Central Administrative Tribunal - Ernakulam
Janaki C vs The Chief General Manager on 12 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00957/2014
Tuesday, this the 12th day of July, 2016
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Janaki C., aged 65 years, W/o. Late Krishnankutty,
1/985, Chemittiyapadam, Near Government Poly Technique,
Kodumba PO, Palakkad. .... Applicant
(By Advocate : Mr. U. Balagangadharan)
Versus
1. The Chief General Manager,
Bharat Sanchar Nigam Ltd.,
Thiruvananthapuram - 695 001.
2. The General Manager Telecom,
Bharath Sanchar Nigam Ltd., Palakkad - 678 001.
3. The Divisional Engineer,
Bharath Sanchar Nigam Ltd., Palakkad - 678 001.
4. The Assistant General Manager, Administration,
Office of BSN, Palakkad - 678 001. . . . . Respondents
(By Advocate : Mr. K. Anand)
This application having been heard on 20.06.2016, the Tribunal on
12.07.2016 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant is a retired Ayah. She was initially appointed as Ayah in the Creche attached to the office of the Telephone District Engineer, Telecom Building, Palakkad by the then Telephone District Engineer from 2.2.1987 vide Annexure A1 order. Initially she has been paid a salary of Rs. 300/- per month and subsequently it was raised to Rs. 600/- per month.She continued the work except on Sundays and public holidays. When the Department of Telecom was converted into Bharath Sanchar Nigam Limited (BSNL) with effect from 1.10.2000, the then Sub Divisional Engineer (Trunks), Telephone Exchange, Palakkad directed the applicant to exercise the option for absorption in BSNL or to retain in Government service. The applicant exercised Annexure A2 option to get herself absorbed in BSNL with effect from 1.10.2000. In the meantime the respondents issued Annexure A3 order dated 24.11.2000 converting Supervisors and Ayahs working in Creches into full time casual labourers as per instruction dated 29.9.2000 issued by the competent authority. Thereafter, she was appointed as full time casual mazdoor vide Annexure A4 order dated 8.3.2001, with effect from 1.10.2000. Annexure A5 order is the formal appointment order posting her as regular Mazdoor with effect from 1.10.2000 and Annexure A6 is the posting order. She submittted the necessary forms in form No. 60, a copy of which is produced as Annexure A7. As the applicant was reaching the age of superannuation in BSNL i.e. 60 years, realising she will not be eligible for pension due to the short fall in qualifying service for minimum pension, she submitted Annexure A8 representation dated 24.11.2003 requesting respondent No. 1 to count her past service as Ayah so as to enable her to get the minimum pension. However, she retired from service on 31.3.2008 as regular Mazdoor.
2. Applicant contends that though the DOP&T had issued Annexure A10 OM dated 10.1.1993 for regularizing casual labourers who have rendered more than 120 days of service, in her case no such steps were taken. Being aggrieved by the inaction on the part of the respondents in reckoning 50% of the casual labour service for grant of minimum pension she submitted a representation on 1.10.2013. As no action was taken by the respondents, she approached this Tribunal with OA No. 180/331/2014 which was disposed of by this Tribunal vide Annexure A11 order dated 30.5.2014 directing respondent No. 2 to consider and pass orders on her representation. Respondent No. 2 passed order dated 13.10.2013 rejecting the claim of the applicant without assigning any legal reason while admitting the fact that she has been working as Ayah on casual basis from 2.2.1987 to 30.10.2000 i.e. for 13 years and 8 months. Therefore, the applicant prays for:
'i) Call for the records leading to Annexure A12 and quash the same as illegal and unsustainable.
ii) Direct the 2nd respondent to sanction and disburse admissible pension to the applicant by reckoning 50% of the casual service as qualifying service for reckoning pension along with regular service of 7 years and 8 months.
iii) Declare that the applicant is entitled to be sanctioned and disbursed pension reckoning 50% of her casual service as qualifying service along with her regular service.
iv) Such other reliefs that the Hon'ble Tribunal deem fit in the facts and circumstances of the case.'
