11:10 PM
Original Application No.962 of 2013 Tuesday, this the 21st
day of October, 2014.
CORAM:
HON’BLE Mr. U.SARATHCHANDRAN,
JUDICIAL MEMBER
AILRSA & 2 others. ......Applicant
Versus
Union of India & 4 others .......Respondents
This
Original Application having been heard on 23.09.2014, the Tribunal on
21.10.2014 delivered the following:-
O R D E R
MA for joining together of the
applicants with diary No.6402 is allowed.
2. The
short question involved in this OA is whether computation of DA for the purpose
of calculating emoluments while fixing the gratuity payable to the running
staff in the Railways on their retirement or death should be on the basic pay
plus the pay element of 30% of basic pay as running allowance or on the basis
of pay plus 55% of the pay element of the running staff.
3. Applicants
are aggrieved by the stand taken by the respondents Railway that DA is
admissible on the sum of basic pay plus 30% of the basic pay reckoned as
running allowance. According to
applicants as per the provisions of Rule 49 of the Railway Services (Pension)
Rules, 1993 (in short Pension Rules), Running allowance rules and as per the
extant Railway Board instructions, they are entitled to get dearness allowance
calculated on the basic pay plus 50% of the basic pay, as they were running
staff entitled to running allowance.
4. “Running
Allowance” is defined in the Running allowance rules:
“902.2(i)…………………………(ii)……………………………(iii)……………………………
(iv)………………………………………………..
(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 Railways (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.
(vi)……………………………
5. The
running allowance is a special allowance granted to ‘Running staff’ who
includes Loco Drivers, Motor Man, Rail Motor Drivers, Shunters, Fireman,
Electric Assistant, Electric Loco and Diesel Assistant/Drivers, Assistants on
Diesel Locos, Guards and Assistant Guards.
This allowance is payable only to the aforesaid group of Railway
employees who are generally known as running staff performing running duties
i.e. duties directly connected with the movement of trains and performed by
running staff while employed in moving trains or engines including shunting engines. It is not in dispute that applicants Nos.2
& 3 belonged to the category of running staff entitled to get the
prescribed running allowance.
6. Entitlement
to retirement gratuity or death gratuity is governed by Rule 70 of the Pension
Rules. The relevant portion of rule 70
of the Pension rules reads as follows:
“70.
Retirement gratuity or death gratuity
(1)(a) In the case of a railway servant, who has
completed five years’ qualifying service and has become eligible of service
gratuity or pension under rule 69, shall, on his retirement, be granted
retirement gratuity equal to one-fourth of his emolument s for each completed
six monthly period of qualifying service subject to a maximum of sixteen and
one-half times the emoluments and there shall be no ceiling on reckonable
emoluments for calculating the gratuity.
(b) If a railway servant dies while in
service, the amount of death gratuity shall be paid to the family in the manner
indicated in the Table below:-
TABLE
|
Length
of qualifying service
|
Rate
of gratuity
|
|
(i)
Less
than one year
|
2
times of emoluments
|
|
(ii)
One
year or more but less than 5 years
|
6
times of emoluments
|
|
(iii)
5
years or more but less than 20 years
|
12
times of emoluments
|
|
(iv)
20
years or more
|
Half of emoluments for every
completed six monthly period of qualifying service subject to maximum of
thirty-three times emoluments provided that the amount of death gratuity
shall in no case, exceed one lakh rupees.
|
Provided
that the amount of retirement gratuity or death gratuity payable under this
rule shall in no case, exceed rupees ten lakh (Authority: Railway Board’s
letter No.2011/F(E)III/1(1)9 dated 23.09.13)
Provided
further that the amount of retirement or death gratuity is finally calculated
shall be rounded to the next higher rupees.
(2)
………………………..
(3) The emoluments for the purpose of
gratuity admissible under this rule shall be reckoned in accordance with rule
49;
Provided
that if the emoluments of a railway servant have been reduced during the Last
ten months of his service otherwise than as a penalty the average emoluments as
referred to in the 50 shall be treated as emoluments.
