Case: Union Of India  Vs. Manik Lal Banerjee

no order as to costs." 17. Our attention has also been drawn to the fact that the Central Administration Tribunal, Principal Bench in OA No. 700 of 2004 in the matter of Federation of Central Government Pensioners Association Organisations, Calcutta v. Union of India by a judgment and order dated 1st October, 2004 held that the decision of the Tribunal in Pritam Singh was rendered per incuriam and, thus, did not create any binding precedent. The Railway Administration in terms of its speaking order dated 4.6.2004 also held so. The Tribunal, unfortunately, did not apply its mind to that aspect of the matter and proceeded to grant relief to the Respondent herein solely relying on or on the basis of the said decision. Pritam Singh, in our opinion, did not create any binding precedent. Only because this Court dismissed the special leave petition, the same would not mean that any law within the meaning of Article 14 of the Constitution was laid down thereby. Pritam Singh was evidently rendered per incuriam as the statutory provisions relevant for determining the issue had not been taken into consideration. 18. It is well-settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. The decision in Pritam Singh having indisputably not taken into consideration, the exclusionary clause contained in Section 2(e) of the 1972 Act cannot be held to be an authority for the proposition that despite the provisions of the 1993 Rules, the 1972 Act would apply in the case of the railway servants. 19. It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent. The Tribunal and consequently the High Court, therefore, committed a manifest error in holding otherwise. 20. Submission of Mr. Banerjee that if the 1972 Act applies to an establishment belonging to a railway company and the persons specified in Section 2(f) are the employers, despite exclusion of railway servants governed by the provisions of the 1993 Rules from the purview of the definition of employee in terms of Section 2(e) of the Act, the case shall be governed by the 1972 Act, cannot be accepted. 21. The High Court noticed the definition of employee contained in Section 2(e) of the 1972 Act but while deciding the issue it fell into an error in coming to the conclusion that there was nothing in the 1972 Act so as to exclude the benefit thereof to a railway employee. It failed to properly construe the said provision. 22. The Kerala High Court in M.P. Sankara Pillai (supra), whereupon strong reliance has been placed by Mr. Banerjee, was considering a case of casual labour. Indian Railway Administration although was held to be an establishment within the meaning of the 1972 Act, it was clearly stated that where the person was employed in Railway Administration as casual labourer on wages not exceeding Rs. 1000/- per mensem and was holding Civil Post in the Central Government, but subsequently absorbed in temporary regular service as temporary laskar in the same establishment; it would be impossible to escape the conclusion that the person was not an employee as defined in Section 2(e) and he would be entitled to claim gratuity allowance in respect of the period of his service as casual labourer in Railway Administration under Section 4, even in the Central Government at the time of retirement. 23. The decision of the Kerala High Court, thus, does not advance the case of the Respondent herein. Therein the question raised herein was not raised. 24. Reliance of Mr. Banerjee upon Rule 15(4)(ii) of the 1993 Rules is misplaced. Rule 15 provides for recovery and adjustment of Government or railway dues from pensionary benefits. Sub-rule (1) of Rule 15 enjoins a duty on the Head of Office to ascertain and assess Government or railway dues payable by a railway servant due for retirement, whereas sub-rule (2) thereof provides for recovery of the dues against the retiring railway servant in terms of sub-rule (4). Clause (ii) of sub-rule (4) of Rule 15 stipulates recovery of losses specified in sub-clause (a) of clause (i) of sub-rule (4) and which has nothing to do with the computation of the amount of payment of gratuity. 25. We have noticed hereinbefore that in terms of the 1993 Rules the emoluments were to be paid in terms of the recommendations made by the Fourth Pay Commission. The Fifth Pay Commission no doubt recommended that dearness pay be linked to All India Consumer Price Index of 12.1.1966 as on 1.7.1993 but, the entitlements of the employees in terms thereof was directed to be prospectively affected with effect from 1.4.1995. The Central Government accepted the said recommendations only with prospective effect from 1.4.1995 in terms whereof 97% of the dearness allowance was to be paid to those who were drawing salary up to Rs. 3500/- as basic pay. The Respondent retired on 31.1.1995. The recommendations of the Fifth Pay Commission, thus, were not applicable in his case.26. It is now a well-settled principle of law that financial implication is a relevant factor for accepting revision of pay. [See Hec Voluntary Retd. Emps. Welfare Soc. & Anr. v. Heavy Engineering Corporation Ltd. & Ors., 2006 (2) SCALE 660 and State of Andhra Pradesh and Anr. v. A.P. Pensioners Association & Ors., JT 2005 (10) SC 115 ]. 27. The matter might have been different if the revised scale of pay in terms of the recommendations of the Fifth Pay Commission would have been made applicable to the cases of the employees who had also retired prior to 1.4.1995 as was noticed by this Court in U.P. Raghavendra Acharya and Ors. v. State of Karnataka & Ors, [2006 (6) SCALE 23 ]. 28.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We have noticed hereinbefore that in terms of the 1993 Rules the emoluments were to be paid in terms of the recommendations made by the Fourth Pay Commission. The Fifth Pay Commission no doubt recommended that dearness pay be linked to All India Consumer Price Index of 12.1.1966 as on 1.7.1993 but, the entitlements of the employees in terms thereof was directed to be prospectively affected with effect from 1.4.1995. The Central Government accepted the said recommendations only with prospective effect from 1.4.1995 in terms whereof 97% of the dearness allowance was to be paid to those who were drawing salary up to Rs. 3500/- as basic pay. The Respondent retired on 31.1.1995. The recommendations of the Fifth Pay Commission, thus, were not applicable in his case.