Judgment:
Mahinder Narain, J.
1. This judgment will dispose of the above said writ petitions which impugn the orders of Shri O.P.Singhla, Presiding Officer Central Labour Court, dated 30th April, 1984 passed in L.C.As. 64 to 69 and 108 of 1978.
2. The facts giving rise to these petitions are that some workers of the Railways filed separate petitions under Section 33C(2) of the Industrial Disputes Act, 1947, seeking computation of payment due to them for overtime work done by them. The workmen had asserted that they are holding the posts of Cabinmen since 1965. It was asserted by the workmen that the Cabinmen had not been classified by the proper authority as 'essentially intermittent' and in this view of the matter they were entitled to overtime for work done in excess of 54 hours per week.
3. The petitioners before me who were the respondents before the Labour Court asserted that the Labour Court had no jurisdiction to go into that question for the reasons that the workmen being cabinmen had been classified as 'essentially intermittent' by an order passed by the Divisional Personnel Officer. They having been classified by the Divisional Personnel Officer as 'essentially Intermittent', they were not entitled to overtime unless they worked for more than 75 hours per week.
4. The workmen contested the assertions made by the petitioners in the Labour Court and stated that in law there had been no classification of 'cabinmen' as 'essentially intermittent'. Whether or not the pointsmen have been classified as 'essentially intermittent' was not the subject-matter of controversy.
5. It was asserted by the workmen that the Divisional Personnel Officer had no power to classify cabinmen as 'essentially intermittent'. Section 73-A(a) of the Indian Railways Act defines that categories of employees of the railways, as 'essentially intermittent' and it reads as under:
(a) the employment of a railway servant is said to be 'essentially intermittent' except when it is excluded or has been declared to be essentially intermittent or intensive;
(b) the employment of a railway servant is said to be 'essentially intermittent' when it has been declared to be so by the prescribed authority on the ground that the daily hours of duty of the railway servant normally include periods of inaction aggregating six hours or more (including at least one such period of not less than one hour or two such periods of not less than half an hour each), during which the railway servant may be on duty, but is not called upon to display either physical activity or sustained attention;
(c) the employment of a railway servant is said to be 'excluded', if he belongs to any one of the following categories, namely:-
(i) railway servants employed in a confidential capacity;
(ii) armed guards, or other personnel subject to discipline similar to that of the armed police forces;
(iii) staff of the railway schools imparting technical training or academic education;
(iv) such categories of class IV staff as may be specified by the Central Government by rules made under section 71E;
(v) such staff as may be specified as supervisory staff by the Central Government by rules made under Section 71E;
(vi) such categories of staff of Health and Medical department as may be specified by the Central Government by rules made under section 71E;
(d) the employment of a railway servant is said to be 'intensive' when it has been declared to be so by the prescribed authority on the ground that it is of a strenuous nature involving continued concentration or hard manual Labour with little or no period of relaxation'.
6. The workmen also relied upon the provisions of Rule 3 of Railway Servants (Hours of Employment) Rules, 1961. These rules were framed under Sub-section (D) of Section 71E of the Indian Railways Act, 1890 and the relevant provision reads as under:
'(3) Power to declare the employment of Railway servant:
(1) The power to declare the employment of a Railway servant as intensive or essentially intermittent within the meaning of Section 71A shall vest with the Head of the Railway Administration, or with an officer not below the rank of a Senior Scale Officer as a temporary measure during the periods of emergency.
(2) A copy of every declaration made under sub-rule (1) shall be sent to the Regional Labour Commissioner concerned'.
7. It was not the case of the petitioners before me that the classification of cabinmen was done as emergency measure. What they relied upon is a classification done by the Divisional Personnel Officer. It is not disputed that Divisional Personnel Officer is not a 'Head of Railway Administration'. It is not disputed that the head of the railway administration is the General Manager of the Railways. It appears that provision for powers of delegation was altered by notification No. E(LL)76-H ER (BLT)/11 dated 7.3.1977. It is urged before me that by virtue of this modification to the rules what had been done in 1971 by the Chief Personnel Officer became an order retroactively. In this case the order purporting to classify the cabinmen as essentially intermittent made in 1971 was stated to have been made by the Divisional Personnel Officer. The Labour Court has however found as a fact that even these orders of classification were signed by some person for the Divisional Personnel Officer, and were not signed by the Divisional Personnel Officer himself.
8. The petitioners contend that the cabin-men who filed their claim before the Court were actually pointsmen who had been upgraded as cabinmen and that the nature of their duties and conditions of service as cabinmen were unchanged, and were same as those of pointsmen. It is further stated by the petitioners that the pointsmen dealt with incoming and outgoing of trains at a point; that the pointsman had been declared as essentially intermittent by the General Manager in accordance with the aforementioned provisions, that the posts of pointsmen were converted to that of lever-men, that the duties remained the same in nature and character as the earlier duties as pointsmen; that the classification by the Divisional Personnel Officer in 1971-72 of cabinmen as 'essentially intermittent' was valid; that the power delegated by the General Manager to the Chief Personnel Officer in 1977 was retroactive and the classification made was effective by virtue of that delegation made in 1977; that the duty of cabin-men as given in the classification in 1971-72 was stated to be intermittent; that the Labour Court had no jurisdiction to deal with the claim inasmuch as there was no existing right in the workmen.
