Central Administrative Tribunal - Ernakulam
N. Soman vs Union Of India on 3 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO.876/2009
Dated this the 3rd day of February, 2011
C O R A M
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
N. Soman, S/o. Nanu
Retired Trackman
Southern Railway
Mavelikkara. Residing at
"Sheeja Bhavan", Mukkoodu (P.O),
Karippuram, Kollam ..... Applicant
(By Advocate Mr. T.C. Govindaswamy)
Vs
1 Union of India
represented by the
General Manager Southern Railway
Headquarters Office Park Town (P.O), Chennai - 3.
2 The Divisional Personnel Officer
Southern Railway, Trivandrum Division
Trivandrum - 14
3 The Divisional Railway Manager
Southern Railway, Trivandrum Division
Trivandrum - 14 .... Respondents
(By Advocate Mr. Thomas Mathew Nellimoottil)
The Application having been heard on 14.1.2011, the Tribunal delivered
the following
O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant, a retired Trackman of Southern Railway, Trivandrum division, is aggrieved by the refusal of the respondents to reckon a substantial part of his casual service for the purpose of pension and other retiral benefits.
2 The applicant entered service as a Casual labourer of the Construction Organisation of the Southern Railway on 24.7.1973 without break , until he was regularised as Trackman w.e.f. January, 1989 (A-1). For the service rendered beyond 20.7.1986 he was not granted any casual labourer card. Upon superannuation he noticed that his service from 1.12.1984 alone was reckoned to the extent of 50% upto 23.6.88 and in full thereafter. Hence, he submitted representation (A-6). There was no response to A-6. However, on enquiries he was informed that his service prior to 30.11.84 will not be reckoned as the same is treated to be service rendered in a project organisation and that cases of similar persons are pending before the Tribunal and that his case would be considered depending upon the final outcome of the said cases. However, he noticed that the service of casual labourer in Construction organisation has been reckoned as qualifying for the purpose of pension. Hence he submitted representation to the 2nd respondent (A-7) As there was no response he filed this O.A for a declaration that he is entitled to reckon 50% of the service rendered by him between 5.6.1978 and 30.11.1984 also as qualifying for pension and other retirement benefit and for recalculation of the pension etc. and disbursement of the same to the applicant.
3 The respondents opposed the O.A by filing reply statement. They stated that the applicant is not aggrieved by any of the orders of the respondents, O.A is hit by delay, acquiescence and laches applicant's initial service as Casual Labourer from 27.3.1973 was retrenched on 25.1.1977 on account of closure of project due to completion of project. He was re-engaged on 6.12.1977 and that his casual labourer service was not continuous. He was granted temporary status from 1.1.1984. Therefore, 50% of the service from 1.1.1984 to the date of his regularisation has been counted while calculating pensionary benefits. Hence, he was not entitled for counting of his past casual service as qualifying service for pension as per extant rules. 4 The applicant has filed rejoinder reiterating that he was not a Project casual labourer and that he was entitled to be regularised in service six months from 6.12.1977 and he should be deemed to have the status of a temporary status employee by operation of Para 2501 of IREM vol. I. He has also produced the order of this Tribunal in O.A. 541/2009 in support of his case. 5 The respondents filed additional reply statement stating that the applicant has not completed five years service on 1.1.1981 to get the benefit of as per Railway Board's letter RBE No. 167/1986 dated 11.9.1986 issued on the basis of the decision in Inder Pal Yadav's decision.
6 I have heard the parties and perused the documents.
7 The applicant contends that he is entitled to reckon 50% of his casual service rendered by him between 5.6.1978 and 30.11.1984 also as qualifying for pension and other retirement benefits. The contention of the respondents is that there is break in service, therefore, the service cannot be reckoned for the purpose of counting 50% of the service for pension. The applicant has also relied on the order of this Tribunal in O.A. 541/2009 which is a similar case allowed by the Tribunal. In that case the Tribunal held as follows:
"10. The issue to be settled is whether the casual service rendered by the applicant prior to 05.051979 is liable to be treated as qualifying service for pension and other retirement benefits. The applicant relies on Para 2501 of IREM, which is reproduced as under :
"2501 . Definition :- CASUAL LABOUR
(a) Casual labour refers to labour whose employment is seasonal, intermittent,
sporadic or extends over short periods. Labour of this kind is normally recruited from the
nearest available source. It is not liable to transfer, and the conditions applicable to
permanent and temporary staff do not apply to such labour.
(b) The casual labour on railways should be employed only in the following types of
cases, namely :-
(i) Staff paid from contingencies except those retained for more than six months continuously : Such of those persons who continue to do same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of six months of continuous employment.
(ii) Labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment.
(iii)Seasonal labour who are sanctioned for specific works of less than six months duration. If such labour is shifted from one work to another of the same type, e.g. Relaying and the total continuous period of such work at any one time is more than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. For the purpose of determining the eligibility of labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers."
Rule 2501 (b)(i) clearly states that even where staff is paid from contingencies, they would acquire the status of temporary Railway servants after expiry of 6 months of continuous employment. The casual labour service card produced at Annexure A-1(2) , A-1(6) and A- 1(8), the following particulars are shown:
"SOUTHERN RAILWAY CASUAL LABOUR CARD OFFICE / DEPARTMENT : ENGINEERING / CONSTRUCTION"
The casual labour card shows that the applicant was a casual labour of Southern Railway in the Engineering/Construction wing. It does not describe him as a casual labour employee in a project. There is no reference to project at all in the casual labour card. The construction unit is a regular unit all over Indian Railways. Construction unit being a permanent unit, it cannot be equated to a project. If the applicant was a project casual labour, his service could have been dispensed with on completion of the project in which he was engaged. Therefore, the applicant is not a project casual labourer but a casual labourer of the Railway covered by Para 2501(b)(i).
