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Harmohinder Singh And Another v. General Manager. Northern Railway, And Others

Delhi High Court

Nov 30, 1966

Judgment

Subsequent
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Structured Summary of the Judgment

Factual and Procedural Background

The judgment disposes of Civil Writ Petitions Nos. 148-D of 1965 (Harmohinder Singh v. General Manager, Northern Railway) and 153-D of 1965 (K. Audiseshan v. General Manager, Northern Railway). The factual matrix and procedural posture, based solely on the opinion, are as follows:

Petitioner Harmohinder Singh served in the Army as Havildar Clerk from 6 July 1943 to 9 April 1953. Petitioner K. Audiseshan served as Havildar Clerk from 12 June 1945 to 22 February 1953.
Both petitioners were appointed as Commercial Clerks in Northern Railway on 16 August 1953. They claimed entitlement to war-service weightage for pay fixation: Harmohinder Singh claimed 9 years 9 months; K. Audiseshan claimed 7½ years. Both in fact received a benefit of six years (which they did not dispute).
On appointment their pay was fixed at Rs. 84/- in the prescribed scale after what the petitioners say was sanction from the Railway authorities. A statement (Annexure 'L') later shows increments and a substantive pay figure for one petitioner (Rupees 180/- reduced to Rs. 154/-) and similar treatment for the other petitioner. The petitioners allege arrears paid in 1959 on the basis of fixation at Rs. 84/-, and that those payments are undisputed.
The respondents made deductions of Rs. 40/- per month on four separate occasions from the petitioners' pay, characterising those deductions as recovery of over-payments made by mistake. The respondents contended initial salary ought to have been fixed at lower figures (one mentioned figure is Rs. 66/-; other calculations in the record refer to amounts such as Rs. 56/- and Rs. 60/- depending on application of particular rules).
The petitioners challenged deductions under the Payment of Wages Act, Delhi. The authority under that Act, by order dated 22 February 1966, directed respondent No. 2 to refund Rs. 40/- to each petitioner. The respondents accepted that decision and did not pursue further challenge.
The Railway Board issued a letter dated 6 November 1951 concerning fixation of initial pay of War Service candidates and temporary Government employees, and a later letter dated 25 July 1963 treating certain combatant clerk service as equivalent to railway clerk service and directing that orders be issued invoking Rule 2023 (Fundamental Rule 27), effective from 11 April 1963 (with past cases not to be reopened).
The petitions raise, among other matters, the applicability of Rule 2023 (Fundamental Rule 27), and the respondents relied on Rule 2017 and the Railway Board's 6 November 1951 letter in support of their view about the correct initial pay fixation.

Legal Issues Presented

Whether Rule 2017 (and the related provisions in the Railway Fundamental Rules) applies to fix the petitioners' pay in the prescribed scale, thereby limiting their refixation to the minimum of that scale (argued by respondents to yield Rs. 60/-), or whether that Rule is inapplicable because the petitioners were appointed directly from the Army and did not hold any lien on permanent railway posts.
Whether the petitioners' initial pay was rightly fixed at Rs. 84/- (as contended by petitioners) or was a mistake authorising deductions (as contended by respondents), and whether the deductions that were made were lawful.
Whether deductions from pay made without a hearing were lawful, taking into account Rule 1707 (sub-rule (4)) and the characterisation of the deductions (penal or rectificatory).
Whether the Railway Board's later instruction (25 July 1963) and Fundamental Rule 27 (Rule 2023) had any retrospective effect to alter earlier pay-fixations in the petitioners' cases.

Arguments of the Parties

Petitioners' Arguments

The petitioners contended that their pay had been correctly fixed at Rs. 84/- on appointment to the Railway after giving weightage for war service; therefore deductions made thereafter were unauthorised.
They relied on the General Manager's power to create posts and on Rule 2023 (Fundamental Rule 27) as foundational to their case (the opinion notes the petitioners' case is mainly founded on Rule 2023).
The petitioners additionally pointed to Rule 1707, arguing that deductions in pay would amount to a major penalty and, under sub-rule (4) of that Rule, could not be imposed without a proper hearing.
The petitioners challenged the deductions under the Payment of Wages Act, and the adjudicating authority ordered respondent No. 2 to refund Rs. 40/- to each petitioner (a decision the respondents accepted).

