IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 365 OF 2007
Union of India & Ors. ....Petitioners
Versus
Jagdish Pandey & Ors. ...Respondents
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 against the order of the Central
Administrative Tribunal, Calcutta, (hereinafter referred to
as `the Tribunal’) dated 18th January, 2002, has filed the
present appeal under Article 136 of the Constitution of
India. The Tribunal vide its judgment had allowed the
application filed by the respondents herein and had set
aside the order dated 22nd February, 2001 issued by the
Union of India.
2. The facts giving rise to the present appeals are that
the respondents are/were working as Tower Wagon Drivers
(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.
2
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 allowance’ to the
respondents. It may be noticed that while disposing of that
Writ Petition being Civil Petition No. 4143 of 1988 and C.O.
No. 1812 (W) of 1984 the Court passed the following Order:
“After hearing the Learned Advocates
and considering their submissions, we
feel that a happy solution has beenarrived at. We thus, after bearing
them direct that with four months
from today, the petitioners will be paid
at the rate of 120 kilo meter per day
while on duty in terms of paragraph
3.12 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 by3
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 the respondents,
the Eastern Railways passed an order dated 22nd February,
2001 stating that they were granted higher pay scales
inadvertently and the said scale is withdrawn as well as for
recovery of amounts paid in excess of the amounts which
ought to have been paid to the respondents in the lower
scale. The correctness of this order was questioned by the
respondents before the Tribunal, submitting that they were
granted the pay scale of Goods Driver vide IVth Pay
Commission w.e.f. 1.1.1986. They continued to draw the
prescribed pay scale which was subsequently revised to
Rs.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
4
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 Railways on behalf of the Union of
India and it was stated that the scale was granted by
inadvertent error and they are not entitled to the pay scale
of Rs.1350-2200/- w.e.f. 1.1.1986 and also that they are
not equivalent to the Goods Drivers. 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. The respondents had
also relied upon the judgment of this Court in the case of
Chandraprakash Madhavrao Dadwa v. Union of India,
5
[(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 before the Tribunal, the Tribunal did not accept
the contention of the Eastern Railways that it was by
mistake that higher pay scale was given to the respondents
as they were getting the same pay scales right from the year
1959. 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. It will be useful to refer to
reasoning given by the Tribunal at this stage itself:
“12 In view 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 in6
the pay scale of Rs.1350-2200/- w.e.f.
1.1.1986 and as a matter of fact, they
have been paid salary in the same pay
scale till the impugned order was
issued.
13. It may also be pointed out that
pursuant to the acceptance of the 5th
Pay Commission Report by the
Government, the Tower Wagon Drivers
were given the salary in the pay scale
of Rs.8000-8000/- w.e.f. 1.1.1996. In
the letter dated 15.4.1993 (Annexure
E), the Sr. DLD/TRD/Sealdah,
intimated to the Sr. DPC/Sealdah that
in Sealdah Division, out of 32 Tower
Wagon Drivers, 24 Tower Wagon
Drivers were getting the pay scale of
Rs.1350-2200/- and the remaining 8
Tower Wagon Drivers were getting the
pay scale of Rs.1320-2040/- and
according to him, all the Tower Van
Drivers may be given the uniform pay
scale of Rs.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 Wagon Drivers
were given the pay scale of Rs.1350-
2200/- w.e.f 1.1.1986. It is different
thing that the order of giving pay scale
7
of Rs.1350-2200/- was withdrawn by
the respondents after filing of this O.A.
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/-. There could be a
situation if the Tower Wagon Drivers
were not considered as part of the
“Running Staff” and, 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 scale of Rs.1350-2200/- was
given to the applicants on the basis of
some Expert Committee Report. It is
obvious that the pay scale of Rs.1350-
2200/- was given to the applicants on
the basis of the decision that they were
at par with the Goods Drivers. Now if
the respondents seek to place the
applicants in the lower pay scale, the
burden lies on them to show the basis
8
of taking such decision adverse to the
interest of Tower Wagon Drivers.”
5. As already noticed, the challenge to the above 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 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
9
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.
7. In order to examine the merits of these contentions,
which obviously are disputed by the respondents, it will be
10
appropriate to refer to the order impugned itself which
reads as under:
“Eastern Railway
Estt. Office Order No. 199/02/Misc.
C of 2001 (22.02.01)
With the approval 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 Rs.
1350-2200/- (R.P.) and scale Rs.
5000-8000/- (RSRP) erroneously for
which they were not entitled.
As such their pay scale is revised
to S.1320-2040 (RSRP) w.e.f.
01.01.1986 in IV P.C. and Rs. 4500-
7000/- (RSRP) w.e.f. 01.01.1996 in
Vth P.C.
xxx xxx xxx
The staff concerned should be
intimated accordingly”
8. The respondents in the present appeal had
challenged the validity of the above order before the
11
Tribunal on various grounds including that they have
always been placed at parity with the goods driver, they
have been given similar scales and there was no reason,
whatsoever, for altering the pay scale to the prejudice of the
respondents, which was in force for a considerable time. It
will be useful for us to notice the findings recorded by the
Tribunal. 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 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
12
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. 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
Rs. 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 getting pay scale of Rs. 1350-2200
(unrevised) and remaining 8 were getting the pay scale of
Rs. 1320-2040 and it directed a uniform pay scale of Rs.
1350-2200 should be given to all the TWDs. Another
13
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. 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
averted that eligibility criteria for the post of TWDs was
different than that for the goods driver and their duties
were substantially different. 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
14
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. 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 allowances could not
be paid. In fact, the judgment of the Calcutta High Court
has duly been implemented now for years together without
objection. 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
15
unilateral withdrawal of such a scale. Pay scale is a
legitimate right of an employee and except for valid and
proper reasons it cannot be varied, that only in accordance
with law. None 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 getting different scales and the Railway Board, as such,
has not passed any final order which is uniformly
applicable to all the divisions of the Railways in India. Of
course, this has been disputed by the appellants. The
appellants have also attempted to file certain documents
on record to show that the duties of both these posts are
16
different and even recruitment criteria is different. We are
afraid that this contention cannot be raised for the first
time before this Court. This was expected of the 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 concurrent findings
recorded by the Tribunal as well as by the High Court.
10. It is a well settled rule that parties are expected to
raise specific pleadings before the first forum for
adjudication of the dispute. Those pleadings are the basis
of the case of the respective parties even before the
appellate/higher Courts. The parties would be bound by
17
such pleadings, of course, subject to the right of
amendment allowed in accordance with law. In the present
case, no such amendment has been carried out even before
the High Court and it will be unfair for this Court to get into
the controversy of factual matrix of the case at this stage of
the proceedings, particularly, when there exists no
justification whatsoever on record as to why even these
averments were not made before the Tribunal and not even
before the High Court, despite the fact that the Tribunal
had specifically made comments in this regard in its
judgment. Even before this Court but for bald averments
no documents, data or cogent material has been placed for
appropriate adjudication of the rights of the parties.
11. During the course of arguments this was also brought
to our notice that most of the respondents in the present
appeal have already retired from service and there exist no
justification for affecting any recoveries from their salaries
18
as they have already worked and received their salaries as
granted by the Union of India itself.
12. For the reasons afore stated, we find no legal infirmity
in the judgments of the Tribunal and the High Court. While
dismissing this appeal 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 and after taking into consideration appropriate
material and/or data.
13. The appeal is dismissed leaving the parties to bear
their own costs.
…………………………..J.
[ DR. B.S. CHAUHAN ]
19
…………………………J.
[ SWATANTER KUMAR ]
New Delhi
July 08, 2010.
20