Divisional Secretary, Paschim ... vs Union Of India (Uoi), Through ...
2002 Latest Caselaw 448 Bom

JUDGMENT

1. This appeal is directed against the order dated April 3, 2001 passed by the learned single Judge in Writ Petition No. 1108 of 1998 by which the Award dated October 11, 1996 given by the Central Government Industrial Tribunal in Ref. No. CCIT 1/5 of 1996 was set aside. The Motor Lorry Drivers (MLD) 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 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 demand which ultimately came to be referred to for adjudication under Section 10(1) of the Industrial Disputes Act, 1947. The following industrial dispute was adjudicated by the Central Government Industrial Tribunal:

"Whether the truck drivers working at Parel

workshop are entitled to get TA for duty performed by roadway from Lower Parel to Churchgate/Budhwar Park? If so, to what relief are the workmen entitled?"

2. The case of the Motor Lorry Drivers (MLD) of the Western Railway as put through the appellant union, the Paschim Railway Karmachari Parishad (P.R.K.P.) is that the MLDs attached to Parel Workshop are required to travel on duty to Churchgate and Budhwar Park. The distance between Parel Workshop and Churchgate is more than 8 kms. Likewise the distance between the said Workshop and Budhwar Park is also more than 8 kms. The MLDs who are required to travel by road to the said two destinations on duty are entitled to payment of travelling allowance. However, since no travelling allowance was being paid to them, they made a representation before the management. Senior Divisional Personnel Officer, Western Railway who examined the issue vide communication dated September 12, 1989 observed as follows:

"It has been represented to this office that M.L. Drivers working under you are denied T.A. Payment for their journey from MX (m/w) to HOP/Colaba etc. This issue has been examined and it is stated that the : distance between MX (m/w) and BDF/Colaba is 8.5 kms as per survey map No. 47.1313. In view of the above M.L. Drivers and other staff are entitled for the payment of T.A. if they are deputed to work in this area. You are therefore directed to examine the duties and arrange the payment of T.A. claims to the employees through salary bills if they are due".

3. However, it appears that no further steps were taken pursuant to this communication and, therefore, the appellant union took up the dispute in conciliation and on August 1, 1990 both the parties agreed to make a joint reference to the Tribunal under Section 10-A of the Industrial Disputes Act. It appears that inspite of this agreement the joint reference could not be made. However by his letter dated August 1, 1991 the Divisional Manager, Western Railway (E) advised the CTRI and others to forward the T.A. claims of MLDs for arranging the payment.

4. It appears that in the meanwhile the matter was examined at different levels in the Railway Administration and the Railway Board issued a letter dated March 18, 1993 inter alia stating that the MLDs were not entitled to any travelling allowance. This letter deserves to be quoted in extenso. It reads as under:

"Government of India/Bharat Sarkar' Ministry of Railways/Rail Mantralaya (Railway Board)

No. P(E)1/92/AI-28-14 New Delhi dated March 19, 1993

The General Manager (P) Western Railway, Bombay

Sub: Non-payment of T.A. To TruckDrivers travelling between Parel and Budhwar Park BCT Division, Western Railway.

Please refer to your letter No. B(PA) 95/38 (1) dated April 2, 1992 on the above subject.

2. It is clarified that payment of Daily; Allowance to the Motor Lorry Drivers for

the journeys performed on duty between Parel and Budhwar Park may be regularised in terms of Note (2) below Rule 1630 B II (1987 Exh.). Since the distance between Parel and Churchgate Railway Station (which serves Budhwar Park) is less than 8 kms the Motor Lorry Drivers are not entitled to any Daily Allowance.

3. Please acknowledge receipt.

(P.K. Puri)

Dy. Director Finance Estt.

Railway Board."

