Union Of India Through The General ... vs The Divisional Secretary Paschim ...
2001 Latest Caselaw 318 Bom

ORDER

R.J. Kochar, J.

1. The present Petition is filed by the Union of India through its General Manager of Western Railway to challenge the Award dated 11.10.1996 given by the Central Government Industrial Tribunal at Mumbai in Reference No. CGIT-1/5 of 1996.

2. The Motor Lorry Drivers (M.L.D.) of the Western Railway demanded travelling allowance for duty performed by road from Lower Parel Workshop to Churchgate/Budhwar Park on the basis that the distance between the Lower Parel Workshop to Churchgate/Budhwar Park was more than 8 kms. and under the rules they were entitled to get such travelling allowance. The Railway Administration did not agree with their demands which finally came to be referred for adjudication under Section 10(1) of the Industrial Disputes Act, 1947. The following industrial dispute is adjudicated by the Tribunal in the present Award.

"Whether the Truck Drivers working at Parel Workshop are entitled to get T.A. for duty performed by Road way from Lower Parel to Churchgate/Budhwar Park? If so, to what relief are the workmen entitled?"

3. Both the parties completed their pleadings and adduced their respective documentary evidence. No one, however, adduced any oral evidence. The learned Member of the Tribunal after considering the material on record and the rules incorporated in the Indian Railway Establishment Code (Vol. II) has answered the reference in favour of the workmen and directed the Railway Administration to allow all the M.L.Ds. the travelling allowance claims and pay arrears to them with interest at the rate of 12% p.a. and also to pay costs of Rs. 3000/- to the Union.

4. At the outset I may mention here that as far as distance between the two points from Lower Parel Workshop to Churchgate/Budhwar Park has been finally determined between the parties to be 10.5 kms. Since there was some unnecessary controversy in respect of the distance this Court had directed both the sides to measure the distance and submit report, which came to be submitted on 8.10.1998 jointly.

5. The controversy in respect of the distance therefore no more survives. There is also no dispute that in the past the M.L.Ds. were getting

the benefit of the travelling allowance for this distance. It further appears that on reconsideration by the administration the benefit of travelling allowance was discontinued in respect of the M.L.Ds. giving rise to the present industrial dispute. The Tribunal has awarded the benefits mere on the basis of the fact that in the past this benefit was available to the M.L.Ds. on the basis of and the internal correspondence between the internal authorities. It appears that initially the decision to discontinue the T.A. was on the basis of distance between Parel and Churchgate Station and the Budhwar Park being less than 8 kms., and therefore according to the Dy. Director Finance (Estt.) of the Railway Board the M.L.Ds. were not entitled to the T.A. solely basing on his disputing the distance between the two points. The Tribunal has however tried to demolish the case of the Railway, Administration on his interpretation of "duty point" as contemplated under Rule 1608. Accordingto the learned Member the duty points were not from the Parel Station to Churchgate Station but they were from the Lower Parel Workshop to Budhwar Park Colaba. The Tribunal appears to be right on this point that the duty points of the Drivers were from the Lower Parel Workshop to Budhwar Park as they did not travel by Railway but by road. The distance between these two points has now been finally determined to be approx. 10.5 kms. The Tribunal has determined the two duty points and thereafter it has proceeded to consider the entitlement of the Drivers to get the travelling allowance under Rule 1630, The Tribunal has given very cryptic discussion/reasoning of virtually two sentences in paragraph 15 holding that the Drivers were travelling by Trucks/Lorries therefore it was a free transport for them, and therefore, they are entitled to dally allowance under Note No. 2 below Rule 1630, which the Tribunal has reproduced in the said paragraph 15, which read as under:

"(2) Where , free transport is provided only daily allowance will be admissible as if the journey is by railway."

6. Shri Dharap, the learned Advocate for the Respondent Union representing the drivers has made a serious grievance that though the award was passed on 11.10.1996 the Petition was filed after about 18 months. According to him, the petition should be dismissed on this count alone as it suffers from inordinate delay and laches. In a way the learned Advocate is right to agitate that the petition suffers from inordinate delay and laches, but I am not prepared to dismiss it on that ground, as it has been pending since 1998 when Rule was granted. It would not be just and proper for me to throw the petition out at this stage on that ground. Besides, the Petitioners have tried to give some usual explanation of the journey of the file for decision from table to table which causes delay. In the complex administration some delay in reaching the final decision is inevitable.

