Sunday, November 1, 2009

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT CHENNAI
Friday, the 31st July, 2009
Present : A. N. JANARDANAN (Presiding Officer)

BETWEEN
The Secretary, All India Loco Running Staff Association, Madurai - 1stt Party/Petitioner union

Vs

1. The Divisional Railway Manager, Madurai- 1st Respondent
2. The Sr. Divisional Mechanical Engineer, Madurai- 2nd Respondent
3. The Divisional Personnel Officer, Madurai- 3rd Respondent



A W A R D

The Central Government, Ministry of Labour vide its Order No. L-41011/29/2007-IR(B-1) dated 01.01.2008 referred the following Industrial Dispute to this Tribunal for adjudication.

Brief explanation

Dearness pay (DP): This was one of the recommendations of the 5th pay commission. When DA exceeds 50%, it must be separated from DA and merged with the basic pay. Consequently DA touched 62% i.e. in 01/04/2004 ,50% of DA was separated and termed as Dearness Pay (DP)

AILRSA/MDU represented this matter at ALC/MDU (Asst. Law commissioner). When railway administration was not willing to set right the anomaly, this case was referred as an industrial dispute to honorable CAT/Chennai for adjudication by ALC/MDU.

Industrial Dispute No.1/2008.

Finally after a long battle the honorable CAT /Chennai passed orders in our favour on 31st July 2009.

Point No 3

On this aspect argument on behalf of the petitioner is that Dearness Pay being portion of Dearness Allowance decided by the Govt. to be treated as Dearness Pay, the same shall be reckoned as pay for such purpose as are specified by the Government from time to time and for no other purpose Vide Rule 1417 of the Establishment Code and Railway Board’s letter No. PC-V/2004/A/DA/1 dated 11.03.2004. It is also contended that in the wake of letter no. PC-V/2004/A/DA/1 dated 21.12.2004 stipulating for adding 25% of Basic Pay called as NPA(Non-Practicing Allowance) to calculate Dearness Pay as well to add 25% Basic Pay + Dearness Pay to calculate Dearness Allowance, denying similar treatment to the Running Staff is discriminatory. As against this, the contention of the Respondent is that as per the instruction of Railway Board under letter no. E(P&A)II-2004/RS-13 dated 30.06.2004 and conforming to Para-903 of IREM, only 30% of Basic Pay is to be pay element in the Running allowance for arriving at Dearness pay and for calculation of Dearness Allowance. Claim for calculation of 30% of Dearness Pay for Dearness Allowance is not with any support of a rule Under clause (clause-III) of Rule-1303-FR-9-21(a) i.e. “emoluments which are specially classed as pay by the President only Basic Pay alone classed as pay and not Dearness Pay. Merger of Dearness Allowance is also policy decision of the Government. There is no specific provision in the manual to treat 30% of Dearness Pay for computation of various benefits to the Running Staffs.

The above arguments on behalf the Respondent also do not seem sound and reasonable. The contention of the petitioner is that there is unlawful denial of wages when the pay element viz. 30% of Basic Pay is not reckoned for calculation of Dearness Allowance. The pay element being 30% of Basic Pay should be treated as Pay for reckoning various benefits including Dearness Allowance. That there is no specific order or rule to that score is the shield of argument wielded by the Respondent. It is argued that pay element would fall under emoluments classed as Pay by President and that Dearness Pay has not been so classed as pay by the President. It is under Government decision in the wake of 5th Central Pay Commission Report that the merger of Dearness Allowance equal to 50% existing pay with Basic Pay emerged. it is in the absence of a corresponding change in the IREM provision to the effect that 30%of Basic Pay in the case of Running Staff should be treated to be in the nature of pay for specific benefits that the Respondent opposes the claim of the petitioner. Whatever be the arguments against the treatment of pay element also as pay for calculation of Dearness Allowance one thing is certain that unless part of pay is also reckoned for calculation of Dearness Allowance there would be unlawful erosion of wage resulting in wage reduction to the peril of workmen which mischief being only latent then would not have been thought of for being avoided due to lack of the required advertence, diligence and caution so as to be an omission not deliberate. Had it be properly adverted to such an omission could not have happened. Logically, it could not be conceived as a well thought out decision avoiding all infirmities or those possible to be attached to it. So viewed in advertent non-mention or the occasioned omission to include it as pay for the purpose of calculation of Dearness Allowance cannot be characterized as the absence of an existing right which as argued by the Respondent cannot be agitated, it being nonest, which contention is not sustainable. The argument that the claim is undue or is an unintended right also has to be understood as fallacious. It cannot be straightaway said that the said benefit was not intended at all. The only thing is that such a benefit had not been adverted to. Normally a Dearness Pay is to treated as pay for all purpose. There is no reason why there should be a departure from the normal rule. Logical reasoning and transition of thought in the right sequence cannot but approve the said propositions. There is no question of granting an allowance, say, a new one on the resolute of anybody. Apparently, the merger of Dearness Allowance equal to 50% of existing Pay with Basic Pay being later concept, the question of Dearness Pay being considered and relevant provisions being enacted touching it wherever necessary would not have been on the alert and there by consequently entailed in making no relevant provisions as to that is only natural. That could possibly be the reason for values rules or executive directions having been conspicuously absent on the aspect. They are apt to be only omissions. Such innocent omissions are not to be read as creating as a vacuum with uncertainties or ambiguities. It is also good remembering that statutory rules cannot be fettered by any executive orders.

The above bottom line consideration take me to the irresistible conclusion non-calculation of Dearness Allowance in accordance with Running Allowance Rules, 1981 is not justified and it is found so.


Highlight of the CAT order

“ whatever be the argument against the calculation of DA. One thing is certain that unless that part of pay is also reckoned for calculation of DA , there would be unlawful erosion of wage resulting in wage reduction to the peril of workmen, whish mischief being only latent then would not have been thought of for being avoided due to the lack of the required advertence, diligence and caution so as to be an omission not deliberate”

“ the agreement that the claim is undue or is an unintended right also has to be understood as fallacious. Normally a DP is to be treated as pay for all purpose”

“it is also good remembering that statutory rules cannot be fettered by any executive orders”

Comrades we are thus eligible for arrears from 01/04/2004 to 01/08/2008.

The rigorous fight against injustice by AILRSA/MDU and Com. R Soundara Pandian( Ex. South Zone Secretray )is highly appreciated.

3 comments:

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Anonymous said...

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