UNION OF INDIA UOI Vs. BHAGAT RAM

JUDGEMENT

(1.) This is an appeal against an order of remand made by the 1st Civil Judge of Saharanpur in a suit that was filed by the plaintiff, Bhagat Bam, who is the respondent in the appeal before me, for the recovery of Rs. 1,700/-as arrears of allowances due to him from the Railway Administration. The plaintiff Bhagat Ram was a III Grade Guard in the E, P. Railway at Saharanpur. He was suspected of having committed an offence punishable under Section 411 of the Indian Penal Code and was, therefore, prosecuted for a charge punishable under that section. On his prosecution he was suspended by the Railway Administration. Bhagat Ram was later acquitted by the court which tried him on the 20th of May, 1949, but he was nevertheless under suspension from the 6th of July, 1948, to the 4th of August, 1949. The plaintiff was reinstated, apparently, on the 4th of August, 1949, and thereafter the question arose about paying him his salary and allowances to which he would be entitled under the rules framed by the Railway Establishment Code. The plaintiff had been, awarded his full salary by the Railway Administration on reinstatement; further he was awarded 75 per cent, of the salary in lieu of running allowances.

(2.) As a driver the plaintiff was entitled to claim, what is known as 'running allowance'. Rule 609 of the Rules makes provision for running allowances. These allowances are granted to railway servants of certain classes who perform duties directly connected with the charge of moving trains. This allowance is calculated at a rate per hundred miles run with a train carrying passenger traffic or on the basis of each trip of 8 hours performed on such a train, and is also payable in lieu of other kinds of detention and travelling allowance. This allowance is permissible to drivers, shunters, firemen, guards, etc. There was apparently some difficulty felt in regard to the actual calculation of these running allowances in the case of such persons who, though entitled to them, could not earn these allowances because of no fault of theirs. The rules make provision. for such a contingency and also for other contingencies. Rules 510 and 511 are the relevant rules covering the aforementioned cases. Under Rule 510 -- a rule that is headed 'Special Running Allowance' -- provision is made as follows :

(3.) One of the questions that was raised was whether the revising or appellate authority had the power to exercise any discretion in the case of payment of salary and allowance of a railway servant who has been found to have been honourably acquitted. It was contended on behalf of the appellant -- the Union of India --that there was a discretion in the revising or appellate authority whether or not to allow the full pay and full allowances even in the case of an honourable acquittal. Mr. Ghatak, appearing on behalf of the respondent driver, has contended that in regard to the situation contemplated by Clause (a) there was no discretion; the revising or appellate authority had to grant Bhagat Ram the full salary and full allowances and the authority had to determine by a separate order only the nature of the allowances. It was pointed out that this would be clear by bearing in mind the words used in Clause (b). It was contended that a discretion was only Tested In the authority in regard to those cases Where the acquittal was held not to be 'honourable'. It was contended that the word 'may' in the rule had been used only to indicate "the empowering" of the authority and not to indicate that the authority had vested in him a discretion in the matter. Reliance was placed by Mr. Ghatak on the case of Guran Ditta v. T. R. Ditta 1935 All LJ 251: (AIR 1935 PC 12) (A), where their Lordships of the Privy Council, while interpreting the word 'may' in Section 144 of the Code of Civil Procedure, had said that the word 'may' there was used In the sense of empowering and not in the sense of conferring a discretion. It is no doubt true that the rules of interpretation permit the interpretation of the word, 'may' in certain context as 'shall' and vice versa, namely, permit the Interpretation of 'shall' as 'may'. The scheme of the rules, in the present case, appears to support the contention put forward by Mr. Ghatak. If the intention of the framers of the rules had been otherwise, then, in my view, this rule would have been worded differently. This question, which was raised, really did not arise on the facts of the case before me, for here, as I have already pointed out, the authority, competent to make the order, had actually made an order on the appeal of Bhagat Ram that he was to get full pay and allowances and that his period of suspension was to be treated as a period spent on duty.