Reckoning of pay element of 55% at the time of retirement – Court Cases relating to demand of Loco Inspectors

Reckoning of pay element of 55% at the time of retirement – Court Cases relating to demand of Loco Inspectors


Reckoning of pay element of 55% at the time of retirement – Court Cases
relating to demand of Loco Inspectors
भारत सरकार GOVERNMENT OF INDIA
रेल मंत्रालय MINISTRY OF RAILWAYS
(रेलवे वोर्ड RAILWAY BOARD)
No.E(P&A)ll-2009/RS-18
New Delhi, dated 04.12.2017.
The General Managers,
All Indian Railways (Except NCR).
Sub :

Court Cases relating to demand of Loco Inspectors for reckoning
of pay element of 55% at the time of retirement.

Kindly refer to this office letter No. E(P&A)I1/2008/RS-32/Vol-III.
dated 22-03-2016 and E(P&A)II/2016/RS-18 dated 22-07-2016 on the above
subject whereby it was informed that ‘Stay’ has been obtained in Civil
Appeal No. 3l10/20l6. UOI Vs. Sh. Kishan Lal Sharma and Civil Appeal No.
4386/2016 UOI Vs. K. L. Mehndiratta against the verdict dated 09-10-2015 of
Hon’ble High Court of Delhi in the Hon’ble Supreme Court of India.
It is understood that several court cases have been filed before various
Hon’ble Tribunals and High Court on the subject. WP No. 60133 of 2006
before the Hon’ble High Court. Allahabad filed by UOI & Ors. Vs. A.
Amrol, Retd. Loco Inspector has been decided in favour of UOI on
17-08-2017. In this connection, it is stated that the Hon’ble High Court,
Allahabad has given the following order:-
  • “(9) It is undisputed that the respondents had been promoted as
    stationary staff from the running staff.
  • (10) In the background of the aforesaid judgment UOI Vs. B.
    Baneerjee, no running staff including the erstwhile members of the
    running staff permananently engaged in the performance of
    stationary duty can be given running allowances. Running allowances
    are to be paid to the running staff only for performing actual
    running duty.
  • (11) The protection to the respondents of 30% of the basic pay as
    per the judgment of the Apex Court has also been extended as urged
    by Sh. Mathur, learned counsel for the petitioners.
  • (12) Consequently, in view of the aforesaid judgment , we allow the
    writ petition and set aside the impugned order dated 16-05-2006 to
    the extent indicated above)”
In view of the above. it is advised that if any similar issue is pending
before any Court of Law on your Railways, the above position may be brought
to the notice of the Hon‘ble Courts. A copy of the said order is enclosed.
It is requested to take adequate care to defend and assign similar case, if
any. to a Senior officer for proper monitoring and follow up. The status of
such cases may be informed to this office from time to time.

(Salim Md. Ahmed)
Deputy Director, Estt.(P&A)-II,
Railway Board.
Copy to: FA&CAO of all Zonal Railways.
reckoning-of-pay-element-of-55-at-time-of-retirement.png

Court No. – 37
Case :- WRIT …-.
.A.No. -. 60133 of 2006″
Petitioner :-
Union Of India And Others
Respondent :-_
,Amrol-.And. others


Counsel for Petitioner
:- P.K. Mishra, Prashant Mathur, Tarun Venna, V.K.Goel
Counsel for Respondent :-
Bashist Tiwari
Hon’ble Amreshwar Pratap Sahi,J,
Hon’ble Rajiv Lochan Mehrotra,J,
In Re:-

Civil Misc. Delay condgnation Application No, 53517 of 2009, Civil
Misc. Substitution Application No. 69519 of 2009
The aforesaid Delay Condonation and Substitution Application have been
filed on behalf of the petitioners for substituting the heirs of the
D.N.Bhatia, respondent no.2, who had died.
Notice was issued on 18.5.2009. Office note indicates that neither the
registered envelope nor the acknowledgment Due has been returned after
service. In the aforesaid background,service is deemed to be
sufficient.
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We find from the affidavit filed in support of the Delay Condonation
Application that sufficient cause has been shown for condoning the
delay in filing of the Substitution Application. Since there is no
objection, and despite notice having been served, no objection has been
raised the same is allowed. Necessary Corrections, be carried out
within three days.
Order Date :- 17.8.2017
aks
Court No, – 32


Case :- WRIT – A No.
– 60133 of 2006
Petitioner :-
Union Of India And Others
Respondent :
– Amrol And Others


Counsel for Petitioner :-
PK. Mishra,Prashant Mathur,Tarun Verma,V.K.Goel


Counsel for Respondent :-
Bashist Tiwari
Hon’ble Amreshwar Pratap Sahi,J,
Hon’ble Rajiv Lochan Mehrotra,J,
In Re:-

