Central Administrative Tribunal - Madras
B Ramadoss vs M/O Railways on 10 November, 2023
1 OA No.310/01319/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01319/2019
Dated this Friday, the 10th day of November, Two Thousand Twenty
Three
CORAM :
HON'BLE MR M. SWAMINATHAN JUDICIAL MEMBER
B. Ramadoss,
Tech. Gaade-II(Retd).(Token No.540),
(P.F.No.04735950),
SSE/EMU/Tambaram,
Chennai Division,
Southern Railway. .. Applicant
By Advocate M/s Karthik Jagannath & Venkata Seshaiya
Vs.
1.Union of India
rep by the General Manager,
Southern Railway,
Park Town, Chennai.
2.The Divisional Railway Manager,
Chennai Division,
Southern Railway,
Chennai.
3.The Senior Divisional Personnel Officer,
Chennai Division,
Southern Railway,
Chennai. .. Respondents
By Advocate Mr. M. Kishore Kumar, SPC
2 OA No.310/01319/2019
ORAL ORDER
(Pronounced by The Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
"to call for the records related to conferment of Temporary Status to the applicant and to direct the respondents to re-fix the applicant's basic pay with effect from 21.03.1980 and consequently re-fix the applicant's pension benefits with all attendant benefits as in the case of Shri S. Tirunavukkarasu and to pass such further or other orders as this Hon'ble Tribunal may deem fit and thus render justice."
2. Brief facts of the case as submitted by the applicant are as follows:
The applicant was engaged on 21.11.1979 as a Casual Labourer in the office of the PWI/SW at Tambaram in Chennai Division in Southern Railway and completed 120 days on 20.03.1980 but conferred with Temporary Status w.e.f. 01.01.1983. He was extended with daily rate of pay instead of monthly scale of pay that was provided to Open-Line Casual Labourers. While so, one similarly person like the applicant , S. Thirunavukkarasu has sought judicial intervention and the Hon'ble High Court of Madras in W.P.No.8972 of 2006 allowed the claim made by the said S. Thirunavukkarasu and the said order was implemented vide letter dated 09.03.2010 in which S. Thirunavukkarasu's pay was refixed. Based 3 OA No.310/01319/2019 on the orders of the Hon'ble High Court of Madras, the applicant has made a representation dated 03.10.2018 for refixation of pay w.e.f 21.03.1980 and consequently revise his pension. However, the respondents have declined to grant the claim made by the applicant. Hence, the applicant has filed the OA for the aforesaid relief.
3. In support of his contention, the applicant has placed reliance upon the orders passed by the Hon'ble High Court of Madras in the matter of S. Thirunavukkarasu in W.P.No.8972 of 2006 dated 14.07.2006 which was implemented by the respondents, vide order dated 09.03.2010 and also the order dated 14.08.2012 in W.P.No.19621 of 2021 & batch in the matter of Kamala Kannan & Ors. V.S. UOI and Ors.
4. The respondents have filed a detailed reply statement. At the outset, they have submitted that the Casual Labour in the Indian Railways was divided into three categories namely Open Line Casual Labour, Project Casual Labour and Seasonal Casual Labour. The Open Line Casual Labourers were granted Temporary Status on completion of 180/120 days of their continuous employment and they were treated on par with temporary employees for certain privileges such as DA,HRA, CCA, monthly rate of pay in CPC scale and leave etc. As the period of service of the Open Line Casual Labourers after they attained Temporary Status 4 OA No.310/01319/2019 on completion of 120 days were not counted for qualifying service, the Railway Board by order dated 14.10.1980 decided to grant Temporary Status to the Casual Labourers other then Project Casual Labourers and the concession of counting half of the service from the date of Temporary Status till regular absorption was granted by the Ministry of Railways.