Respondents' Arguments

The respondents argued that the initial pay should have been fixed in accordance with the Railway Board letter of 6 November 1951: initially in the pre-revision scale and then refixed in the prescribed scale under the Railway Fundamental Rules. Applying that procedure, and relying on Rule 2017 (specifically R. 2017(a)(ii)), they said the petitioners' pay in the prescribed scale could only be fixed at the minimum of that scale (Rs. 60/-), because the minimum of the new post's time scale was higher than the pay in the pre-revision scale after war-service weightage.
The respondents characterised the higher fixation at Rs. 84/- as a mistake and treated subsequent deductions as rectification of that mistake rather than as penalties, contending therefore that no hearing was required.
The respondents relied on the procedural letters of the Railway Board and provisions of the Railway Fundamental Rules to justify their view of correct pay fixation and adjustments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded in stages and focused primarily on the proper interpretation and applicability of the Railway Fundamental Rules relied upon by the parties. The court's reasoning, as set out in the opinion, is summarized below without expansion beyond the text:

The court analysed Rule 2017 and concluded that it applies only to cases where the appointment to a new post is of a person already working under the Railways (i.e., a railway servant). The court read R. 2017 as limited by its own language, which refers to employees holding a lien on permanent posts or who could hold such a lien, and to processes under Fundamental Rule 30 for evaluation of duties and responsibilities between old and new posts.
The court observed that sub-clauses of Rule 2017 refer to Fundamental Rule 30 (for evaluation) and Fundamental Rule 15 (transfers on employee's request), both of which concern railways servants. That context led the court to the conclusion that R. 2017 is inapplicable to persons appointed directly from the Army who did not hold any permanent railway post or lien.
Because the petitioners were not serving under the Railways prior to appointment (they had no lien on any permanent railway post), the court held it would be impossible to refix their pay in the prescribed scale under R. 2017. The court accepted the respondents' concession that, if R. 2017 were inapplicable, the pay scales had been rightly fixed at Rs. 84/- in terms of paragraph 2(ii) of the Railway Board letter dated 6 November 1951.
The court noted that the petitioners had moved the Payment of Wages authority challenging the deductions; that authority directed a refund of Rs. 40/- to each petitioner (22 February 1966), a decision the respondents did not contest. This factual matter supported the court's view concerning the unauthorized nature of the deductions.
On the point about whether a hearing was required before deductions, the court observed the respondents characterised the adjustments as rectification of mistake rather than penalties; having determined that pay was rightly fixed at Rs. 84/-, the court found it unnecessary to elaborate further on the Rule 1707 hearing issue.
The court expressly stated that it need not decide whether the phrase "under the provisions of the railway fundamental rules" in the 6 November 1951 letter referred to some other rules including Fundamental Rule 27 (Rule 2023). In sum, the court resolved the matter by holding R. 2017 inapplicable and upholding the Rs. 84/- fixation.

Holding and Implications

Core Holding: The petitions are allowed. The court directed that the respondents shall not give effect to the order (Annexure 'L') reducing the petitioners' salaries and shall refund the unauthorised deductions made from their salaries.

Specific directives and immediate consequences stated by the court in the opinion:

The respondents are directed not to implement the order in Annexure 'L' that reduced the petitioners' salaries.
The respondents are directed to refund to the petitioners the unauthorised deductions made from their salaries (the Payment of Wages authority had earlier directed refund of Rs. 40/- to each petitioner; respondents accepted that decision).
The court noted that if the respondents have any other lawful power to reduce the salary, they are at liberty to consider the matter afresh (i.e., the court did not preclude lawful alternatives but struck down the deductions/orders challenged in these petitions).
The parties were directed to bear their own costs.

The opinion does not purport to lay down any new general precedent — its conclusions are grounded in the interpretation of the Railway Fundamental Rules as applied to the petitioners' particular factual circumstances, and the court expressly refrained from deciding whether other Fundamental Rules (e.g., R. 2023 / Fundamental Rule 27) applied in a broader sense.

End of summary based solely on the provided opinion text.

Show all summary ...

1. This judgment will dispose of Civil Writ Petitions Nos. 148-D of 1965 (Harmohinder Singh v. General Manager, Northern Railway and 153-D of 1965 (K. Audiseshan v. General Manager, Northern Railway). The basic problem arising in both the writ petitions is similar though there is a slight difference in the facts.

