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2006 DIGILAW 882 (MP)

Hari Singh Choudhary v. Union of India

2006-07-19

A.K.PATNAIK, N.K.MODY

body2006
ORDER Patnaik, C.J. -- 1. This is a writ petition under Articles 226/227 of the Constitution challenging the order dated 21st February, 2003 passed by the Central Administrative Tribunal, Circuit Bench, Indore in OA No. 439 of 1998. 2. The facts briefly are that the petitioner was working as a Mail Express Driver in the Railways. Disciplinary proceedings were initiated against him for some misconduct and he was dismissed from service on 30th January, 1981. He chal1enged the order of dismissal before the Central Administrative Tribunal (for short 'the Tribunal') in OA No. 307 of 1988 and by order dated 11.7.1990 passed in the said OA, the Tribunal directed reinstatement of the petitioner with instructions to the Divisional Railway Manager, Ratlam to pass appropriate orders under FR 54-A in respect of interim period of absence from duty. The petitioner was thereafter reinstated in service in March 1991 and the Divisional Railway Manager, Ratlam passed an order dated 20.12.1991 treating the entire period of absence as having been spent on duty and that the petitioner shall be paid his ful1 pay and allowances for the said period of absence. The petitioner was thereafter paid his pay and allowances for the period of absence, but was not paid running allowance for the rest days (one day per week), as per the advice of the Accounts Department of the Railways. 3. Aggrieved by the fact that he had not been paid arrears of running allowance for the rest days and also aggrieved by the fact that he was paid the salary and allowances belatedly, he filed a fresh OA No. 439 of 1998 claiming arrears of average running allowance for the rest days (one day every week) as well as interest for the late payment of the pay and allowances. By impugned order dated 21st February, 2003 passed in the said OA No. 439 of 1998, the Tribunal held that the petitioner was entitled to interest for the late payment at the rate of 9% per annum. By impugned order dated 21st February, 2003 passed in the said OA No. 439 of 1998, the Tribunal held that the petitioner was entitled to interest for the late payment at the rate of 9% per annum. By the impugned order, the Tribunal also held that Rule 4 of the Running Allowance Rules, 1981 made by the Railways Board, directs that 30% of the basic pay of Running Staff would be treated to be in the nature of pay representing the pay elements in the running allowance and this would mean that the running allowance is to be treated for being paid on monthly basis and, therefore, the period if any of rest during performance of runing duties was already taken care of and there was no justification for effecting a further reduction of one day per week as rest, as ordered by the Accounts Branch of the respondents and hence the denial for running allowance for one day rest per week to the petitioner was incorrect. The Tribunal, however, observed by the impugned order that if the payment granted towards running allowance while calculating the kilometrage at the rate of 160 kms. per day was more than the 30%, it would be limited to that extent and no deduction/reduction on the ground of one day's rest in a week was permissible. Aggrieved by this portion of the impugned order of the Tribunal directing that the petitioner would be entitled to running allowance up to the maximum of 30% of the basic pay, the petitioner has filed this petition under Arts. 226/227 of the Constitution. 4. The petitioner who has appeared in person vehemently submitted that the petitioner had gone to the Tribunal for refusal on the part of the authority to grant running allowance for the days of rest and hence the only question that the Tribunal was called upon to decided was as to whether the petitioner was also entitled to running allowance for one day rest in every week during the period from the date of dismissal till the date of reinstatement. He submitted that since the Tribunal had held that running allowance for the days of rest could not be denied to the petitioner, the Tribunal has decided the matter in his favour and the Tribunal should not have limited the running allowance to 30% of the basic pay of the petitioner. 5. Mr. He submitted that since the Tribunal had held that running allowance for the days of rest could not be denied to the petitioner, the Tribunal has decided the matter in his favour and the Tribunal should not have limited the running allowance to 30% of the basic pay of the petitioner. 5. Mr. Mehta, learned counsel for the respondents, on the other hand, submitted that before the Tribunal, the respondents had filed an application bringing to the notice of the Tribunal the circular dated 18.6.2002 in Annexure R-1 that under the Running Allowance Rules, 1981, the running allowance of a delinquent employee who has been dismissed from service would be the same as for employees performing stationary duties and thus is to be confined to 30% of his basic pay and the Tribunal after considering the said circular, has in the impugned order held that the running allowance of the petitioner would be confined to 30% of his basic pay. 6. Paragraph 7 of the impugned order of the Tribunal, which contains the findings of the Tribunal relating to the entitlement of the petitioner for running allowance even for the rest days is quoted herein below: "7. Coming to the aspect of running allowance, we note that Running Allowance Rules, 1981 issued by the Railways Board defines 'Running Allowance' as 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 Rail ways (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' . Rule 4 of the said Rules further directs that 30% of the basic pay of running staff will be treated to be in the nature of pay representing the pay elements in the running allowance'. This would mean that the running allowance is to be treated for being paid on monthly basis. Therefore, the period, if any, of rest during the performance of the running duty is already taken care of and there was no justification for effecting a further reduction of one day per week as rest, as ordered by the Accounts Branch of the respondents. Therefore, the period, if any, of rest during the performance of the running duty is already taken care of and there was no justification for effecting a further reduction of one day per week as rest, as ordered by the Accounts Branch of the respondents. 