SARDARSINH BHARATSINH RANA Vs. UNION OF INDIA

JUDGEMENT

(1.) An employee of the Western Railway who retired on July 31 1975 has been obliged to approach this Court by way of the present petition in view of the fact that some 2 years after the competent authority had sanctioned grant of superannuation pension of Rs. 379/along with the amount payable by way of pension relief it was modified to his detriment by impugned order at Annexure B dated June 7 1978 whereby the pension was reduced from Rs. 379/to Rs. 320/along with the pension relief admissible as per rules. In other words the amount of pension was reduced by Rs. 59/per month as per the impugned order. The petitioner has challenged the legality and validity of the impugned order and has contended that there was no legal justification for reducing the amount of pension determined earlier by the competent authority as per order Annexure A dated December 15 1975 The petitioner has also made a grievance in respect of leave and other benefits and two other grievances of a minor character. The main debate has centered round the question as regards the scaling down of the pension amount from Rs. 379/per month to Rs. 320/per month as per impugned order at Annexure B. The order under challenge evidently has been passed without affording any opportunity to the petitioner and without hearing him. On this ground alone the order deserves to be quashed and set aside without anything more. It will however not serve any useful purpose since the Railway Administration seeks to justify the impugned order on merits and the controversy on merits will survive. Under the circumstances the legality and validity of the impugned order deserves to be scrutinized on merits. It appears that the pay-scales applicable to the railway employees were revised upwards with effect from July 1 1973 The controversy has arisen in the context of this upward revision of the pay-scales. According to the Railway Administration initially sanction was accorded to payment of pension to the petitioner at the rate of Rs 379 as per Annexure A dated December 15 1975 on the basis of the pay last drawn by him inclusive of 75% of the running allowance drawn by him at the time of his retirement on 31st July 1975. Thereafter a downward revision was made by making the computation on the basis of the last pay actually drawn inclusive of 45% of the running allowance drawn by him at the date of his retirement. The downward revision has been made on account of diminution in the rate of running allowance. The question therefore is whether in making the computation as on the date of the petitioners retirement on July 31 1975 The factor regarding running allowance should be included on the basis of 75% as hitheto or at the reduced rate of 45% applicable subsequent to the date of his retirement. There is no doubt that computation has to be made on the basis of pay and allowance drawn by the employee on the date of his retirement. Rule 2301 contained in Chapter XXIII of the Indian Railway Establishment Code Volume II 1951 Edition provides that a pensionable railway servants claim to pension is regulated by the rules in force at the time when he resigns or is discharged from the service of Government. There is no rule which empowers the Railway Administration to fix the pension on the basis of the rules which come into force after the retirement of a railway servant. The question therefore is as to the correct formula for computation of pension having regard to the rules prevailing on the date of the retirement (31-7-75). A reference in this connection may be made to Manual of Railway Pension Rules 1950 corrected upto September 1 1969 which has been produced by the Railway Administration. Paragraph 104 (2) of the Pension Rules reads as under :-

(2.) With regard to the other reliefs claimed by the petitioner the first grievance made by him is in connection with leave and other benefits. It appears that the service of the petitioner was extended for one year. The Railway Administration took the stand that if leave had not been enjoyed by the petitioner before his date of retirement he would not be entitled to claim the amount in lieu of leave not enjoyed by him. The learned counsel for the Railway Administration has made the statement that the stared taken is new abandoned and the petitioner will be paid compensation in regard to the leave not enjoyed by him. In view of this statement made by the learned counsel for the Railway Administration the petitioner has not pressed his claim. The learned counsel for the Railway Administration has also stated that no deduction of Rs. 137/will be made from his salary as was sought to be made before the institution of the petition. In view of this statement learned counsel for the petitioner does not press his petition in regard to this grievance. With regard to the other two grievances counsel for the petitioner does not press the petition and hence it is not necessary to discuss the question pertainingto the validity of the respective contentions.

(3.) Under the circumstances the petition must succeed. It is declared that the pension payable to the petitioner was rightly determined at Rs. 379 plus pension relief admissible as per the prevailing rules as per Annexure A and the petitioner is entitled to claim pension on that basis. It is declared that order at Annexure B scaling down the pension payable to the petitioner is illegal and ultra vires. The respondents are directed to pay to the petitioner the difference in pension on the basis of computation as per Annexure A along with pension relief as admissible according to the prevailing rules by October 15 1979.