Union Of India vs Smt. Sushila Devi
2009 Latest Caselaw 3088 Del

*            HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 10598/2009

                         Judgment reserved on: August 3, 2009
%                        Judgment delivered on: August 10, 2009

      Union of India                                ..... Petitioner

                          Through: Mr. Chandan Kumar, Advocate
                     Versus

      Smt. Sushila Devi                         ..... Respondent

                         Through: None
      Coram:

      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK

      1. Whether the Reporters of local papers        Not necessary
         may be allowed to see the judgment?

      2. To be referred to Reporter or not?           Not necessary

      3. Whether the judgment should be              Not necessary
         reported in the Digest?



A.K. PATHAK, J.

1. Petitioner has filed this writ petition against the order dated

20th May, 2009 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi (for short hereinafter referred as

"Tribunal") in O.A. NO. 1775/2003 whereby Tribunal directed the

Petitioner to re-fix the pension of the Respondent, reckoning the

running allowance, at Rs. 1544/- per month. Petitioner was also

directed to pay arrears of pension and family pension w.e.f. 30th

November, 1999 within three months.

2. Respondent is widow of late Sh. M.C. Gupta, who retired on

30th November, 1993 from the post of Guard (Goods). Since his

pension was incorrectly fixed at Rs. 1374/- instead of Rs. 1544/-

by the Petitioner, he filed O.A. NO. 1775/2003 before the

Tribunal. However this OA was dismissed vide order dated 28th

July, 2003 on the ground that it was barred by limitation. Sh.

M.C. Gupta filed a writ petition bearing WPC No. 9501/2003

challenging the aforesaid order passed by the Tribunal. During

the pendency of this writ petition Sh. M.C. Gupta died and the

Respondent being his widow was brought on record.

3. Vide order dated 12th December, 2007, a Division Bench of

this Court set aside the order dated 28th July, 2003 passed by

the Tribunal and remanded the matter back to the Tribunal for

fresh adjudication regarding relief of re-fixation of pension of late

Sh. M.C. Gupta. Thereafter, vide impugned order dated 20th

May, 2009, Tribunal disposed of the O.A. and has re-fixed the

pension, which we have already noted above.

4. In the O.A. it was alleged that pension of Sh. M.C. Gupta

should have been fixed by counting last ten months' salary.

Earlier he was working as Guard (Goods). At the time of

retirement also he was working as Guard. From 12th May, 1985

till 27th May, 1993 he worked as Welfare Assistant (Sports).

During this period he was given benefit of 30% of pay. While

working as Guard (Goods) Sh.M.C.Gupta was fully benefited of

55% of the pay towards "running allowance". While computing

the pension the above benefit should have been given. According

to him, his pension ought to have been fixed at Rs. 1544/-.

Details of calculation were specifically mentioned in the O.A. for

arriving at the figure of Rs.1544/- towards pension.

5. As per the Petitioner, para 49 of the Railway Pension

Manual provided that increase in pay, which was not actually

drawn, could not have formed part of emoluments of

Sh.M.C.Gupta. He worked as WLA (Sports) on his own volition

and, therefore, was not entitled to the benefit of running

allowance. Thus, according to the Petitioner, pension was rightly

fixed at Rs. 1374/-.

6. The Tribunal held that Petitioner could not have been

allowed to reprobate and approbate simultaneously. In the year

1988 Petitioner had itself passed an order holding that Sh. M.C.

Gupta would continue to draw the pay of parent post together

with benefit of 30% of the running allowance for working against

a stationary post. Accordingly, Petitioner could not have turned

its back and denied the benefit of 55%. The Tribunal was of the

view that pension was to be fixed at Rs. 1544/- per month.

7. We do not find any jurisdictional error in the impugned

order of the Tribunal. At the time of retirement Sh. M.C. Gupta

was working as Guard (Goods). As per rule 901 of IREM,

running allowance is paid to the staff performing running duties.

As per this rule "Running Duties" mean duties directly connected

with the movement of trains and performed by running staff

while employed on moving trains or engines including shunting

engines. Therefore, Sh. M.C. Gupta was entitled to running

allowance while working on the post of Guard (Goods). Though

Mr. M.C. Gupta was working on the post of Guard (Goods), but

during intermittent period he had also worked as WLA (Sports).

Vide order dated 9th March, 1988, Petitioner had specifically

ordered that while working as a WLA (Sports) Sh. M.C. Gupta

would continue to draw pay of his parent post with benefit of

30% for working against a stationary post with effect from 12th

May, 1985. On 20th May, 1993, Sh. M.C. Gupta again joined as

Guard (Goods) and became entitled to the running allowance. As

per para 924 of IREM, running allowance has to be reckoned for

the purpose of retirement benefits. Calculation given in OA have

not been specifically denied in the reply filed by the Petitioner

before the Tribunal. No error therein was pointed out before the

Tribunal.

8. We are of the view that the Tribunal rightly accepted the

contentions of the Respondent and has fixed the pension at Rs.

1544/-. We do not find any merit in this writ petition and same is

dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

August 10, 2009 mr