published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40728
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7298 OF 2013
(Arising Out of SLP (C) No.3446 of 2012)
Union of India & Ors. ... Appellant(s)
Versus
B. Banerjee ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
1. The precise question that arises for determination in the present
appeal is
whether the respondent, a medically decategorised Driver of the
Indian Railways, working as a Crew Controller with stationary duties, is entitled to allowance in lieu of kilometerage (ALK).
The Central
Administrative Tribunal by its order dated 10.02.2011 answered the question
against the respondent which led to a round of litigation before the
Calcutta High Court.
The High Court held that the respondent was entitled
to the allowance in question.
Aggrieved, the Union has filed this appeal.
2. The basic facts that would require notice are not in dispute. The
respondent while serving as a Diesel Driver (Goods) Grade-II was found
unfit to work as a Driver in a special medical examination that was held on
5.1.2005. He was, however, allowed to work as a Crew Controller. The said
post, though involved performance of stationary duties was included in the
cadre of Driver in terms of Railway Board Circular No.9/98 dated
09.01.1998. Regular Drivers, in addition to medically decategorised
Drivers like the Respondent, were also drafted to perform the duties of
Crew Controller. Both categories of employees i.e. regular Drivers and
medically decategorised Drivers in the post of Crew Controller were being
paid ALK. A subsequent Circular No.12/2004 dated 14.01.2004 was issued to
make it clear that medically decategorised Drivers allowed to perform
duties of Crew Controller were ineligible to the grant of any benefit
specifically admissible to the running staff on the premise that such
decategorised Drivers ceased to be running staff. Accordingly, it was
clarified that the benefit of allowance in lieu of kilometerage (ALK) is
not admissible to medically decategorised Drivers working as Crew
Controllers. Following the aforesaid clarificatory Circular No.12/2004
dated 14.01.2004, the respondent who was drawing ALK was denied further
benefit of the same which led to the institution of the proceeding before
the Tribunal. The Tribunal, as it appears from its order dated 10.02.2011,
took the view that following his medical decategorisation the respondent
ceased to be a running staff and as he had been performing stationary
duties he is not entitled to any Running Allowance. The High Court, on
being approached by the respondent, however, took the view that even after
his medical decategorisation the respondent continued to remain in the
cadre of Driver (the said cadre included the post of Crew Controller).
Hence, he was entitled to ALK. Accordingly, the impugned directions have
been issued which have led to the institution of the present appeal by the
Union.
3. We have heard the learned counsels for the parties.
4. To appreciate the issues arising in the present appeal, it will be
necessary to notice the relevant provisions of the Running Allowance Rules
(1981) as embodied in the Indian Railway Establishment Manual – Volume-I
(Revised Edition 1989).
5. Rule 902 (2)(iii) defines “running duties” to mean “duties directly
connected with the movement of trains and performed by running staff while
employed on moving trains or engines including shunting engines”.
Sub-rule (iv) of Rule 902 is in the following terms:
“(iv) “Running staff” performing “running duties” shall refer
to Railway servants of the categories mentioned below:
|Loco |Traffic |
|(a)Drivers, including |(a) Guards |
|Motormen & Rail Motor Drivers| |
|but excluding Shunters. | |
|(b) Shunters |(b) Assistant |
| |Guards |
|(c) Firemen, including | |
|Instructing Firemen, Electric| |
|Assistant on Electric Locos | |
|and Diesel Assistant/Drivers.| |
|Assistants on Diesel Locos. | |
“Running Allowance” as defined in sub-rule (v) of Rule 902 is
extracted below:
“(v) “Running Allowance” means an allowance ordinarily granted
to running staff in terms of and at the rates specified in these
rules, and/or modified by the Central Government in the Ministry
of Railways (Railway Board), for the performance of duties
directly connected with charge of moving trains and includes a
“Kilometrage Allowance” and “Allowance in lieu of kilometrage”
but excludes special compensatory allowances.”
6. Rule 903 which is quoted below makes it clear that 30% of the basic
pay of the running staff is required to be treated as representing the pay
element in the Running Allowance:
“903. Pay element in Running Allowance:-30% of the basic pay of
the running staff will be treated to be in the nature of pay
representing the pay element in the Running Allowance. This pay
element would fall under clause (iii) of Rule 1303-FR-9 21(a)
i.e. “emoluments which are specially classed as pay by the
President”.