2. Harmohinder Singh petitioner served in the Army from 6th July, 1943 to 9th April, 1953 as Havildar Clerk while petitioner K. Audiseshan served in the Army as Havildar Clerk from 12th June, 1945 to 22nd February, 1953. Both were appointed as Commercial Clerks in the Northern Railway on 16th August, 1953 and both of them claim that on their appointment to the railway service they were entitled to the benefit of war service so that their pay scales had to be fixed on the basis as if they were appointed in the Railway at the time they commenced work in the army Petitioner Harmohinder Singh claimed that he was entitled to the benefit of 9 years 9 months while petitioner K. Audiseshan claimed the benefit of 7 ½ years. As a matter of fact, both the petitioners were given a benefit of 6 years and the petitioners have not raised any dispute regarding that. In the present petitions the petitioners have alleged that on their appointment in the Railway their cases were finalised by the Divisional Personnel Officer (Respondent No 2) after getting the sanction of respondet No. 1 giving them credit of the service rendered by them in the Army and consequently the salary of each of the petitioners was fixed at Rs. 84/- in the prescribed scale At this stage it may be mentioned that there were three scales prevailing at different times:

(i) Pre-prescribed or pre-revision scale which was in force before 1947 and the scale of pay therein was Rs. 40-5/2-50-2-60

(ii) Prescribed scale introduced on 16th August, 1947, carrying the pay scale of Rupees 60-4-120-5-150; and

(iii) Authorised scale introduced in 1959 carrying the pay scale of Rs. 110-4-160-EB- 4-170-5-180-EB 5-200.

3. The statement of increment granted as a result of fixation in A/Scales of pay “(Annexure ‘L’ to the petition) shows that Harmohinder Singh's substantive pay was Rupees 180/- per month which was cut down to Rs. 154/-. Similar is the case with the other petitioner. It is alleged by the petitioners that they were paid the arrears due to them on fixation of their pay at Rs. 84/- per month after giving weightage for the service rendered by them in the Armed Forces. This payment was made in the year 1959 and has not been disputed by the respondents. The Railway Board issued letter No. E 49 CPC/177 dated 6th November, 1951, regarding the fixation of initial pay in the prescribed scales of pay of War Service Candidates and temporary Government employees appointed to civil posts on a permanent or temporary basis. Clauses (i) and (ii) of paragraph 2 of the said letter, on which both the parties rely, read as under:

“(i) In the case of War Service Candidates and temporary Government employees appointed to civil posts on a permanent basis on or before the 16th August, 1947 their initial pay should first be fixed in the pre-revision scales of pay that were in force on the date on which they are deemed to have been appointed for purposes of seniority and “fixation of initial pay and then refixed in the ‘Prescribed scales’ in accordance with the Railway Services (Revision of Pay) Rules. 1947, from the relevant dates of option.

(ii) In the case of War Service Candidates and temporary Government employees appointed to civil posts on a permanent basis after the 16th August, 1947, their initial pay should similary first be fixed in the pre-revision scales of pay and then refixed in the prescribed scales under the provisions of the railway fundamental rules”.

4. It is not disputed that deductions have been made at the rate of Rs. 40/- per month on four different occasions from the pay of the petitioners on account of what the respondents terms as over-payment by mistake. Whereas the petitioners' case is that their salaries were rightly fixed at Rs. 84/-. the respondents maintain that it was a mistake and their initial salaries ought to have been fixed at Rs. 66/-.

5. On 25th July, 1963, the Railway Board issued another letter (Annexure ‘D’ to the petition) which recites:

“The Board have decided, as a special ease, that service rendered as Combatant Clerk (Sepoy and above and equivalent ranks in Navy and Air Force) may be treated as equivalent to service as Clerks/Junior Clerks in Railways irrespective of the pay drawn in the Armed Forces and that when such persons are absorbed in such posts on the Railways, their initial pay in the posts of Clerks/Junior Clerks may be fixed at a higher stage in the scale above the minimum equal to the number of completed years of service as Combatant Clerks”.

6. This letter further recites that the “orders fixing the pay in such cases should be issued by invoking the provisions of Rule, 2023 (F.R 27) R II” The orders contained in this letter were expressed to take effect from 11th April, 1963 and past cases were not to be reopened. The petitioners' case is mainly founded on Rule, 2023 (Fundamental Rule 27), which reads:

“An authority may grant a premature increment to a Railway servant on a time-scale of pay if it has power to create post in the same cadre on the same scale of pay”.

7. The learned counsal for the petitioners points out that the General Manager had the power to create such a post and this fact is not disputed by the learned counsel for the respondents. The case of the respondents, on the other hand, is that in terms of the letter dated 6th November, 1951, already mentioned above, the initial pay of the petitioners had to be fixed according to paragraph 2(iii) of the said letter in the pre-prescribed scale at Rs. 40/-. Giving them the benefit of six years' war service their initial pay would be Rs. 56/-. According to Mr. Nanak Chand, the learned counsel for the respondents, the pay of the petitioners had then to be refixed “in the prescribed scales under the provisions of railway fundamental rules” as provided in para. 2(ii) of the said letter. Mr. Nanak Chand then draws my attention to Rule, 2017 and relying on the words— “But if the minimum pay of the time scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay”—in R. 2017(a)(ii), says that since in terms of the letter dated 6th November, 1951, the refixation in the prescribed scales has to be done under the provisions of the railway fundamental rules the petitioners would, in view of rule, 2017. be entitled to be refixed at Rs. 60/- in the prescribed scale.

