UNION OF INDIA & ORS.versusB. BANERJEE

                        [2013] 10 S.C.R. 296


A                     UNION OF INDIA & ORS.
                                  V.
                           B. BANERJEE
                  (Civil Appeal No. 7298 of 2013)
                      SEPTEMBER 06, 2013
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                   RANJAN GOGOi, JJ.]

        SeNice Law:
c
       -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
1O] [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
    298      SUPREME COURT REPORTS              [2013] 10 S.C.R.


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
D
         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
    question. Aggrieved, the Union has filed this appeal.
F
       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.
                                                                    F
      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
    300       SUPREME COURT REPORTS                     [2013] 10 S.C.R.


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:
B
              Loco                            Traffic

              (a) Drivers, including          (a) Guards
              Motormen & Rail Motor
c             Drivers but excluding
              Shunters.

              (b) Shunters                    (b) Assistant
                                              Guards
D             (c) Firemen, including
              Instructing Firemen, Electric   "
              Assistant on Electric
               Locos and Diesel Assistant
              /Drivers. Assistants on
E              Diesel Locos.

         "Running Allowance" as defined in sub-rule (v) of Rule 902
    is extracted below:

          "(v) "Running Allowance" means an allowance ordinarily
F
          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
G         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
    302       SUPREME COURT REPORTS                    [2013] 10 S.C.R.


A                     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
B                  · 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
c
                      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
D
          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.
E
           (b)      Breach of rest allowance.

           (c)      Outstation (Detention) Allowance.

           (d)      Outstation (Relieving) Allowance.
F
           (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)
H
      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.
                                                                    c-
     (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
1.          Mail Driver          1640-2900           45.20

2.          Passenger Driver     1600-2660           45.10

3.          Goods Guard          1350-2200           45.05          F

4.          First Fireman/       950-1500            30.90
            Diesel Asstt./
            Electric Asstt
                                                                    G
5.          Second Fireman      825-1200             26.25

6.          Shunter              1200-2040           33.05

7.          Mail Guard.          1400-2600           36.95
                                                                    H
    304      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A     8.       Passenger Guard      1350-2200           36.90

      9.       Goods Guard          1200-2040           36.80

      10.      Assistant Guard/     950-1400            22.00
               Brakes men
B
         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 non-
    running 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 kilo~terage 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.