(Italics supplied)

In view of the above letter dated March 18, 1993 the management stopped payment of travelling allowance to MLDs and recovery of payment already made was also directed. Thereafter certain workers approached the Bombay Bench of the Central Administrative Tribunal which eventually directed the appropriate Government to refer the dispute for adjudication. This is how the Central Government made the aforesaid reference to the Central Government Industrial Tribunal. Before the Tribunal the respondents reiterated their stand as reflected in the Railway Board's letter viz. that as the distance between Parel Station and Churchgate Station is less than 8 kms the MLDs are not entitled to any travelling allowance. As regards payment made on account of travelling allowance it was submitted that recovery was ordered in pursuance of the order of the Railway Board and payment was also stopped under the said order. It was also submitted that even the distance between Parel and Budhwar Park is less than 8 kms. Likewise the distance between Parel Workshop and Churchgate is less than 8 kms. Both the parties completed their pleadings and adduced their respective documentary evidence. No oral evidence was adduced. The only issue before the Tribunal was whether the distance between Parel Workshop and Churchgate/Budhwar Park was more than 8 kms. It was the case of the respondents that the distance between Parel Railway Station and Churchgate Railway Station was less than 8 kms and, therefore, the MLDs are not entitled to travelling allowance.

The Tribunal, however, held that under Rule 1608 of the Code "duty point" has to be reckoned from the place of office where a Railway servant remains on duty, and not from the Railway Station and the Railway Board could not have arbitrarily declared the duty points of MLDs as Parel Station and Churchgate Station. The Tribunal has concluded thus:

"14. Now, a bare reading of the letter goes to show that it does not refute or demolish the case of the Union that distance between Budhwar Park/ Colaba and Parel workshop was more than 8 kms but it proceeds to determine the distance as less than 8 kms between Parel Railway Station and Churchgate. In my opinion, by virtue of decision No. 5(1) under Rule 1608 of the Code, the duty point has to be reckoned from the place of office where a Railway servant remains on duty, and not from the Railway Station. The duty of MLD in the present case does not commence at the Parel Station and does not end at the Churchgate Station but commences at his workshop and at Budhwar Park Colaba-both the duty points, not being a railway station. The Railway Board could not have arbitrarily declared the duty points of MLDs as Parel Station and Churchgate Station.

15. Now, it may be seen as to what travelling allowance the MLDs are entitled to Rule 1630 of the Code stipulates three distinct components of the travelling allowance viz. (i) Road Mileage (ii) Daily Allowance and (iii) Toll Tax. Note (2) to this rule declares:

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

In the present case MLDs travel by the lorries/trucks to which they may be assigned. Thus, they got free transport and by virtue of the aforesaid decision they are entitled to daily allowance, as if they perform journey by railway".

In the light of the aforesaid finding the Tribunal directed the respondents to allow the travelling allowance claim of the MLDs and pay arrears to them with interest at the rate of 12% p. a.

5. The respondents challenged the Award of the Tribunal by means of Writ Petition No. 1108 of 1998, which was heard by LODHA J. who directed that both sides should measure the distance and submit a report, which came to be submitted on October 8, 1998 jointly. It may be mentioned that as far as the distance between two points from Parel Workshop and Churchgate/Budhwar Park has been finally determined between the parties to be 10.5 kms. Thereafter the writ petition was finally heard by KOCHAR J. who by the impugned order set aside the Award on the ground that under the relevant rules the MLDs are not entitled to travelling allowance except when they are on tour or journey and set aside Award passed by the Tribunal. We may hasten to add that the learned single Judge confirmed the finding of the Tribunal that the duty point of the drivers were from Parel Workshop to Budhwar Park as they did not travel by railway but by road and the distance between these two points has been approximately 10.5 kms. However, the learned Judge held that the Motor Lorry Driver, when he is required to drive the vehicle within his headquarters and within his sphere of duty, it cannot be said that he is on tour or journey and, therefore, he will not be entitled to get any extra travelling or daily allowance.