11. Contrary to the provisions of para 2501 that the person belonging to casual labour cannot be transferred, the applicant was transferred on a number of occasions. The very fact that he was transferred from place to place shows that he, like a Railway servant was being transferred. In Writ Petition No. 33412 of 2005, the Hon'ble High Court of Kerala affirming the decision of this Tribunal in OA No. 253/2004 held as under :
"7. We considered the rival contentions. We notice that the applicant was transferred from Quilon to Mavelikkara. If he was a Project Casual Labourer there will normally be no such transfer. Project Casual Labourers are locally recruited and once the Project Construction Work is over, they will be retrenched. They have no right to absorption and they were not liable to be transferred also. In this case, we also notice that the applicant has been transferred to the control of the Permanent Way Inspector, Open Line, Mavelikkara, Southern Railways as evidenced from Annexure A-1 Service Card of the applicant produced alongwith the Original Application which gives the details of engagement of the applicant. If the applicant was a Project Casual Labourer, he would have continued as such and could aspire for temporary status or absorption only in the light of the judgement in Inder Pal Yadav v. Union of India [(1985) 2 SCC 648]. The construction work is available under the Construction Wing of the Railways and also in Projects. Engagement of the Casual Labourers for the construction work in projects will not be engagement under the Construction Wing. Going by the special facts of this case like the transfer of the applicant to the open line in 1975 and thereafter, absorption, we feel that the claim of the applicant that he was working in the construction wing and not employed in the construction work in the Project Wing, has to be upheld. Learned counsel for the Railways took us through the decision of the Apex Court in Union of India v. K.G. Radhakrishna Panickar [(1998) 5 SCC 111]. Learned counsel pointed out that the casual labourers employed in construction work on Projects shall also be treated as Project Casual Labourer. But engagement of casual labourers under the Construction Wing are distinct and different. So, the above decision of the Apex Court cannot have any application to the facts of the present case. Further, the distiction between the facts of this case and the facts of Robert D'souza's case which the learned counsel for the Railways has brought to our notice is not of much consequence. In Ext. P1, though the applicant is described as a Project Casual Labourer working in a Project, the earlier actions of the Railways transferring the applicant to the open line Wing in Mavelikkara and thereafter his absorption, would belie the contentions of the Railways. The nomenclature given to the applicant in an order cannot take away the rights admissible to him on engagement under the Construction Wing of the Railways and later, in the Open Line. Therefore, we are of the view that on the facts of this case, the decision of the Central Administrative Tribunal has to be upheld.
8. In the result, the Writ Petition fails and it is dismissed."
Earlier decision of this Tribunal in OA No. 808/1997 was also affirmed by the Hon'ble High Court in O.P. No. 20772/1999.
12. The present O.A. is identical to the O.A. Nos. 12/2008, 23/2008, 269/2004, 606/2005, 273/2007 and 238/2007 besides O.A. Nos. 808/1997 and 253/2004. The O.A. Nos. 280/2006 and 730/2007 cited by the respondents are not identical to the present case. In O.A. No. 280/2006, the controversy is regarding the date of temporary status granted to the applicant and there were a number of discrepancies in the entries made in the labour card. In O.A. No. 730/2007, the grievance is that 50% of the casual labour service of the applicant therein after acquiring temporary status till the regularisation of his service in Group- D post was not counted for determining his qualifying service for the purpose of pension and the applicant was guilty of suppressing a material fact. The applicant in the present O.A. has continuous service from 21.07.1971 to 04.05.1979. The entries in his labour card is above dispute. He is similarly placed as the applicant in identical case aforementioned. Mere admission of SLPs in the Apex Court does not unsettle the orders of lower courts. Therefore, judicial propriety demands that the present O.A. should be allowed as per the decisions in identical cases.
13. In view of the above, we hold that the service rendered by the applicant prior to 05.05.1979 is liable to be treated as qualifying service for pension and other retirement benefits. Accordingly, it is ordered as under :
14. The respondents are directed to revise and pay the applicant pension and other retirement benefits duly reckoning 50% of casual labour service rendered by the applicant between 21.01.1972 to 04.05.1979 and further to grant arrears of retirement gratuity and other allowances on that basis within a period of 60 days from the date of receipt of a copy of this order.
15.The O.A. is allowed as above with no order as to costs.
I have perused the casual labour records produced by the applicant. I notice that the applicant has continuous service w.e.f. 24.7.73 to 25.1.1977 then from 6.12.1977 to 20.7.1986. Therefore, following the order in O.A. 541/2009 I allow the O.A and declare that the applicant had continuous service w.e.f. 6.12.1977 to 20.7.1986 Therefore, he is entitled to count 50% of the service from 5.6.1978 to 30.11.1984 as qualifying service for the purpose of pension and other retirement benefits. Accordingly, I direct the respondents to verify the original service records and grant consequential benefits thereof and arrears disbursed. This shall be done within three months from the date of receipt of this order There shall be no order as to costs.
Dated 3.2.2011.
(K. Noorjehan) Administrative Member kmn