3. Respondents opposed the OA contending that the applicant was working as Ayah with effect from 2.2.1987 on purely temporary basis (part
-time) and her payment was made by SSA Contributory Welfare Fund. Only vide Annexure R1(a) order dated 24.11.2000 of respondent No. 1 the applicant was converted as full time casual labour as per DOT letter dated 29.9.2000 along with 17 other Ayahs and Supervisors. It was clearly stated in the aforesaid DOT letter that the five types of labourers to be regularized are: (i) all casual labourers granted temporary status, (ii) all full time casual labourers indicated in the Annexure to the letter, (iii) all part time casual labourers who were working for four or more hours per day and converted into full time casual labourers, (iv) all part time casual labourers who were working for less than four hours and were converted into part time casual labourers and (v) all Ayahs and Supervisors converted into full time casual labourers. Respondents contend that the applicant was converted as full time casual labour and subsequently as regular mazdoor only with effect from 1.10.2000. She can be considered only as a BSNL recruit and hence she will not be entitled to count her past service in the DOT for the purpose of pension. Respondents further state that applicant had not possessed the status of temporary status mazdoor on or prior to 30.9.2000 i.e. during the period in which she was working under DOT. Only 50% of the temporary status mazdoor period can be counted for pensionary benefits. Respondents pray for rejecting the claim of the applicant.
4. We have heard the counsel appearing on both sides in extenso. Perused the record.
5. It is not in dispute that the applicant initially started working as Ayah with effect from 2.2.1987. But respondents contend that she was working as Ayah as part-time, purely on temporary basis and was being paid out of the SSA Welfare Fund. However, no document indicating how the applicant was being paid was produced by the respondents. It is also not in dispute that the applicant continued to work as Ayah at the Telecom Creche, Palakkad even after the formation of BSNL on 1.10.2000.
6. According to learned counsel appearing for the applicant she was working as Ayah with a status of casual labour and this has been accepted by the respondents when they converted her works as full time casual labour vide Annexure A3 and later as full time casual mazdoor both with effect from 1.10.2000. According to respondents the decision to convert Ayahs and Supervisors was based on DOT letter dated 29.9.2000 (i.e. on the eve of formation of BSNL) deciding to regularise all casual labourers. Annexure R1(b) communication dated 29.9.2000 indicates that it was decided to regularise Ayahs also against the available vacancies of regular mazdoors. Thus, it can be seen that Annexure R1(b) letter issued by the Department of Telecommunication on 29.9.2000 was the genesis of the decision to regularise Ayahs. The aforesaid letter of DOT further reveals that the decision so taken on the eve of formation of BSNL was by taking into account of the demand raised by the employees union for regularisation of all casual labourers. A reading of Annexure R1(b) indicates that Ayahs also have been treated as casual labourers.
7. The position thus emerges is that the applicant, who was admittedly working with effect from 2.2.1987, was treated as casual labour by the DOT and was directed to be absorbed against the vacancy of regular mazdoor.
8. However, the respondent BSNL responded to Annexure R1(b) communication dated 29.9.2000 issued by DOT by first converting the applicant as full time casual labour vide Annexure A3 and then as full time casual mazdoor vide Annexure A4 both with efffect from 1.10.2000 only for the purpose of complying with the directions of Annexure R1(b) letter dated 29.9.2000 of DOT. But the fact remains that the applicant continued to work as Ayah, admittedly without any interruption from 2.2.1987.