30% of the basic pay of the applicant should have been, therefore, granted to him for the period intervening of dismissal and reinstatement. If the payment granted towards running allowance while calculating the kilometrage @ 160 Kms. per day was more than the 30% it could be limited to that extent and no deduction/reduction on the ground of one day's rest in a week was permissible." 7. It will be clear from the aforesaid findings of the Tribunal that the Tribunal has found no justification for the respondents to reduce the running allowance by one day per week as rest day but has at the same time limited the running allowance of the petitioner to the maximum of 30% of his basic pay. We fail to see as to why the Tribunal adopted this approach of finding out a via-media between the claim of the petitioner and that of the respondents and has held that if the maximum running allowance is limited to 30% of the basic pay of the petitioner, then the reduction of running allowance up to one day per week as rest day was not justifiable. The fact remains that the competent authority had passed the order under Rule 2044-A of the Indian Railways Establishment Code Volume-I, corresponding to FR 54-A, to the effect that the petitioner would be entitled to running allowance of calculated kilometrage at the rate of 160 Kms. per day. The Accounts Department of the Railways, however, had pointed out that the petitioner would not be entitled to any such running allowance for one day in a week which was a rest day as the petitioner was not required to perform any duty, on such rest day. The Tribunal, therefore, was called upon to decide only one question as to whether the petitioner would be entitled to running allowance for the 'rest days' i.e. for one day in a week, which according to the Accounts Department of the Railways, the petitioner was not entitled to. The Tribunal, therefore, was called upon to decide only one question as to whether the petitioner would be entitled to running allowance for the 'rest days' i.e. for one day in a week, which according to the Accounts Department of the Railways, the petitioner was not entitled to. The Tribunal should have held either that the petitioner was entitled to such running allowance for the rest day or he was not entitled to running allowance for the rest day. The Tribunal could not possibly have held on the basis of a provision in the Running Allowance Rules, 1981, as clarified subsequently by the circular dated 18.6.2002 that such running allowance of the petitioner even if extended to the rest days has to be confined to 30% of the basic pay of the petitioner. This is because under sub-rule (2) of the aforesaid Rule 2044-A, when a dismissal of a railway servant is set aside by a Court, the pay and allowances to be paid to the railway servant for the period intervening the dismissal and the date of reinstatement are to be determined by the competent authority as named in the said rule and once the competent authority under the said rule decides that the petitioner was entitled to running allowance for the period of absence from duty without the maximum limit of 30% of the basic pay, the Tribunal could not substitute its views for that of the competent authority under sub-rule (2) of Rule 2044-A of the said Rules. This also answers the contention raised by the petitioner. Under sub-rule (2) of Rule 2044-A, it is for the competent authority to decide what amount of pay and allowances is to be paid to the railway servant for the intervening period from the date of dismissal till the date of reinstatement and since the competent authority has held on the advice of the Accounts Department that the petitioner was not entitled to running allowance for the days of rest as the petitioner was not required to perform duties during such days of rest, the Tribunal or the Court in exercise of the powers under Arts. 226/227 of the Constitution cannot substitute the views of the competent authority by its own views and hold that the petitioner would be entitled to such running allowance also for the rest days. 8. 226/227 of the Constitution cannot substitute the views of the competent authority by its own views and hold that the petitioner would be entitled to such running allowance also for the rest days. 8. For the aforesaid reasons, we set aside the findings of the Tribunal in paragraph 7 of the impugned order, inasmuch as it holds that the petitioner would be entitled to running allowance upto a limit of 30% of his basic pay and not more. We also hold that the petitioner would be entitled to running allowance for the entire intervening period of absence excluding the rest days as held by the competent authority. If any amount has been recovered from the petitioner on account of the direction in paragraph 7 of the impugned order of the Tribunal, which we have set aside, the same shall be refunded to the petitioner. In the facts and circumstances of the case, there shall be no order as to costs.