Central Administrative Tribunal - Delhi
Hari Ram vs M/O Health And Family Welfare on 24 November, 2016
1 OA 2557/15
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.2557 OF 2015
New Delhi, this the 24th day of November, 2016
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.........
Hari Ram,
Aged about 62 years,
S/o Shri Munnar Ram,
R/o A-294, Ambedkar Basti,
R.K.Puram, Sector-1,
New Delhi 110022
Retired on 30.8.2013
as: Khalasi, at Engineering Department,
AIIMS, Ansari Nagar, New Delhi ...... Applicant
(By Advocates: Mr.R.K.Kapoor & Ms. Kheyali)
Vs.
All India Institute of Medical Sciences,
Through the Director,
Ansari Nagar,
New Delhi 110029 ...... Respondent
(By Advocate: Mr.R.K.Gupta)
.....
ORDER
The applicant has filed this Original Application seeking the following reliefs:
"a. Allow the present O.A. and direct the respondent to pay the amount of gratuity to the applicant.
b. Direct the respondent to pay the earned leave for a period of 297 days to the applicant.
c. Award costs against the respondent and in favour of the applicant.Page 1 of 15 2 OA 2557/15
d. Pass orders granting any other such relief which this Hon'ble tribunal deems fit and proper in the facts and circumstances of the case."
2. The respondent has filed a counter reply resisting the O.A. The applicant has also filed a rejoinder reply thereto.
3. I have carefully perused the records, and have heard Mr.R.P.Kapoor and Ms.Kheyali, the learned counsel appearing for the applicant, and Mr.R.K.Gupta, the learned counsel appearing for the respondent.
4. The undisputed facts of the case run thus: The applicant was engaged as Khalasi on daily wages at Engineering Service Department (ESD), AIIMS, on 20.1.1995. Later on, he was conferred temporary status with effect from 1.2.1996. On attaining the age of 60 years on 30.6.2013, his service as casual Khalasi with temporary status was dispensed with. He rendered more than 17 years of continuous service as casual Khalasi with temporary status.
5. It has been contended by the applicant that the respondent has acted illegally and arbitrarily in not granting him cash equivalent of leave salary for 297 days of earned leave (which were available at his credit on the date of retirement), and also in not paying him gratuity under Section 4 of the Payment of Gratuity Act, 1972, at the time of his retirement from service as Khalasi with temporary status.
6. Per contra, it has been contended by the respondent that as per the Casual Labourers (Grant of Temporary Status and Regularization) Page 2 of 15 3 OA 2557/15 Scheme of the Government of India, 1993, and the Government of India, Department of Personnel &Training O.M.No.49011/31/2008-Estt.( C ) dated 12.9.2008, the casual labourers with temporary status are not entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service. They are only entitled for leave on a pro rata basis at the rate of one day for every 10 days of work, as well as maternity/paternity leave as admissible to regular Group 'D' employees.
There is no provision in the aforesaid Scheme of 1993 for payment of gratuity to casual labourers with temporary status on their quitting service.
Therefore, the applicant is not entitled to the reliefs claimed by him.
7. As per the provisions contained in the AIIMS Regulations, 1999, the Central Civil Services (Pension) Rules, 1972, and Central Civil Services (Leave) Rules, 1972, are applicable to the employees of the AIIMS.
Regulation 35 stipulates that in respect of matters not provided in the Regulations of 1999, the rules as applicable to the Central Government servants regarding general condition of service, pay, allowances including travelling and daily allowance, leave salary, joining time, foreign service terms and orders and decisions issued in this regard by the Central Government from time to time, shall apply to the employees of the AIIMS.
8. The Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Government of India, 1993, read thus:
"1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993."
2. This Scheme will come into force w. e. f. 1.9.1993.
Page 3 of 15 4 OA 2557/153. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary Status (i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group `D' posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group `D' posts.
5. Temporary status would entitle the casual labourers to the following benefits:-
i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D' official including DA, HRA and CCA.
(ii) Benefits of increments at the same rate as applicable to a Group `D' employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days, 206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
(iii) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible.
They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
(iv) Maternity leave to lady casual labourers as admissible to regular Group `D' employees will be allowed.
Page 4 of 15 5 OA 2557/15(v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularization.
(vi) After rendering three years' continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group `D' employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D' employees, provided they furnish two sureties from permanent Government servants of their Department.
vii) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Adhoc bonus only at the rates as applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
8. Procedure for filling up of Group `D' posts (i ) Two out of every three vacancies in Group `D' cadres in respective offices where the casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by Department of Personnel and Training from amongst casual workers with temporary status. However, regular Group `D' staff rendered surplus for any reason will have prior claim for absorption against existing/future vacancies. In case of illiterate casual labourers or those who fail to fulfill the minimum qualification prescribed for post, regularization will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed age relaxation equivalent to the period for which they have worked continuously as casual labourer.
9. On regularization of casual worker with temporary status, no substitute in his place will be appointed as he was not holding any post. Violation of this should be viewed very seriously and attention of the appropriate authorities should be Page 5 of 15 6 OA 2557/15 drawn to such cases for suitable disciplinary action against the officers violating these instructions.