6. Mr. Dharap, the learned counsel appearing for the appellant strenuously contended that the learned single Judge has exceeded his jurisdiction in deciding various issues such as entitlement of MLDs when they are required to drive within their headquarters and within their sphere of duty etc. which were not at all raised either in the memo of petition or in the written statement filed by the respondents before the Tribunal. Mr. Dharap submitted that by order dated March 18, 1993 passed by the Railway Board the MLDs were held to be disentitled to claim travelling allowance only on the ground that the distance between Parel to Churchgate Station is less than 8 kms and not on the ground that under the rules the MLD is entitled to travelling allowance only if he is required to leave the sphere of his headquarters or that he cannot claim such an allowance while performing duty within the headquarters. Mr. Dharap pointed out that in fact this was the only ground which was pleaded by the respondents in their written

statement. Mr. Dharap submitted that although the Motor Lorry Drivers ply between Parel Workshop to Budhwar Park were not allowed to claim travelling allowance, all other MLDs going in different directions and covering more than 8 kms. distance are being paid such allowance. He drew our attention to the circulars issued by the respondents in June 2001 and October 2001. He urged that if the Order of the learned single Judge is allowed to stand it would result in discriminatory treatment to the MLDs plying between Parel Workshop to Budhwar Park and those who ply motor vehicles between other destinations. Mr. Sureshkumar learned counsel appearing for the respondents fairly conceded that the only defence that was raised by the respondents before the Tribunal was based on the distance between the two destinations. He has not disputed that the MLDs plying on other routes and who are similarly situated are getting such allowance if the distance between two destination is more than 8 kms. Mr. Sureshkumar, however, submitted that the learned Judge on interpretation of the Rules has come to right conclusion that MLD, when he is required to drive vehicle within his headquarters he cannot be said to be on tour or journey and hence cannot claim travelling allowance.

7. We have given our anxious thought to the submissions made by the learned counsel and we are of the considered view that it is not possible to sustain the impugned order of the learned Judge. It is not disputed before us that the MLDs plying between Parel Workshop to Budhwar Park were getting travelling allowance as per Rules. It is also not disputed that similarly situated MLDs working in Western Railway are being paid travelling allowance if the distance between two destinations is more than 8 kms. It is clearly seen from the letter of the Railway Board that the MLDs were denied the travelling allowance solely on the ground that the distance between Parel Station and Churchgate Station is less than 8 kms. The Tribunal after considering the material on record has come to the conclusion that the distance is required to be measured from the Parel Workshop to Budhwar Park and not between Parel to Churchgate Railway Stations. Both parties have filed a joint report that the distance between the two destinations is approximately 10.5 kms. In our opinion, in the

light of the joint report the learned single Judge ought to have dismissed the writ petition. However, it appears that the learned Judge who heard the writ petition allowed the respondents to raise an altogether new plea that MLDs are not entitled to claim travelling allowance unless they are required to travel outside their normal sphere of duty. In our opinion, this is untenable approach. Unless the Court is of the opinion that the order assailed suffers from errors of law apparent on the face of record, it has no jurisdiction to quash that order by allowing the party to raise a plea which was not raised before the Tribunal. In exercise of writ jurisdiction the Court is merely concerned with finding out whether there is error apparent on the face of record and it is not permissible to allow a party to raise entirely a new ground which was never canvassed before the Tribunal, which had not been dealt with by it and in respect of which it cannot be said that there is an error apparent on the face of record.

8. It is brought to our notice that in the month of June 2001 the Western Railway Administration has issued a circular enclosing therewith copy of the SDGM's note dated April 26, 2001 reproducing therewith the gist of the judgment of the learned single Judge. Thereafter the Western Railway, FA & CAO Office issued another circular dated June 7, 2001 directing that the letter may be implemented only after the advice from the competent authority. It appears that pursuant to the said circular the travelling allowance was stopped to the vehicle drivers and an intimation to that effect was given to all concerned offices. However, by a further letter dated October 10, 2001 the FA & CAO Office has withdrawn the order under reference of stopping allowance to vehicle drivers and it has been directed that the travelling allowance/over time if stopped be paid to all the MLDs. Under the circumstances we do not see ground to deny the travelling allowance to MLDs plying between Parel Workshop and Churchgate/Budhwar Park.

9. In the result the impugned order of the learned single Judge is set aside. The respondents are directed to give effect to the order of the Tribunal within a period of eight weeks.

10. Certified copy expedited