Central Administrative Tribunal - Allahabad
Mool Chand vs Union Of India on 23 March, 2018
RESERVED ON 07.03.2018
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
This the 23rd day of March, 2018.
PRESENT:
HON'BLE DR. MURTAZA ALI, MEMBER- J.
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER- A
ORIGINAL APPLICATION NO. 330/124/2011
Mool Chand, aged about 52 years, S/o Shri Nankoo, R/o House No.
319/P. Block, Yashoda Nagar, District - Kanpur Nagar and present is
working on the post of Helper-II, Under S.S.E (Works), Headquarter,
N.C.R. Kanpur.
......Applicant.
VERSUS
1. Union of India through the General Manager, North Central
Railway, Head Quarter ,Subedarganj, Allahabad.
2. The Divisional Railway Manager, North Central Railway,
Nawab Yusuf Road, Allahabad.
3. The Divisional Engineer, North Central Railway, Headquarter,
Kanpur.
4. The Assistant Divisional Engineer, North Central Railway,
Head quarter, Kanpur.
5. The Senior Section Engineer (Works), North Central Railway,
Head quarter, Kanpur.
...........Respondents
Advocate for Applicant : Shri A.D. Singh
Advocate for the respondents : Shri Prashant Mathur
ORDER
DELIVERED BY HON' MR. GOKUL CHANDRA PATI, MEMBER- A By way of the instant original application, the applicant has prayed for following main reliefs: -
"i). issue a suitable order or direction in the nature of mandamus and calling for the records to correct the 2 date of appointment of Temporary Status as 15.7.1981 in the Attendance Register / Pay Sheet Register instead of 15.2.1986 of the applicant as per Service Book.
ii). issue a suitable order or direction by way of mandamus directing the respondents to grant the same privilege and benefit of the judgment dated 23.6.2003 passed by the Hon'ble Andhra Pradesh High Court in the case of General Manager, South Central Railway, Railway Nilayam, Secunderabad, A.P and others Versus Shaik Abdul Khader (shown as Annexure No. 6).
iii). issue a suitable order or direction in the nature of mandamus directing the respondents to grant the annual increment and correctly fixed the pay and accordingly make the payment of differences of arrears of pay etc. to the applicant as per entitlement of the temporary status Rule of the Railways dated 20.12.1985 (shown as Annexure No. A-3) with all consequential benefits."
2. The facts of this case as narrated in the OA are that the applicant was appointed by Railways on 7.02.1978 as a 'casual Gangman' and he was given temporary status on 15.07.1981 with the pay scale of Rs. 200-250. Vide letter dated 13.08.1987, his services books were opened mentioning his date of appointment as 15.07.1981 were. Then his services were regularized w.e.f. 30.01.1995 in the post of Khalasi vide order dated 1.06.1994 (Annexure A-5). The applicant made an application on 22.08.2008 (Annexure A-7) for counting half period of his casual service and full 3 period of his temporary status period for entry in the service book in the light of the judgment of Hon'ble Andhra Pradesh High Court in the case of General Manager, South Central Railway vs. Shaik Abdul Khader (Annexure A-6). The applicant's Attendance Register and Pay Sheet Register indicated his date of appointment as 15.02.1986 instead of 15.07.1981. He submitted a representation on 22.08.2009 (Annexure A-9) claiming correction of his date of appointment as mentioned in Attendance and Pay Sheet Registers and to extend the benefits of temporary status rules of the Railway Board vide order dated 20.12.1985 (Annexure A-3). Since no action has been taken by the respondents on his grievance, this OA has been filed.
3. The respondents in their counter reply have mentioned that the applicant was permitted to work under PQRS project w.e.f. 15.07.1981 in the pay scale of Rs. 200-250/-. On completion of the project, the applicant was permitted to work against vacant post under Engineering Department w.e.f. 15.02.1986 as a casual employee in the C.P.C. scale of pay, since he was having the lien with the Engineering Department. He was granted temporary status from 15.02.1986. The railway Board instructions relied on by the applicant for his claim is not applicable in this case as it is regarding granting of temporary status to the casual employees engaged for regular maintenance work in open line and these instructions of Railway Board will not apply to the employees engaged in Projects. It is further submitted that the applicant was regularized 4 w.e.f. 30.12.1995, not from 30.01.1995 as the order at Annexure A-5 would indicate. It is also stated in para 11 of the counter that the Railway Board has issued a letter dated 17.08.2004 (Annexure CR-1 to the counter)for granting service benefit for casual employees, which is extended to the applicant as well. It was reiterated that the date of the applicant getting temporary status (i.e. 15.02.1986) has been correctly mentioned in his service records, based on the date he was given such status by his posting in the open line and his claim in respect of the period he had worked in the Project is not sustainable. The ground that the OA is barred by limitation has also been taken in the counter.