7. Shri Dharap has further submitted that this Court should not interfere with the Award of the Tribunal which is based on facts and there is no question of law which is involved in this petition. He has also tried to point out that in the past all the M.L.Ds. were getting this allowance for years together but some bureaucrat from the Railway Board, took the decision to discontinue the benefit and that to on the point of lack of knowledge in respect of the actual physical distance between the two

points. Shri Dharap has vehemently submitted that the dispute of distance has been finally determined by this Court on the joint report of the parties and therefore now nothing survives. Shri Dharap has assailed the submissions on behalf of the petitioners that they cannot be allowed to argue a new case before this Court and that cannot be allowed to place new interpretation on the rules in Chapters VI and VII of daily allowance/ travelling allowance.

8. I am not able to accept the submissions of Shri Dharap as according to him the award of the Tribunal suffers from grave infirmity and absence of reasons which have not been recorded by the Tribunal. I am also not able to agree with Shri Dharap that the M.L.Ds. should be continued to get the travelling/daily allowance merely because they were getting the same in the past. I am also not able to agree with Shri Dharap that this benefit should be continued merely because one of the Officers in the department opined that the M.L.Ds. were not entitled to get this benefit.

The Railway Administration had challenged the entitlement of the drivers to get the benefit of travelling/daily allowance. It was a full-fledged adjudication of the Industrial Dispute referred to the Tribunal and the Tribunal ought to have independently considered the entitlement of the Motor Lorry Drivers to get this benefit.

9. Shri Suresh Kumar, the learned Advocate for the Railway Administration has specifically drawn my pointed attention to the following rules, which read as under :-

1609. Definition.-- A daily allowance is a uniform allowance for each day of absence from headquarters, which is intended to cover ordinary daily charges incurred by the Railway servant in consequence of such absence.

1614. (1) Daily allowance may be drawn by a railway servant who is not in respect of a permanent travelling allowance on any day or which he proceeds on tour beyond a radius of 8 kms. from his headquarter or returns to his headqurter from a similar distance.

(2) Daily allowance as in sub-rule (1) would be admissible even if the place of temporary duty falls in the same municipality as (or in a municipality contiguous to) that in which the railway servant's Headquarter is situated and the term radius of 8kms. should be interpreted as meaning a distance of 8 km. by the shortest practicable route by which a traveller can reach his destination by the ordinary modes of travelling.

(3) The headquarters of a railway servant belonging to the category of gangmen, keymen and mates, for the purpose of Daily Allowance should be the hut or the place where the tool box is kept.

Government of India's decision

A person, who uses a cycle supplied at the expense of Government for taking dak to offices situated beyond the radius of 8 kms. from his headquarter, may draw daily allowance of his grade, if the journey involves an absence of at least one night from his headquarter, but he may not exchange it for mileage allowance.

These orders applies in the case of all the messengerial staff, irrespective of whether in the course of their normal duties, they are allowed to use of departmental cycle or Government jeeps/cars, or any other Government conveyance.

1615. Full daily allowance will be granted for each completed day of absence from the headquarters reckoned from midnight to midnight i.e., for each calendar day for the day of departure from his headquarter or return to his headqarter or when the journey commences and ends on the same calendar day, the railway servant shall be granted under mentioned proportion of the daily allowance :-

   (i)   If absence from headquarter does not exceed 6 consecutive
hours of the daily allowance.     30% 

 (ii)  If absence from the headquarter does not exceed 12consecu-
tive  hours of the daily  allowance.    70% 

(iii) If absence   from the headquarter exceeds   12 consecutive
hours daily allowance.      Full 
 

 If the period of absence from the headquarter falls on two calendar days, it shall be reckoned as two days, even when the absence does not exceed 24 hours, and the daily allowance for each day shall be granted separately in terms of the above. 
 

NOTE.- Each spell of absence from Headquarters shall constitute a complete journey and daily allowance allowed separately in respect of it. The total daily allowance allowed for journeys performed on any calendar day shall, however, be subject to a maximum of the full daily allowance admissible for each completed day of absence from midnight to midnight.

1619. Except where otherwise expressly provided in these rules, a Railway servant not in receipt of permanent travelling allowance, draws travelling allowance for journeys on tour in the shape of daily allowance.