Civil Misc. Delay condgnation Application No, 69524 of 2009,
Civil Misc. Substitution Application No. 69527 of 2009
The aforesaid Delay Condonation and Substitution Application have
been filed on behalf of the petitioners applicants for substituting
the heirs of the R.C. Bodhraja, respondent no 5, who had died.
Notice was issued on 18.5.2009.office note indicates that neither
Registered Envelop nor Acknowledgment Due has been returned back after
service.
In the aforesaid background,service is deemed to be sufficient.
We find from the affidavit filed in support of the Delay Condonation
Application that sufficient cause has been shown for condoning the
delay in filing the aforesaid Substitution Application. Since there is
no objection and despite notice having being served, no one has raised
any dispute, the same is allowed . Necessary corrections be carried out
within three days.
Order Date :- 17.8.2017
aks
Court No, – 37


Case :-
WRIT – A No. – 60133 of 2006
Petitioner :
– Union Of India And Others
Respondent :-
Amrol And Others


Counsel for Petitioner :-
P.K. Mishra,Prashant Mathur,Tarun Verma,V.K.Goel


Counsel for Respondent :
– Bashist Tiwari
Hon’ble Amreshwar Pratap Sahi,J.


Hon’blg Rajiv Lpghan Mehrotra.J.



In Re:- civil Misc, Substitution Application No. 68537 of 2009.
This application has been filed by the petitioners-applicants bringing
on record the fact that CL. Mudgil, respondent no. 10, had already died
during the pendency of the Original application on 7.11.2003 but no
substitution had taken place.
Accordingly, it is prayed that the judgment of the Tribunal be treated
to be final as Original Application had already stood abated as against
respondent no.10.
Consequently, in View of the aforesaid unrebutted facts this
application is disposed of.
Order Date :- 17.8.2017
aks
Court No. – 37


Case :- WRIT – A No.
– 60133 of 2006
Petitioner: –
Union Of India And Others


Respondent :-
Amrol And Others


Counsel for Petitioner :
– PK. Mishra,Prashant Mathur,Tarun Verma,V.K.Goel


Counsel for Respondent :
– Bashist Tiwari
Hon’ble Amreshwar Pratap Sahi,J,
Hon‘ble Rajiv Lochan Mehrotra,J,
(1) Supplementary affidavit filed today is taken on record.
(2) This writ petition questions the correctness of the judgment dated
16.5.2006 passed by the Central Administrative Tribunal whereby a
challenge was raised by the respondents claiming addition of running
allowance 55% of the basic pay to be added for calculation of
pensionary benefits of the employee.
(3) The Central Administrative Tribunal relying on certain judgements
of this Court, Full Bench Decision of the Jabalpur High Court and the
Supreme Court to support the addition of 55% of the basic pay that can
be given to the running staff prior to the promotion on the stationary
duty as claimed by the respondents, has allowed the Original
Application.
(4) Union of India and the Railway authorities have questioned the
correctness of the said judgement. The matter appears to have been
heard on previous occasions but could not be disposed of.
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(5) During the pendency of the writ petition, counter affidavit was
filed by the respondents to which a rejoinder affidavit has also been
filed by Sri Prashant Mathur, learned counsel for the petitioners.
(6) Learned counsel for the petitioners contends that the final
judgment of the Supreme Court in Civil Appeal No. 7298 of 2013, Union of India and others Vs B, Baneerjee
decided on 18.3.2016 squarely covers the issue involved in the present
case and the Supreme Court reversed the judgement of the Calcutta High
Court holding that running allowance was admissible only to the running
staffs and not to those who had been promoted from running staff to
perform stationary duties. Learned counsel for the petitioners submits
that in View of the aforesaid, the impugned judgment deserves to be
reversed.
(7) Learned counsel for the petitioners informs the Court that written
information has been given to Sri Bashist Tiwari, learned counsel for
the respondents for the case being taken up today. Copy of the written
information has been produced before the Court by the learned counsel
for the petitioners that shall be placed on record. Shri Tiwari has not
appeared in spite of written notice.
(8) In the background aforesaid, we find that issue of addition of 55%
of the basic pay of the running staff to be added and calculated as
pensionary benefits has been decided by the Supreme Court in the case
of Union of India and others Vs, B. Bageezjee (Supra).
It has been categorically held as under:-

“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 fiegtign 47 of the
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 which entities 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.
(9) It is undisputed that the respondents had been promoted as
stationary staff from the running staff.
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(10) In the background of the aforesaid judgment, no running staff
including the erstwhile members of the running staff permanently
engaged in the performance of stationary duty can be given running
allowances. Running allowances are to be paid to the running staff only
for performing actual running duty._
(11) The protection to the respondents of 30% of the basic pay as per
the judgment of the Apex Court has also been extended as urged by Shri
Mathur, learned counsel for the petitioners.
(11) Consequently, in View of the aforesaid judgment, we allow the writ
petition and set aside the impugned order dated 16.5.2006 to the extent
indicated above.
Order Date
:- 17.8.2017

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