4. Rejoinder affidavit has been filed by the applicant, in which the contentions denying the contentions in the counter. With reference to paragraphs 7, 9, 11 and 12 of the counter, where the points relating to the engagement of the applicant in PQRS Project from 15.07.1981 and his engagement in open line after termination of the Project from 15.02.1986 and non-applicability of Railway Board instructions referred to in the OA in his case are mentioned, the Rejoinder simply denies it by stating that the Railway Board letter dated 17.08.2004 referred by the respondents is not applicable in case of the applicant without explaining the reasons and without any evidence or materials, except for the rule 13 of the Railway Establishment Rules in support of his contentions. 5
5. At the time of hearing, Shri A.D. Singh, learned counsel for the applicant reiterated the contentions of the applicant in the OA and emphasized the point that the applicant was given temporary status w.e.f. 15.07.1981 as per the service record copy attached at Annexure A-2 of the OA and that he was given the benefit of central pay scale w.e.f. 15.02.1986 as noted in Annexure A-2. He also submitted that the Railway Board rules enclosed by the applicant at Annexure A-3 are applicable to the applicant's case. He pointed that the as per existing attendant/pay register, the date of appointment of the applicant has been wrongly mentioned to be 15.02.1986 which should be corrected to 15.07.1981. He submitted that in Suppl. Affidavit dated 01.01.2013, comparison of the applicant with another employee Sri Balak Ram has been given, who was initially appointed after the applicant on 21.08.1982 as Helper-II, but getting higher salary than the applicant. Learned counsel for the applicant also cited judgments in two cases apart from the judgment of Hon'ble Andhra Pradesh High Court in the case of Shaik Abdul Khader (supra) referred in the OA; i.e the case of Daya Nand vs. Union of India & Others in OA No. 2691/2015 decided by the Principal Bench of CAT and the case of Man Mohan Ram and another vs. Union of India & Others in OA No. 274/2014 decided by Patna Bench of CAT.
6. Learned counsel for the respondents countered the arguments of Shri A.D. Singh on the ground that the applicant was initially working in the PQRS Project of the Railways and after completion of 6 the Project, in stead of terminating his services, the respondents adjusted the applicant in regular maintenance work with effect from 15.02.1986, which is treated as his date of appointment. His claim of temporary status from 15.07.1981 is not admissible since he was working as a casual employee under PQRS Project, which is a work- charged establishment which is wound up on completion of the project.
7. We have carefully considered the pleadings and submissions of both the parties and note that the contentions of the respondents in the counter reply relating to the applicant's engagement prior to 15.02.1986 in the PQRS Project of the Railways has neither been mentioned in the OA, nor it has been contradicted by the applicant in his pleadings. We have perused the documents attached by the applicant in the OA, some of which are not very clearly legible. We did not find any order or document furnished by the applicant in support of his contention in the para 4.3 of the OA that he was granted temporary status on 15.07.1981 in pay scale Rs. 200-250. Hence, the contentions of the respondents that the applicant was engaged in Project w.e.f. 15.07.1981 and on completion of the project, he was permitted to work in regular open line maintenance work w.e.f. 15.02.1986, are assumed to be correct.
8. Now the question is whether the contention of the applicant that as per the Railway Board's instructions and judgments cited, his claim to treat his date of appointment to be 15.07.1981 is to be 7 accepted with implication that his service status for the period from 15.07.1981 to 14.02.1986 when he worked in the PQRS project, would be like a casual employee with temporary status for the purpose of service benefits as per the rules, is correct or not. The applicant in Annexure A-3 to the OA has enclosed a set of rules pertaining to casual employee and the source is stated in para 4.5 of the OA to be Railway Board letter dated 20.12.1985 and copy of the letter dated 20.12.1985 has not been furnished. It has been stated by the respondents in the counter that the applicant has misconstrued the Railway Board rules cited by him in the para 4.5 of the OA. It is also not clear from the record if the rules quoted at Annexure A-3 are applicable to the Project casual labours.
