Judgment
As delivered
IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL No. 365 OF 2007Union of India & Ors. ....PetitionersVersusJagdish Pandey & Ors. ...RespondentsJUDGMENTSwatanter Kumar, J.1. The Union of India being aggrieved from the judgmentand order of a Division Bench of the Calcutta High Courtdated 2nd March, 2005 dismissing, the Writ Petition filed bythe Union of India against the order of the CentralAdministrative Tribunal, Calcutta, (hereinafter referred toas `the Tribunal') dated 18th January, 2002, has filed thepresent appeal under Article 136 of the Constitution ofIndia. The Tribunal vide its judgment had allowed theapplication filed by the respondents herein and had setaside the order dated 22nd February, 2001 issued by theUnion of India.2. The facts giving rise to the present appeals are thatthe respondents are/were working as Tower Wagon Drivers(for short `TWD') under the Eastern Railways. They werepromoted to the said post between the period 1979-1981.These respondents claimed running allowance @ 120 k.m.2per day while on duty in terms of para 3.12 of the NewRunning Allowance Rules - structuring of the cadre. Thiswas not paid to them resulting in the filing of a Writ Petitionby them before the High Court of Calcutta. This WritPetition was allowed by the High Court and the EasternRailways were directed to pay `running allowance' to therespondents. It may be noticed that while disposing of thatWrit 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 Advocatesand considering their submissions, wefeel that a happy solution has beenarrived at. We thus, after bearingthem direct that with four monthsfrom today, the petitioners will be paidat the rate of 120 kilo meter per daywhile on duty in terms of paragraph3.12 of the New Running AllowanceRules - structuring of cadre. We alsokeep it on record that while makingsuch payment, authorities will be ableand entitled to adjust the amount,which has already been received by theemployees concerned on the basis ofthe works, which they have done. Thetime, we directed, was suggested by3Mr. Chakrabarty on instructions fromMr. C.B. Chowdhury, Deputy ChiefElectrical 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 scalesinadvertently and the said scale is withdrawn as well as forrecovery of amounts paid in excess of the amounts whichought to have been paid to the respondents in the lowerscale. The correctness of this order was questioned by therespondents before the Tribunal, submitting that they weregranted the pay scale of Goods Driver vide IVth PayCommission w.e.f. 1.1.1986. They continued to draw theprescribed pay scale which was subsequently revised toRs.5,000 - 8,000/- w.e.f. 1.1.1996 in terms of Vth PayCommission. The order was arbitrary as the function andduties of the TWDs were similar to that of the Goods Driverand these posts were treated to be inter-changeable by the4department which passed such orders of transfer from timeto time. Thus, they prayed that they be permitted towithdraw the same pay scale. This application wascontested by Eastern Railways on behalf of the Union ofIndia and it was stated that the scale was granted byinadvertent error and they are not entitled to the pay scaleof Rs.1350-2200/- w.e.f. 1.1.1986 and also that they arenot equivalent to the Goods Drivers. The matter wasexamined at some length by the Tribunal. It was noticedthat vide Annexure `E' to that application dated 15th April,1993, the Eastern Railways itself has stated that all TWDsshould be given the grade of Goods Drivers i.e. Rs.1350-2200/- (unrevised). There is no Railway Board's circular ororder directing that TWDs are not entitled to the pay scaleof the Goods Drivers and they are not justified in takingdecision to grant lower pay scales. The respondents hadalso relied upon the judgment of this Court in the case ofChandraprakash Madhavrao Dadwa v. Union of India,5[(1998) 8 SCC 154] and Shyam Babu Verma v. Union ofIndia, [(1994) 27 ATC 121].4. Referring to the pleadings of the parties and the recordavailable before the Tribunal, the Tribunal did not acceptthe contention of the Eastern Railways that it was bymistake that higher pay scale was given to the respondentsas they were getting the same pay scales right from the year1959. The Railways had hardly produced any recordsbefore the Tribunal to justify its decision in down gradingthe pay scale of the respondents and directing theconsequential recoveries. It will be useful to refer toreasoning given by the Tribunal at this stage itself:"12 In view of the clear avermentsmade in the OA, which have not beenspecifically rebutted by therespondents, as already stated above,and in view of the Railway Board'sletter issued in implementation of theCalcutta High Court's order, by whichthe Tower Wagon Drivers were placedin the category of Goods Drivers for allpurposes, the applicants werecertainly entitled to have the salary in6the pay scale of Rs.1350-2200/- w.e.f.1.1.1986 and as a matter of fact, theyhave been paid salary in the same payscale till the impugned order wasissued.13. It may also be pointed out thatpursuant to the acceptance of the 5thPay Commission Report by theGovernment, the Tower Wagon Driverswere given the salary in the pay scaleof Rs.8000-8000/- w.e.f. 1.1.1996. Inthe letter dated 15.4.1993 (AnnexureE), the Sr. DLD/TRD/Sealdah,intimated to the Sr. DPC/Sealdah thatin Sealdah Division, out of 32 TowerWagon Drivers, 24 Tower WagonDrivers were getting the pay scale ofRs.1350-2200/- and the remaining 8Tower Wagon Drivers were getting thepay scale of Rs.1320-2040/- andaccording to him, all the Tower VanDrivers may be given the uniform payscale of Rs.1350-2200/-. It seemsthat two different pay scales for TowerVan