Provided
further that the dearness allowance
admissible on the date of retirement or death, as the case may be, shall also
be treated as emoluments for the purpose of this rule (Authority: Railway
Board’s letter No.2011/F(E)III/1(1)9 dated 23.09.2013)
(4)………………………………
(Italics
supplied)
7. It
is clear from the afore-quoted provision relating to gratuity of the Railway
servants that emoluments for the purpose of gratuity have to be reckoned in
accordance with Rule 49 of the Pension Rules and that DA admissible also should
be added to the emoluments. The term
emoluments is defined under Rule 49 of the Pension rules. The provisions in Rule 49 relevant in the
present OA are extracted below:-
“49. Emoluments:
The expression – (a) “emoluments”, for the purpose of calculating
various retirement and death benefits, means the basic pay as defined in clause
(i) of rule 1303 of the Code which a railway servant was receiving immediately
before his retirement or on the date of his death.
Provided
that the stagnation increment shall be treated as emolument for calculation of
retirement benefits;
(b) “pay”
in these rules means the pay in the revised scales under the Railway Services
(revised pay) Rules, 1986;
Provided
that ‘pay element’ of Running Staff shall also include fifty-five per centum of
the basic pay for reckoning emoluments.
…………………………………………….”
8. For
the purpose of Railway, pay of a Railway servant is defined in rule 1303 of IREC
[FR 9(21)(a)]. It reads:-
“1303. (F.R/9)(21)(a) – Pay – Pay means the amount
drawn monthly by a Government servant as:-
(i)
the
pay other than special pay or pay granted in view of his personal
qualifications, which has been sanctioned for a post held by him substantively
or in an officiating capacity or to which is entitled by reason of his position
in a cadre; and
(ii)
overseas
pay, special pay and personal pay; and
(iii)
any
other emoluments which may be specifically classified as pay by the President.”
9. We have seen that Rule 49 of the
Pension Rules is the rule governing the quantum of emoluments for the purpose
of various retirement and death benefits.
The gratuity also is a retirement/death benefit due to a Railway servant. Therefore, for calculating the retirement/death
gratuity under the provisions of Rule 70, ‘emoluments’ mean ‘basic pay’ as
defined in Rule 1303 of IREC (quoted above) and in the case of running staff
for reckoning emoluments the “pay element” shall also include 55% of basic pay. Thus it can be seen that for running staff,
emoluments to be calculated for fixing retirement/death gratuity takes in both
basic pay as defined in rule 1303 of the IREC plus 55 percentum of such basic
pay. Railway Board letter No.2011/F(E)
III/1 (1) 9 dated 23.09.2013 (quoted below the rule 70 of the Pension rules
extracted in paragraph 6 of this order) authorities to treat the dearness
allowance admissible on the date of retirement/death as emoluments. Therefore, it goes without saying that the
dearness allowance so payable shall have to be calculated on the basic pay
which the Railway servant was receiving immediately before his retirement /on
the date of his death.
10. Paragraph 924 of the Indian Railway
Establishment Manual, Volume-I (1989 edition) pertains to running allowance of
running staff. It reads:
“924. Reckoning of Running Allowance as pay:
(i)
30%
of the basic pay of running staff shall be reckoned as pay for the following
purposes:-
(a)
Entitlement
of Passes and P.T.Os.
(b)
Medical
attendance and treatment.
(c)
Educational
assistance.
(d)
Fixation
of pay in stationary posts.
(e)
Compensatory
(City) Allowance.
(f)
House
Rent Allowance.
(g)
Entitlement
to quarter
(h)
Recovery
of rent for quarters.
(i)
Dearness
Allowance/ Addl. Dearness Allowance.
(j)
Overtime
Allowance.
(k)
Leave
Salary.
(ii)
For
the purpose of educational assistance, 30% of the basic pay shall be reckoned
as pay for determining the eligibility for all the scheme of assistance given
to Railway employees for the education of their children/ward viz.
