Nishita Mhatre, J@mdashWPCT 218 of 2009 and WPCT 219 of 2009 are writ petitions filed by employees of the Chittaranjan Locomotive Works against the common order of the Central Administrative Tribunal in O.A. 1190 of 2005 and O.A. 1321 of 1998 respectively. WPCT 73 of 2009 has been filed by the Chittaranjan Locomotive Works against the same order. For convenience the petitioners in WPCT 218 of 2009 and WPCT 219 of 2009 will be referred to as ''the petitioners'' in this judgment, whereas the petitioners in WPCT 73 of 2009 will be referred to as Chittaranjan Locomotive Works (hereinafter in short ''CLW'').
2. It is necessary to set out the brief history of this case in order to appreciate the questions raised in the writ petition. The petitioners were working either as Shop Clerks or Tool Checkers with the CLW. The working of the Shop Clerks was regulated by the Hours of Employment Regulations (for short ''HOER''). The Tool Checkers were designated as Shop Clerks with effect from 1st April, 1984 after the two cadres were merged. The recommendations of the second pay commission were approved by the President of India on 28th August, 1961. Split shifts were recognised and split duty allowance was payable to those who were rostered for such duty. A split duty consists of two or more spells of work with an intervening break of half an hour or more necessitated by the exigencies of work. The employee is free to leave his place of duty. Where the spells of duty of employees was for 2 or 3 hours at a stretch and their place of residence was beyond a distance of 1.6 kilometres from their place of work, the duty hours were to be so regulated that 7 hours split duty were treated as 8 hours of normal duty. This concession was allowed only to staff classified as "continuous". Thus, only employees who, in the interest of the administration, were required to work 2 or 3 hours at a stretch, with a break between two spells of work, were entitled to split duty allowance. The cadre of Tool Checkers was merged with that of Shop Clerks with effect from 1st January 1984. The Shop Clerks were admittedly considered to be "continuous workers". They were required to attend duties in two spells, starting from 6.30 a.m. and the night shift commencing at 4 p.m. As a result the split duty was between 6.30 a.m. and 14.30 p.m. They were required to work for 48 hours a week whereas their counterparts working as office clerks worked for 40 hours in a week with a spread-over of 8 hours. An order was issued by the Railway Board on 5th September, 1962 clarifying that its earlier order dated 28th August, 1961 would not be applicable where the roster had been drawn up in such a manner that the shift was fixed for the convenience of the staff, that is, to give them a lunch break, etc. even though the distance between their places of residence and work exceeded 1.6 kilometres. According to the petitioners, CLW denied the split duty allowance to them. It appears that a section of the Shop Clerks had filed a writ petition before this Court in 1984 claiming the split duty allowance. This writ petition was transferred to the Central Administrative Tribunal, Calcutta Bench, after it was constituted under the Administrative Tribunals Act, 1984. The order was passed by the Tribunal on 27th July, 1988 directing the CLW to implement the order of 28th August, 1981 and pay all arrears of the split duty allowance to the applicants before the Tribunal. A review application preferred by the CLW was rejected on 3rd February, 1989 by the Tribunal. The Union of India and CLW preferred special leave petitions before the Supreme Court being SLP (C) Nos. 40392-93 of 1989 against the decision of the Administrative Tribunal. These special leave petitions were also dismissed. Left with no alternative, CLW implemented the order dated 27th July, 1988 passed in TA No. 2045 of 1986 by the Tribunal with retrospective effect from 28th August, 1961 in favour of the clerks posted in work-shops and depots. Thus, the petitioners, irrespective of whether were originally appointed as Tool Checkers or Shop Clerks, benefited by the order of the Supreme Court and were paid split duty allowance.
3. By an order issued on 29th March, 1990 the Deputy Chief Personnel Officer declared that Shop Clerks posted in the Loco Works, Steel Foundry and Central Power Supply Stations of CLW as "workers" as defined under Section 2(1) of the Factories Act, 1948 with effect from 1st April, 1990. The CLW decided that by virtue of such a declaration the petitioners were no longer within the ambit of the HOER, 1961, and were covered only by the provisions of the Factories Act. On representations made by the Shop Clerks and to alleviate the disparity between the Shop Clerks and the factory workers, the Chief Mechanical Engineer granted overtime to the Shop Clerks to compensate the loss in payment of split duty allowance.
4. The decision to grant overtime to Shop Clerks was withdrawn and the benefit of the split duty allowance under the HOER was discontinued from 26th February, 1998. The representations submitted by the petitioners and other similarly situated employees fell on deaf ears. The Railway authorities informed the petitioners later that they would be entitled to the overtime from April, 1998. However that payment was later discontinued from September, 1999. Again, the representations submitted by the petitioners were not heeded and an application was moved before the Tribunal for payment of split duty allowance. The Tribunal by its order dated 24th August, 2004 permitted the applicants in those applications which included the petitioners to withdraw the application and to file a fresh representation along with the necessary documents for consideration by the CLW. That representation was rejected by the authorities on 18th December, 2004.