1620. The period of absence from Headquarters begins when a railway servant leaves his Headquarters station and ends when he actually returns to the place in which his Headquarters are situated whether he halts there or not. When a train arrives less than 15 minutes late, the time recorded in the Railway Time-table shall be taken as the time of arrival of the train for the purpose of this rule.

Railway Board's Decision

The time spent by Journeys by road from Headquarters Office to the station/airport when a railway servant actually leaves his Headquarters shall not be included.

1624. The railway servant shall be deemed to be on tour when absent on duty from his Headquarters either within, or with the sanction of the Controlling Officer, beyond his sphere of duty. For the purpose of this Section, journey to a hill station is not a journey on tour.

Government of India's decision

The following terms regarding travelling allowance, daily allowance and lodging may be granted to the railway servant who may be deputed to accompany the visiting foreign delegation/V.I.Ps. as Liaison Officers, etc. :-

(a) For journeys by rail, the accompanying railway servant will, as far as possible, be issued a duty pass of the class to which he is normally entitled under the rules. He may also be allowed to travel by air-conditioned accommodation alongwith the members of the delegation, if considered absolutely necessary, with prior sanction of the Railway Ministry.

(b) For journeys by road and by air, he accompanying railway servant may wherever necessary travel by road and/or by with members of the delegation/V.I.Ps..

(c) Allowances for incidental expenses on journeys/daily allowance for journey time.- No daily allowance for the days of travel would be admissible to the accompanying railway servant. His expenses on food in transit and other essential incidental expenses e.g. porter charges, will, however, he met from Government funds as for members of the delegatlon/V.I.Ps..

(d) Board and lodging arrangements at outstandings and daily allowance for halts.- The accompanying railway servant should, wherever possible, make his own arrangements for board and lodging at an outstation, in which case he may draws the daily allowance admissible to him under the normal Rules. Where however, it is considered absolutely necessary that he should stay in the same Hotel as the members of the delegatlon/V.I.Ps. accommodation appropriate to his status may be arranged for him in that Hotel. In such cases, the accompanying railway servant should be entitled to daily allowance at 1/4th of the normally applicable rate if both board and lodging have been provided at Government expenses in that Hotel, and at one half of such rate, it only either board or lodging has been provided to him at Government expense.

(e) Board and lodging arrangements, and dally allowance for period of stay of the delegatlon/V.I.Ps. at the headquarters of the railway servant -Railway servants, attached to visiting foreign delegations/V.I.Ps. will not be permitted to partake of board and/or lodging arrangements made for the delegation at the headquarters of the railway servant nor will any daily allowance be admissible to them at that place.

The above terms are applicable only to such of the accompanying railway servants in respect of whom Railway Board certify that for sufficient reasons it was necessary for them to accompany the delegation /V.I.Ps..

1630. (1) When a railway servant makes a journey by road on tour, he is entitled to the following travelling allowance :--

(a) Road Mileage.- as prescribed in sub-rule (5) of Rule 1607

(b) Dally Allowance.- as prescribed in Rule 1615.

(c) Toll tax.- as prescribed in Rule 1640.

Note :- (1) When two or more railway travel is a conveyance belonging to one of them, the owner may draw travelling allowance as if he travelled alone and the other railway servant or servants may draw dally allowance at the appropriate rates applicable to them.

(2) Where free transport is provided, only dally allowance will be admissible as if the journey is by railway.

(3) The road mileage allowance admissible for journey performed by sharing the hire charges or by taking a single seat in a taxi, scooter etc. will be the actual share of the hire charges limited to the amount calculated at half of the rates admissible for taxi/auto rickshaw in terms of Rule 1607.

(2) When a railway servant performs a journey by road between stations connected by rail, he may be granted travelling allowance as in sub-rule (1) above, if the Head of Department in the case of gazetted railway servant and Divisional Railway Manager in the case of non-gazetted railway servant is satisfied that the journey by road was necessary in the interest of railway service, such as savings of public time or inspection of work enroute etc.

(3) Divisional Railway Managers may permit Gazetted Officers working under them to undertake journeys by road between stations connected by rail in the following types of cases -

(i) Journeys for surprise inspection of level crossing gates;

(ii) Journeys in connection with accidents and breaches;

(iii) Journeys for surprise checks at stations in the nature of raids by road against ticketless travel etc.:

(iv) Surprise checks of station and staff with the safety aspect in view; and

(v) making arrangements concerning ticket checking by special squad.

