[2013] 10 S.C.R. 296

UNION OF INDIA & ORS.

B. BANERJEE (Civil Appeal No. 7298 of 2013)

SEPTEMBER 06, 2013

[SUDHANSU JYOTI MUKHOPADHAYA AND RANJAN GOGOi, JJ.]

SeNice Law:

-Railway Establishment Manual-Volume I (Revised Edition 1989) - Running Allowance Rules, 1981 - n:902, 903, 905 and 907 - Allowance in lieu of kilometerage (ALK) - Entitlement - To medically decategorised Driver, working as 0 Crew Controller with stationary duties - Held: Running Allowance is to be paid only to running staff engaged in actual movement of trains or to the staff temporarily assigned stationary duties who are likely to go back and perform running duties - Medically decategorised Driver, in stationary E duty, since not falling in either of the categories, not entitled to Running Allowance (ALK) - Running Allowance to which the medically decategorised staff was entitled, while a member of running staff, has been protected as part of his pay in the post of Crew Conrol/er - Such act of the appellant is in compliance with the provisions of s.47 of Disabilities Act - F Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - s.47.

The question for consideration in the present appeal was whether the respondent, a medically decategorised G Driver of the Indian Railways, working as a Crew

Controller with stationary duties, was entitled to allowance in lieu of kilometerage (ALK).

Allowing the appeal, the Court

H 296

UNION OF INDIA & ORS. v. B. BANERJEE 297

HELD: 1. As per the Running Allowance Rules, 1981 A as embodied in the Railway Establishment Manual - ..

Volume I (Revised Edition, 1989), 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 B 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 c to go back and perform running duties. 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 0 context. The aforesaid inclusion, which is wholly fictional, cannot confer any benefit contrary to the express provision of the Running Allowance Rules. The above position has been made abundantly clear by the Railway Board Circular No.12/2004 dated 14.01.2004. [Paras 9 and E

1 O] [304-F-H; 305-A-C]

2. Under Rule 903 of the Running Allowance Rules, 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, F 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 by the appellant. The above act of the appellants also ensures compliance with the provisions of Section 47 of the Persons with Disabilities G (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 mf'.mber of the running staff has H

A 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. [Para 11] [305-D-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.

B 7298 of 2013.

From the Judgment and Order dated 20.06.2011 of the High Court at Calcutta in WPCT No. 128 of 2011.

Mohan Jain. ASG, S.K. Bajwa, Mohit Garg, Shreekant N. c Terdal for the Appellants.

Avijit Bhattacharjee, Samina Sheikh, Rohit Dutta, Kamal Kumar Banerjee, Tayenjam Momo Singh for the Respondent.

The Judgment of the Court was delivered by

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, E 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

F 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 G 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 H also drafted to perform the duties of Crew Controller. Both

UNION OF INDIA & ORS. v. B. BANERJEE 299 [RAN JAN GOGOi, J .]

categories of employees i.e. regular Drivers and medically A 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 B 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 c 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 D 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 E 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 G 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 H

A 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 Ra11ways (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 H as representing the pay element in the Running Allowance:

UNION OF INDIA & ORS. v. B. BANERJEE 301 [RANJAN GOGOi, J.]

"903. Pay element in Running Allowance:-30% of the A 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". s

7. Rule 905 deals with the types of allowances admissible to running staff and is in the following temis:

"905. Types of Allowances admissible to Running Staff:-Running staff shall be entitled to the following C 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 0 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 E 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 F Benefit Fund nd 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, G 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 H

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 G 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)

UNION OF INDIA & ORS. v. B. BANERJEE .303 [RANJAN GOGOi, J.]

When running staff are engaged in or employed on non- A running duties as specified in Rule 3 (ii) above, they shali 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: B

(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. No.

Category of New Revised/ Running Staff scales of pay rates of D

ALK (160

km.) per dayw.e.f. 1-11- 1986* E

Mail Driver 1640-2900 45.20

Passenger Driver 1600-2660 45.10

Goods Guard 1350-2200 45.05 F

First Fireman/ 950-1500 30.90 Diesel Asstt./ Electric Asstt

Second Fireman 825-1200 26.25 G

Shunter 1200-2040 33.05

Mail Guard. 1400-2600 36.95 H

Passenger Guard 1350-2200 36.90

Goods Guard 1200-2040 36.80

10.

Assistant Guard/ 950-1400 22.00 Brakes men

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 C 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 D 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 E 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 nonrunning duties _are performed at the headquarters whereas in case such non-running duties are performed by the running staff F 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 kiloterage is contemplated for any staff, including erstwhile members of the running staff, permanently engaged G 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 H categories.

UNION OF !NOIA & ORS. v. B. BANERJEE 305 [RANJAN GOGOi, J.]

10. The retention of decategorised Drivers working as A 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 B 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 C 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 D 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 1as a running staff has to be protected. The same apparently has been done as is evident from the rejoinder E 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 F 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 G 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.

K.K.T. Appeal allowed.

H .