Central Administrative Tribunal - Kolkata
Kashi Nath vs Eastern Railway on 11 May, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH
No. OA 350/587/2016
Present: Hon'ble Ms. Manjula Das, Judicial Member
KASHINATH
S/o Narrhakoo Shaw,
Aged about 73 years,
Worked as a Commission Bearer,
At Rajdhani Express, Rake No.3,
Eastern Railway, Flowrah Division,
R/o Chauri, P0 - Sikariya (Paligunj),
Dist.- Pätna, Bihar- 801110.
EHAIRO NATH
S/o Ram Alam Tibary,
Aged about 72 yeats,
Worked! as Bearer at Poorva Express,
Easterr Railway, Howrah Division,
R/o Vili - Reena, P0 - Kurhana,
Chandauli, Dis - Samastipur,
Bihar 848115.
.APPLICANTS,
VERSUS
Union.of India, through
The General Manager,
Eastern Railway,
17 N.S.Road,
Kolkata -700001.
The Chief Personnel Officer,
Eastern Railway,
17 N.S.Road,
Kolkata- 700001.
The Chief Commercial Manager (Catering)
Eastern Railway,
5 Koilaghat Street,
Kolkata - 700001.
RESPONDENTS.
For the applicant Mr.B.Chatterjee, counsel
For the respondents: Mr.A.K.Banerjee, counsel
Heard on 15.12.2017 Order on
ORDER
Per Ms.: Maniula Das, Judicial Member Being aggrieved with the speaking order dated 26.5.2015 issued by the case of the applicants were respondent No.2 whereby consideration of the under Section 19 of the acceded to, approached before this Tribunal AdministrativeTribunals Act, 1985 with the following reliefs 2 Leave may be granted to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunals (Procedure)Rules, 1987;
To quash and set aside the impugned speaking order jdated 26th May, 2015 issued by the Chief Personnel Officer, Easter,n Railway, Kolkata;
An order directing the respondents to grant pension and other post retirement benefits to the applicants as were granted in the manner granted to the applicants in OA 545 of 1999 (Na,rayan Ram & Ors, -vs- UOl & Ors.);
An order directing the respondent authority to calculate the past service for granting pension and other post retirement benefits which was rendered by the applicants;
Pas such further or other orders as to the Learned Tribunal may deem fit and proper.
1) Costs of this application to be paid by the respondents. The brief facts of the case as narrated by the ld. Coursel for the applicant is that the applicants were initially appointed as Commission Bearers in the Catering Department of Eastern Railway in 1960. On 13.12.1976 Railway Board issued a circular deciding that Commission Bearers or Vendors would be absorbed progressively in the Railway service. In 1990 the railway authorities issued a provisional seniority list of Commission Vendors/Bearers of Catering Department for screened. The applicants were screened and declared eligible and subsequently on 14.1.1994 appointment order was issued in favour of the applicants. Thereafter the applicants retired froth service on 31.10.2003 and 30.6.2003 respectively. The applicants represented before the respondent authorities for extension of the benefit of the order passed by the Tribunal in OA 545/1999 which was upheld by the Hon'ble High Court in WPCT No. 471/2006 with certain modification. The respondent authorities rejected their claim by the order dated 3.4.2012. The applicants hiade further representation before the respondent authorities and being rejected, they ' ' moved this Tribunal in OA 927/2012 which was disposed of by an order dated 19.4.2013. With the said order the applicants further represented before the respondent authorities and the same was rejected by the impugned speaking order dated 26.5.2015. Hence the applicants have approached this Tribunal in the pronont OA, By countering the averments made in the OA, the respondents filed their reply dated 12.8.2016 and stated that the applicants in the present OA were A..