7. Rule 905 deals with the types of allowances admissible to running
staff and is in the following terms:
“905. Types of Allowances admissible to Running Staff:-Running
staff shall be entitled to the following allowances subject to
the conditions specified by or under these rules:
i) Kilometrage Allowance for the performance of running
duties, in terms of and at the rates specified in these
rules.
ii) An allowance in lieu of kilometrage (ALK) for the
performance of stationary duties such as journeys on
transfer, joining time, for attending enquiries or law
courts on Railway business, attending departmental
inquiries as Defense Counsel or witness, Ambulance classes,
volunteer duty in connection with Territorial or other
similar Fund and Staff Loans Fund Committees, meeting of
Railway Institutes, Welfare and Debt Committees, Staff
Benefit Fund and Staff Loan Fund Committees, Staff and
Welfare Committees, for attending the meetings of Railway
Co-operative Societies in cases where special casual leave
is granted for doing so, medical and departmental
examinations, participating in recognized athletic contests
and tournaments, scouting activities and Lok Sahayak Sena
Camp, representing recognized labor organizations,
attending periodical meetings with District offices, Heads
of Departments and General Managers, attending First-aid
classes, undergoing training in carriage sheds and as
worker teacher under the Workers’ Education Scheme
attending training schools for refresher and promotion
courses, undergoing sterilization operation under Family
Planning Scheme appearing in Hindi Examination Guards
booked on escort duty of treasure and other insured parcels
on trains, Drivers and Firemen when kept spare for a day or
two to enable them to examine and clean the engines
thoroughly before being deputed to work special trains for
VIPs, or any other duties which may be declared in
emergencies as qualifying for an allowance in lieu of
kilometrage.
iii) Special Compensatory Allowances
The running staff are eligible for the following compensatory
allowances under the circumstances and at the rates specified in
these rules:
a) Allowance in lieu of Running Room facilities.
b) Breach of rest allowance.
c) Outstation (Detention) Allowance.
d) Outstation (Relieving) Allowance.
e) Accident Allowance.
(iv) An official Allowance when undertaking duties in higher
grades of posts open to running staff or in stationary
appointments.”
8. Rule 907 which deals with allowance in lieu of kilometerage (ALK) is
in the following terms :
“907. Allowance in lieu of Kilometrage (ALK)
When running staff are engaged in or employed on non-running duties as
specified in Rule 3 (ii) above, they shall be entitled to the payment
of an allowance in lieu of Kilometrage as indicated below for every
calendar day for such non-running duties as may be required to be
performed by them:
(a) When such non-running duties are performed by the running staff
at their headquarters, they shall be paid the pay element of the
Running Allowance, namely, 30% of the basic pay applicable for the
day.
(b) When such non-running duties are performed by the running staff
at outstations, they shall be paid ALK at the following rates:
|S. |Category of Running |New scales of|Revised rates|
|No. |Staff |pay |of ALK (160 |
| | | |km.) per day |
| | | |w.e.f. |
| | | |1-11-1986* |
|1. |Mail Driver |1640-2900 |45.20 |
|2. |Passenger Driver |1600-2660 |45.10 |
|3. |Goods Guard |1350-2200 |45.05 |
|4. |First Fireman/ |950-1500 |30.90 |
| |Diesel Asstt/Electric | | |
| |Asstt. | | |
|5. |Second Fireman |825-1200 |26.25 |
|6. |Shunter |1200-2040 |33.05 |
|7. |Mail Guard |1400-2600 |36.95 |
|8. |Passenger Guard |1350-2200 |36.90 |
|9. |Goods Guard |1200-2040 |36.80 |
|10. |Assistant Guard/ |950-1400 |22.00 |
| |Brakesmen | | |
9. From the provisions of the Running Allowance Rules, extracted above,
it is abundantly clear that
only a specific category of employees in the
Railways like Drivers, Motormen, Firemen, Guards, Assistant Guards etc. who
constitute the running staff and such staff who are directly connected with
the movement of trains perform running duties.
Running Allowance under the
Rules is required to be paid only to the running staff who are engaged in
the performance of duties directly connected with the movement of trains
and such allowance includes kilometerage allowance or allowance in lieu of
kilometerage (ALK).
While kilometerage allowance is to be paid for
performance of actual running duties, the allowance in lieu of kilometerage
(ALK) is to be paid to such members of the running staff who are
temporarily required to perform stationary duties.
The rules also make it
clear that 30% of the basic pay of the running staff is required to be
treated as representing the pay element in the Running Allowance.
Those
members of the running staff who are employed on non-running duties are
paid the aforesaid 30% of the basic pay if such non-running duties are
performed at the headquarters whereas in case such non-running duties are
performed by the running staff at outstations they are required to be paid
ALK at the rates prescribed by Rule 907(b).
