DECISION This is an appeal filed on behalf of Divisional Superintendent, Pakistan Railway, Sukkur under section 17 of Payment of Wages Act, 1936 against the judgment passed by the learned Authority under the Payment of Wages Act, Rahim Yar Khan, dated 27-7-1978, whereby the appellant (Railway Administration, Sukkur Division) was directed to pay a sum of Rs. 5,008 to Kamal Din respondent, Rs. 5,008 to Abdul Khaliq, respondent, and a sum of Rs: 4,562 to Ghulam Muhammad, respondent, as overtime wages for their individual periods of duty, namely 1-3-1974 to 31-1-1977, 1- 2-1974 to 31-12-1976 and 1-3-1974 to 31-12-1976, respectively. The claim of the respondents before the special authority was that while being employed as Gatemen at their respective railway level crossings worked for 12 hours a day instead of usual 8 hours a day and as such earned overtime wages for four hours a day during the wage-periods mentioned above which were illegally withheld by the railway administration and should be paid to them. The case of the appellant before the learned lower forum was that the respondents were intermittent workers and not continuous workers and as such they were not entitled to claim overtime wages under the relevant railway rules. The following issues arose out of the parties pleadings before the special authority :-- --
(i) Whether the application is within time.
(ii) Whether the petitioner is entitled to the payment of the wages under the law.
(iii) Whether the petitioner has a cause of action against the respondent.
(iv) Whether the application of the petitioner is entertainable under the Payment of Wages Act, 1936.
(v)Relief.
2. The application was found to be within time by the special authority and the claim of the respondents was accepted as a result of the findings on the other three issues. Since the individual claims of the respondents relate to such wage periods which do not fall beyond a period of three years, they have rightly been held to be within time under the first proviso to subsection (2) of section 15 of Payment of Wages Act, 1936. The wage periods already mentioned in regard to Kamal Din, Abdul Khaliq and Ghulam Muhammad, respondents, are I-3-1974 to 31-1-1977, 1-2-1974 to 31-12- 1976 and 1-3-1974 to 31-12-1976, respectively. They lodged their claims on 9-2-1977. 27-1-1977 and 9- 2-1977, respectively, and as such were filed within time.
3. As regards the entitlement of the respondents regarding their claim of overtime wages, the basic point to be examined under the rules is whether they could be characterized as essentially intermittent railway servants and were declared as such by the competent railway authority. This is clear from the definition of intermittent worker under section 71(a) of the Personnel Manual and rule 2 of the Railway Servants (Hours of Employment) Rules, 1931, quoted in the impugned judgment' and not controverted on behalf of the appellant, as follows :---- Section 71-A; "The employment of a railway servant is said to be essentially intermittent when it has been declared to be so by the authority empowered in this behalf, on the ground that it involves long periods of inaction during which the railway servant is on duty but is not called upon to display either physical activities or sustained attention."
Rule 2 of Rules 1931: "The work of railway servant shall not be regarded as essentially intermittent unless daily period of duty includes (a) two or more periods of inaction of not less than half an hour each, aggregation of not less than two hours in all or, (b) periods of inaction aggregating not less than four and a half hours. The term `sustained attention' used in the same section involves mental efforts. Thus a points man, waiting for the arrival of a train after setting points is required to give sustained attention, so also a station master after, but not before, line clear." '
In the light of the above rules the special authority under the payment of Wages Act observed as follows :- "The railway administration is empowered under the said section to declare any railway servant as essentially intermittent when the duty hours of such railway servant involves long periods of inaction. However, there are two essential conditions for declaring the railway servant as intermittent worker. Firstly, the daily duty period shall include two or more periods of inaction of not less than half an hour each aggregating not less than two hours or a period of inaction not less than four and a half hours. In the present case it was the duty of respondent to prove that those two conditions were fulfilled while declaring the petitioners as intermittent workers but no such evidence has been produced on behalf of the respondent."