However, the Project Casual Labourers were left out of this order and on the basis of judgment of the Hon'ble Supreme Court in the case of Inder Pal Yadav and others Vs. Union of India (1985 SCC(L&S) 526, the Ministry of Railways came up with a Scheme for grant of Temporary Status to the Project Casual Labourers also and the same was accepted with a modification by the Hon'ble Supreme Court of India. The applicant herein who was engaged as Project Casual Labour on 21.11,1979 was granted Temporary Status with effect from 01.01.1983 in accordance with the scheme in Inderpal Yadav's case, Therefore, his representation for refixation of pay for granting Temporary Status on completion of 120 days on 21.03.1980 in untenable in law and on facts also. The respondents have further stated that the reliance placed by the applicant in the case of S.Thirunavukkarasu is not similar to that of the applicant and that they prayed for dismissal of the OA on the ground of delay and laches. In support of their contention, they have relied upon the orders passed by the Hon'ble High Court of Madras in W.P. No.23504 of 2008 and W.P. No.4621 of 2015. They have also relied upon the orders of the Tribunal 5 OA No.310/01319/2019 dated 22.04.2019 in OA 1368 and 1355 of 2016.
5. Heard the learned counsel for the parties and perused the pleadings and the materials placed on record.
6. To deal with the issue involved in the matter, it is necessary to quote and emphasize Para No.2501 of the second edition of the Indian Railway Establishment Manual IREM as under:
"a) Staff paid from contingencies and who continue to do the same work or other work of the same type for more than 6 months without a break. Such labourers were to be treated as temporary labourers after 6 months of continuous employment.
b) Labour on projects, irrespective of duration, but not transferred from other temporary or permanent employment.
c) Seasonal labour sanctioned for specific works for less than 6 months. However if they work for over 6 months continuously then such labourers shall also be treated as temporary."
7. The Hon'ble High Court of Madras has dealt with similar issue in W.P. No.13807 of 2013, The relevant paras from the judgment of the Hon'ble Madras High Court dated 30.08.2019 in the said W.P. are extracted hereunder:
"8. It appears that though the Casual Labourers had been brought into the temporary status the services rendered by them prior to that was not taken into account for pensionary benefits. Consequently a group of them had originally filed W.P.No.2554 of 2002 to treat them as Open Line Casual Labours and grant them all the benefits that were available to such labourers. The services was however not taken note of and representations were given by the Casual Labourers and to this the Railway had stated that these labourers were not the Open Line Casual Labourers but were employed on a project basis and was therefore only 6 OA No.310/01319/2019 Project Casual Labourers. Therefore the services rendered by them cannot be taken note of.
9. This stand taken by the Railways prompted the various applicants to initiate the proceedings against the Union of India as well as the Indian Railways. The first of such application was moved in O.A.No.59 of 2005 by a group of persons for counting 50% of their service after completion of 4 months from the date of their respective initial employment as Casual Labourers with full retiral benefits and post retiral benefits. The application was moved before the Central Administrative Tribunal, Madras Bench. However by order dated 29.11.2005 the application was dismissed on the ground that the petitioners were Project Casual Labourers and therefore cannot seek to have their service counted.
10. Meanwhile, some of the Casual Labourers filed W.P.No.2554 of 2002 and 1351 of 2004, wherein, the Railway had also taken out a defense that the petitioners were Project Casual Labourers and was therefore not entitled to the benefit. However, by order dated 11.10.2007, the Division Bench of this Court was pleased to allow the Writ Petitions. The Bench had observed that though the Railways had taken out a stand that the labourers were Project Casual Labourers, however, on perusal of the records it can be seen that the petitioners therein were engaged for doing regular work. Therefore the contention of the Railways that the DST/W were not engaged on day-to-day works (open-line) is totally false and contrary to the findings rendered by the Ernakulam Bench of the Central Administrative Tribunal.
11. The Bench had relied upon the order passed by the Ernakulam Bench of the Central Administrative Tribunal in O.A.No.849 of 1990 where similarly situated persons were given the benefits for. The Bench had also observed that the work entrusted and discharged by the petitioners would clearly show that their service had not been engaged for the project but they have been continuously working. This order of the Bench was upheld by the Honourable Supreme Court in S.L.P.Nos.13015 to 13016 of 2008.
12. The various applicants before the Central Administrative Tribunal, Madras Bench relying upon this Judgement of the Division Bench which was confirmed by the Honourable Supreme Court made applications to the Railways to extend the same benefits to them. However by a one line order dated 12.04.2011, 25.04.2011 21.06.2011 and 24.06.2011 the Railways had rejected the requests on the ground that the order passed in W.P.No.2554 of 2002 and W.P.No.1351 of 2004 would apply only to the petitioners therein. It is this order that was challenged by the various applicants before the Central Administrative Tribunal, Madras Bench in the various Original applications.