9. We note that as per the para 2001 and 2006 of the Indian Railway Establishment Manual, Vol -II (in short IREM) relating to the casual labour state as under:-
"2001. (I) Definition of Casual labour - Casual labour refers to labour whose employment is intermittent, Sporadic or extends over short period or continued from one work to another. Labour of this kind is normally recruited from the nearest available source. They are not ordinarily liable to transfer. The conditions applicable to permanent and temporary staff do not apply to casual labour.
Casual labour on Railway should ordinarily be employed only in the following types of cases.
(a) Casual Labour (Open Line).- Casual labour are primarily engaged to supplement the regular staff in work of seasonal or sporadic nature, which arises in the day to day working of the Railway system. This includes labour required for unloading and loading of materials, special repair and maintenance of tracks and other structures, supplying drinking water to passengers during summer months, 8 (recoupment of man-days lost on account of absenteeism) patrolling of tracks, etc. casual labour so engaged in the operation and maintenance of railway system is referred to as open line casual labour, as distinct from project Casual Labour, described in para (b) infra.
(b) Casual Labour (Project)- Casual Labour are also engaged on Railways for execution of Railway projects, such as new lines, doubling, conversion, construction of building, track Renewals, Route Relay interlocking Railway Electrification, Setting up of new units etc. Casual Labour so engaged are referred to as �Project Casual Labour�.
Such of those casual Labour engaged on open line (revenue) works, who continue to do the same work for which they were engaged or other work of the same type for more than 120 days without a break will be treated as temporary (i.e. given �temporary status�) on completion of 120 days continuous employment.
Casual Labour on projects who have put in 180 days of continuous employment on works of the same type are entitled for 1/30th of the minimum of the appropriate scale of pay plus Dearness allowance.
Before giving regular scale of pay or 1/30th of the minimum of the scale plus Dearness Allowance on completion of 120 days or 180 days continuous employment as the case may be, a preliminary verification in regard to age and completion of requisite number of days of continuous service should be done by the assistant officer and the person should also be got medically examined and only if found fit he should be granted regular scales of pay.
(ii) Grant of temporary status to project casual labour is regulated by instructions separately issued by the Railway Board. As far as possible, casual labourers required for new projects must be taken from amongst those casual labourers. Who have worked on the open line/projects in the past in preference to outsiders.
....................................
2006. Absorption of Casual Labour in regular vacancies. Absorption of casual labour in regular Group 'D' employment may be considered in 'accordance with instructions issued by the Railway Board from time to time. Such absorption is, however, not automatic but is subject, inter-alia, to availability of vacancies and suitability and 9 eligibility of individual casual labour and rules regarding seniority unit method of absorption etc. decided by the Railway Administration................................................" It is clear from above provisions of IREM, that for grant of temporary status to the project casual labour separate Railway Board instructions will be applicable and the provisions in the IREM with regard to temporary status will not br apply to the project casual labour. Hence, in absence of specific instructions of the Railway Board for grant of temporary status to the project casual labour like the applicant prior to 15.02.1986 are cited, the applicant cannot claim temporary status w.e.f. 15.07.1981.
10. The judgments cited by the learned counsel for the applicant pertain to counting of the service period for qualifying service for pension and other service benefits. None of the judgments cited deal with the controversy in the present case; i.e. whether the service period of the applicant as casual labour in the work-charged establishment like the PQRS Project prior to being adjusted in the open line department w.e.f. 15.02.1986, can be treated at par with the temporary status. The OA claims that the document at Annexure A-2 of the OA is the service book/appointment letter dated 13.08.1986 (para 4.4 of the OA). But perusal of the document at Annexure A-2 shows that it is a declaration form for the purpose of the screening of the casual labour and by no means, this document would imply that the applicant was appointed or given temporary 10 status w.e.f. 15.07.1981. Further, applicant's claim for being senior to Sri Balak Ram as mentioned in the Suppl. Affidavit cannot be accepted in view of the lack of evidence that the applicant was appointed first with temporary status on 15.07.1981.
11. As discussed above, in absence of specific instructions of Railway Board pertaining to grant of temporary status for the service period of a casual employee in the Project work, as required under para 2001 of the IREM, Vol-II, it is difficult for us to accept the claim of the applicant to correct his date of first appointment as 15.07.1981, which effectively would mean that he is a casual employee with temporary status w.e.f. 15.07.1981 in place of 15.02.1986 as per the official record.
12. In the circumstances, the applicant has failed to furnish adequate justifications for the reliefs prayed for in the OA. Hence, the OA is dismissed, with no order as to costs.
(GOKUL CHANDRA PATI) (DR. MURTAZA ALI)
MEMBER-A MEMBER-J
Anand...