9. Learned counsel for the applicant submitted that though the DOP&T had notified Annexure A10 scheme called 'Casual Labourers (Grant of Temporary Status & Regularization) Scheme of Government of India, 1993 which was brought into force from 1.9.1993, the applicant who was still continuing as casual labour as indicated in Annexure R1(b) was not given the benefit of temporary status in terms of that scheme. Annexure A10 is the copy of the aforesaid scheme according to which temporary status would be conferred on all casual labourers who are in employment on 10.9.1993 and who have rendered continuous service of at least one year. The scheme further provided that the temporary status so given to the casual labourers will give them the benefits of wages at daily rates with reference to the minimum of the pay scale with a corresponding regular group-D official including DA, HRA, CCA and other benefits like increments, leave entitlement meant on pro-rata basis and maternity leave, besides counting of 50% of service rendered in a temporary status for the purpose of retirement benefits after their regularization. Though Annexure R1(b) DOT letter dated 29.9.2000 has treated Ayahs also as casual labourers entitled to be regularised in the BSNL, sadly applicant was not reckoned for of granting temporary status despite the fact that she had rendered continuous service since 2.2.1987.
10. Learned counsel for the applicant brought to our attention the Government of India decision OM No. F.12(1)-E.V/68, dated 14 th May, 1968 which is extracted as No. (2) under Rule 14 of the CCS (Pension) Rules, 1972. It reads:
'(2) Counting half of the service paid from contingencies with regular service.- Under Article 368 of the CSRs (Rule 14), periods of service paid from contingencies do not count as qualifying service for pension. In some cases, employees paid from contingencies are employed in types of work requiring services of whole-time workers and are paid on monthly rates of pay or daily rates computed and paid on monthly basis and on being found fit brought on to regular establishment. The question whether in such cases service paid from contingencies should be allowed to count for pension and if so, to what extent has been considered in the National Council and in pursuance of the recommendation of the Council, it has been decided that half the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject to the following conditions, viz:-
(a) Service paid from contingencies should have been in a job involving whole-time employment (and not part-time for a portion of the day).
(b) Service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned, e.g., malis, chowkidars, khalasis, etc.
(c) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being performed by staffs in regular establishments.
(d) The service paid from contingencies should have been continuous and followed by absorption in regular employment wihtout a break.
(e) Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies will be limited to the period after 1st January, 1961, for which authentic records of service may be available.'
11. According to the learned counsel, the applicant having been in whole time employment continuously she is entitled to the benefit of half the service paid from contingencies with regular service. Learned Central Government counsel submitted that the applicant was not a whole time employee but was only a part - time Ayah. However as observed above, no document was produced by the respondents to show that she was not in a job involving whole time employment. Annexure A1 posting order of the applicant as Ayah merely indicates that she is directed to work as Ayah on 'purely temporary basis'. That does not mean that it was a part - time job as contended in the reply statement.
12. It appears that respondents woke up to regularise casual labourers including Ayahs only after the DOT letter dated 29.9.2000 [Annexure R1(b)]. As observed earlier the aforesaid DOT letter has treated Ayahs as casual labourers. Neither DOT nor respondents took any steps to grant temporary status to the applicant in terms of Annexure A10 scheme of the Government of India for grant of temporary status and eventual regularization of casual labourers.
13. Taking into account of the totality of the circumstance in this case we have no hesitation to consider that the applicant ought to have been treated as casual labour under Annexure A10 scheme and she ought to have been granted temporary status so as to enable the 50% of her temporary status service to be counted for pension and pensionary benefits. Moreover, the aforequoted Government decision for counting half service paid from contingencies enables her to count 50% of service rendered by her as Ayha from 2.2.1987 till 1.10.2000 i.e. till she was given the post of full time casual mazdoor vide Annexure A4 order with effect from 1.10.2000.
14. In the result the OA is allowed directing respondent No. 2 to sanction and disburse the admissible pension to the applicant by reckoning 50% of her casual serivce from 2.2.1987 till 30.9.2000 as qualifying service along with her regular service as regular mazdoor for seven years and eight months, for the purpose of pension. Ordered accordingly. Parties shall suffer their own costs.
(E.K. BHARAT BHUSHAN) (U. SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER 'SA'