+2 Hour notice time case CAT HYB

+2 Hour case CAT HYB

IN THE CENTRAL ADMINISTRATIVE TRIBUNAL

HYDERABAD BENCH

HYDERABAD

Original Applications Nos. 149/03 & 801/04

Date of Order: 08.11.2005

In OA 149/2003

Between:

John Joseph ...Applicant

And

1.Chief Operations Manager

South Central Railway

II Floor, Rail Nilayam

Secunderabad 500 017.

2.The Divisional Mechanical Engineer (Power)

South Central Railway

Secunderabad Division

IV Floor, Sanchalan Bhavan

Secunderabad 500 025.

...Respondents

In OA 801/2004

G. Butchaiah

... Applicant

And

1.The Divisional Railway Manager

South Central Railway

Secunderabad Division

II Floor, Sanchalan Bhavan

Secunderabad 500 025.

2.The Senior Divisional Electrical Engineer (TRSO)

South Central Railway

Secunderabad Division

IV Floor, Sanchalan Bhavan

Secunderabad 500 025.

3.The Senior Divisional Personnel Officer

South Central Railway

Secunderabad Division

V Floor, Sanchalan Bhavan

Secunderabad 500 025.

4.The Chief Crew Controller

South Central Railway

Secunderabad Division

Kazipet Depot, Kazipet, A.P.

... Respondents

Counsel for the applicant ... Mr. V. Suryanarayana Sastry

(In both OAs)

Counsel for the respondents ... Mr. K. Narahari, SC for Railways

(In OA 149/03)

Mr. V. Rajeswara Rao, SC for Railways

(In OA 801/04)

1.CORAM:

The Hon'ble Justice Mr R.K.BATTA ... Vice-Chairman

The Hon'ble Mr N. Ramakrishnan ... Member (Admn.)

ORDER

(As per Hon'ble Justice Mr. R.K.BATTA, Vice-Chairman)

The two applications, though filed by different individuals, are being disposed of by a common judgment since the decision in both the matters rests upon common controversy of reporting for duty after the second call is served on the Driver / Assistant Driver working with South Central Railway, Secunderabad Division.

2. In OA 149/2003, the applicant was served with charge memorandum for minor penalty on 19.07.1999 on the ground that on 13.07.1999 the applicant had signed call book at 00.30 hours, but appeared on duty at 02.15 hours, with the result the train No. BCN wad detained for 60 minutes. The case of the applicant is that he reported for duty within the permissible period of 2 hours after receiving the call and that the proceedings initiated are without any valid ground. The disciplinary authority had imposed the punishment of reduction in the time scale of pay for a period of 2 years and the same was confirmed in appeal as also in revision. The applicant relies upon the stand taken by the department that ordinarily the call book is served 2 hours before the crew has to report for duty. According to the applicant, though the period of home station rest and outstation rest which is 16 hrs and 6 hrs respectively can be curtailed in case of emergency, yet, 2 hours preparatory period cannot be curtailed under any circumstances. During the course of arguments, counsel for the applicant has also urged that the penalty imposed does not fall within the ambit of minor penalty and the proceedings are required to be set aside.

3. The respondents in their reply have accepted the system of 2 calls which are sent to the concerned employee for reporting for duty. There is also no dispute that ordinarily call book is served 2 hours before the crew has to report for duty. This fact is clear from paragraph 4 of the reply of the respondents. However, the case of the respondents is that the first call was sent to the applicant at 00.30 hours as the train was expected to arrive at 01.30 and second call was sent to the applicant at 01.15 hours and in view of the urgency, the applicant was required to report at 01.30 hours, but the applicant reported only at 02.15 hours as a result of which the departure of the train was delayed by about 60 minutes. The respondents also contend that if the applicant was not prepared to attend the duty, he should have stated in the call book that he needed at least 2 hours for preparatory time, but the applicant failed to do so and on account of the same, the respondents did not make alternative arrangements. The respondents have categorically stated in paragraph 5 of the reply that 'two call system' was introduced to reduce pre-departure detention, but the same cannot cause detention to train services. The respondents also justified the reduction in the applicant's pay and pay fixation by them.

4. The applicant in his rejoinder has stated that if there was urgency, the respondents should have stated in the call book that there was urgency as a result of which 2 hours preparatory time was not permitted. The applicant also stated that when respondents were aware that the train was expected at 01.30 hours, the respondents ought to have served the call book at least before 23.30 hrs, that is, 2 hours before the expected arrival of the train as per the procedure in vogue. It is in the rejoinder that the applicant has contended that reduction of pay for more than a stage tantamounts to major penalty and the same could not be imposed in the disciplinary proceedings initiated for minor penalty.