It is thus clear that
no
Running Allowance i.e. either kilometerage allowance or allowance in lieu
of kilometerage is contemplated for any staff, including erstwhile members
of the running staff, permanently engaged in performance of stationary
duties.
Running Allowance of either description is required to be paid
only to members of the running staff who are directly engaged in actual
movement of trains or such staff who are temporarily assigned stationary
duties but who are likely to go back and perform running duties.
The
respondent does not fall in either of the above two categories.
10. The retention of decategorised Drivers working as Crew Controllers in
the original cadre of Drivers by the Railway Board’s Circular No.9/98 dated
09.01.1998 and their entitlement to Running Allowance (ALK) has to be
understood in the above context. The aforesaid inclusion, which is wholly
fictional, cannot confer any benefit contrary to the express provision of
the Running Allowance Rules inasmuch as a decategorised Driver working as a
Crew Controller is not a member of the running staff or engaged in
performance of running duties as defined by the provisions of Running
Allowance Rules. The above position has been made abundantly clear by the
Railway Board Circular No.12/2004 dated 14.01.2004, details of which have
already been noticed.
11. There is yet another aspect of the matter which would require a
mention. Under Rule 903 of the Running Allowance Rules, as noticed above,
30% of the basic pay of the running staff represents the pay element in the
Running Allowance. Therefore, in case of medically decategorised Driver,
like the respondent, the said component being a part of the pay drawn by
him as a running staff has to be protected. The same apparently has been
done as is evident from the rejoinder affidavit of the Union. The above
act of the appellants also ensures compliance with the provisions of
Section 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 which entitles the
respondent to receive the pay and service benefits earlier drawn by him.
The Running Allowance to which the respondent was entitled while he was a
member of the running staff has been protected as a part of his pay in the
post of Crew Controller. In such circumstances, any further grant of ALK
will not be justified.
12. We, therefore, hold that the High Court was not justified in issuing
the impugned directions for grant of ALK to the respondent. The order of
the High Court dated 20.06.2011 is therefore set aside and the appeal is
allowed.
..………………………..………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
..………………………..………………………J.
[RANJAN GOGOI]
NEW DELHI
SEPTEMBER 06, 2013
-----------------------
11
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7298 OF 2013
(Arising Out of SLP (C) No.3446 of 2012)
Union of India & Ors. ... Appellant(s)
Versus
B. Banerjee ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
1. The precise question that arises for determination in the present
appeal is
whether the respondent, a medically decategorised Driver of the
Indian Railways, working as a Crew Controller with stationary duties, is entitled to allowance in lieu of kilometerage (ALK).
The Central
Administrative Tribunal by its order dated 10.02.2011 answered the question
against the respondent which led to a round of litigation before the
Calcutta High Court.
The High Court held that the respondent was entitled
to the allowance in question.
Aggrieved, the Union has filed this appeal.
2. The basic facts that would require notice are not in dispute. The
respondent while serving as a Diesel Driver (Goods) Grade-II was found
unfit to work as a Driver in a special medical examination that was held on
5.1.2005. He was, however, allowed to work as a Crew Controller. The said
post, though involved performance of stationary duties was included in the
cadre of Driver in terms of Railway Board Circular No.9/98 dated
09.01.1998. Regular Drivers, in addition to medically decategorised
Drivers like the Respondent, were also drafted to perform the duties of
Crew Controller. Both categories of employees i.e. regular Drivers and
medically decategorised Drivers in the post of Crew Controller were being
paid ALK. A subsequent Circular No.12/2004 dated 14.01.2004 was issued to
make it clear that medically decategorised Drivers allowed to perform
duties of Crew Controller were ineligible to the grant of any benefit
specifically admissible to the running staff on the premise that such
decategorised Drivers ceased to be running staff. Accordingly, it was
clarified that the benefit of allowance in lieu of kilometerage (ALK) is
not admissible to medically decategorised Drivers working as Crew
Controllers. Following the aforesaid clarificatory Circular No.12/2004
dated 14.01.2004, the respondent who was drawing ALK was denied further
benefit of the same which led to the institution of the proceeding before
the Tribunal. The Tribunal, as it appears from its order dated 10.02.2011,
took the view that following his medical decategorisation the respondent
ceased to be a running staff and as he had been performing stationary
duties he is not entitled to any Running Allowance. The High Court, on
being approached by the respondent, however, took the view that even after
his medical decategorisation the respondent continued to remain in the
cadre of Driver (the said cadre included the post of Crew Controller).
