Central Administrative Tribunal - Delhi
Shri Habib-Ur-Rehman-Khan vs Union Of India Through on 6 August, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.77/2009 This the 6th day of August 2009 Honble Shri Shanker Raju, Member (J) Honble Shri N D Dayal, Member (A) 1. Shri Habib-Ur-Rehman-Khan s/o late Shri Abdul Qadir Khan Retd. Sr. Loco Inspector North-Eastern Railway Bareilly City, Bareilly (UP) House No.451, Ground Floor Sector 1, Vaishali, Ghaziabad (UP) 2. Shri Wali Raza Khan s/o late Mohd. Raza Khan Retd. Loco Inspector North-Eastern Railway Izatnagar Bareilly (UP) Town & Post Thiria Nizawat Khan, Ward No.4 Distt. Bareilly (UP) 3. Shri Aziz Ahmad s/o late Shri Mohd. Ahmad Retd. Sr. Loco Inspector North-Eastern Railway Izatnagar, Bareilly (UP) 166, Shahabad near Khan Masjid Nainital Road, Chhota Pul Bareilly (UP) 4. Shri Ram Kishan s/o late Shri Parmeshri Dayal Retd. Loco Inspector North-Eastern Railway Fatehgarh, Distt. Farukhabad (UP) House No.1/206, Nagla Deena PO Fatehgarh Distt. Farukhabad (UP) 5. Shri Shiv Muni Yadav s/o late Shri Ram Pati Yadav Loco Inspector North-Eastern Railway Izatnagar, Bareilly City (UP) Village Pipra Kala PO Pachkhora Distt. Ballia (UP) 6. Shri Munshi Lal s/o late Shri Ram Kishan Loco Inspector North-Eastern Railway Fatehgarh, Distt. Farukhabad (UP) Singh Vahiri Colony Post Bhopat Patti, Farukhabad (UP) ..Applicants (By Advocate: Shri G D Bhandari) Versus Union of India through 1. The Chairman Railway Boards Ministry of Railways Rail Bhawan, New Delhi 2. The General Manager North-Eastern Railway, Gorakhpur 3. The Divisional Railway Manager North-Eastern Railway Izatnagar (UP) ..Respondents (By Advocate: Shri R L Dhawan) O R D E R
Shri Shanker Raju:
By virtue of this OA, applicants, post-retiree of 1.1.1993 from Railways, seek benefit of decision of High Court of Delhi in Union of India & others v. Shri Ganesh Das & others (WP (C) No.2937 of 2007 decided on 18.9.2008 for grant of reckoning running allowance as part of pay and re-fixation of pay and re-computation of pension with arrears.
2. Applicants, who were appointed as Fireman, were promoted in the hierarchy of running staff as Drivers and at the time of retirement, they held the post of Senior Loco Inspectors / Loco Inspectors. As per IREC, pay has been defined as any other emolument and specially classed by the President and as per Presidents decision of 7.7.1960 in clause G (i) of the Rules, running allowance has been treated as part of the emoluments. Railway Board notification dated 25.11.1992 has followed in grant of running allowance decision in Vinod Kumar Saxena v. Union of India & others (OA-118/2006) decided on 24.8.2006. While deliberating this issue, the decision of the Apex Court in G.C. Ghosh & others v. Union of India & others, 1991 Suppl. (2) 497 has been relied upon where the loco running staff has been bestowed with the benefit with experience of foot-plate.
3. In one of the cases by a Division Bench in Kishan Lall Sharma & others v. Union of India & others (OA-1273/2005) decided on 2.1.2007, directions have been issued to re-fix the pay of the applicants therein by taking into consideration add-on element of 55% and 75% respectively and as a consequential benefits, their pension has to be revised with all arrears, including pay and allowances. This order was assailed before the High Court of Delhi and was upheld, against which it is stated that SLP has been filed before the Apex Court but no stay has been granted.
4. In the above backdrop, learned counsel for applicants would contend that insofar as the decisions of the Tribunal and High Court are concerned, in all fours, they cover the issue herein and while relying upon Railway Boards circular No.831-E/63-2-XIV/E-IV issued in December 1992 on the subject filling up the post of Loco Running Supervisors, it is stated that Loco Inspector has been stated to be performing duty directly connected with training and monitoring of loco running staff on foot-plate. As such, they cannot be treated as holder of stationary post and are entitled to running allowance being part of pay and for revision of pension.
5. On the other hand, learned counsel for respondents Shri Dhawan, at the outset, stated that whereas this OA was listed before the Single Bench, it has come before the Division Bench, which may be referred to Single Bench for disposal.
6. By referring to an order passed by the Tribunal in OA-1446/2007 decided on 3.7.2009, It is stated that insofar as the jurisdiction of this Bench is concerned, the issue has been left open for adjudication. While referring to Rules 903 to 913 of IREM (Volume I), it is stated that the rule position has been highlighted to hold that Loco Inspector, who holds a stationary post, is not eligible for running allowance and also reflected that this rule position has not been considered in the decisions, which are per incuriam.
7. Learned counsel has also relied upon the decision of Apex Court Union of India v. S.R. Dhingra, 2007 (14) SCALE 451 to contend that Drivers, Guards and Shunters, who go along with the train, are only running staff and rest of the staff are not entitled for the claim.
8. While discussing the case of G.C. Ghoshs case (supra), the same has been distinguished by the learned counsel for respondents.
9. As a preliminary objection, it is stated by learned counsel for respondents that applicants have worked at Uttar Pradesh, which does not fall within the jurisdiction of Principal Bench and as no PT has been allowed for transfer of the case, this Bench lacks jurisdiction to decide the issue.
10. We have heard the rival contentions of the parties and perused the material placed on record.
11. Insofar as the jurisdictional aspect is concerned, though it can be raised at any time, yet the fact that the applicants have since retired after 1.1.1993 and cause of action has partly arisen in the jurisdiction of the Principal Bench and also as they are seeking benefit of Railway Boards circular dated 25.11.1992, without going into the intricacies in law to impart substantial justice, this objection stands overruled. It is also with a view that retirees should not be allowed to be dragged and part with valuable money in legal expanses out of their meager pensionary benefits.
12. Insofar as the consideration of rule is concerned, decision in Kishan Lall Sharmas case (supra) has taken into consideration the contentions of respondents counsel as to the promulgation of the rules and non-applicability in case of applicants, yet a decision has been referred to.
13. This is no more res integra that regarding the same issue, in all fours, decision of the Tribunal in Yoginder & others v. Union of India & another (OA-1271/2005) decided on 16.11.2006 once affirmed by the High Court of Delhi against which no SLP has been filed or when filed, no stay has been granted does not dissuade us from following the same as a binding precedent of the ratio, which, in all fours, covers the present issue. However, on outcome of the decision of Apex Court, law shall take its own course.
14. In the light of decision of Apex Court in Promotee Telecom, Engineers Forum & others v. D.S. Mathur, Secretary, Department of Telecommunications, 2008 (4) SCALE 815 wherein it has been held that benefit of a judgment has to be given to similarly circumstanced, this OA deserves to be allowed by directing the respondents to extend to the applicants the ratio of decision of this Tribunal in Kishan Lall Sharmas case (supra) adding-on the element of running allowance to re-fix their pay and to re-compute the pension. As a result thereof, the arrears and consequential benefits shall be paid to them within a period of two months from the date of receipt of a copy of this order. No costs.
( N D Dayal ) ( Shanker Raju ) Member (A) Member (J) /sunil/