13. The Railways had filed a reply inter alia contending that the applicants were not entitled to the relief as they were all Project Casual Labourers and not Open Line Casual Labourers. They would contend that Open Line Casual Labourers were treated as temporary labourers after completion of 6 months of continuous employment and stood on a totally different plane from the Project Casual Labourers. In the 7 OA No.310/01319/2019 reply they would further submit that the grant of temporary status to Project Casual Labourers came into effect only on basis of the order in the Inder Pal Yadav's case. In the scheme floated on 11.09.1986 the railways decided to confer temporary status on the Project Casual Labourers if they had completed 360 days of continuous employment. This scheme detailed the persons who would come within its ambit. The Railways would further contend that the register issued to all the applicants would clearly demonstrate that they had worked only as Project Casual Labourers.
14. In the year 1987, the Railways had issued several office memoranda to the applicants granting and refixing the pay scale from 01.01.1981, terming them as Project Casual Labourers. The reply would further state that the facts of case in W.P.No.2554 of 2002 and W.P.No.1351 of 2004 would not apply to the applicants herein.
15. The Tribunal after take into consideration the actual service rendered by the applicants and the earlier order in W.P.No.2554 of 2002 and W.P.No.1351 of 2004 allowed all the original applications barring two. The applications in O.A.No.1393 of 2011, O.A.No.41 of 2013 and R.A.No.16 of 2015 were not dismissed only on the ground of laches. Challenging all these orders the respective Writ Petitioners are before this Court.
16. The stand of the Railways is that the applicants before the Central Administrative Tribunal, Madras Bench are the Project Casual Labourers and that the orders in W.P.No.2554 of 2002 and W.P.No.1351 of 2004 will not apply to them, since they were Project Casual Labourers. As stated herein above, the IREM describes Casual Labourers and the procedure for absorption of these Casual Labourers. The IREM also describes the same / other work of same type in its manual. The Identity card that has been filed in the typed set of papers would clearly indicate that the same is Identical to the card as described in the annexure I of the IREM paragraph No.2513. A perusal of this card would clearly indicate that the applicants were not engaged for projects but they had been doing the regular work continuously.
17. That apart the similarly placed persons have obtained the benefit of 50% of their temporary service being counted for pensionary benefits. The petitioners in W.P.No.2554 of 2002 and W.P.No.1351 of 2004 were also engaged in the very same department as that of the applicants herein which would clearly show that the Writ Petitioners were not engaged in a project but were doing a regular work in the Railways. The order of the Ernakulam Bench of the Central Administrative Tribunal in O.A.No.849 of 1990 has been upheld by the Honourable Supreme Court. The order in W.P.No.2554 of 2002 and W.P.No.1351 of 2004 have also been confirmed by the Honourable Supreme Court.
18. The argument of the learned Senior Counsel appearing on behalf of the Railways that the order would only apply to the parties to those Writ Petition alone is fallacious. The parties are all similarly placed and there cannot be a different yard stick being adopted for persons similarly placed.
8 OA No.310/01319/201919. In the Judgment in 2011 (4) SCC 374 BSNL vs.Ghanshyam Dass & Others, the Hon'ble Supreme Court has held that in the case of an order which is applicable to all similarly placed persons there was no necessity for each and every one of them to move to the Court as the order would cover all such persons.
20. The 2 original applications were dismissed by the Tribunal below on the ground of laches. The Honourable Supreme Court in its Judgement in (2015) 1 SCC 347 State of Uttar Pradesh and other Vs. Arvind Kumar Srivastava and others has held that the question of laches would not apply to cases were the Judgements pronounced by the Court was Judgement in rem with intention to give benefit to all the similarly situated persons irrespective of whether they had approached the Court or not. This observation would clearly apply to the facts of the case in W.P.Nos.12807 of 2013 and 23598 of 2016.