Drivers were prescribed becauseof the fact that prior to 1986, therewere two different pay scales at theratio of 60% and 40% for GoodsDrivers as mentioned above. Be thatas it may, it is evident that in SealdahDivision also, the Tower Wagon Driverswere given the pay scale of Rs.1350-2200/- w.e.f 1.1.1986. It is differentthing that the order of giving pay scale7of Rs.1350-2200/- was withdrawn bythe respondents after filing of this O.A.14. It is not understood on whatbasis, the respondents decided todiscontinue to pay the salary to theTower Wagon Drivers in the pay scaleof Rs.1350-2200/-. There could be asituation if the Tower Wagon Driverswere not considered as part of the"Running Staff" and, therefore, theirservice conditions would be different.Once they have been treated as part ofthe "Running Staff" and they are alsoperforming the job of driving the TowerVans/Wagons, there cannot be anyjustification not to treat them at parwith the lower grade of Goods Driversin the railway.15. It is not the case where therespondents claim that the pay scale ofthe Tower Wagon Drivers has been re-fixed on the basis of some ExpertCommittee Report. It is obvious thatthe pay scale of Rs.1350-2200/- wasgiven to the applicants on the basis ofsome Expert Committee Report. It isobvious that the pay scale of Rs.1350-2200/- was given to the applicants onthe basis of the decision that they wereat par with the Goods Drivers. Now ifthe respondents seek to place theapplicants in the lower pay scale, theburden lies on them to show the basis8of taking such decision adverse to theinterest of Tower Wagon Drivers."5. As already noticed, the challenge to the above orderwas not accepted by the High Court and both the issuesraised before the High Court, namely that the case of theRailway was not considered properly by the Tribunal onmerits and secondly, it had no jurisdiction to examine thesaid circular as the order was passed by the DivisionalRailway Manager outside the jurisdiction of the Tribunalwere rejected and while upholding the order of the Tribunal,the High Court of Calcutta held as under:"Considering the aforesaid, it isapparent that at all relevant timeTower Wagon Drivers are being treatedas equivalent to Goods Train Drivers.There is no reason shown for treatingthem now differently. Contention ofauthorities refusing to treat the TowerWagon Drivers equivalent to driver ofGoods Train, cannot be accepted. Ifthe Tower Wagon Drivers arecontinuously being treated as runningstaff and equivalent to drivers of goodstrains; drivers there is no reasonshown for which Tower Wagon Drivers9cannot be refused to be treated asequivalent to the same grade as earlierwas being done for a long period. Theimpugned judgments have dealt withthe relevant aspects appropriately andthere is no reason to interfere with thesame."6. The above decision of the High Court is impugned inthe present appeal. The basic contention raised on behalfof the Union of India before this Court is that the job,duties, responsibilities and even essential training requiredfor TWDs are not comparable to those of the good traindrivers. In addition, the contention is also that the scaleswere granted inadvertently and now the competentauthority, after due application of mind, has passed theorder granting lower scales to the TWDs in comparison togoods train drivers.7. In order to examine the merits of these contentions,which obviously are disputed by the respondents, it will be10appropriate to refer to the order impugned itself whichreads as under:"Eastern RailwayEstt. Office Order No. 199/02/Misc.C of 2001 (22.02.01)With the approval of the competentauthority the following order areissued to have immediate effect -The pay of the following T.W.Drivers of Dhanbad Division was fixedin 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 forwhich they were not entitled.As such their pay scale is revisedto 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 inVth P.C.xxx xxx xxxThe staff concerned should beintimated accordingly"8. The respondents in the present appeal hadchallenged the validity of the above order before the11Tribunal on various grounds including that they havealways been placed at parity with the goods driver, theyhave been given similar scales and there was no reason,whatsoever, for altering the pay scale to the prejudice of therespondents, which was in force for a considerable time. Itwill be useful for us to notice the findings recorded by theTribunal. In paragraph 8 of its judgment the Tribunalnoticed that both the parties have not placed on record anymaterial to indicate as to what was the pay scale providedfor the TWDs pursuant to the various Pay CommissionReports. The Tribunal specifically noticed and recorded thefinding that for the last 40 years, i.e. right from 1959 therespondents were being paid the same pay scale as goodsdrivers. There was no disparity of pay scales betweenTWDs and goods drivers after Union of India and Railwayshad accepted recommendations of the IInd, IIIrd, IVth andeven of Vth Pay Commissions. The Tribunal alsospecifically noticed vague denials of the Union of India and12that such denials were hardly substantiated by any cogentmaterial. Reliance was placed upon the judgment of theCalcutta High Court in relation to the grant of runningallowance. In that Writ Petition, the only dispute raised bythe parties related to the grant of running allowance andthe Union of India did not raise the issue of disparity in payscale. 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
13. The appeal is dismissed leaving the parties to bear
................................J. [ DR. B.S. CHAUHAN ]
19 ..............................J. [ SWATANTER KUMAR ] New Delhi July 08, 2010.