13 engaged as Commission Bearer in the Comml. Catering Departnent. w.e.f. 1.3.1960. subsequently as per Railway Board's order dated they were absorbed in the Railway - Kashinath on 10.2.1994 and Bhaironath on 2.2.1994. Kashinath retired on 3 1.10.2003 and Bhaironath retired on 30.6.2003 at the. age of 60 years respectively. In accordance with the rules containe4 in Railway Board's letter circulated by CPO's Serial No. 13/91, an employee it entitled to pension after rendering of 10 years qualifying service. Kashinath and Bhaironath rendered less than 10 years of qualifying service as suh they were not entitled to pension. However, as per, rule they were giv en all kinds of settlement dues except pension. Now, after a lapse of so many yeats they have approached this Tribunal for benefit of pension.
the respondents further stated that Railway Board vide their, letter dated 6/4.5.20 15 have clarified that the judgment of Hon'ble Supreme &ourt in SLP No. 25730 of 2009 dated 14.3.2011 [WPCT No. 471/2006 & OA 545/ 1999] is only applicable to the concerned petitioner i.e. Narayan Ram & others and not to any other person.
Heard Mr.B.Chatterjee, Id. Counsel for the applicants and Mr.A.K.Banerjee, Id. Counsel appearing on behalf of the respondthts, perused the pleadings and materials placed before me and the decision relied upon.
In the case of Narayan Ram & others (supra) this Tribunal vide order dated 18.11.2005 along with analogous matters in OA 545/1999 and OA 109/2003 disposed of the said OAs in a common judgment declarjng that "For the purpose of calculation of pension the services of the said applicants on commission basis from 1.12.1983 shall bd reckoned for computing qualifying service. In case there is any shortfall of qualifying service. In that event, the service rendered before 1.12.183 shall also be taken into consideration to the extent of the shortfall. The respondents calculated the pension and other retifal benefits in respect of applicants of OA 545/99 accordingly and disbirse the same L 4 to them within four months from the date of communication of this order.
(c) So far as the applicants of OA 109/2003 are concerned, the respondents shall pay them terminal/service gratuity according to law on the basis of emolument calculated at the minimum of the revised scale of pay computing their service for the period from 1.12.83 till their attaining the age of superannuation."
6. Mr. Chatterjee, Id. Counsel for the applicant submitted that the respondent authorities of the said. OA 545/1999 being aggrieved with the order passed by this Tribunal appFpched befoie ithe Hoffble High Court vide WPCT 471/2006 where the-Hon'ble. High Court vide judgmpnt and order dated 16 1 2008 held that the judgmentd rder of this Tribunal is quiCe justified in . .
legal and factual aspects but't jt needs c?e rtajP mddifi9tion ni view of Lordship's 'V e•--
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observation.
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Therefore their
-- obscn,ationArthat
-..--• the..service penod should be
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reckoned for the purposetftompütation ofpensiontfrOm 1 12 19!4 instead of 1:12.1983; In so far as reckoning.of servicerenderçd prior to 4L.412. 1i984 in the capacity of Commissiort Bearrs/Venkdors/Agents, as directed by the learned Tribunal, is concejn&d'.thè se ankibt be...taken into consideration because the aforsaidrii le has been drawn4r6T6e anthpgy derived from the Rules providing 'teckoniñg-of service during.casua titpl9tme?t. Thereafter the Railway authority approached Hon'ble Apex Court vide SLP25730/09 and the same was dismissed byihe Hon'ble Supreme Court in the year 2011.
It was vehemently argued. by Mr.chttedee, Id. Counsel appearing on behalf of the applicant that the applicants are similarly situated with the above applicants of OA 545/1999 and OA 109/2003 where the identical issue has already been settled by the judicial pronouncement, thus the present applicants cannot be discriminated by way of rejecting their case vide impugned speaking order.
As such the impugned order dated 26.5.2015 is not sustainable under the law and the benefits be given to the applicants as given to the applicants in OA 545/99.
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7. By countering the arguments advanced by Mr.Chatterjee, Id. Counsel for the applicant, Mr.A.K.Banerjee, Id. Counsel for the respondents submitted the following The present OA is barred by limitation The present applicants have retired on 30.10.2003 and 30.6.2003 and after long years of retirement they have approached before this Tribunal. The decision rendered in OA 545/1999 is not in rem but personem and as such the applicants are not entitled to get the benefit as extended to the applicants of OA 545/1999.
k Mr.Banerjee, Id. CoUneP. for, -the respondents submitted that the speaking order is psped rightly and there is not sudli discrimination and as such the OA is hatl'e to be disedT I
8. Mr.Chatterjee Id. ,Counsel .iorcthe applicant, fosubstantiite his case on I Nc S¼t/ ...., / the point of limitationin terMadf*rtplTfrelie thOh theJdecision Of ion'ble Apex H -
Court whichis as heréiinder- .
