Central Administrative Tribunal - Mumbai
Shahabuddin Gajaruddin Pansare vs Central Railway on 18 July, 2023
ee eae saan Le OA No.305/2022 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.305 of 2022 Mr Shaikh Shahabuddin Gajanadie n, Oce: Nil (Retired), Allas Shahabuddin Gajaruddin Pansare, Age : 85 years, Rial: Near Swami Samarth Theater, Vidya Nagar, Jejur, Tal-Purandar, Dist: Pune 412 303, (M) 9881393092, email fanpureleevan@omailcom. - + Applicant (By Advocate Shrid Mianpurs) _ 2 : Versus aa Union of India, Through the General Manager, Central Railway, Ghhatrapati Shivan Maharai Terminus, Mumbai 400004. © . . 2. _ The Divistonal Railvay | Manager, Personnel Branch, Solapur, 7 Central Railway, Solapur 413 007. - Respondents (By Advocate Shri Rishi Ashok proxy counsel for Shri B.K.Ashok) Reserved on 04.05.2023 _ Pronounced on 18.07 2023 ORDER:
Applicant has approached this. Tribunal under Section 19 of the Administrative Tribunals Act, 1985 by seeking the following reliefs:
"ia. The Hon ble inbunal be pleased fc. direct { the Respondents for passing necessary order/orders for granting the Applicant pensionary benelis afer his superannual fon en 31.05.1997, along with the arrears CA No 3058/2022
i) of the pension after the date of his superannuation with 18% interest thereon as the applicant has rendered 15 years of qualifying service for pensionary benefits. oe -
8b. The Hon'ble Tribunal be pleased to declare that 50% of the casual service rendered by the applicant from 28.01.1969 fo 31.12.1980 is lable fo reckoned for ihe purpose of pensionary benelKks.
&c. Cost of this Original Application be allowed."
2 _ Brief facts of the case are that the applicant was initially engaged as Casual Labour from 28.01.1969 and he | remained in the capacity of casual labourer from 28.01.1969 to 28.12.1985, and then he was 'brought to the temporary status with effect from 01.01.1981 in the grade of Rs.196- -
232, Thereafter, he was reguiarized as Khalas! with effect ~ from 17.05.1995. "Accordingly. his services of temporary ; status far 01.01.1981 to 17.05.1995 are to be considered for the pensionary benefits to the extent of half services Le. half (14 years 4 months and 16 days) Le. 7 years 2 months and 8 days. Further oe from regularization date Le.
17.05.1995 to 31.05.1997 (date of superannuation) ie. 2 years. and 14 days is considered as full extent for : pensionary benefits. But, as oer reply of respondent Na.2 nee He. e 3 oA No3 82082 : on 18.08.1998 (Annexure A2): the applicant has rendered :
nine Eyes two months and 22 days as a qualifying service for his. pensionary benefits. After deducting his non-
x qual ifying service of three months and 21 days, the service rendered by him as total qualifying service was arrived as 8 years 1 months and 4 i day Le. about 9 years. Hence, as Pes the reply / of respondent fh f0. 2 received by the applicant on 19. 08. 1998, as per the extant rules, 10 years of qualifying service is required for the grant 4 pensionary _ benefits and as applicant's qualifying, service iS less than 10.
years, he was denied/d isenut led for the pensionary benefits.
BT. The respondents have not replied to the application submitted by the applicant on 25.11.2019. He had also sent three reminders on 09.09.2020, 16.03.2021 and 21. 08. 2024, but, til dais applicant has not received any | reply. fram them. Therefore, a aggrieved by non-decision on his application by the esponc dents, he spprosched this ngunel by filing of {me present Original Application and . seeks direction to pass uch orders on his representation by granting pensionary benefits along with the arrears of | oy ee ee OA No.305/2022 . pension with interest by counting 15 years of qualifying | service. | | | 2.2. | Learned 'counsel for the applicant submits that he has ret ied on superannu tall ion on 34.05. 1997 Le. after
-- coming inte effect of Railway Service e (Pension) Rules, 1993 and he is entitled fo pensionary benefits as his casual
- Service from 28. ee 4969 to 01.01. 1981 to the extent af 50% has to be soredeicd. as qualifying service for the pension i. a 50% of Vt years 11. months and 3 days which comes to total of six years. Hence, the applicant's total qualifying service comes to about 15 years, which ig more than 10 years. Itis- submitted that as per the reply received from the respondent No.2 on 19.08.1998 that as per extant rules, 10 years of
-- qual Hying service is requi ired for the grant of pensionary benefits. Therefore. the seein should have been granted : pensionary benefits after his superannuation on 09.05.1997.
