+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/-