TaxTMI 
TaxTMI 
2010 (7) TMI 1154
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....ents 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. 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 been arrived 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 a....
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.... 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 in 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 g....
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....e 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 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 content....
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....ions of the IInd, IIIrd, IVth and even of Vth Pay Commissions. The Tribunal also specifically noticed vague denials of the Union of India and 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 reason that weighed with the Tribunal wa....
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....rder 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 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 sele....