9. It cannot be disputed that both the pointsmen and the cabinmen have to deal with incoming and outgoing of trains. The duties of the pointsmen were performed under the control of the Station Master or the Assistant Station Master. The pointsmen ensured that the incoming and outgoing of trains were shifted from one line to another. In other words the pointsmen were engaged in switching the lines. Whereas a pointsman had to go to a particular point from where the line was to shift, a cabinman has to sit in cabin. One can take judicial notice of the fact that cabins are located at a higher point than the railway lines. Cabins are made by raising a structure on columns on which it tests. The cabins have switching system, wherein the levers for switching lines exist. All lines are switched from that cabin, instead of going from point to point for switching them. The duties of cabinmen as dealt with by the 3rd Pay Commission Report at Page 47, Chapter 33, reads as under:-
'Cabinmen are posted at cabins where they are required to work independently without direct supervision of the ASM on duty. Their duties are to maintain certain documents regarding movement of trains and to certify complete arrival of trains by exchange of private numbers with the Station Master on dirty'.
Regarding pointsmen, the same Report says that:
'Their main duties are to set points, pilot trains and man small lever cabins frames, etc. In the yards they assist the shunting jamadars by coupling and uncoupling wagons and coaches and exhibiting hand signals. They are required to place skids for checking the speed of rolling wagons in the hump yards where they may be designated as skid or brake porters. No change in their relative position has been specifically asked for nor do we think that any change is necessary.'
10. Besides this, the workmen asserted that they became cabinmen only after they had taken departmental examination for the purpose of becoming cabinman. In this view of the matter, I am satisfied that it cannot be said that the nature and character of the work executed by the cabinman and the pointsman was the same, as the nature and character of work done by the cabinman was not the same as that of a pointsman, so they had to be classified as continuous or essentially intermittent for the purpose of the application of the Railways Servants (Hours of Employment) Rules, 1961.
11. As regards the classification of the cabinmen, what was relied upon by the petitioners was a classification by the Divisional Personnel Officer in 1971-72. It is apparent that the Divisional Personnel Officer was not delegated any power by the General Manager to classify cabinmen till 1977. In fact the General Manager was not given power to delegate his own powers to classify, to anyone else. It is for these reasons that the petitioners assert before me that the delegation by the General Manager in 1977 was retroactive.
12. I put it to Mr. Dalip Singh to show me any authority for the proposition that a delegation made can be retroactive from a date many years prior to the date on which the delegation has been made. He has not been able to show any such authority. A person who has to exercise powers must have it first either by virtue of statute or by the validly enacted rules before he can exercise the power. No rule or statute which was in operation in the year 1971-72, the relevant period, conferring power on the Divisional Personnel Officer to classify workmen or posts, has been shown to me.
13. The Divisional Personnel Officer, admittedly is not the head of the railway administration. It is only the head of the administration who had the power to classify in 1971 or 1972. The purported classification by the Divisional Personnel Officer, ( assuming that classification was done by him), is, in the circumstances, no classification in law and in view of this position it cannot be said that the cabinmen were validly classified 'essentially intermittent workmen'. As the cabinmen were not essentially intermittent workmen during the relevant time they had to work for 54 hours was done as overtime work. They were, thereforee, continuous workmen.
14. The next contention which has been raised by Mr. Dalip Singh is that the Labour Court could not adjudicate upon this matter as it had no jurisdiction to do so. It is stated that the Labour Court had no jurisdiction to decide this matter because there was no existing right in the workmen, the benefit of which needed to be computed by the Labour Court under section 33C(2).
15. Mr. Dapti Singh, for that purpose referred to the decision in Central Inland Water Transport Corpn. Ltd. v. The Work- '. men and Anr., : [1975]1SCR153 in support of his proposition that there was no existing right which could be subject-matter of computation by the Labour Court. This case however does not help him. A reference : to paragraph 12 at page 1608 makes it quite clear that the Labour Court is entitled to compute the benefits to which the workman is entitled to, when such a benefit is on the basis of the existing right, that is to : say right already adjudicated upon, or 'duly provided for' and must arise in the course of and in the relationship between an industrial workman and his employer.
