Central Administrative Tribunal - Delhi
Ashok Kumar vs M/O Railways on 23 December, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 631/2012
MA 529/2012
MA 530/2012
MA 2175/2012
Orders reserved on: 18.12.2015
Order pronounced on:23.12.2015
Hon'ble Mr. P.K. Basu, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
1. Ashok Kumar
S/o Shri Badri Prashad
Tower Wagon Driver
16E/1165, Tank Road,
Khalsa Nagar, Karol Bagh
New Delhi-110005
2. Shri J.N. Verma
S/o Shri Badri Vishal
Ex. Tower Wagon Driver
2B/764, Vasundhara
Ghaziabad
3. Late Shri H.S. Verma
S/o Shri Gulab Rai
Ex. Tower Wagon Driver
98A, Naya Bazaar,
Railway Colony, New Delhi
Through Smt. Kamlesh W/o Shri H.S. Verma
4. Shri Brij Mohan
S/o Shri S.C. Anand
Ex. Tower Wagon Driver
20-B/98B, Tilak Nagar,
New Delhi-110018
5. Shri Chander Mohan
S/o Shri Ram Lal
Tower Wagon Driver,
127, Arya Nagar,
Ghaziabad
6. Shri Narender Kumar
S/o Shri Ram Kumar
Tower Wagon Driver,
R/o WZ 519/23,
2
Basai Darapur, New Delhi ...Applicants
(Through Shri Vinod Diwakar, Advocate)
Versus
1. The Secretary
Ministry of Railways
(Railway Board)
Rail Bhawan, Raisina Road,
New Delhi
2. The General Manager
Northern Railway
Baroda House, New Delhi
3. The Divisional Railway Manager,
Northern Railway
State Entry Road,
New Delhi
4. The Divisional Railway Manager,
Northern Railway
Allahabad ... Respondents
(Through Shri Kripa Shankar Prasad, Advocate)
ORDER
Mr. P.K. Basu, Member (A) This OA has been filed praying for direction to the respondents to fix the pay scale of the applicants, who are Tower Wagon Drivers in the pay scale of Rs.5000-8000/- from 01.01.1996 at par with Goods Train Drivers.
2. Learned counsel for the applicants states that similar matter came up before the Kolkatta Bench of this Tribunal in OA No.321/2001 and the said OA was allowed directing the Railway authorities to pay salary including arrears holding that the applicants were entitled to pay scale of Rs.1350-2000 from 3 01.01.1986 and Rs.5000-8000 w.e.f. 01.01.1996 with consequential benefits. The matter came up before the Hon'ble High Court of Kolkatta in WP (C) No.697/2002 and the order of the Tribunal has been upheld with the following orders:-
"Considering the aforesaid, it is apparent that at all relevant time Tower Wagon Drivers are being treated as equivalent to Goods Train Drivers. There is no reason shown for treating them now differently contention of authorities refusing to treat the Tower Wagon Drivers equivalent to drivers of goods trains drivers there is no reason shown for which Tower Wagon Drivers cannot be refused to be treated as equivalent to the same grade as earlier was being done for a long period. The impugned judgments have dealt with the relevant aspects appropriate and there is no reason for interference with the same.
In above view of the findings, no interference is felt required and the Writ Petition is hereby dismissed."
The matter thereafter came before the Hon'ble Supreme Court in Civil Appeal No.365/2007 and the Hon'ble Supreme Court vide order dated 8.07.2010 has dismissed the appeal. It is pertinent to quote certain portions of the said judgment, which reads as under:-
"3. .....The matter was examined at some length by the Tribunal. It was noticed that vide Annexure `E' to that application dated 15th April, 1993, the Eastern Railways itself has stated that all TWDs should be given the grade of Goods Drivers i.e. Rs.1350-2200/- (unrevised). There is no Railway Board's circular or order directing that TWDs are not entitled to the pay scale of the Goods Drivers and they are not justified in taking decision to grant lower pay scales.
4. .........The Railways had hardly produced any records before the Tribunal to justify its decision in down grading the pay scale of the respondents and directing the consequential recoveries.......4
"14. It is not understood on what basis, the respondents decided to discontinue to pay the salary to the Tower Wagon Drivers in the pay scale of Rs.1350-2200/-.................