5. Being aggrieved by the decision of the CLW in respect of their representations, the petitioners and other employees similarly situated filed O.A. 1190 of 2005 while O.A. 1321 of 1998 before the Tribunal claiming the split duty allowance. It appears that the names of 24 employees figured in both the applications as disclosed in the affidavit in reply filed by CLW. The CLW pleaded, inter alia, that (i) since the Shop Clerks were no longer covered by the HOER but by the Factories Act, they were not entitled to the split duty allowance; (ii) the CLW administration had issued necessary orders on 1st April, 1990 on the recommendation and approval of the Joint Inspector and Director of Factories, Government of West Bengal bringing Shop Clerks within the purview of the Factories Act, 1948 and declaring that they were not entitled to the split duty allowance; (iii) the payment of overtime to these persons would be regulated by the provisions of the Factories Act; (iv) the service of Tool Checkers were regulated by the Factories Act from 1954; and (v) the Tool Checkers merged with Shop Clerks and after 1990 the Shop Clerks were also governed by the Factories Act. The CLW pointed out in its reply that 33 applicants before the Tribunal were originally appointed as Tool Checkers whereas 49 were Shop Clerks. The CLW therefore contended that none of the petitioners were entitled to the split duty allowance at all.
6. The Tribunal accepted the contentions of CLW and held that the Tool Checkers, who had been declared workers under the Factories Act, were not entitled to be paid split duty allowance. Similarly, Shop Clerks working in the Loco Works Steel Foundry and Power Supply Station who had been brought within the purview of the Factories Act from 29th March, 1990, were not entitled to the split duty allowance after that date. The Tribunal further directed that the Supreme Court''s decision in the case of Union of India & Ors v. Sukumar Dutta & Ors delivered on 31st August, 1989 should be implemented with regard to all Shop Clerks who were not engaged in the Loco Works Steel Foundry and Power Supply Station and not merely to those who had approached the Supreme Court. The allowance was directed to be paid within six months. Aggrieved by the decision of the Tribunal, the parties have filed their respective writ petitions.
7. Mr. Achintya Banerjee, the learned Counsel appearing for the petitioners, has urged that the CLW being a recalcitrant employer has deliberately flouted the observations and directions of the Supreme Court in the special leave petitions. He submitted that the circulars issued by the Deputy Chief Personnel Officer could not override the rules of employment which had been issued in exercise of the power under Article 309 of the Constitution of India. He then submitted that when the Supreme Court had directed that split duty allowance should be paid to all persons whether they were originally Tool Checkers or Shop Clerks, the CLW could not defy the judgment and contend that it was because the Factory Inspector had covered the Shop Clerks under the Factories Act that they would not be entitled to split duty allowance. The learned Counsel drew our attention to the fact that the petitioners were neither paid the split duty allowance as payable under HOER nor the overtime allowance under the Factories Act.
8. Mr. Pradip Kumar Roy, the learned Counsel for the CLW, argued that the petitions of the employees are not maintainable because some of the petitioners are common to both the petitions; their names were found in both the original applications filed in the Tribunal. He urged that the petitions should be dismissed on this ground alone. The learned Counsel then submitted that the judgment of the Supreme Court was with respect to Shop Clerks who were employed prior to 1990 and therefore, they were entitled to the split duty allowance. He pointed out that there is no pleading in the original applications indicating that the petitioners are entitled to split duty allowance on the ground that they had worked for the stipulated number of hours as per the HOER and resided more than 1.6 kilometres away from the place of work. The learned Counsel therefore submitted that assuming the Shop Clerks are entitled to split duty allowance there was no material on record to establish that each of the petitioners was entitled to the same. According to him, the lack of pleadings in the application would mean that the petitioners had not been able to establish their claim for the split duty allowance. The learned Counsel then submitted that there was no material on record to indicate that the split duty was undertaken because of the requirement of the administration and that the split in the shift was not for the benefit of the employees. Unless the need of the administration is established there is no question of paying all the petitioners the split duty allowance, submitted the learned Counsel.
9. On scrutiny of the petitions it is evident that there are 24 names which are common in both the petitions. These persons will be treated as the petitioners in WPCT 218 of 2009 and their names will be deemed to have been deleted in WPCT 219 of 2009. We do not agree with the submission of the learned Counsel for CLW that the petitions are required to be dismissed on the ground that there are common names in both the applications before the Tribunal and in the writ petitions.
