- (1.) WPCT 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(l) 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.;