15...... It is obvious that the pay scale of Rs.1350-2200/- was given to the applicants on the basis of some Expert Committee Report.........Applicants on the basis of the decision that they were at par with the Goods Drivers..........."
xxxx xxxx xxxx "Considering the aforesaid, it is apparent that at all relevant time Tower Wagon Drivers are being treated as equivalent to Goods Train Drivers. There is no reason shown for treating them now differently. Contention of authorities refusing to treat the Tower Wagon Drivers equivalent to driver of Goods Train, cannot be accepted. If the Tower Wagon Drivers are continuously being treated as running staff and equivalent to drivers of goods trains; drivers there is no reason shown for which Tower Wagon Drivers cannot be refused to be treated as equivalent to the same grade as earlier was being done for a long period. The impugned judgments have dealt with the relevant aspects appropriately and there is no reason to interfere with the same."
6. The above decision of the High Court is impugned in the present appeal. The basic contention raised on behalf of the Union of India before this Court is that the job, duties, responsibilities and even essential training required for TWDs are not comparable to those of the good train drivers. In addition, the contention is also that the scales were granted inadvertently and now the competent authority, after due application of mind, has passed the order granting lower scales to the TWDs in comparison to goods train drivers.
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xxxx xxxx xxxx
8....... The Tribunal specifically noticed and recorded the finding that for the last 40 years, i.e. right from 1959 the respondents were being paid the same pay scale as goods drivers. There was no disparity of pay scales between TWDs and goods drivers after Union of India and Railways had accepted recommendations of the IInd, IIIrd, IVth and even of Vth Pay Commissions. The Tribunal also specifically noticed vague denials of the Union of India and that such denials were hardly substantiated by any cogent material. Reliance was placed upon the judgment of the Calcutta High Court in relation to the grant of running allowance. In that Writ Petition, the only dispute raised by the parties related to the grant of running allowance and the Union of India did not raise the issue of disparity in pay scale.................Another reason that weighed with the Tribunal was that no material has been produced to show as to what were the reasons or material on the basis of which the authorities had decided to discontinue the pay scale of Rs. 1350-2200 to these respondents. The above reasoning and discussion in the order of the Tribunal clearly shows that the action on the face of it was arbitrary........... In other words, either before the Tribunal or before the High Court the Union of India never pleaded the essential basis for justifying payment of different pay scales to two categories of drivers i.e. TWDs on the one hand and goods train drivers on the other. There has to be a substantial difference in method of recruitment, eligibility, duties and responsibilities before substantial disparity in scale can be justified. As far as recording of finding of facts is concerned, factual disputes can hardly be raised before this Court and in any case for the first time...........Not only this, same pay scale as that of the goods train driver has been paid to these respondents for years and there appears to be no justification on record for 6 unilateral withdrawal of such a scale.......... The expression `erroneously' used in the order can hardly justify withdrawal of such an existing right.
9.............. Even before us, these averments have been made without any supporting data or documents to substantiate such a plea. No comparative chart of the duties and responsibilities of these two posts, recruitment rules specifying eligibility or selection criteria and working conditions have been placed on record. The vague averments made to that effect cannot persuade this Court to disturb the concurrent findings recorded by the Tribunal as well as by the High Court."
Finally, the Apex Court while dismissing the appeal, ordered as follows:
"12..........we make it clear that this judgment will not affect the right of Union of India to pass an appropriate order in relation to the pay scales applicable to any class of its employees including the Respondents afresh and in accordance with law. We do hope that if such an order is passed it will be upon proper application of mind after taking into consideration appropriate and/ or data."
3. A similar matter was also filed before CAT, Principal Bench, New Delhi, OA No.1669/2000, which was allowed vide order dated 27.01.2003 based on the Kolkatta Bench order. A Writ Petition No.6925/2003 was filed in Delhi High Court, which was dismissed vide order dated 10.11.2010 by passing the following orders:-
"We have heard the Learned Counsel for the Petitioner who cannot seriously dispute that the controversy in question is covered in the aforesaid Civil Appeal No.365/2007.7
We thus dismiss the Writ Petition in view of the judgment passed in Civil Appeal No. 365/2007 by the Hon'ble Supreme Court."
4. The applicants' grievance is that there were 15 of them before the CAT, PB while the authorities have granted the pay scale of Rs.5000-8000 to only applicant Nos.7 to 15 based on the Kolkatta Bench order. Applicant Nos.1 to 6, who are the applicants in the present case, have been denied the benefits. In this regard, they have placed before us letter dated 19.09.2003 of the Railways (Annexure A-4).