2.3. Learned counsel for the applicant relied on Rule a1 of Railway Services (Pension) Rules, 1993 which States that half the service paid from contingencies shall be taken
- into account for calculating 'the applicant's pensionary TA QA. No. SOS/2022 benefits as he was absorbed in the fegular employment and . ae he was initially engaged on casual basis from 28.01,1989 till 01.01.1981, his daily wages were computed on daily wages basis but t were pai aid on mo nth hly basis. Hence, was incumbent on the Railway Administ ation fo. take into | ac count 50%. of He servi ic8 on casual basis for calcula ating --
qualifying services: for ade But the ral ilway administrati ion fal led to do. $0 and ne was legs allyAwrongly denied the pensionary benefits
24. - Further, learned counsel relied on para 53(2) of the judgme my passed b oy the Hon' bie Supreme. Court in the ease > of Union of indie and others Vs. Rakesh Kumar and others, 'reported j in (200 3 SCC 388 wherein it is held that | "the casual worker be efore obtaining the temporary ' Slalus is also ¢ entitied to recon 80% ofc ausal services for the purpose of pension'. The applicant has also relied upon the order _ dated 24.10. ents passe od by the Division Bench a this Vy oy ribunal Ina group of OAs Nos. 17112007 & 4 1091/1999, in. parecranh No. 23 of the said order the Tribunal has relied upon the case of Rakesh Kumar (supra) which fs at page | & OA No.305/2022 SS ORES No.32 o the said order annexed as Annexute A-3. ae A _ Leariied counsel further submits that the said "order passed by this. Tribunal on 24.10.2019, the Tribunal - elied upon the paragraph 32 at page 37 that Rule T4 of Railway Services Pension Rules, 1893 which disentities to 'unt the appli cant's casual services stor pension is required to be read along with Rule 34 as stated above and nence on harmonious consideration, the applicant's 50% of casual | services needs to be counted for the grant of pension to Aim. 2.6. Learned counsel further submits that. the spoiane is entitled for pens! onary benefits as hi IS gual Aine Service is 15 years as per the law laid down by the Supreme | Court as well as according to para 368 at page 41 of the Tribunal's order annexed as Annexure A-3. He further States that his" case is similarly sisted with the Railway . servants of the aboveme entioned case. Therefore, he seeks 'to allow the presentOA
3. MA No.389/2022 (Condonation of delay) - 3.1. | Learned counsel fe the appli icant has also A 'MA 'No. 389/2022 for condonation of delay of filing this ? GA No.305/2022 Original Application as there is a delay of 10 months for filing the same. The reason stated in this application for condoni ing ihe delay that the respondents have nat rep ied to RIS application which he has submitted fo them on 25.1 1.2019. He was wale for the reply an his appli catlo as ney should have repli ied to his said app licati ion WHRIN six months from 25.11.2019 ie. within 25.05.2020. But he has received No reply from-them and he fled this OA before the | Tribunal an 47.08.2022. as ft was impossible to fle OA due _ to Covid-19 pandemic situation.
3.2. Learned "counsel further submits that the appli cant's case for condoning the delay is based on the Hon'ble Apex Court judgment reported in AIR 1987 SC 1353 which mentions ihe gu uidel lines for the condonation of delay also based on ATU 2003 (2) 255 in S.K.Mastan a. as per this. judgment of Hon'ble Su ipreme Court, the pensio nis payable aS when it becomes due.
3.3, Therelors, jeamed counsel for the apolicant -- prays to condone the " of 10 months of fil iling the present Original Apolication an | egal grounds and decide the said SG ©) Boe og OA No.305/2022 OA on merits.
4 On noti ice, the respondents resisted the OA by a : reply. dated 29, 03. 2023. and deried all fhe. adverse allegations and, averments raised therein and by stating that the present OA is not maintainable as the request of appli icant for grant of pension has been niohily rejected | in the -
year 4998 and this OA has been filed by the apoli icant in March, 2022 seeking relief from O97, whl ch is highly belated and liable to be sismis sed.