1 . ...
. 4C.thl.itha [2006 SCC (L&S) 4471
State of KátnatakW&O s- -. 4r
M.R.Gupta-ws- IJOl&Ors[V995 8CC (148) 12731 - Inder Pal ?adav & Ors UOl & Os 11985 8CC (S)526] K.C:Shartha&iJts. -vs- UO1 & Ors. [}99OSCC (L&S) 22] He further ubthitted'that the point of,-limitati.bri enot 1 ise as the applicants prayed for, grant of benefit of judgment passed by the Hon'ble High Court in WPCT 471/2016 *h-ich has been conferred by theHon'ble Apex Court. Moreover, the applicant has thalienged the speakmg order within the limitation period as per the Administrative Tribunals Act, 1985.
9. For coming to a logical conclusion! am in hand of the case of the present applicants, where the applicants initially were appointed as Commission bearers in the Catering Departthent of Eastern Railway. Admittedly the applicants were engaged as Commission Bearer in the Comml. Catering Department w.e.f. 1.3.1960. Railway Board issued a Circular No.76 TO 111/639 / 11 dated 13.12.1976 where it was decided that the persons working as Commission Bearer or Vendors would be absorbed progressively in the [1 Railway service. As the concerned Railway Division did not comply with their own circular the aggrieved employee filed two writ petitions in the year 1982
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before Hon'ble Supreme Court vide WP No. 6804-05/83 (Shital Singh & Anr. vs- UOl & Ors.) claiming that the Commission Bearers and Vendors should be absorbed on permanent basis in Railway service as early as possible. Even though such order was issued by the Hon'ble Supreme Court in 1983 and 0 withstanding the Railway Board's circular as referred to above issued in 1976, the present applicants who were working under Eastern Railway were not absorbed in due time.
equefltl3i1 r9g04h&:Ebsten Railway authorities issued a However, subs of Commission VendoW/BçarerQ,. of Catering provisional seniori4t.. tist et3c~screei and declkred eligible Department for 'dening. T.h ?c \ \ I '')\ in 1990 buLth'ey were aetually absorbed in the Railway serviè in 1994 and ' a(d 30.6.2003 r ctivèly and retired from Railway sei'bt31A10h9031 rvice.s such adm ittedlythey havethotcOmPleS the uà1ifying$0Year5 of se .
1.ke-
they have rendered 9 years few months aRailwy employees afteabsotPU0n.
r Ascper. Railway Boàrd1s iettercirculatd by dpo's serial N& 13j91 an r gcnng i0years qualifying/service employee is entitled Admittedly the app}icantha4 not completed 10$iekrsbf qualifying service as a years few relar employee hfiet absr.pion. They haye completed dnly months.
In the case of OA a45.hA99 the applants wer,iflitially appointed as
10. commission bearers in CaeNng.DePrtn t .of.Eatern Railway in 1958, 1959 and 1960. Hon'ble Supreme Court in case of Shital Singh & Ors (supra) vide order dated 13.12.1983 disposed of the Writ Petitions filed by the applicants being aggrieved for nonabsorpti0n in the Railways. In pursuance of the circular No. 76 TO 111/639/11 dated 13.12.1976 where Hon'ble Supreme Court vide order dated 1983 disposed of the said Writ Petitions on the basis of Railway Board's circular No.76 TO 111/639/11 dated 13.12.1976 observing that commission bearers and vendors on permanent basis in Railway service as early as possible. Even though such order was issued by the Hon'ble Supreme p 7 Court on 13.12.1983 and despite the order of the Railway Board issued in 1976, the present applicants who were working under Eastern Railway were not absorbed in due time. Ultimately in 1990 the Eastern Railway authorities issued a provisional seniority list of Commission Vendors/Bearers of Catering Department for Screening. The name of the applicants in CA 545/1999 figured in the list after screening and they were eligible in 1990 but actually absorbed in Railway service in 1993-1994. The said applicants retired in 1998/2000 and thereafter on attaining the age of 58 or 60 years. The said applicants rendered only 5-7 yars as regular Railway employees after absorption, whereas the ii'tht. instant CA have rendered 4 \_•'..