5. Learned counsel for the applicants also drew our attention to order dated 18.12.2012 in which we had directed the learned counsel for the respondents to produce the recruitment rules for the post of Goods Train Drivers and Tower Wagon Drivers as well as the duty chart for both the posts. It is stated by the counsel that as observed by the Hon'ble Supreme Court in its order dated 8.07.2010, and even now, despite the order dated 18.12.2012, they have not been able to produce any document which would show that there is any reasonable ground to contend that Tower Wagon Drivers and Goods Train Drivers cannot be treated at par with respect to their pay scales.
6. The applicants are primarily aggrieved by the order dated 15.11.2010 (Annexure A-1), by which the department has passed a detailed reasoned order in accordance with the direction of the Hon'ble Supreme Court in SLP No.365/2007, 8 which is quoted above and held that both the posts of Goods Train Driver and Tower Wagon Drivers are not comparable. This has been held primarily on the following grounds:-
"2.1 That as regards eligibility and the mode of filling up the post, it is seen that the post of Goods Drivers is filled up from Shunter/ Asstt. Drivers on promotion. Further, in terms of Board's orders RBE No.152/2001, educational qualification for the post is Matriculate and Act Apprentice passed or ITI passed or Diploma in Mech./ Elect./ Electronics in lieu of ITI. Whereas, the post of Tower Wagon Drivers are filled up from the existing Motor Vehicle Drivers for which educational qualification is class VIII Pass with ability to read and understand the traffic rules and other electrical safety rules along with heavy Motor Driving Licence.
2.2 That the nature of duties & responsibilities of Goods Drivers in much more strenuous and difficult vis-à-vis that of Tower Wagon Drivers (TWDs). While Goods Drivers have immensely greater responsibility of driving a Goods Train independently with large number of wagons and the job calls for great amount of alacrity and concentration. Tower Wagon Driver sing Motor Car only on specified area to carry staff for attending brake downs in their jurisdiction within about 30 kms.
2.2.1 That normal duty hours of Goods Drivers are 10 hours, while that of TWDs is 8 hours.
2.2.2 That Goods Drivers are responsible for running extremely heavy duty Locomotives varying from 3850- 6000 Horse Power, while the type of Tower Wagon Driven by TWDs are of a maximum of 530 Horse Power.
2.2.3 That a Goods Driver has to duty lock book and inspect the Locomotive (Engine) and follow other instructions as laid down in the Operating Manual of the particular class of Locos. No such work is required to be done by TWDs.
2.2.4 That several other technical aspects are involved in the job profile of a Goods Driver such as careful examination of the State of OHE of his own line and lines in proximity the Under-Gear, the brake of the train, lower the Pantograph and earth the Locomotive before carrying out any work in the high tension compartment. TWDs are not required to perform any such technical or specialized work.
2.2.5 That Goods Driver have to work with different load likes 58 `N`/Loaded, 40 BCN, 40BOX, 41BRH Loaded/empty. They have to also keenly observe signal, 9 the vacuum and pressure Gauge, etc. to ensure that everything is in order.
2.2.6 That while taking charge of the train, Goods Driver has to check continuity integrity/ completion of rack, Brake continuity test ensuring adequate brake power, revalidation of brake power/ vacuum certificate. On the contrary, TWDs are not required to perform any such responsibility.
2.2.8 That at the time of signing on duty, a Goods Driver has to read various register such as, On Duty register, Green Notice register, Caution register, Currently Safety Instruction, Currently Technical Circulars, Breath Analyser Test register, Line abnormalities register etc. No such reading of books or registers is done by TWDs."
Finally, their prayer is rejected holding as follows:-
"2.3 That in view of the onerous responsibility and more sensitive nature of the job profile of Goods Driver, a training period of 90 days is prescribed for them despite the fact that they are from the same Loco feeder stream i.e. Asstt. Driver. The training period of Tower Wagon Drivers is of merely 30 days.
From the above position, it is clear that in terms of appointment, recruitment qualifications, nature of duties and level of responsibilities and also training period TWDs are not comparable with Goods Drivers."
7. Challenging the above order, the applicants have prayed for the following reliefs:-
"(A) Quash the letter No.PC-V/2000/CC/16/Pt.
dated 15.11.2010 issued by Dy. Director, Pay Commission-V, Railway Board.
(B) Direct the respondents to fix the pay scale of the applicants in the pay scale of Rs.5000- 8000 from 01.01.1996 in view of the order dated 27.01.2003 in O.A. No.1699 of 2000 with consequential benefits; and (C) Pass any other order or relief which this Hon'ble Tribunal may deem fit and proper in the interest of justice."