Ad itis submi tted. by the respondents that they had replied fo the representation of the applicant way back in the --
year 1888 and copy of the same has been annexed as Annexure A-2 of the OA, Applicant was once again advised about the same vide letter dated 21.03.2016 (Annexure R-1}.
Regarding the -allegation made by the applicant that he felnaines as dai ily rated casual labour from 1969. to 1985, it ois. submi itted that in comp iance of the Judgment of Hon'ble Supreme Court-in the case of Indra Pal Yadav, an instruction was issued by the Railway Board vide letter RBE No. 167/86 dated 11.09.1986 that casual labour who have SSS SEE completed five years of service a on 01.01.1981 will be granted temporary Status wit nn effect fram 01 (Ot. 1987. Thereafter, ne was equalized 2 as Khalasi with effect from
- 17.08.1 MEO and superannuated from railway services with effect fram 34.05.1995, Presently. the applicant is claiming -- that 100% of his services as casual labour be reckoned as Qualifying service for pensionary benefits. The applicant :
has er Bron ously come to the sonclusi ion that the temporary : ervice has to be counted for the purpose of pensionable | i efits as alleged and whi ich i is the crux of the issue in the ores sent OA, The BER cant has not produced any relevant documents except an order passed in the OA 7174/2007 wh sich is 'under chaile enge before the Hon'ble High Court of Bo mbay in Writ Petition {(S)} No.1164 of 2020. The facts of . . the said case and fac cts. of the present see are entirely ai ferent as such the val io fad down in the order fs not appl cable in the present case. The present case is in : regard to family pension to ihe legal heirs in accordance | Wi ith the relevant rules 19 OA No sos/2022
42. 'The respondents submits that the applicant was initially. engaged as casual labour from 18.01.1969 to-
48.06.1972 under AIOW/WSIPA and further from 19.06.1972 to 09.12.1980 at construction south office, Pune. As per the instruction of Railway Board letter No.E/NG/N/84/CL/41 dated 41.09.1986 (Annexure R-2) he was given temporary status with effect from 01.01.1981. The letter was issued by the Railway Board for treating casual labour as temporary as a result of judgment of the Hon'ble Supreme Court in the case of Indra Pal Yadav. Accordingly, : temporary status was granted to Aim and the same is correct. | However, for pensionary benefits only 50% of the = temporary/casual services are counted as analiiying service.
Accordingly, 50% period from 01 01,1981 to 17.08.1995 are
- considered for pensionary benefits as provided under Rule 31 of Railway Service Pension Rules, 1993.
4.3. Accordingly, the total Casual Labour service of 44 years four months and 16 days is counted as 7 years two :
months and eight days ie. half. Further period of regularization -- from 17.03.1995 to 31.05.1997 full exten Sk On aty benefits after dequding. he non- qual iy! ng Servi ce of three months and two cays. The service rendered by hiv as total que ai fying service comes {fo eight years eleven months | i. e almost about nine years. AS | per the provision of Pensic lon Rule 62(1) of Railway Service . Pens ion, 1893. minimum 40 ) years 'Service Is required for granting pens! ion. to reti ned employee. The rule i is annexed. as Annexure R-3, 44 : The respondents Submits that in terms of Rule 31 of Falvey Service Pension Rules, 1993, half the servic ces paid from contingenc les shall be taken into account . calculation of | pensi onary benefits on absorption of regular "employment, as such the said employee was brought on monthly wages from' 01.01.1981. As he has"
fendered jess than ten years of qualifying service, hence he is not lig ible for monthly pension in terms of Rule 69(1) of Pension Rules, 1993 The order of CAT is applicable for . individual and Railway Board has not issued any instructions | ont the present subject matter. The qualifying service is less.
12 OA No,303/2022 than ten years. Therefore, as per Railway Service Pension Rules, he is not eligible for pensionary benelits.
