Central Administrative Tribunal - Delhi
Smt. Gurmail Kaur Widow Of Late Shri Ram ... vs Union Of India (Uoi) (Through The ... on 20 March, 2008
ORDER Meera Chhibber, Member (J)
1. By this OA, applicant has sought the following relief:
(i) to pay the family pension to the applicant from the date of death of late Shri Ram Lal with all the arrears and interest @ 18% per annum on the entire amount of arrears of family pension;
(ii) to allow OA and direct the respondents to pay provident fund, gratuity etc. of Late Shri Ram Lal with interest @ 18% per annum from the date these benefits were due to the date these benefits were due to the date of actual payment.
2. It is stated by the applicant that her husband was screened vide letter dated 10.7.1989 wherein his name was shown at Sl. No. 1355 (page 30 at 15). He had already acquired temporary status before his death, therefore, she is entitled to get the family pension. On limitation, they have referred to the judgment of the Hon'ble Supreme Court in the case of S.K. Mastan Bee v. General Manager, South Central Railway and Anr. reported in 2003 (1) SCSLJ 136.
3. It is submitted by the applicant that even though she has been offered appointment on temporary basis vide letter dated 24.9.1998, but till date she has not been given family pension or other benefits which are due to applicant on death of applicant's husband. She had given repeated representations but no reply has been given to her. She has relied on Rule 75 of the Railway Pension Rules, 1993.
4. Respondents on the other hand have opposed this OA. They have submitted that this OA is barred by limitation. No representation has been received in the office of respondents. In any case repeated representations do not extent the period of limitation. They have relied on the judgments in the case of S.S. Rathore v. State of M.P. and R. C. Samantha v. U.O.I. 1993 (3) SC 1418.
5. On merits, they have submitted that Shri Ram Lal was engaged as a casual labourer. Even though he was screened but he could not be regularized/absorbed against permanent vacancy for want of vacancy till his death on 8.10.1995. Rule 75 applies only to Railway Servants, therefore, this case is not covered under the Railway Service (Pension) Rules, 1993. Moreover, Larger Bench has already settled this issue in the case of Smt. Bhagwati Devi and Ors. v. U.O.I. and Ors. vide judgment dated 5.9.2007 (OA No. 1722/2005). Counsel for the respondents also submitted that Larger Bench has taken into consideration all the judgments on the point and then had decided it finally, therefore, any other judgment given by any other Bench of the Tribunal is of no relevance.
6. Applicant, on the other hand, has relied on some of the judgments, namely, Smt. Premwati (OA No. 122/2000) upheld by Hon'ble High Court, Smt. Latifan v. U.O.I. and Ors. reported in 2002 (1) ATJ 81 (OA No. 1287/2000), Smt. Om Kumari Gupta v. U.O.I. (OA No. 391/2005), Eluri Marthamma v. DRM, SC Railway and Ors. reported in 2000 (3) ATJ 238 etc. etc. and Shri Jasbir Kaur v. U.O.I. and Ors. decided on 26.4.2006 (OA No. 2204/2005) etc. etc.
7. We have heard both the counsel and perused the pleadings as well.
8. Objection of limitation in this case cannot be sustained because in the case of S.K. Mastan Bee v. General Manager reported in 2003 (1) SCSLJ 136, Hon'ble Supreme Court has already held if an amount is payable to the widow, who could not come to the court as she was illiterate or did not have the means to come to the court, the same cannot be denied on the specious plea of limitation.
9. In view of above, objection of limitation is rejected.
10. Coming to the merits of the case it is seen that applicant's husband was indeed screened vide letter dated 10.7.1989 which is evident form page 13 of the OA. However, in this letter itself it was made clear that competent authority has decided to appoint 1148 candidates at the first instance. Remaining may be appointed against anticipated vacancies occurring in future. Admittedly, applicant's husband's name figured at S. No. 1355, therefore, he could have been appointed only on availability of vacancies. Applicant's husband died on 8.10.1995 and he never raised this objection nor he gave any representation for regularization on the ground that vacancies are available.
11. Even now it is not the case of applicant that any person below her husband was regularized or he was not regularized in spite of vacancies being available, therefore, the question is whether applicant can demand family pension, when her husband was not even regularized. At this juncture, it would be relevant to refer to para 2006 of IREM Vol.II, which for ready reference reads as under:
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 eligibility of individual casual labour and rules regarding seniority unit method of absorption etc. decided by the Railway Administration.
12. Admittedly though applicant's husband was screened in the year 1989 but he was not regularised till 8.10.1995 when he died, therefore, he continued to be only temporary status holder casual labourer. It is not the case of applicant that vacancies were available or anybody below her husband in the panel dated 10.7.1989 was absorbed as on 8.10.1995. In this view of the matter, it is absolutely clear that by no stretch of imagination can it be said that applicant's husband was either a regular employee or could be termed as a railway servant. At this juncture it would be relevant to extract a portion from the judgment of the Larger Full Bench in the case of Smt. Bhagwati Devi and Ors. v. U.O.I. and Ors. decided on 5.9.2007 (OA No. 1722/2005).
13. It was specifically noted, that Rule 2 of Railway Services (Pension) Rules, 1993 makes it clear that these rules would be applicable to Railway Servants. Railway Servants have further been defined under Rule 2 (23) as follows:
Railway servant' means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding a post of Chairman, Financial Commissioner or a Member of the Railway Board but does not include casual labour or Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control.