8. In other words, Mr. Nanak Chand's argument is that since the minimum pay in the prescribed scale was Rs. 60/- and on fixation in the pre-prescribed scale the petitioners were, after getting due weightage for the war service, entitled to get Rs. 56/-, their pay in the prescribed scale could be fixed only at Rs. 60/- in terms of the said Rule. The argument is really a gloss over the language of Rule, 2017. As I read Rule, 2017 it applies only to those cases where the appointment of a person already working under the Railways is made to a new post. Such limitation is obvious from the language of R. 2017 when read as a whole. Sub-cl. (ii) of clause (a) of Rule, 2017 on which reliance has been placed by Mr Nanak Chand, as mentioned earlier, applies to categories of employees mentioned in clause (a) thereof, namely, employees holding a lien on permanent post other than a tenure post or who could hold such a lien on such a post had his lien not been suspended. There is no question of a person, placed as the petitioners are holding a lien on any permanent post when appointed to a new post under the Railways as they were not serving under the Railways at all.

9. It would be impossible to refix the petitioners in the prescribed scale under R. 2017. Apart from the fact that the petitioners were not holding any permanent posts in the Railways, there could be no comparison regarding duties and responsibilies in the two posts when a person is appointed directly for the first time from the Army as envisaged by clause (a) of the said rule. sub-clause (i) of clause (a) of the said rule, refers to fundamental rule 30 for the purposes of evaluation of duties and responsibilities in the two posts. fundamental rule 30 again shows that it deals with the appointment to a new post of a railway servant.

10. Similarly, for the purpose of sub-clause(ii) of clause (a) of Rule, 2017 one has to refer to fundamental rule 30. This further bears out the interpretation that I am seeking to place on the said Rule, 2017. The matter is still further clarified by reference to sub-clause (iii) of clause (a) of the said Rule which talks of appointment to a new post being made on employee's own request under fundamental rule 15, fundamental rule 15 deals only with the transfer of a railway servant from one post to another. It thus appears that Rule, 2017 has no applicability to the case of employees like the petitioner. Mr. Nanak Chand, the learned counsel for the respondents, agrees that in case Fundamental Rule, 2017 be not applicable to the petitioners', then their pay scales were rightly fixed at Rs. 84/- in terms of paragraph 2(ii) of the letter dated 6th November, 1951, and consequently the deductions from their pay was unauthorised. I may also mention at this stage that the petitioners moved the authority under the Payment of Wages Act, Delhi, challenging the right of the Divisional Personnel Officer (respondent No. 2) to make the deductions and the decision in principle went in favour of the petitioners. By order dated 22nd February, 1966, the said authority directed respondent No. 2 to refund Rs. 40/- to each of the petitioners. The respondents accepted that decision and did not challenge the same in any other proceedings.

11. Having decided that R. 2017 does not apply it must necessarily follow, and that Mr. Nanak Chand does not dispute, that the pay scale of the petitioners was rightly fixed at Rs. 84. May be, the words “under the provisions of the railway fundamental rules” had reference to some other Rules including Fundamental R. 27, but I really need not decide that question It also must follow that the deductions made by the respondents from the salaries of the petitioners were unauthorised. The learned counsel for the petitioners also drew my attention to Rule, 1707 and said the deduction in pay being a major penalty could not in terms of sub-rule (4) of that Rule be inflicted without proper hearing.

12. The respondents do not dispute that no hearing was given to the petitioners as their case is that the salaries were fixed at Rs. 84/-, only by a mistake and it was not a case of any penalty but only of rectification of a mistake. Having held that the pay was rightly fixed at Rs. 84/- it is unnecessary for me to elaborate on this aspect any more.

13. In the result, the petitions succeed and the respondents are directed not to give effect to the order in Annexure ‘L’ to the petitioin reducing the salaries of the petitioners In case the respondents have any other power to reduce the salary under the law they would be at liberty to consider the matter afresh. I further direct the respondents to refund to the petitioners the unauthorised deductions made out of their salaries. The parties will bear their own costs.

14. CK/JRM/G.G.MPetitions allowed.