16. In the instant case what the workmen relied upon is the provision in the rules as contained in the Railway Servants (Hours of Employment) Rules, 1961, read with Section 71-C of the Indian Railways Act. Read : together, said Section 71-C, and Railway Servants (Hours of Employment) Rules, 1961, make it clear that the workmen who are continuous employees have to work for 54 hours only. It is not disputed that the cabinmen who filed their claim before the Industrial Court had worked for 72 hours. It being provided in the Indian Railways Act and the rules made there under namely Railway Servants (Hours of Employment) Rules, 1961, that continuous workmen need to work only for 52 hours, overtime became due to the 'cabinmen' before the Industrial Tribunal. The Supreme Court judgment referred to by Mr. Dalip Singh actually does not advance his case at all. It helps the respondent. It is noteworthy that even in earlier cases, particularly, in : (1963)IILLJ89SC (Central Bank of India v. P.S. Rajagopalan and Ors.) the Supreme Court stated that:-
'The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2). We must accordingly hold that section 33C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers'.
17. The counsel for the workmen has referred to Delhi Transport Corpn. v. Labour Court, Delhi, 1977 51 IFJ 475 decided by Justice O.K. Kapur (as he then was). This judgment, however, need not be considered in this case for the reason that it has been overruled by a division bench of this Court in a Letters Patent Appeal arising from this judgment. The letters patent judgment is reported as 1984 (2) LLJ 79. The overruling paragraph is to be found at page 90. Counsel for the workmen has also cited decision in Bharat Krishak Samaj v. M.L. Kakkar and Ors. 1963 47 IF LR 357 by Avadh Behari-J. where it was held that a workman's claim based upon statutory provisions for overtime, was entertainable by the Labour Court.
18. Another judgment which has been referred to by learned counsel for the workmen is Yad Ram v. Labour Court, 1974 (2) LLJ 306 . In this judgment this Court has called out the ratio of the judgments of the Supreme Court, and in paragraph 8, gives the propositions that emerge from the decisions of the Supreme Court as under:-
'These decisions of the Supreme Court with regard to the scope of S. 33C(2) of the Act lay down:-
(1) the scope of Section 33C(2) is wider than that of Section 33C(1) inasmuch as claims for money or benefit due otherwise than under settlements, awards or under Chapter VA of the Act are within the purview of the former section;
(2) if the workman's right to receive the benefit is disputed, it may have to be determined by the specified Labour Court and the jurisdiction under Section 33C(2) is not confined to admitted : claims;
(3) the specified Labour Court under Section 33C(2) can hold an enquiry into the existence of the right before determining the money due even though the right to make such claim is disputed by the employer;
(4) while Section 36A of the Act deals merely with the question of the interpretation of the awards where a dispute arises in that behalf, Section 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions;
(5) disputes which fall under Section 19(1) of the Act cannot be adjudicated by the specified Labour Court under Section 33C(2) like the dispute where the dismissal is challenged as wrongful;
(6) a specified Labour Court has jurisdiction to entertain a claim in respect of an existing right arising from the relationship of an industrial workman and his employer; and
(7) Section 33C(2) takes within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application'.
18. Learned counsel for the workmen has also brought to my notice the Full Bench decision of the Andhra Pradesh High Court reported in 1980 LLN-268. In that case it was held that the Labour Court was competent and empowered to determine the minimum wage due to a workman under the Minimum Wages Act. These statutory rights/benefits to the workman can be a matter of computation for the Labour Court.
19. The counsel for the workmen has also brought to my notice the decision in Goverdhan Prasad and Ors. v. The management of M/s. Indian Oxygen Ltd. 1984 1LLJ 26. In this case the workmen of Indian Oxygen Ltd. posted at Delhi had got an award in their favor in a matter arising out of a reference under Section 10 of the Industrial Disputes Act. The workmen of Indian Oxygen who were working at Gaz-iabad, at a distance of 20 kilometers from Delhi, relied upon this award for the purpose of getting the same benefits. The Supreme Court held that the adjudication under Section 10 given for the workmen at Delhi, was an existing right within the meaning of Section 33C(2) which could be relied upon by the workmen at Gaziabad.
20. In view of the above said authorities there is no force in the contention of the petitioners that the Labour Court did not have the jurisdiction to adjudicate upon matters under Section 33C(2) of the Industrial Disputes Act.
21. The Labour Court, in the instant case, has also referred to a prior adjudication by Mr. R.K. Baweja delivered on 23rd Sept. 1972. Decision of Shri R.K. Baweja as well as the decision of Shri O.P. Singnla, dated 30th April are computations on the basis of 'duly provided' provisions of the statute and the applicable rules which the Labour Court is entitled to enforce by adjudication under Section 33C(2) of the Industrial Disputes Act.
22. In this view of the matter the writ petitions filed by the General Manager, Northern Railways fail and they are dismissed. The workmen shall have their costs. Court-fee is quantified at Rs. 300/- in each of these writs.
23. In view of the dismissal of the writ petitions the workmen will be entitled to withdraw the amount which has been deposited in this Court pursuant to the order, dated 17th May, 1985.