(4) If the performance of Journey to road is not in the interest of railway service, the railway servant concerned may be granted only such daily allowance as would have been admissible had the journey been performed by rail.

According to Shri Suresh Kumar considering the pbove rules the M.L.Ds. do not fit in any of the rules to entitle them the benefit of travelling/ daily allowance. Shri Suresh Kumar has further analysed that duty of Motor Lorry Driver is to drive his vehicle from the duty point of Parel Workshop to the Budhwar Park and back to the Workshop or any other distance as directed. While performing his duty as M.L.D. he is never on tour nor on journey to entitle him to get any travelling/dally allowance under the aforesaid rules. Shri Suresh Kumar further submitted that if he his travelling to and fro between the two points and elsewhere exceeds his duty hours he would be entitled to get overtime allowance. It was further submitted by Shri Suresh Kumar that the aforesaid rules are meant for the railway servants who are not actually driving the vehicles but are posted in the offices to do their work and if they are required to leave their headquarters or the work place for some work on duty they were to become entitled to get travelling allowance/dally allowance. If they are on tour or Journey. Shri Suresh Kumar has therefore vehemently disputed the right of the M.L.Ds. to get this benefit as they are always on duty as drivers in the vehicles from point to point.

10. In the context of the rules quoted above I find much substance in the submissions of Shri Suresh Kumar. In my opinion the Tribunal ought to have determined the entitlement of the drivers under the rules which was the dispute referred to it. From the peculiar nature of the duty of the M.L.Ds. It cannot be said that they are going on a tour or a journey as is ordinarily understood. A Motor Lorry Driver does not tell his family while leaving his home that he was going on a tour or a journey. Even his family members rightly think that he is going on his duty. Such a Motor Lorry Driver reports for his work not to understand that he would be starting his tour or a journey when he would sit on the wheel to drive from Lower Parel Workshop to Budhwar Park. It is his duty to take the goods and material from the Workshop to the Budhwar Park and to go at such places wherever he would be directed during his working hours. By no stretch of imagination it can be said that a Bus Driver or any driver for that matter attending his daily routine work of going from the residence of his employer to the office of back and wherever he is told to drive can be said that all such drivers undertake the job of tour or journey. Under the rules what is contemplated is leaving of the headquarters and reaching some other

place for the duty. It would also mean that there is night halt out of the duty hours and out of the place of the headquarters. It is significant to note that Rule 1624 has specifically spelt out that a journey to a hill station is not a journey on tour. Similarly it can be said that a Motor Lorry Driver when he is required to drive vehicle within his headquarters and within his sphere of duty cannot be said to be on tour or a journey. He performs his duty of driving the vehicle. He would become entitled to the travelling allowance or daily allowance if he is required to leave the headquarters and he goes beyond the sphere of his duty. Similarly he would be entitled to get overtime allowance if he is required to drive for more than his duty hours within the sphere of his headquarters. To further clarify, I may say that if an M.L.Ds. is required to leave the sphere of his headquarters he would be entitled to get travelling allowance/daily allowance, but if he is required to be within the sphere of the headquarters within his duty hours he will not be entitled to get any extra travelling or daily allowance. For his work he gets his wages. He cannot claim anything extra amounts as travelling or daily allowance merely because he is required to drive a vehicle for whatever distance it may be. If his work exceeds the duty hours he would become entitled to overtime allowance in accordance with law. This would be the real Intent and interpretation of the rules. To accept the argument of Shri Dharap would mean that every public transport driver would become entitled to travelling allowance and daily allowance on the ground that he is driving a vehicle from the depot and comes back to the depot. In my opinion the Motor Lorry Drivers of the Western Railways are not entitled to any travelling allowance or daily allowance under the rules merely because they are required to travel by road from Parel Work Shop to Budhwar Park, the admitted distance of about 10.5 kms. They are doing their duty of driving the vehicle Truck/Lorry during their duty hours They cannot claim any extra allowances for such work for which they are employed to get wages.

11. In the aforesaid circumstances and for the reasons recorded by me, the Petition succeeds. The impugned Award of the Tribunal is quashed and set aside. Rule is made absolute in terms of prayer clause (a) of the Petition. No order as to costs.