10. In future, the guidelines as contained in this Department's OM dated 7.6.88 should be followed strictly in the matter of engagement of casual employees in Central Government offices.
11. Department of Personnel and Training will have the power to make amendments or relax any of the provisions in the scheme that may be considered necessary from time to time."
9. The above Scheme, vide its paragraph 5(iii), stipulates that the casual labourers with temporary status "will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service". Furthermore, under Rule 39 of the Central Civil Services (Leave) Rules, 1972 (hereinafter referred to as "Leave Rules"), cash equivalent to leave salary for earned leave is granted by the competent authority to the Government servant on the date of his/her retirement. Rule 2 of the Leave Rules stipulates, inter alia, that these Rules shall apply to Government servants appointed to the civil services and posts in connection with the affairs of the Union, but shall not apply to "persons in casual or daily-rated or part-time employment". A casual labourer with temporary status is not appointed to any civil service and post in connection with the affairs of the Union. In view of the above rule position, I do not find any substance in the claim of the applicant for payment of cash equivalent of leave salary of earned leave by the respondent at the time of his retirement and/or quitting service on 30.6.2013.
10. The Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Government of India, 1993, does not contain Page 6 of 15 7 OA 2557/15 any provision for payment of gratuity to casual labourers with temporary status on their retirement and/or quitting service. In this case, the applicant has claimed gratuity under Section 4 of the Payment of Gratuity Act, 1972.
11. Sections 1, 2 and 4 of the Payment of Gratuity Act, 1972, read thus:
"1. Short title, extent, application and commencement.-
(1) This Act may be called the Payment of Gratuity Act, 1972.
(2) It extends to the whole of India:
Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. (3) It shall apply to-
(a) every factory, mine, oilfield, plantation, port and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
(3-A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act, notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.
(4) It shall come into force on such date as the Central Government may, by notification, appoint.
2. Definitions.- In this Act, unless the context otherwise requires,-
(a) "appropriate Government" means,-
(i) in relation to an establishment:-
(a) belonging to, or under the control of, the Central Government
(b) having branches in more than one State
(c) of a factory belonging to, or under the control of, the Central Government.Page 7 of 15 8 OA 2557/15
(d) of a major port, mine, oilfield or railway company, the Central Government.
ii) in any other case, the State Government.
(b) "completed year of service" means continuous service for one year.
(c) "continuous service" means continuous service as defined in Section 2-A;
(d) "controlling Authority" means an authority appointed by the appropriate Government under Section 3;
(e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity;
(f) "Employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop:-
(i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority.
(ii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, or managing director or by any other name, such person;
(g) "Factory" has the meaning assigned to it in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
(h) "Family", in relation to an employee, shall be deemed to consist of:-
(i) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents and the dependent parents of his wife and the Page 8 of 15 9 OA 2557/15 widow] and children of his predeceased son, if any.
(ii) in the case of a female employee, herself, her husband, her children, whether married or unmarried, her dependent parents and the dependent parents of her husband and the widow and children of her predeceased son, if any:
Explanation.-Where the personal law of an employee permits the adoption by him of a child, any child lawfully adopted by him shall be deemed to be included in his family, and where a child of an employee has been adopted by another person and such adoption is, under the personal law of the person making such adoption, lawful, such child shall be deemed to be excluded from the family of the employee.
(i) "major port" has the meaning assigned to it in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);
(j) "mine" has the meaning assigned to it in clause (j) of sub- section (1) of section 2 of the Mines Act, 1952 (35 of 1952);
(k) "notification" means a notification published in the Official Gazette:
(l) "oilfield" has the meaning assigned to it in clause (e) of Section 3 of the Oilfields (Regulation and Development) Act, 1948 (53 of 1948);
(m) "plantation" has the meaning assigned to it in clause (f) of Section 2 of the Plantations Labour Act, 1951 (69 of 1951);
(n) "port" has the meaning assigned to it in clause (4) of section
3 of the Indian Ports Act, 1908 (15 of 1908);
(o) "prescribed" means prescribed by rules made under this Act;
(p) "railway company" has the meaning assigned to it in clause (5) of section 3 of the Indian Railways Act, 1890 (9 of 1890);
(q) "retirement" means termination of the service of an employee otherwise than on superannuation.
[(r) "superannuation" in relation to an employee, means the attainment by the employee of such age as is fixed in the contract or conditions of service as the age on the attainment of which the employer shall vacate the employment;
(s) "wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.
4. Payment of Gratuity:
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,- (a) on his superannuation, or (b) on his Page 9 of 15 10 OA 2557/15 retirement or resignation, (c) on his death or disablement due to accident or disease:
Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:
Provided further that in case of death of the employee, Gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is minor, the share of such minor, shall be deposited with the Controlling Authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.
Explanation.- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.
(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the date of fifteen days' wages based on the rate of wages last drawn by the employee concerned:
Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account:
Provided further that in the case of an employee who is employed in a seasonal establishment, and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days' wages for each season.
Explanation.-In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.