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8. Learned counsel for the respondents first of all raised the preliminary objection that in a catena of judgments, the Hon'ble Supreme Court has held that the matter of pay scales lies with the Expert Bodies, like Pay Commission and it is not for the Courts or Tribunals to fix the pay scales. He has placed reliance on the judgments of Hon'ble Supreme Court in the matter of State of West Bengal vs. Hari Narayan Bhowal reported in 1995 (1) SLJ 19, Union of India & Another vs. P. V. Hariharan & Anr. SCC (L&S) 838 and Union of India & Ors. vs. Makhan Chandra Roy AIR 1997 SC 239. Secondly, it is argued that the duties and responsibilities, mode of recruitment and educational qualification of the Goods Train Drivers and Tower Wagon Drivers are different. Hence, the Tower Wagon Drivers cannot compare themselves with Goods Train Drivers. In this regard, they have shown difference between the two posts, which are more or less the same as mentioned in their order dated 15.11.2010.
9. It is further pointed out that the Railway Board Circular dated 29.04.1991 (Annexure A-8) relied upon by the applicants was basically pertaining to payment of Running Allowance to Tower Wagon Drivers and it has nothing to do with the pay scales and it only talks of the payment of Running Allowance to Tower Wagon Drivers at the rates applicable to Train Goods Driver and, therefore, it is not relevant at all. It is further contended that while dismissing the Civil Appeal No.365/2007, the Hon'ble Supreme Court had made it clear that it will not affect the right of Union of India to pass an appropriate order in 11 relation to the pay scales applicable to any class of its employees including the respondents afresh and in accordance with law. Therefore, the Hon'ble Supreme Court itself had granted the liberty to the respondents to re-examine the whole issue and pass a reasoned order. The respondents thereafter passed the reasoned order considering all the aspects. Hence, this order cannot be challenged on the ground that earlier the CAT, Kolkatta Bench/Principal Bench or Hon'ble High Court of Delhi/Kolkatta had held that the pay scale of Rs.5000-8000 should be granted to the Tower Wagon Drivers.
10. On the question of comparing of duties and qualifications etc, learned counsel for the applicants placed before us order dated 03.10.2007, which provides as follows:-
"1. The staff should be in possession of heavy duty vehicle driving licence with practical experience of two years.
2. The staff must be working in Gr.II i.e. 4000- 6000/RSRF in TRD & also other skilled staff in Gr.II Rs.4000-6000.
3. Academic qualification should be Matric (Clas Xth) preference to persons having I.T.I. Certificate in Electrical & automobiles."
From this it is clear that it is incorrect for the respondents to state that academic qualification for Tower Wagon Drivers is Class-VIIIth. This order shows that academic qualification should be Matriculate Class-Xth with preference to persons having ITI certificate in electrical and automobiles.
11. We have heard learned counsel for the parties and perused the materials placed on record.
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12. We are of the opinion that since the Hon'ble Supreme Court had given liberty to the respondents to examine this question of grant of pay scales of Rs.5000-8000 to the applicants de novo, the respondents were entitled to take a fresh view and the order of the Kolkatta/Principal Bench of this Tribunal or Hon'ble High Court of Kolkatta/Delhi High Court would not be binding on them. Secondly, the objection of learned counsel for the applicants that at no stage have the respondents demonstrated the difference in work and responsibilities, recruitments, qualifications etc. between Goods Train Drivers and Tower Wagon Drivers is also not substantiated as the respondents in their counter affidavit as well as in their aforesaid impugned order have clearly brought out the distinction. While the applicants may dispute whether the academic qualification is Class Xth or Class-VIIIth, it is clear to even a lay person that the two posts are completely different as regards work, responsibilities, recruitment qualification, etc. Therefore, on sheer merit of the case, we find no reason to interfere with the order dated 15.11.2010 issued by the respondents. Moreover, as has been rightly pointed out by learned counsel for the respondents, the settled law is that the Tribunal should not interfere in fixing of pay scales and that should be left to the Government to be decided on the advice of expert bodies, like Pay Commissions.
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13. In view of these facts and circumstances as well as the settled law, we refrain from interfering in this matter. The OA is, therefore, dismissed. No costs.
( Raj Vir Sharma ) ( P.K. Basu ) Member (J) Member (A) /dkm/