14. It was held that a casual labourer would not be deemed to be under the coverage of the Pension Rules. Similarly, it was clarified that Rule 75 is also applicable to Railway Servants alone. If any person engaged in the Railway Service does not satisfy the definition of Railway Servant, it may not be logical to declare that he requires to be brought inside, de hors the restriction so spoken. Reference was made to different paragaraphs from 2001 to 2005 of the Indian Railway Establishment Manual Volume II and also to various judgments given by different courts on the issue of family pension. It was also stated that the Full Bench judgment given in the case of Geeta Rani Santra v. U.O.I. and Ors. of the CAT Calcutta Bench (CAT Full Bench judgments (1197-2001 295), has not been correctly decided. Similarly it was held that the case of Rukhiben Rupa Bhai v. U.O.I. and Ors. reported in 2006 (2) ATJ 1 delivered by the Gujarat High Court could not be preferred over the judgment of the Hon'ble Supreme Court in the case of U.O.I. and Ors. v. Rabia Bikaner etc. . Similarly reference was also made to Smt. Vallam Badia (supra), Rajeshwari Devi v. UOI and Ors. 2006 (2) ATJ (CAT) 307, Smt. Jotsna Bala Manna v. Union of India and Ors., referred to by the Calcutta Bench in ATJ 2005 (2) CAT 458, the decision of the Jodhpur Bench and decision of the Principal Bench in Smt. Anita Devi and Smt. Latifan (cited supra) etc. etc. but ultimately reliance was placed on the judgment given by Hon'ble Supreme Court in the case of Rabia Bikaner (Supra). The question posed in said case was 'whether the widow of a casual labourer in Railway Establishment, who died after putting in six month's service and obtaining the status of a temporary workman but before his appointment to a temporary post after screening is entitled to family pension under the 1964 Family Pension Scheme?' After referring to para 2511 and the judgment in the case of Ram Kumar v. Union of India, it was held as under:
It is seen that every casual labourer employed in the railway administration for six months is entitled to temporary status. Thereafter, they will be empanelled. After empanelment, they are required to be screened by the competent authority and as and when vacancies for temporary posts in the regular establishment are available, they should be appointed in the order of merit after screening. On their appointment, they are also required to put in minimum service of one year in the temporary post. In view of the above position, if any of those employees who had put in the required minimum service of one year, that too after the appointment to the temporary post, died while in service, his widow would be eligible to pension under the Family Pension Scheme, 1964. In all these cases, though some of them have been screened, yet appointments were not given since the temporary posts obviously were not available or in some cases they were not even eligible for screening because the posts become available after the death. Under these circumstances, the respondent-widows are not eligible to the family pension benefits.
Reference was also made by the Larger Bench to the case of Prabhu Narain and Ors. v. State of U.P. reported in 2004 (13) SCC 662 wherein it was held as follows:
No doubt pension is not a bounty, it is valuable right given to an employee, but in the first place it must be shown that the employee is entitled to pension under a particular rule and the Scheme as the case may be.
15. Reference was also made to the latest judgment given by the Hon'ble Supreme Court in the case of ICAR and Anr. v. Smt. Santosh reported in 2007 SCC (L&S) Vol.-I 394. In the aforesaid case, facts of the case were, respondents therein claimed family pension on the ground that her deceased husband had worked with the organization for 20 years. Tribunal held though her deceased husband Durga Lal was not holding a permanent status in service, yet respondent was entitled to the family pension and other benefits by treating him to have been regularized on the date of his death. It is relevant to note that while deciding the OA, Tribunal had relied on Railway Board's circular and Full Bench judgment in Geeta Rani Santra. The High Court dismissed the writ petition holding that since the respondent has been given compassionate appointment, there was no merit in the writ petition.
16. Hon'ble Supreme Court referred to Clause 6 of the Casual Labour (Grant of Temporary Status and Regularization) Scheme 1993 which for ready reference reads as under:
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.
17. On the basis of above, it was observed that no benefit other than those specified in scheme shall be admissible to the casual labour with temporary status. It was thus held that late Durga Lal husband of respondent was not entitled to family pension. The direction given by Tribunal for regularization was held to be contrary to the direction of Hon'ble Supreme Court in the case of Uma Devi wherein it was clearly held as under:
45. While directing that appointments, temporary or casual, be regularised or made permanent. the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
18. It was also held merely because compassionate appointment has been granted to the legal heirs of late Durga Lal, that does not improve the situation of Durga Lal nor alter his status. In view of above, directions given by Tribunal as confirmed by Hon'ble High Court, were set aside.
19. From above, it is clear that Full Bench judgment of Tribunal in Geeta Rani Santra and Railway Board''s circular did not find favour with Hon'ble Supreme Court.
20. On the basis of above judgment, the Larger Full Bench opined that a person having temporary status in the ICAR as well as the Indian Railways would stand alike. It was thus finally held as follows by the Larger Full Bench:
Legal representatives of a casual labourer may not be entitled to benefit of family pension although the deceased employee might have attained temporary status in accordance with the relevant rules. It is essential that before his death, he should have been subjected to screening, and should have been regularized in service, which only enables the legal representatives to claim the benefit of family pension.
21. Reference was also made to the circular dated 3.7.2002 issued by Railway Board, but it was specifically held that even as per the said circular, the contingency dealt with by the Board, again, point out to the essentiality of regularization before extension of benefits and even in the said circular though it talks about settlement dues, but it does not include the expression 'family pension'. It was also held that when Pension Rules are enforced directly under Article 309 of the Constitution, any administrative orders would have only limited operation.
22. In view of the judgments of Hon'ble Supreme Court and Larger Full Bench, it is now absolutely clear that there is no provision under which applicant can claim family pension because admittedly her husband was not regularised before he died unfortunately on 8.10.1995. Earlier there might have been some judgments, wherein such relief might have been given but once the matter has now, finally been concluded by the Larger Full Bench, we are bound by the same. It is relevant to note that applicant has already been given compassionate appointment, but as far as claim for family pension is concerned, we find no merit in the O.A. The same is accordingly dismissed. No costs.