said that the claim made by the applicants was barred by time. The railways also cannot successfully contend that they are not entitled for over time allowance being Train Superintendents as after the clarification, the fact that they continued to draw the over time allowance falling themselves under non-supervisory category itself establishes that they are entitled for earlier period also. Under those circumstances, the Order of the tribunal cannot be found fault with. 12. Accordingly, we do not find any grounds to interfere with the Order of the tribunal. The Writ Petition is dismissed. No costs. ____________________ G.BIKSHAPATHY, J ______________________ P.S. NARAYANA, J 15-3-2005 CHV L.R. COPY TO BE MARKED: No ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER One Fair Copy to the Hon’ble Mr. Justice G. Bikshapathy (for his lordship’s kind perusal) One Fair Copy to the Hon’ble Mr. Justice P.S. Narayana (for his lordship’s kind perusal) To 1. The Chairman, RailwayBoard and the Principal Secretary to Ministry of Railways, Government of India, Raj Bhavan, New Delhi- 110 001. 2. The General Manager,South Central Railway, 3rd Floor, Railnilayam, Secunderabad – 500 071. 3. The Chief Personnel Officer, South Central Railway, 4th Floor, Railnilayam, Secunderabad – 500 071. 4. Copy to Sri S.R. Ashok, Counsel for the Petitioners (OUC) 5. Copy to Sri S.K. Padma Rao, Counsel for the respondents.(OUC) 6. 2 CD copies. 7. The Under Secretary, Union of India, Ministry of Law, Justice & Company Affairs, N-Delhi. 8. The Secretary, A.P. Advocates Association Library, High Court Buildings, Hyderabad. 9. 8 L.R. Copies 10. One C.C. to Mr. C.V. Vinitha Reddy, Advocate(OPUC) 11. One C.C. to Mr. Ninarthi M.S. Advocate (OPUC)