5. In OA 801/2004, the applicant was working as Sr. Driver (Goods) and had signed off duty at Kazipet at 00.45 hours on 01.06.2004. According to the applicant, the procedure in vogue is that 2 calls are served through call book. But the second call was never served on the applicant. The first call was served on 02.06.2004 at about 9.30 hours and he came to know of the same through his wife at 10 AM since he went to medical shop to take medicines. The applicant reported on 03.06.2004 at 8 AM and he found that his name was not marked in the duly list. He, therefore, filed an application dated 03.06.2004 to the Chief Crew Controller, South Central Railway, Kazipet for illegally marking him as not found on duty on 02.06.2004 and requested that the applicant be treated as on duty on 02.06.2004. On 04.06.2004 he sent a fax message to Divisional Railway Manager, South Central Railway informing that the Chief Crew Controller did not take the applicant for duty since 02.06.2004. He then made a representation dated 11.06.2004 to Sr. Divisional Electrical Engineer, South Central Railway, Secunderabad for taking him on duty. In spite of these, the applicant was not taken on duty as a result of which, the applicant has approached this Tribunal and on 29.07.2004 as an interim measure, the applicant was directed to approach the authority concerned and the respondents were directed to book him for duty as per rules as and when he approaches the concerned authority. Consequently, the applicant was taken on duty on 31.07.2004. However, for the month of June 2004, he was paid wages for only 16 days by marking duty days as 16 and leave days as 14. The applicant relies upon circular dated 13.04.2004 as also the letter dated 13.07.1977 in support of his case. The applicant thus, sought directions to the respondents to book him on line to work for train with immediate effect and treat the period from 02.06.2004 till he was book for duty as period spent on duty for all purposes.

6. The respondents in this application curiously have taken the stand that there is no procedure of serving two call books in this division which stand is contrary to the stand taken by the Respondents in OA 149/2003. The respondents' case is that the applicant did not report for duty though a call was served on him at 9.30 AM on 02.06.2004. The applicant had signed off at 00.45 hours at 01.06.2004 and his periodical rest of 30 hours was completed at 06.45 hours on 02.06.2004 and the call was served on him at 9.30 AM, that is, after a lapse of 2 hours 45 minutes. According to the Respondents, the 30 hours periodical rest is inclusive of 16 hours Headquarters rest and not over and above 16 hours rest as claimed by the applicant. It was further stated that in Secunderabad division only single call system is followed. The respondents also contend that the applicant never explained his absence pursuant to the call given to him and as such, he could not be booked for duty and the applicant in his representation dated 03.06.2004 had only requested for treating the date of 02.06.2004 as waiting for duty which was not permissible. It is also contended that on his representation respondent No.3 deputed Additional Divisional Electrical Engineer to Kazipet on 10.06.2004 to inquire into the matter and he had called the applicant to the office to sort out the matter. However, despite sending the messenger twice to his residence, the applicant did not turn up to meet the Additional Divisional Electrical Engineer. The respondents thus contend that the application is liable to be rejected.

7. The applicant in his rejoinder, after placing reliance on letter dated 13.07.1977, stated that in terms of para 2 of note under annexure I, call book has to be served two times and if the crew is not found on the second call, he will be treated as absent. The applicant also disputes the stand of the respondents that he did not turn up to meet Additional Divisional Electrical Engineer, Secunderabad at Kazipet on 10.06.2004 and according to him, no such message was served on the applicant.

8. In further additional reply filed by the respondents, it is stated that circular dated 13.04.2004 is issued by Vijayawada Division and it is not binding on the Secunderabad Division in which the applicant is working. It is further pointed out that the above circular stands cancelled with effect from 05.01.2005. The respondents placed reliance on the subjects for discussion in the 103rd Review Permanent Negotiating Machinery Meeting relating to the issue of the second call book in Secunderabad Division and submit that the issue was closed without any decision for giving second call book in consultation with recognized labor union.

9. The applicant in further reply to the additional reply of the respondents has disputed the stand of the respondents in relation to discontinuation of second call, but reliance is placed by the applicant on the same minutes of 103rd Review Permanent Negotiating Machinery Meeting (RPNMM) and it is pointed out that the decision taken therein is to the effect that the staff who were not found are not utilized on that day duly marking them absent/ not found and they will be utilized only after 00.00 hrs on the following day. Therefore, according to the applicant at any rate there was no justification for the respondents not to take him on duty with effect from 00.00 hrs. on 03.06.2004 when he reported to day at 8.00 AM on that date.

10. We have heard learned counsel appearing on both sides. The first issue which is required to be decided is whether two calls are required to be given to the Crew which has to report for duty. We have already pointed out that in OA 149/2003, the respondents have themselves admitted the existence of two calls system and in the said case, second call was served on the applicant. But the controversy therein raised was relating to 2 hours preparatory time after signing off the call book. Nevertheless, the respondents in OA 801/2004 totally denied the system of two calls and have stated that there is no procedure to serve two call books in this application. Both the OAs before us are relating to Secunderabad division. Of course, in so far as the circular dated 13.04.2004 is concerned, the same was issued by Vijaywada Division and obviously the same cannot be applied to the Secunderabad Division. However, the South Central Railway headquarters office had issued letter dated 13.07.1977 which deals with the issue relating to two successive calls. There is nothing to show that letter has been superceded or is not being followed in Secunderabad Division. On the Contrary, in OA 149/2003 the stand taken is that the second call was served on the applicant therein. If the system of second call is not applicable to the Secunderabad Division, then where is the question of serving second call on the applicant in OA 149/2003. Annexure to letter dated 13.07.1977 provides for maintenance of details in the book under Note I under annexure I item 2 provides for staff not found on two successive calls is to be marked absent for the day end and reported to LF for necessary disciplinary action. It also provides that in the event of crews offering themselves for duty on the same day after not being found on two calls and reporting for duty with sick and fit memo, they should be taken on detail book only after 00.00 hrs. Under Note II under Annexure II item 1, Home station rest is minimum 18 hrs. (16 hrs + 2 hrs call), under item 2, outstation rest is minimum 8 hrs. (6 hrs. + 2 hrs. call), item 3 therein provides that the minimum rest of 16 hrs. at home station and 6 hrs. at out station should not be curtailed except in emergency and otherwise under the authority of a Power Officer, subject to observations of normal HOER regulations. Thus, the minimum rest of 16 hours at home station and 6 hours at outstation can be curtained only in emergency or under the authority of Power Officer. It does not at all speak of curtailment of 2 hours preparatory call period. In the light of the above, we shall now take up the two applications on merits one by one.