4.8. The respondents further submits that the | representation Was decided vide order dated 27.03.2016 | and to extend the period of limitation, he has filed multiple | abresentation. However, the claim of the applicant is time : | barred, Therefore, ° respondents seeks dismissal of the siesdit Original Application as it is hopelessly time barred and there is no merits in the present OA 4.6.0 - The learned sein for the respondents submits that in that case, the OA was tobe allowed, the relief s! should | be restricted to the pen iod. af three years prior to the date of : filing of the Writ Petition as has been held in the case of a Union of india é Ors. Vs. Tarsem Singh reported in (2008) 8 sce 648 '5. : dn 'eeu applicant ie filed rejoinder to the reply filed by the respondents on 29.03.2023 by denying all . 'the avermenis and contentions wade in the reply and on the | issue of maintainabilty of the present OA, applicant submits that the cause of action arose on 24.10.2019 and for this he -
SR SSE RN 13 OA No.308/2022 has also filed an application for condonation of delay therefore, this OAls pereot ¥ maintal nable.
Sol, Apol icant submits that he has nol made any allegation on the a about daily rated casual employee from 1969. to 1985, an fact, he was engaged as _ casual Jabour from 28.07.1969 to 19.12.1985 and he had superannuated from. Rallway service with: effect from
31. 05 1997 and not fom 31 01.1995, Applicant submits that iis absolutely wrong to say thal he! is presently clal aiming - 400% of his services as for ns prinsioneacy benelis. But in fact, he has claimed ahd also claiming only 50% of his service as casual labour from 28.01.1969 to OF OF.1981. As per the law laid dow wih By the Hon' bie Apex Court in the case» of Rakesh Kumar. (supra) at sub-para S3(2) of para 23 at page 32 of the said judgment which Is annexed as Annexure AS : slates thal "fhe casual worker before oblaming the Temporary status iS also entit fedforeckon 80% of casual service for the bunsose oF pension."
5.2. - Applicant f urther submits that the only document whi ich is available with him is the order passed by this is OANo. 305/20 22 Situeay on 24.10.2019 and the relief claimed by the © applicant which is identical to the facts and the law with the applicant in OA No.171/2007 and 4 0941/2009 and the crux in all the three OAs ts counting of casual service of the Railway | | sewants for pensionary benefits, which has been clearly sajudinaicd by the 'Hon' ble. Supreme Court in Rakesh Kuniar's case.
5.3. Applicant further submits that common order in OA Nos.171/2007 and 1091/1999 dated 24.10.2019 was challenged by the Railways in the Hon'ble High Court of Bombay in Writ Petition No.3551/2020 and respondents has - _ stated that the said patition is pending in the High Court but | the respondents have suppressed this material fact as the said WP had oe disposed off by the Hon'ble High Court : on 25.02.2021 (Annexure Ad) by srantag all the financial benefits in favour of the respondents.
5.4. The applicant further states that the Fesponigenits has not counted the applicant's 50% casual service from . 28.01.1969 to O14. 01. 1981, but is this is calculated by hem which is is about Six yesis "hep applicant's total qualifying as OA No.305°2022 service is about 1S years and hence, he is entitled for. pension after his superannuation. Therefore, ine present OA has merit and f deserves to be allowed,
8. Heard the le armed counsels for both sides at lendth --
and perused the pleadings a and documents filed on record.
a | Regarding the condonation of delay in filing the 'present OA, { find that the Case OF the appl cant is S$ governed by
- the iidernent af Hon'ble Supreme Court in the case of Union oF ag and Others Vs. Tarsem Singh (supra). Since there was continuous cause of action, the OA Calnoe be reelected on the ground of delay and laches Therciore, the application for a condonation of dela y is all lowed and OA Is admitted. B&B It is not in » dispute that the applicant has worked 2 wilh the respondents as a causal labourer from 28.01.1969 to 49.12.1985. ik is also nol in dispute thet he was granted temporary status with effect from 01.01.1981. Itis also not in apps that he was regularized as isla! an 47.05.1995 and q finally superannuate donot. 05. 1997. The applicar nt has made | ine presentation tp the respondents on 03.06.7998. Tha | jespondents" vide letter No. SURIP/SP/Enag/SSG/8580 dated io GA No. 305/2022 ee 19.08.1898 have rejected the claim on the ground that his"
. $érvice can be counted from 4981 and not before that. 8.1. Subsequently, the Hon'ble Supreme Court in the case of Union of Indie Vs. Rakesh Kumar and ofiers reported in (2017) 13 SCC 388 decided on 24.03.2017 as held in para 53.2 of the judgment that "the casual worker before obtaining the temporary status is also entitled to reckon 50% | of the casual service for the purposes of pension". Therefore, the ia laid dawn by the Hon'ble Supreme Court in the above
- judgment has becorne law' oF the land and many similarly siacee employees have approached various Benches of the Tribunal to grant the pensionary benefits. Similar OAS has been filed in this Tribunal also. This Tribunal in OA.