10. Indisputably, some of the petitioners were initially appointed as Tool Checkers whereas the others were Shop Clerks. The two grades were amalgamated and all the employees were called Shop Clerks after the merger on and from 1st January, 1984. The Tool Checkers were covered by the Factories Act since 1954. However, after amalgamation they were all entitled to the split duty allowance. This is apparent from the decision of the Supreme Court in Union of India & Ors v. Sukumar Dutta & Ors (supra). Therefore, the submission of the learned Counsel that the Shop Clerks having been declared as workers under the Factories Act were not required to be paid the split duty allowance is untenable.
11. The hours of the work and rest of the railway employees is regulated by the Railway Servants (Hours of Employment) Rules, 1961. These rules were in force till they were repealed and revised in the year 2005. The revised rules are known as the Railway Servants (Hours of Work and Period of Rest) Rules, 2005. The claim of the petitioners is based on the HOER which was in force till 2005. The HOER was framed under the directions issued in an award under the Industrial Disputes Act, 1947. The second pay commission which came into effect from 1960 recommended thus:
"Split should not ordinarily be required to be performed in more than 3 spells and where employee''s residence is not close to the place of work, 7 hours of split duty should be treated as equal to 8 hours of normal duty."
12. It has been contended on behalf of the Railways that the Shop Clerks are designated as workers under Section 2(1) of the Factories Act from 1990 and therefore, they were not entitled to the split duty allowance. This submission of the learned Counsel for the CLW is untenable. The CLW was always a factory since its inception. The fact that the Factory Inspector issued directions to consider some of the employees as workers under the Factories Act is of no consequence. Once an establishment is governed by the Factories Act depending on the nature of work performed by the employee, he is recognised as a worker within the definition of Section 2(1) of the Factories Act. The employee would have to establish that he was employed for a manufacturing process of cleaning in part of the machinery or premises used for manufacturing or in any other kind of work incidental to or connected with the manufacturing process. The declaration of the Shop Clerks as workers under the Factories Act does not in any way deny the Shop Clerks, their allowances and other benefits which were being paid till the declaration was issued. The declaration was perhaps issued because the CLW chose not to treat them as factory workers. However, if the CLW wanted to change the conditions of service of these employees, it was necessary for CLW which is no doubt an industry since it is a factory, to issue a notice under Section 9A of the Industrial Disputes Act before changing the service conditions of the employees. Admittedly this has not been done though it is a mandatory requirement. Overnight the CLW decided unilaterally to change the service conditions of the employees only on the basis that the Factory Inspector had declared them to be workers. There is no need for such a declaration. Even without a declaration, employees who are employed in the manufacturing process of a factory or related process which is incidental to the manufacturing process are factory workers. The declaration is only an affirmance of an existing fact.
13. Thus despite the fact that the employees, i.e., the petitioners herein were workers under the Factories Act being employed for work which was incidental to the manufacturing process, they were being paid the split duty allowance. Therefore, they cannot be denied the same only because of a declaration issued by the Factory Inspector. The Factory Inspector has not declared that because they were workers under the Factories Act, benefits which were available to them earlier should be withdrawn or denied to them after the declaration. There is no dispute that the petitioners work in spells of 2 to 3 hours at a stretch for seven and half hours a day. Under Section 54 of the Factories Act no adult worker is permitted to work for more than 9 hours in any day. The intervals of rest had been stipulated under Section 54 and no worker can work for more than 5 hours before he is entitled to an interval of rest for at least half an hour. There is no provision which mandates that the continuous period of work cannot be less than 5 hours. The spread-over periods have also been specified under the Act and they cannot be for more than ten and half hours on any day. Again there is no provision which stipulates that the spread-over cannot be for less than ten and half hours on any day.
14. Therefore, in our opinion, the CLW has raised a bogey about the declaration issued by the Chief Inspector of Factories, Government of West Bengal that Shop Clerks are workers under the Factories Act, in order to deny them the split duty allowance. The CLW came into existence much before the declaration issued by the Chief Inspector of Factories, Government of West Bengal. However, this does not mean that the Shop Clerks were not workers prior to the declaration. The Factories Act provides for the minimum rate of overtime wages, the maximum hours of work and spread-over etc. It does not prohibit more beneficial conditions of service being granted to the employees. Moreover the Supreme Court has already dealt with the CLW''s contention that split duty allowance was not payable to the employees who had been declared as workers under the Factories Act.
15. We have perused the judgement of the Supreme Court in the special leave petitions. In our opinion the Tribunal''s decision is incorrect and that the petitioners would be entitled to split duty allowance depending on the distance between their place of residence and the factory at the relevant point of time. The CLW has not denied the contention of the petitioners that they were required to work with split duty because of administrative exigencies and for the benefit of the administration.
16. Therefore, WPCT 218 of 2009 and WPCT 219 of 2009 are allowed and the WPCT 73 of 2009 is dismissed.
17. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