11. In OA 149/2003, the first call was served on the applicant on 00.30 hours on 13.07.1999 and the second call was served on him at 01.15 hours. The contention of the applicant is that he was entitled for 2 hours preparatory time for reporting for duty from 00.030 hours and when the respondents knew that the expected arrival of the train was 1.30 hours, they should have served the first call on him at 23.30 hours, but the respondents are themselves at fault in not serving the first call in time so that 2 hours preparatory time could be availed by him. It is no doubt true that in the call book, it was mentioned that the expected time of arrival of the train No. DN BCN was 01.30 hours, but nowhere the respondents invoked any urgency clause as such and it appears that the urgency clause is not applicable to the preparatory period. The respondents have admitted in reply as also in the revision order dated 14.05.2002 that ordinarily the call book is served 2 hours before the crew has to report for duty. In the case before us, the first call was given at 00.30 hours and he reported for duty at 02.15 hours, that is, before expiry of 2 hours preparatory time. The respondents, on the contrary, are trying to throw the burden on the applicant that when he was not prepared to attend to duty at 01.30 hours he should have stated that the he needs at least 2 hours preparatory time and since he failed to do so, the respondents could not make alternative arrangements. The fault actually lies with the respondents only who did not serve the first call on the applicant 2 hours prior to the expected time of arrival of the train which was at 01.30 hours. In view of this, the disciplinary proceedings are liable to be quashed on this count alone. Besides this, the disciplinary proceedings were initiated for minor penalty and rule 6 (iii-b) of the Railway Servants (Disciplinary & Appeal) Rules, 1968 as it stood then was as under:

(iii-b) Reduction to a lower stage in the time scale of pay for a period not exceeding three years without cumulative effect and not adversely affecting his pension.

By Railway Servants (Disciplinary & Appeal) (Second Amendment) Rules, 2004, the said rule was substituted as under with effect from 10.12.2004:

(iii-b) Reduction to lower stage in time scale of pay by one stage for a period of not exceeding three years, without cumulative effect and no adversely affecting his pension.

The amended rule made it clear that minor penalty is only in relation to reduction to lower stage in time scale of pay by one stage for a period of not exceeding 3 years without cumulative effect and no adversely affecting his pension. Under the unamended rule also the reduction was provided to a lower stage which was in fact clarified by the second amendment referred to above. The punishment which has been imposed cannot, thus, be called as minor penalty within the rule 6 of the said Rules and the penalty imposed in the disciplinary proceedings is liable to be set aside on this count as well.

12. For the aforesaid reasons, the application is allowed and the punishment imposed by the respondents vide order dated 13.06.2000 confirmed in appeal vide order dated 08.11.2000 and in revision vide order dated 14.05.2002 is set aside with all consequential benefits and fixation of pay accordingly as also the arrears due to the applicant. In the facts and circumstances, the parties are directed to bear their respective costs.

13. We shall now take up the OA 801/2004. In this application, admittedly second call was not served and on this count alone, the applicant is likely to succeed. Alternatively also the applicant had reported for duty at 08.00 hours on 03.06.2004 and in terms of letter dated 13.07.1977 as also in the light of the Minutes of 103rd Review Permanent Negotiating Machinery Meeting, the applicant should have been booked for duty at least from 00.00 hours on 04.06.2004. The applicant repeatedly made applications for taking him on duty, but no action was taken by the department as a result of which the applicant approached this Tribunal and interim directions dated 29.07.2004 were given as a result of which the applicant was taken on duty on 31.07.2004. The respondents are basically at fault in not serving the second call on the applicant and alternatively in not taking him on duty with effect from at least 00.00 hours on 04.06.2004. Since the second call was not served on the applicant, the decision of the respondents not to take him on duty was erroneous and illegal and the applicant cannot be deprived of the benefits for the period during which the applicant was not taken on duty by the respondents who are primarily to be blamed for the same.

14. In the circumstances, the entire period from 02.06.2004 till 30.07.2004 has to be treated as spent on duty and the applicant shall be entitled to all the consequential benefits including pay for the said period. The application is accordingly allowed in the aforesaid terms with no order as to costs.

Sd/-