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more than 9 years •4 Of regular service. The saidVapplicahts also made :.
/ representations bëfOre the Railway, authoritieé;unlike the present. applicants t/ but the respondents did not xpay heed to rAhern,grievance's Having no
-' alternative, the saidapplicnts'4p?oa6htd ifefore : hls t Tribüal vide OA 545/1999...My the respondents so tha
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a diréiion to the 1 like gratuity etc. by .4"
treating their entin so thatthey thay be
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allowed to Work as asis by quasiing the
order dated 17.1.200a:
11. By a subsequent. orddtkdated 17.1.2003the Railway .authofity clarified that Commission Béarers/ Vendors who had crossed the age oL60 years cannot .€ ' be permitted to work and ther.after their licensc.shbuld betermin4ted.
The respondents therein, çontested the- ..ase inter alia since the applicants had already reached 60 years of age they could not be permitted to work as Commission bearers/vendors on commission basis as per rules and this was reiterated in the aforesaid order and hence the applicants cannot claim to work on commission basis beyond the age of 60 years. So far as service gratuity is concerned, it is stated that since the applicants were not absorbed, therefore they were not railway employees and hence they could not be paid any gratuity under law.
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12. The two issues raised before this Tribunal vide the said OA 545/1999 and OA 109/2003 are -
Whether those Commission Vendors/Bearers who were absorbed in the railway service and retired prior to rendering ten years of qualifying service, can be granted pension and other retiral benefits?
Whether those Commission Vendors/Bearers who could not be absorbed because of their attaining the age limit of 58/60 years, can be granted service gratuity?
13. After discussing in details, this Tribunal in OA 545/1999 rendered the decision which reads as hereunder:
a) Let it be declared that in respect of the commission bearers/vendors who have &en absorbed in railway service, for the purpose service on commission basis frermt i2,'83 shall be reck6fre4if9r cothputing qualifying serviceAi case there is any shortfall of 4iali.frinjservice, in that event, the service Icendered4before
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1.12.83 shall also be taken into consideration tothç'exentof the sliorçfall.
b) The responder'6 calculated the pnon and other retiral benefits in respect of ap1icants f ÔM5 5 /199 a'c?ordrngly and disburse the same to theth'withih fou'r M$nthsfrom4he. date of cómmtnication of this order, A4..
c) So far ast the apphCantsof*PAit9/203 are concerntd, the respondetrshalitpay thefn .terminaltserviFe gratuiIaccoring to law on they basisoflmolürntht.èà1culatedYàt theminimumof the 7 revised scale of jay coftiputiñ. their seiiice for theperiod from P1.12.83 til!•helattain tl'kgçfZip,et,annuatiOn.4The pa7yment 'be made within fd'ur thohtlks Tron the. date f communiStion4of this If ". )
-order.
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The issueraised b. the'
, -A
.... .: ..- he in-stant OA isthat the
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present applicants ,are similarly situated with -the above applicants in OA 545/1999 and OkJO/20O3 aThthe4ssué involved is idehtical?and as such Y claiming for similar bgnefits, thèlprsent applicantswere inifially appointed s Commission Bearers in the Cat& gDepaffment of .Eâ;tern Railway in 1960. Thereafter on screening they got their place for absorption w.e.f. 14.1.1994. Accordingly appointment orders were issued. However they were retired before completion of 10 years for which reason, the cases of the applicants were rejected for giving the benefits. The, applicant approached this Tribunal in OA 927/2012 and in view of the order passed by this Tribunal in OA 927/2012, the respondent authorities passed a speaking order by rejecting their claim stating that the case referred to in OA 545/1999 and OA 109/2003 went upto Hon'ble Supreme Court and the benefit given there was in rem and not in I] personem. As such in view of the above principle the applicants were regretted by the respondent authorities from giving the same benefit.
