K.Nath - (1.) THIS is an application under the Contempt of Courts Act. The prayer is to punish the opposite parties, who are officers of the Northern Railway, on the ground that they have disobeyed the judgment dated 12-3-79 of a Division Bench of this Court.
(2.) THE circumstances in which the application has been filed may be stated briefly. Writ petitions No. 626 of 1971, 443 of 1970 and 1046 of 1970 were filed by Sardar Husain (since dead and now represented by his heirs), Bhagwati Prasad Pandey and Ram Kumar Dubey respectively. THEy were decided by a common judgment on 7-11-74 by an Hon'ble Single Judge, Hon'ble Mr. Justice O. P. Trivedi. Sardar Husain, Bhagwati Prasad Pandey and Ram Kumar Dubey were employees of the Railway in the Running Cadre and were transferred to the Stationary Cadre respectively on 17-3-56, 25-3-55 and 11-7-59. Their grievance concerned the fixation of their salary in the Stationary Cadre and consequently benefits thereof. At pages 5 and 6 of the judgment of the Hon'ble Single Judge the substance of the dispute was described as follows :- " On these facts and allegations, the 3 petitioners prayed for a mandamus to direct the railway authorities to re-fix their officiating pay in Stationary Cadre according to Rules applicable to them and to pay such arrears of salary as may upon such re-fixation be found due. They further prayed that the opposite parties may be directed to grant benefit consequently to the re-fixation of their salary according to the Rules in the matter of provident fund, gratuity, leave and average pay and pension etc. " The substance of the decision of the Hon'ble Single Judge appearing at pages 62, 63 and 65 of the judgment is that officiating pay of the petitioner in officiating appointments to Stationary posts was not fixed according to correct Rule, that consequent to the re-fixation of their pay for the period of their officiating appointments in Stationary posts and substantive appointment on confirmation, they were entitled to arrears of pay, if found due, and that their pension and gratuity ought to be calculated in that light. One of the finding as recorded was that running allowance which the petitioners used to draw on their running posts was not part of pay for the fixation of their salary in the stationary post. It was held (at page 63) that the claims of arrears of salary would ordinarily be barred by law of limitation except for the period of 3 years next before filing of those writ petitions. A hope in the matter of time barred arrears was, however, expressed at page 65 in the following words :- " In these circumstances the weight of equities appears to tilt the balance heavily in favour of these petitioners and I can only express the hope that Union of India on the balance of equities of these cases shall be able to see its way to payment of arrears of salary to the petitioners for such period as it may consider to be just inspite of the bar of the law of the limitation. "
(3.) THE matter figured before a Division Bench of the Court consisting of Hon'ble U. C. Srivastava and Hon'ble K. N. Goyal, JJ. in the form of 3 special appeals filed by the Union of India in the 3 petitions and 2 special appeals filed by Bhagwati Prasad Pandey and Ram Kumar Dubey. In addition thereto, the writ petitions filed in the year 1975 by the applicants, other than the three petitioners referred to above, also came up for hearing before that Division Bench. Judgment of the Division Bench was rendered on 12-3-79. THE matter in all the appeals and writ petitions under consideration of the Division Bench was stated at page 9 of the copy of judgment as follows :- " THE main point which arises for consideration in the special appeals and writ petitions is whether pay includes the running allowance in the case of running staff and to what extent they are entitled to the same in the case they are transferred or (sic) to a stationary post. " At page 11 the Division Bench held that running allowance is computed towards average pay and that it could not be denied that it is a part of the same. At page 12 the following view was expressed :- " THE pay of such employees of running cadre is thus to be calculated in accordance with the relevant rules, a reference to which will be made hereinafter, and is not mere allowance payable only while holding a running post, as has been held by the learned Single Judge. " Dealing with the question of the extent to which running allowance may be treated as pay for fixation of pay in the stationary posts, the Court referred to Rules 2017, 2018-B and 2027 (2) of the Indian Railway Establishment Code Volume-II para 11 page 9 of Indian Railway Establishment Mannual, letters dated 1-7-49, 1-4-58, 16-8-61 and 17-12-63 of the Railway Board and a decision of the President of India published in Gazette dated 16-8-81 and held at page 21 that the " running staff entitled to 50 percent of the running allowance towards the pay which is to be calculated in accordance with the Rules. ";