21. In view of the above, the Writ Petition in W.P.Nos.20411, 24808 to 24812 of 2013, 35585 to 35588 of 2016 are dismissed by confirming the order passed by the Central Administrative Tribunal, Madras Bench. The Writ Petitions in W.P.Nos.12807 of 2013 and 23598 of 2016, are allowed and the order passed by the Central Administrative Tribunal, Madras Bench is set aside.
22. The Railways is therefore directed to count the temporary services prior to the absorption of the applicants for the purpose of calculating their pensionary benefits. Such exercise shall be completed with a period of 3 months from the date of receipt of a copy of the order. No costs."
8. The relevant paras from the judgment of the Hon'ble Madras High Court in WP No.8972 of 2006 dated 14.07.2009 relied on by the applicant are extracted hereunder:
3.The stand of the respondents before the Tribunal was that based upon the judgment of the Apex Court in Inder Pal Yadav v. Union of India (1985 SCC (L&S) 526), a scheme was formulated by the Ministry and as per the Railway board's order dated 11.09.1986, the Casual Labour on projects, who have completed 360 days but less than three years of service as on 01.01.1981, were given temporary status w.e.f 01.01.1983.
It is the specific stand of the respondents that since the petitioner comes under the aforesaid category, he was conferred with temporary status w.e.f 01.01.1983.
5.Learned counsel for the petitioner has contended that the intermittent breaks given by the Railways are only artificial and they have been given only in order to prevent the petitioner from conferring temporary status. He has further contended that the Tribunal has failed to consider the nature of job as a Project Casual Labourer and Open Line Casual 9 OA No.310/01319/2019 Labourer as both the works are same and there is no difference and interchangeable. He has further contended that a Division Bench of the High Court in WP No.2554 of 2002 has considered the nature of job between the aforesaid two categories and came to a conclusion that both the categories are interchangeable and, therefore, the order of the Tribunal should be set aside and the petitioner should be given temporary status from1977.
7.Learned counsel for the petitioner brought to the notice of this Court that the person who is working in the open line for 120 days, was granted temporary status from the date of his engagement and it is not that merely because the petitioner is working in construction project, he has to complete 360 days for getting temporary status.......................
9.Even as per paragraph 2 of t he counter, it is the admitted case that the petitioner is working from 1977 and the respondents have given artificial breaks only to deprive them the regular service. Considering the above stated facts and circumstances of the case and the previous judgment of the Division Bench of this court (wherein myself was member) dated 11.10.2007 in W.P.Nos.2554 of 2002 and 1351 of 2004, after following the judgment of the Hon'ble Supreme Court in Inder Pal Yadav and others v. Union of India and others [1985 (2) SCC 648] and also Robert D'Souze v. Executive Engineer, Southern Railway and another [1982 SCC (L&S) 12], it was held that the construction or project and the open line are interchangeable. Therefore, the objection raised by the respondents that the petitioner who was working in project wing, is not eligible for grant of temporary status compared to one Gopal, who was conferred temporary status on completion of 120 days. It has already been pointed out in the above Division bench judgment that the respondents are taking inconsistent stand depending upon the facts of the case to suit their convenience. Moreover, we are informed that against the above said Division bench judgment, SLP filed in (Civil) C.C.Nos.13015 & 13016 of 2008 were dismissed by order dated 26.09.2008.
Taking into consideration the Division bench decision on the point and the peculiar facts and circumstances of the case, we hold that the petitioner is entitled for grant of temporary status from 26.09.1977 with consequential benefits. The writ petition is allowed............."
