R.P. KAPUR versus UNION OF INDIA AND ORS.

Citation: [1999] SUPP. 1 S.C.R. 121 · Decided: 09-08-1999 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed

Judgment (excerpt)

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R.P. KAPUR 
v. 
UNION OF INDIA AND ORS. 
AUGUST 9, 1999 
[DR. A.S. ANAND, C.J., M. JAGANNADHA RAO AND 
N. SANTOSH HEGDE, JJ.] 
Service Law : 
A 
B 
Railway Services (Pension) Rules, 1993: Rules 37, 49 and 50. 
C 
Pension-Fixation of-Criteria-Average emoluments-During last JO 
months of service-Employee compulsorily retired while under suspension-
Subsistence allowance paid during suspension period-Suspension period 
also counted towards qualifYing service for pension-During suspension 
period basic pay was enhanced-But pension was fixed on the basis of D 
average emoluments drawn by employee for JO months prior _Jo his 
suspension-Correctness of -Held: Jn the circumstances of the case, 
subsistence allowance drawn during the JO months preceding retirement is 
to be taken as "average emoluments" and not that drawn prior to 
suspension-Hence, subsistence allowance @ 75% of basic pay in the revised E 
pay scale is to be taken as "emoluments" for fixation of pension-Railway 
Services (Revised Pay) Rules, 1986-Railway Establishment Code, R. J303. 
Rule 50 Note I and proviso-Compulsory retirement-While under 
suspension-Applicability of-Held: Note I is applicable when employee 
under suspension is reinstated-It is not applicable when employee· is p 
compulsorily retired while under suspension-Therefore, proviso to Note I 
is also not applicable. 
Words and Phrases: 
"Emoluments "-Meaning of -Jn the context of R. 49 of the Railway G 
Services (Pension) Rules, 1993. 
"Average Emoluments "-Meaning of -Jn the context of R. 50 of the 
Railway Services (Pension) Rules, 1993. 
"Subsistence allowance "-Meaning of 
121 
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122 
SUPREME COURT REPORTS (1999) SUPP. I S.C.R. 
A 
. The appellant-railway employee was placed under suspension on 21-1-
1982 and compulsorily retired from service w.e.f. 25-11-1992. However, the 
President granted subsistence allowance to ·the appellant during the 
suspension period and it was allowed to count as qualifying service for 
pension but for no other purpose under Rule 37 of the Railway Services 
B (Pension) Rules, 1993. The appellant's pension was fixed on the basis of the 
average emoluments drawn by him during the 10 months preceding the date 
of his suspension i.e. 21-1-1982. 
The appellant filed a petition before the Central Administrative Tribunal 
contending that there was notional revision of his pay w.e.f. 1-1-1986; that 
C he was granted subsistence allowance at the rate of75% of the revised pay; 
and , therefore, the subsistence allowance drawn by him during the 10 
months preceding his compulsory retirement should be taken as his 
emoluments for the purpose of fixing his pension. The petition was dismissed. 
Hence this appeal. 
D 
On behalf of the appellant it was contended that the appellant had not 
E 
actually drawn the pay in the revised scale and, therefore, the revised pay 
could not be taken into consideration for the purpose of average emoluments 
under Notes 1 and 2 of Rules 50 of the Rules. 
Allowing the appeal, this Court 
HELD: 1. The contention of the respondent that the appellant had not 
actually drawn the revised pay but only subsistence allowance and, therefore, 
the revised pay could not be taken into consideration for the purpose of 
average emoluments under proviso to Note 1 of Rule 50 of the Railway 
Services (Pension) Rules, i993 is not acceptable. Note 1 does not apply in 
F this case. Note 1 is applicable to a railway servant when he is reinstated 
whereas the appellant was not reinstated. Therefore, proviso to Note 1 is also. 
not applicable in this case. However, the proviso to Note 1 means that increase 
in pay not actually drawn i.e. which is. only notionally fixed but without a 
right for payments, cannot go into the computation. (131-B-C) 
G 
E. Gopalakrishna v. Union of India, [1995) Supp. 4 SCC 205, referred 
to. 
2. Note 2 does not also apply in this case since the suspension period 
is to be disregarded only if such period is not to count as service. The words 
H 'the period whereof does not count as service' occurring in Note 2 are 
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R.P. KAPUR v. U.0.1 
123 
important and have to be given effect to. The respondents have obviously A 
ignored the said word 'not' occurring in Note 2 and clearly misi_nterpreted 
the said Note 2 below Rule 50. In the case of the appellant the President's 
order clearly states that the period of suspension is to count towards 
"qualifying service". If the President, as the Disciplinary Authority, has 
directed

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