Hence, he was entitled to ALK. Accordingly, the impugned directions have
been issued which have led to the institution of the present appeal by the
Union.
3. We have heard the learned counsels for the parties.
4. To appreciate the issues arising in the present appeal, it will be
necessary to notice the relevant provisions of the Running Allowance Rules
(1981) as embodied in the Indian Railway Establishment Manual – Volume-I
(Revised Edition 1989).
5. Rule 902 (2)(iii) defines “running duties” to mean “duties directly
connected with the movement of trains and performed by running staff while
employed on moving trains or engines including shunting engines”.
Sub-rule (iv) of Rule 902 is in the following terms:
“(iv) “Running staff” performing “running duties” shall refer
to Railway servants of the categories mentioned below:
|Loco |Traffic |
|(a)Drivers, including |(a) Guards |
|Motormen & Rail Motor Drivers| |
|but excluding Shunters. | |
|(b) Shunters |(b) Assistant |
| |Guards |
|(c) Firemen, including | |
|Instructing Firemen, Electric| |
|Assistant on Electric Locos | |
|and Diesel Assistant/Drivers.| |
|Assistants on Diesel Locos. | |
“Running Allowance” as defined in sub-rule (v) of Rule 902 is
extracted below:
“(v) “Running Allowance” means an allowance ordinarily granted
to running staff in terms of and at the rates specified in these
rules, and/or modified by the Central Government in the Ministry
of Railways (Railway Board), for the performance of duties
directly connected with charge of moving trains and includes a
“Kilometrage Allowance” and “Allowance in lieu of kilometrage”
but excludes special compensatory allowances.”
6. Rule 903 which is quoted below makes it clear that 30% of the basic
pay of the running staff is required to be treated as representing the pay
element in the Running Allowance:
“903. Pay element in Running Allowance:-30% of the basic pay of
the running staff will be treated to be in the nature of pay
representing the pay element in the Running Allowance. This pay
element would fall under clause (iii) of Rule 1303-FR-9 21(a)
i.e. “emoluments which are specially classed as pay by the
President”.
7. Rule 905 deals with the types of allowances admissible to running
staff and is in the following terms:
“905. Types of Allowances admissible to Running Staff:-Running
staff shall be entitled to the following allowances subject to
the conditions specified by or under these rules:
i) Kilometrage Allowance for the performance of running
duties, in terms of and at the rates specified in these
rules.
ii) An allowance in lieu of kilometrage (ALK) for the
performance of stationary duties such as journeys on
transfer, joining time, for attending enquiries or law
courts on Railway business, attending departmental
inquiries as Defense Counsel or witness, Ambulance classes,
volunteer duty in connection with Territorial or other
similar Fund and Staff Loans Fund Committees, meeting of
Railway Institutes, Welfare and Debt Committees, Staff
Benefit Fund and Staff Loan Fund Committees, Staff and
Welfare Committees, for attending the meetings of Railway
Co-operative Societies in cases where special casual leave
is granted for doing so, medical and departmental
examinations, participating in recognized athletic contests
and tournaments, scouting activities and Lok Sahayak Sena
Camp, representing recognized labor organizations,
attending periodical meetings with District offices, Heads
of Departments and General Managers, attending First-aid
classes, undergoing training in carriage sheds and as
worker teacher under the Workers’ Education Scheme
attending training schools for refresher and promotion
courses, undergoing sterilization operation under Family
Planning Scheme appearing in Hindi Examination Guards
booked on escort duty of treasure and other insured parcels
on trains, Drivers and Firemen when kept spare for a day or
two to enable them to examine and clean the engines
thoroughly before being deputed to work special trains for
VIPs, or any other duties which may be declared in
emergencies as qualifying for an allowance in lieu of
kilometrage.
iii) Special Compensatory Allowances
The running staff are eligible for the following compensatory
allowances under the circumstances and at the rates specified in
these rules:
a) Allowance in lieu of Running Room facilities.
b) Breach of rest allowance.
c) Outstation (Detention) Allowance.
d) Outstation (Relieving) Allowance.
e) Accident Allowance.
(iv) An official Allowance when undertaking duties in higher
grades of posts open to running staff or in stationary
appointments.”
8. Rule 907 which deals with allowance in lieu of kilometerage (ALK) is
in the following terms :
“907. Allowance in lieu of Kilometrage (ALK)
When running staff are engaged in or employed on non-running duties as
specified in Rule 3 (ii) above, they shall be entitled to the payment
of an allowance in lieu of Kilometrage as indicated below for every
calendar day for such non-running duties as may be required to be
performed by them:
(a) When such non-running duties are performed by the running staff
at their headquarters, they shall be paid the pay element of the
Running Allowance, namely, 30% of the basic pay applicable for the
day.