Reimbursement of tution fees, children’s educational assistance and subsidised
hostels.
(iii)
For
the purpose of retirement benefits, 55% of basic pay shall be taken into
account in the case of running staff retired/retiring on or after 1-4-1979, 55%
of the basic pay shall also be reckoned as pay for the purposes of recovery of
subscription towards Provident Fund.
…………………………
………………………..
NOTE- (a) While 30% of the basic pay of running staff will be taken into
account for the purpose of determining entitlement of Passes and PTOs, the
members of the running staff who were already entitled to a higher class of
Passes/PTOs on regular basis as on 31-7-1981, shall continue to be eligible to
such Passes/PTOs.
(b)
For the pupose of retirement benefits, 55% of basic pay shall count
as pay for calculating pension and DCRG as well as for special contribution to
PF Rules.
(c) While
determining the emoluments for the purpose of calculation of retirement
benefits, Dearness Pay as admissible from time to time, shall be
calculated on basis of pay plus 30% thereof in the case of running staff
retired/retiring on or after 1-8-1981.”
11. The afore quoted provisions relating to
running allowance rules clearly show that for the purpose of retirement
benefits 55% of basic pay is reckoned as running allowances shall be counted as
pay for calculation of pension and DCRG.
12. It appears that the contention of
respondents that the dearness allowance
is to be treated as emoluments for the purpose of gratuity (see the italicized portion of Rule 70 extracted
above in paragraph 6 of this order) shall be calculated on the basis of pay
plus 30% thereof, in the light of note (c) to Rule 924 of the running allowance
rules quoted above. This Tribunal is of
the view that the respondents are taking such a view on an erroneous premise that
the Dearness Pay mentioned in note
(c) to Rule 924 of the Running Allowance rules is the same as Dearness Allowances applicable to the
pay inclusive of running allowance. The
Railway Board letter No.2011/F(E) III/1(1)9 dated 23.9.2013 (quoted above in
rule 70 of the Pension rules at paragraph 6 of this order) refers to the Dearness allowance admissible on the
date of retirement/death of the running staff.
The emoluments as defined under Rule 49 of the Pension rules in the case
of running staff includes 55% of the basic pay.
13. Since the ‘emoluments’ of the Railway
servant before his retirement/on the date of his death is the amount to be
reckoned for the purpose of pensionary benefits, and as the emoluments takes in
55 percentage of the basic pay also, this Tribunal is of the view that the
dearness allowance admissible to him as per the aforesaid Railway Board letter
dated 23.9.2013 shall have to be paid on the emoluments calculated as per the
provisions of Rule 49 of the Pension Rules.
In the case of running staff inclusion of 55% of basic pay in their pay
as emoluments under Rule 49 being a fictional inclusion. Since 55% basic pay for the retiring running
staff is treated as a running allowance payable to them as part of their
emoluments on the day prior to retirement, as per the note (b) to Rule 94 of
Running Allowance Rules (see para. 10 above), this Tribunal does not see any
reason to hold that they are not entitled to dearness allowance on the pay plus
55% of the basic pay while calculating their emoluments for the purpose of
DCRG.
14. In the result it is hereby declared that
the action on the part of the respondents in arriving at the emoluments for
calculating the retirement gratuity adopting the formula of basic pay plus 55%
of the basic pay plus dearness relief admissible on basic pay plus 30% of the
basic pay is arbitrary, discriminatory and against the law. It is further declared that the applicants
are entitled to have their retirement gratuity re-calculated by arriving at the
emoluments by adding basic pay plus 55% of basic pay and dearness allowance
admissible on the sum so arrived at.
15. Respondent Railway shall pay interest
@8.5% p.a. on the delayed payment on the difference in the retirement gratuity
to be calculated as per the above declaration, from the respective date of
retirement of applicants till actual payment.
16. No
order as to costs.
Sd/-
(U.SARATHCHANDRAN)
JUDICIAL
MEMBER
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