9. Though the respondents have vehemently opposed in the reply statement that S.Thirunavukkarasu's case is not similar to that of the applicant, it is to be seen that S.Thirunavukkarasu was also engaged as a Project Casual Labour in a Construction Project. The same plea has been taken by the respondents in the matter of S.Thirunavukkarasu also that he 10 OA No.310/01319/2019 was a Project Casual Labour and not Open Line Casual Labour and hence he was not entitled for the relief. Dealing with the said statement at Para 9, the Hon'ble High Court of Madras has taken into consideration the orders passed by the Hon'ble Supreme Court in the matter of Inder Pal Yadav and others v. Union of India and others [1985 (2) SCC 648] and also Robert D'Souze v. Executive Engineer, Southern Railway and another [1982 SCC (L&S) 12], and it was held that the construction or project and the open line are interchangeable. Therefore, the objection raised by the respondents that the petitioner who was working in project wing, is not eligible for grant of temporary status compared to one Gopal, who was conferred temporary status on completion of 120 days. It has already been pointed out in the above Division bench judgment that the respondents are taking inconsistent stand depending upon the facts of the case to suit their convenience. Moreover, we are informed that against the above said Division Bench judgment, SLP filed in (Civil) C.C.Nos.13015 & 13016 of 2008 were dismissed by order dated 26.09.2008. Taking into consideration of the above said facts, that the Hon'ble High Court of Madras has allowed the case of S.Thirunavukkarasu and declared him entitled for grant of temporary status from 26.09.1977 with consequential benefits and the said order has been implemented by the respondents, vide order dated 09.03.2010.
11 OA No.310/01319/201910. It is to be seen that in the matter of Kamala Kannan & Ors v. UOI & Ors in WP No.19621 of 2011 & Batch, the Hon'ble High Court of Madras in its order dated 14.08.2012 has relied on the order passed in WP.No.8972 of 2006 dated 14.07.2009 passed in the case of S.Thirunavukkarasu and allowed the Writ petition by setting aside the order passed by this Tribunal and granting the relief prayed by the petitioners therein. Subsequently also, the Hon'ble High court by order dated 30.08.2019 in WP No.12807/2013 & Batch while allowing the WP filed by the employee extended similar benefit to the petitioner therein and on the other hand dismissed the WP filed by the respondent department.
Reliance has been placed by the respondents upon contradictory orders passed by this Tribunal which has been confirmed by the Hon'ble High court of Madras. It is seen that while considering the said cases, the court has only differentiated the Project Casual Labours and Open Line Casual Labours. However, it is to be noted that the stand taken by the respondent department is that the order passed in the case of S.Thirunavukkarasu is not applicable to the present case since the applicant is not similarly situated like S.Thirunavukkarasu. However, from a bare perusal of the said order, it is clear that it is similar to the applicant's case. It is also to be noted that the Railway has taken the stand that since the order has been passed in the particular case it will apply to that party only. However, the said issue has been dealt with by the Hon'ble High Court of Madras in its 12 OA No.310/01319/2019 order dated 30.08.2019 in WP No.12807/2013 at para 18, 19 & 20 which reads thus:
18. The argument of the learned Senior Counsel appearing on behalf of the Railways that the order would only apply to the parties to those Writ Petition alone is fallacious. The parties are all similarly placed and there cannot be a different yard stick being adopted for persons similarly placed.
19. In the Judgment in 2011 (4) SCC 374 BSNL vs.Ghanshyam Dass & Others, the Hon'ble Supreme Court has held that in the case of an order which is applicable to all similarly placed persons there was no necessity for each and every one of them to move to the Court as the order would cover all such persons.
20. The 2 original applications were dismissed by the Tribunal below on the ground of laches. The Honourable Supreme Court in its Judgement in (2015) 1 SCC 347 State of Uttar Pradesh and other Vs. Arvind Kumar Srivastava and others has held that the question of laches would not apply to cases were the Judgements pronounced by the Court was Judgement in rem with intention to give benefit to all the similarly situated persons irrespective of whether they had approached the Court or not. This observation would clearly apply to the facts of the case in W.P.Nos.12807 of 2013 and 23598 of 2016.
11. Since the issue involved in this matter is covered by various orders of this Tribunal confirmed by the Hon'ble High Court and attained finality before the Hon'ble Supreme Court, the present applicant is entitled for the relief prayed for in this OA. Further, an identical relief sought for by the applicant in the OA 1628 of 2023 has been allowed by this Tribunal on 03.02.2023. Following the said order also, the present the OA needs to be allowed. The respondents are directed to refix applicant's basic pay with effect from 21.03.1980 with all the attendant and consequential benefits as granted in the case of Shri S.Tirunavukkarasu. This exercise shall be done within a period of 3 months from the date of receipt of 13 OA No.310/01319/2019 certified copy of this order.
12. The OA is allowed as above. No order as to costs.
(M. SWAMINATHAN)
mas MEMBER(J)
10.11.2023