The applicants have given a clear picture so as to come to a final conclusion as regards similarly circumstanced issue. I explored in details the two sets of cases where it appears that so far as the facts of the cases are concerned, both are similarly circumstanced. The scheme of the Railways provided for eligibility criteria for being benefitted for pension after 10 years continuous regular service or from their date of absorption. The applicants in OA 545/1999 were initially appointed in 1958, 1959 and 1960, they were absorbed in the Railway sthieiñ 1193-94 and ¶%.were retired in 1998-2000. Apparently the said ai5picants did not complete theii 1.0 years continuous
-t service They were ineligib1eiiewkf the -heme of the Railways which
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provided for ehgibility of 110 yearsofl continuous-regular service. 'ThisTnbunal vi\ if 4c4• in OA 545/1999 as discussed in the foregoing paragraphs, has already granted
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the benefits by directmgthrrespondent authorthes'to calculate 4eir pension and other retiral benefits and ad'Eotdingly idisbursc the same Next, I am coming to the case of the present applicants' They were C -
initially appointed as Cothmission Bearer& in th Catering Department of Eastern Railway in, 19E0,. Wêre absorbed in the Rai1iy -service in 4994 and retired from Railway servic&1n2003. Admitted-if they'tiäve not cdmpleted 10 years of service but rendered 9 years few months as Railway employees after absorption. If! take note of the relied upon case .of- Inderpal Yadav & Ors. --vs- Union of India & Ors. [19854CC(L&S) 526]-rwhere Hon'ble Apex Court has held that "those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hand of this court", the similar benefits also have to be given to the present applicants in view of the ratio laid down in the case of Inderpal Yadav (supra).
The respondent authorities have raised the point of limitation. In the case of M.R.Gupta --vs- Union of India & Ors. [1995 SCC (L&S) 12731, Hon'ble Apex Court has held that "the application to the 10 extent of proper pay fixation is not time barred, although the claim of consequential arrears would be subject to law of limitation." The present applicants although did not agitate in time before this Tribunal, however, similarly circumstanced employees have already agitated since 2005 and their matter attained finality only in the year 2011. Immediately the applicants made representations before the authorities on 1.3.2012 for awarding the similar benefits to them as given to the applicants in OA 545/1999. The benefit claimed by the applicants is mainly for the pension which involves calculation on the basis of the pay of the applicants: Therefore it is a recurring cause of action and! turn down thepld takEnby the Id. counsel for the respondents so far as the point of linlitation is concerned.
In the casef K.C.ShatF&órs.-fá.UfliOfl of India..&Qrs. [1990 SCC (L&S) 2261 Honble/ApeCourthds held'tha( C:
N. V. "However, vwhen (heCepfra1/.dministrative Tribunal (Full.Bench) in another case declFed4h notificonñilid'by its juldkipent dated 16 12 1993, the 'appellarits&aimedtronrthrRaiways, the Ienefiç of the judgment and when _thrbehefit was ,not extended to theq, they filed application in thrTribui4lu1nhkpI7ill994 - htd; the delay4-xn fihihg the application shotild'have r bëeh ; 6oñdoned tby the Tribunal and the appellants given lief4n ,fhe sàne terms aswas granted-thy the Full a a Bench: of the TribunaL • •:
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17 From the factual apeQts 'bfthe :pfeent case, it isclear that the present
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applicants are similarly situtted with the appliots4n OA 545/199§ and OA 109/2003 and in vis:of thera;io laid down in-the cassof Inde?al Yadav & Ors. -vs- Union of India & Ors. (s-iifrà), I am of the view thatthe applicants have made out a good case to entertain- the matter and after--faking note of the entire conspectus of the cas6and.inyiew.of the above4ätio laid down by the Hon'ble Apex Court, I disposeof1thç OA by dir.ectthg the respondent authorities to extend the similar benefit as has been granted to the applicants in OA 545/1999 and OA 109/2003.
18. With the above observation and direction the OA stands disposed of. No order as to costs.
C (MANJULA DAS) JUDICIAL MEMBER in