(3) The amount of gratuity payable to an employee shall not exceed ten lakh rupees.
(4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced.
(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (i),-Page 10 of 15 11 OA 2557/15
(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.
(b) the gratuity payable to an employee may be wholly or partially forfeited -
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part; or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."
12. Rules 2, 49(1) and 50(1) of the Central Civil Services (Pension) Rules, 1972, read thus:
"2. Application.- Save as otherwise provided in these rules, these rules shall apply to Government servants appointed on or before the 31st day of December, 2003 including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to -
(a) railway servants;
(b) persons in casual and daily-rated employment;
(c) persons paid from contingencies;
(d) persons entitled to the benefit of a Contributory Provident Fund;
(e) members of the All India Services;
(f) persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries;
(g) persons employed on contract except when the contract provides otherwise; and
(h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force.
49. Amount of Pension.-(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's Page 11 of 15 12 OA 2557/15 emoluments for every completed six monthly period of qualifying service.
xx xx
50. Retirement/Death Gratuity.-(1) (a) A Government servant, who has completed five years' qualifying service and has become eligible for service gratuity or pension under Rule 49, shall, on his retirement, be granted retirement gratuity equal to one-fourth of his emoluments for each completed six monthly period of qualifying service, subject to a maximum of 16 ½ tunes the emoluments.
(b) If a Government servant dies while in service, the death gratuity shall be paid to his family in the manner indicated in sub-rule (1) of Rule 51 at the rates given in the Table below, namely:-
Length of Rate of death gratuity
qualifying
service
(i) Less than 1 year 2 times of emoluments
(ii) One year or 6 times of emoluments
more but less
than 5 years
(iii) 5 years or more 12 times of emoluments
but less than 20
years
(iv) 20 years or Half of emoluments for every more completed six-monthly period of qualifying service subject to a maximum of 33 times of emoluments.
13. It would be pertinent to mention here some of the important provisions of Sections 1,2 and 4 of the Payment of Gratuity Act, 1972, and Rules 2, 49(1) and 50(1) of the Central Civil Services (Pension) Rules, 1972, which have a bearing on the issue involved in the present case.
13.1 Section 1(3)(b) Payment of Gratuity Act, 1972, stipulates that the Act applies to every establishment within the meaning of any law, where ten or more persons are employed, or were employed, on any day preceding twelve months. Under Section 2(e) of the Act, "employee" means any person who is employed for wages in any kind of work, manual or Page 12 of 15 13 OA 2557/15 otherwise, in or in connection with the work of other establishment to which the Act applies, but does not include any such person who holds a post under the Central Government and is governed by any other Act or by any rules providing for payment of gratuity. Under Section 2(f) of the Act, "employer"
means, in relation to any establishment, the authority which has the ultimate control over the affairs of the establishment. Section 4(1) of the Act stipulates, inter alia, that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years on his superannuation, or on his retirement or resignation. The first proviso to sub-section (2) of Section 4 of the Act states that in the case of a piece-rated employee, daily wages shall be computed on the average of the total received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account.
13.2 Rules 49(1) and 50(1) of the Central Civil Services (Pension) Rules, 1972, provide for payment of service gratuity and retirement/death gratuity to the Government servants. Rule 2 of the Central Civil Services (Pension) Rules, 1972, stipulates that the Rules shall apply to Government servants appointed substantively to civil services and posts in connection with the affairs of the Union, which are borne on pensionable establishment, but shall not apply to "persons in casual and daily rated employment". A casual labourer with temporary status not being appointed substantively to Page 13 of 15 14 OA 2557/15 any civil service and post in connection with the affairs of the Union, which is borne on pensionable establishment, cannot be said to be covered under the Central Civil Services (Pension) Rules, 1972.
14. A combined reading of the relevant provisions of Sections 1, 2 and 4 of the Payment of Gratuity Act, 1972, and Rules 2, 49(1) and 50(1) of the Central Civil Services (Pension) Rules, 1972, leaves no room for any doubt that casual labourers with temporary status, like the applicant in the present case, who are paid wages at daily rates, are entitled to gratuity under the Payment of Gratuity Act, 1972. Thus, absence of any provision in the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Government of India, 1993, for payment of gratuity, would not disentitle casual labourers with temporary status, like the applicant in the present case, for gratuity under the Payment of Gratuity Act, 1972, on their retirement and/or quitting service. Therefore, I do not find any substance in the contention of the respondent that as there is no provision in the Scheme of 1993 for payment of gratuity to casual labourers with temporary status on their retirement and/or quitting service, the applicant is not entitled to gratuity on his retirement.
15. In the light of above discussions, I hold and declare that the applicant is entitled to gratuity under the Payment of Gratuity Act, 1972, on his retirement from service and/or quitting service on 30.6.2013.
Accordingly, the respondent is directed to determine the amount of gratuity payable to the applicant under Section 4 of the Payment of Gratuity Act, Page 14 of 15 15 OA 2557/15 1972 and to pay the same to the applicant within a period of three months from today.
16. Resultantly, the O.A. is partly allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN Page 15 of 15