3. Form the above observations, it appears that while assuming that the respondents were declared to be intermittent workers by the railway administration it was viewed that they had wrongly been so declared for want of essential conditions to be fulfilled in the case of intermittent workers. I am of the view that a special authority under the Payment of Wage Act has no jurisdiction to question the exercise of any power given to a railway authority under the Railway Rules. He is only concerned with the regulation of payment of wages essentially due to the workers.
To question the validity of the exercise of such powers otherwise clearly given by the rules is, in some limited scope, the function of a labour Court and the power of the High Court in exercise of its writ jurisdiction. Once it be admitted that rules of an establishment empowered some officer to exercise a specified power and that the power was exercised by the specified officer, then the special authority under the Payment of Wages Act has no jurisdiction to question the exercise of that power and to award wages withheld by the competent authority under the Rules prescribed for the payment of wages. In the present case, if it was admitted in the impugned judgment that the railway administration declared the respondents as essentially intermittent workers' then the conditions for declaring them as such could hardly be adjudicated upon by the special authority.
However, before assuming the fact that the respondents were declared as intermittent workers it was to be seen whether they were, in actual fact, declared as intermittent workers by the competent authority under the Rules quoted above. No order could be traced on the record of the learned special authority that the respondent stood declared as intermittent workers on any general or special basis.
4. The learned counsel for the appellant relied upon Exh. D. 3 for giving the status of intermittent workers to the respondents. This is Roster form for the gate-keepers with a title of `Intermittent workers' for level crossing at mile ---3 ((KPR). CCM Sukkur). According to this duty roster duty hours have been mentioned in the relevant columns for a week commencing on Sunday and finishing on Saturday next. Twelve hours have been shown in the duty column in this roster without mentioning the names of the gate-keepers or the orders declaring them to be intermittent workers. A rail--way gate-keeper cannot be taken for granted as intermittent worker unless it is shown on record that he has been generally or specially declared so by the authority empowered in this behalf as clearly provided under section 71-A of the Personnel Manual quoted elsewhere in the judgment. Rule 2 of the Railway Servants (Hours of Employment) Rules, also quoted above, lays the conditions under which a railway servant can be declared as essentially intermittent worker. So this is a matter of serious consideration for the authority concerned to declare any railway servant as intermittent or non-intermittent worker and unless it is shown on record that a certain railway employee was declared in due course to be an intermittent worker, he cannot be regarded to own that status on mere assumption or on the basis of a duty roster prepared for the disposal of the routine work of railway administration.
5. It may also be pointed out that the orders of the railway authority declaring certain person to be intermittent worker at one time may be changed at another according to the change in the circumstances of the railway traffic. So this is a matter of consideration for the authority concerned to declare a railway employee as intermittent or not according to the actual performance assigned to him from time to time. It is quite possible that the gateman who has been declared as intermittent worker in 1940 may not be regarded as such in 1978 and unless a clear direction or order passed by competent officer is placed in evidence no railway employee can be taken to be an intermittent worker merely on the basis of a duty roster. The statement given by the Head Clerk, D. S. Office, Sukkur, in his cross-examination attracts attention when he stated that the petitioners are bound to perform duty for 12 hours daily, that he does not know the duration of inaction periods of the petitioners, that the gatemen cannot leave their place of duty during the duty period to avoid disciplinary action against them and that during the period of 24 hours about 50 trains pass from Up and Down side. This kind of statement gives rise to reasonable apprehensions that declaration of railway employee to be an intermittent or non-intermittent workers is a matter of serious consideration from time to time in accordance with the conditions obtaining at one time or the other and unless they are assigned their status in that respect by the proper railway authority no assumption can be made to come to an abrupt conclu--sion. In this background of the circumstances, the overtime wages claimed by the respondents could not be denied to them in the absence of any definite orders of the competent railway authority declaring them to the intermittent workers. In the result, the impugned judgment being up--held, the appeal is dismissed.
The file may be consigned.