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Union of India (UOI) and Ors. Versus Jagdish Pandey and Ors.

2010 (7) TMI 1154 - SUPREME COURT OF INDIA

Civil Appeal No. 365 of 2007 - Dated:- 8-7-2010 - B.S. Chauhan And Swatanter Kumar, JJ. For Appellant/Petitioner/Plaintiff: Pramod Swarup, Sr. Adv., Asha G. Nair, Arvind Kr. Sharma and B. Krishna Prasad, Advs. For Respondents/Defendant: Jetender Singh and S. K. Sabharwal, Advs. JUDGMENT Swatanter Kumar, J. 1. The Union of India being aggrieved from the judgment and order of a Division Bench of the Calcutta High Court dated 2nd March, 2005 dismissing, the Writ Petition filed by the Union of India .....

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rivers (for short TWD') under the Eastern Railways. They were promoted to the said post between the period 1979-1981. These respondents claimed running allowance @ 120 k.m. per day while on duty in terms of para 3.12 of the New Running Allowance Rules - structuring of the cadre. This was not paid to them resulting in the filing of a Writ Petition by them before the High Court of Calcutta. This Writ Petition was allowed by the High Court and the Eastern Railways were directed to pay running a .....

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of the New Running Allowance Rules - structuring of cadre. We also keep it on record that while making such payment, authorities will be able and entitled to adjust the amount, which has already been received by the employees concerned on the basis of the works, which they have done. The time, we directed, was suggested by Mr. Chakrabarty on instructions from Mr. C.B. Chowdhury, Deputy Chief Electrical Engineer, Eastern Railway, who was present in Court. 3. After this allowance had been paid to .....

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They continued to draw the prescribed pay scale which was subsequently revised to ₹ 5,000 - 8,000/- w.e.f. 1.1.1996 in terms of Vth Pay Commission. The order was arbitrary as the function and duties of the TWDs were similar to that of the Goods Driver and these posts were treated to be inter-changeable by the department which passed such orders of transfer from time to time. Thus, they prayed that they be permitted to withdraw the same pay scale. This application was contested by Eastern R .....

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50- 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. The respondents had also relied upon the judgment of this Court in the case of Chandraprakash Madhavrao Dadwa v. Union of India (1998) 8 SCC 154 and Shyam Babu Verma v. Union of India (1994) 27 ATC 121. 4. Referring to the pleadings of the parties and the record available befor .....

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of the clear averments made in the OA, which have not been specifically rebutted by the respondents, as already stated above, and in view of the Railway Board's letter issued in implementation of the Calcutta High Court's order, by which the Tower Wagon Drivers were placed in the category of Goods Drivers for all purposes, the applicants were certainly entitled to have the salary in the pay scale of ₹ 1350-2200/- w.e.f. 1.1.1986 and as a matter of fact, they have been paid salary .....

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-2200/- and the remaining 8 Tower Wagon Drivers were getting the pay scale of ₹ 1320-2040/- and according to him, all the Tower Van Drivers may be given the uniform pay scale of ₹ 1350-2200/-. It seems that two different pay scales for Tower Van Drivers were prescribed because of the fact that prior to 1986, there were two different pay scales at the ratio of 60% and 40% for Goods Drivers as mentioned above. Be that as it may, it is evident that in Sealdah Division also, the Tower Wa .....

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therefore, their service conditions would be different. Once they have been treated as part of the "Running Staff" and they are also performing the job of driving the Tower Vans/Wagons, there cannot be any justification not to treat them at par with the lower grade of Goods Drivers in the railway. 15. It is not the case where the respondents claim that the pay scale of the Tower Wagon Drivers has been re- fixed on the basis of some Expert Committee Report. It is obvious that the pay s .....

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e order was not accepted by the High Court and both the issues raised before the High Court, namely that the case of the Railway was not considered properly by the Tribunal on merits and secondly, it had no jurisdiction to examine the said circular as the order was passed by the Divisional Railway Manager outside the jurisdiction of the Tribunal were rejected and while upholding the order of the Tribunal, the High Court of Calcutta held as under: Considering the aforesaid, it is apparent that at .....

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valent 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 additi .....

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oval of the competent authority the following order are issued to have immediate effect - The pay of the following T.W. Drivers of Dhanbad Division was fixed in scale S. 1350-2900 (RP) w.e.f. 01.01.1996 in IVth PC in the scale ₹ 1350-2200/- (R.P.) and scale ₹ 5000-8000/- (RSRP) erroneously for which they were not entitled. As such their pay scale is revised to Section 1320-2040 (RSRP) w.e.f. 01. 01.1986 in IV P.C. and ₹ 4500- 7000/- (RSRP) w.e.f. 01.01.1996 in Vth P.C. X X X Th .....

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ribunal. In paragraph 8 of its judgment the Tribunal noticed that both the parties have not placed on record any material to indicate as to what was the pay scale provided for the TWDs pursuant to the various Pay Commission Reports. 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 a .....

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he issue of disparity in pay scale. This order of the High Court had attained finality. We have already referred to the findings recorded by the Tribunal where it is specifically noticed that after acceptance of Vth Pay Commission Report by the Government, TWDs were given the salary in the pay scale of ₹ 5000-8000 w.e.f. 1.1.1996 and in the letter dated 15.4.1993 the concerned authorities noticed the disparity created even between the TWDs i.e. in Sealdah division out of 32 TWDs, 24 were g .....

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order of the Tribunal clearly shows that the action on the face of it was arbitrary. This order of the Tribunal was confirmed by the High Court and the respondents made no effort to place anything on record to show that they were different and distinct classes and were entitled to receive different pay scales. Even in the order dated 9th August, 2002 the Tribunal specifically noticed that it was not even averred that eligibility criteria for the post of TWDs was different than that for the good .....

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of finding of facts is concerned, factual disputes can hardly be raised before this Court and in any case for the first time. Despite this the Union of India has failed to place any material to substantiate its decision before the Forum/Courts. The judgment of the Calcutta High Court, in relation to running allowances, has attained finality. At that time no other issue was raised by Union of India that they are different and distinct posts with different pay scales and as such identical running .....

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e of these justifiable reasons exist in the present case. The impugned order itself does not give any reason. The expression erroneously' used in the order can hardly justify withdrawal of such an existing right. 9. We may also notice that the respondents had specifically pleaded and even placed on record certain orders in which in certain divisions the post of TWD is inter-changeable with goods driver. Orders have also been placed on record to show that in different divisions TWDs are getti .....

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Union of India to raise all these issues before the appropriate forum i.e. the Tribunal and justify the same. 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 .....

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