(b) When such non-running duties are performed by the running staff
at outstations, they shall be paid ALK at the following rates:
|S. |Category of Running |New scales of|Revised rates|
|No. |Staff |pay |of ALK (160 |
| | | |km.) per day |
| | | |w.e.f. |
| | | |1-11-1986* |
|1. |Mail Driver |1640-2900 |45.20 |
|2. |Passenger Driver |1600-2660 |45.10 |
|3. |Goods Guard |1350-2200 |45.05 |
|4. |First Fireman/ |950-1500 |30.90 |
| |Diesel Asstt/Electric | | |
| |Asstt. | | |
|5. |Second Fireman |825-1200 |26.25 |
|6. |Shunter |1200-2040 |33.05 |
|7. |Mail Guard |1400-2600 |36.95 |
|8. |Passenger Guard |1350-2200 |36.90 |
|9. |Goods Guard |1200-2040 |36.80 |
|10. |Assistant Guard/ |950-1400 |22.00 |
| |Brakesmen | | |
9. From the provisions of the Running Allowance Rules, extracted above,
it is abundantly clear that
only a specific category of employees in the
Railways like Drivers, Motormen, Firemen, Guards, Assistant Guards etc. who
constitute the running staff and such staff who are directly connected with
the movement of trains perform running duties.
Running Allowance under the
Rules is required to be paid only to the running staff who are engaged in
the performance of duties directly connected with the movement of trains
and such allowance includes kilometerage allowance or allowance in lieu of
kilometerage (ALK).
While kilometerage allowance is to be paid for
performance of actual running duties, the allowance in lieu of kilometerage
(ALK) is to be paid to such members of the running staff who are
temporarily required to perform stationary duties.
The rules also make it
clear that 30% of the basic pay of the running staff is required to be
treated as representing the pay element in the Running Allowance.
Those
members of the running staff who are employed on non-running duties are
paid the aforesaid 30% of the basic pay if such non-running duties are
performed at the headquarters whereas in case such non-running duties are
performed by the running staff at outstations they are required to be paid
ALK at the rates prescribed by Rule 907(b).
It is thus clear that
no
Running Allowance i.e. either kilometerage allowance or allowance in lieu
of kilometerage is contemplated for any staff, including erstwhile members
of the running staff, permanently engaged in performance of stationary
duties.
Running Allowance of either description is required to be paid
only to members of the running staff who are directly engaged in actual
movement of trains or such staff who are temporarily assigned stationary
duties but who are likely to go back and perform running duties.
The
respondent does not fall in either of the above two categories.
10. The retention of decategorised Drivers working as Crew Controllers in
the original cadre of Drivers by the Railway Board’s Circular No.9/98 dated
09.01.1998 and their entitlement to Running Allowance (ALK) has to be
understood in the above context. The aforesaid inclusion, which is wholly
fictional, cannot confer any benefit contrary to the express provision of
the Running Allowance Rules inasmuch as a decategorised Driver working as a
Crew Controller is not a member of the running staff or engaged in
performance of running duties as defined by the provisions of Running
Allowance Rules. The above position has been made abundantly clear by the
Railway Board Circular No.12/2004 dated 14.01.2004, details of which have
already been noticed.
11. There is yet another aspect of the matter which would require a
mention. Under Rule 903 of the Running Allowance Rules, as noticed above,
30% of the basic pay of the running staff represents the pay element in the
Running Allowance. Therefore, in case of medically decategorised Driver,
like the respondent, the said component being a part of the pay drawn by
him as a running staff has to be protected. The same apparently has been
done as is evident from the rejoinder affidavit of the Union. The above
act of the appellants also ensures compliance with the provisions of
Section 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 which entitles the
respondent to receive the pay and service benefits earlier drawn by him.
The Running Allowance to which the respondent was entitled while he was a
member of the running staff has been protected as a part of his pay in the
post of Crew Controller. In such circumstances, any further grant of ALK
will not be justified.
12. We, therefore, hold that the High Court was not justified in issuing
the impugned directions for grant of ALK to the respondent. The order of
the High Court dated 20.06.2011 is therefore set aside and the appeal is
allowed.
..………………………..………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
..………………………..………………………J.
[RANJAN GOGOI]
NEW DELHI
SEPTEMBER 06, 2013
-----------------------
11