~No.471/2007 connected with OA No.2091/1999 decided on 24.10.2019 after surveying catena of judgments on the issue has held as under: - ;
NB 4 From the aforesaid if is evident that after ~ faking into. consideration the refevant Rules and instructions of the respondents, if has been consistently _ ruled by the Hon'ble Apex Court and Hon'ble High | Courts in the aforesaid cases thal the 50% of the casual:
service and 100% of the service with temporary status followed by regularizalion should be part of ihe qualifying service in counting the. pension and Vy GA No. 3052022 pensionary benefits. _ 3S. sn the cases, referred ta abave, the Han'bie High Courts and the Hon'ble Supreme Court have considered the relevant rules including the Rule 14 and Rule 37 of Rule 1993 ete and therefore they are na more feguired fo be considered any further by us. a
38. in wew of the relevant Rules and Binding precedents, we are of the considered view that the .. above OAs deserve fo be allowed and the sanie are socordingly allowed with following directions > fi} ihe respondents are directed fo count the services of their ex-employees in the aforesaid OAs rendered in the capacity of the temporary siatus til the regularization as 100% _ qualifying sendce for ine purnose of pansion and other pensionary benefits.
Gi). the respondents are further directed fo count 50% of the services of the ex-employees in the aforesaid OAs before grant of temporary Sfatus fo them as qualifying service for the purpose of pension and other pensionary benefits.
fii) fhe respondents shall pass necessary orders Keeping in wiew Ihe above at }) and (i). :
fy) in view of the above, respondents Shall also cansider aad pass necessary oder regarding claim of family pension to the legal heirs in accordance with the relevant rules.
(vy). , the applicants shall be eniilled for ihe arrears of pension, family pension as admissible under the relevant rules with interest at fate of 8% p.a. on ihe aforesaid arrears of pension and family pension, from the dates when they became due, ig OA No.305/2622 (Vv the aforesaid exercise shall be completed by the respondents within 90 days of receipt of a certified copy of this order"
8.2. -- In view of the above position of law, the service rendered by the applicant as casual labourer from 26.07.7969 fo 19.12.1985 is required to be counted and thus his total service becomes more than ten years and, therefore, he was entitled for pansionary benefits in view of the decision of the Horn'ple Supreme Court in ihe case of Union of India Vs. Rakesh Kumar (supra). Thekdtae: the OA deserves to be allowed.
8.3. The Hon'ble Supreme Court in the case of Union of India and Others Vs. Tarsem Singh (supra) vide para 5 of the judgment has held as under : . | "DS. To summarise, normally, a belafed service related claim will be refecied on the ground of delay and laches {where remedy is sought by fling @ wat petition) or iinitation {where remedy is sought by an application to the _ Administrative Tribunal). One of the exceptions to the said 'rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relef can be granted even Wf there is a long defay in seeking
-remedy, with reference to the date on which the continuing wrong commenced, if such cantinuing wrong creates a continuing source of injury But there is an exception fo the exception. if the qnevance is in respect of any arder or administrative decision which related fo or affected several others also, and if the re-ooening of the issue would affect ihe settled rights of third parties. then the claim will not be entertained. For exampls, if the issue relates to payment or 'eixation of pay or pension, rellef may be granted In spile of delay as f does not affect the rights of third parties. Bul ff ihe claim involved issues relating fo senianty or promotion eic., alfecting olfiers, delay would render the claim stale and
-- dectiine of lachesdimilation wil be applied. in so fer as the
-consequenial relief of recovery of arrears for a past period, ihe principles relating fa recurning/successive wrongs will apoly As a consequence, Aigh Courts wil! resi sie consequential relief relating to arrears normally to a period of three years prior fo the dafe of Hiing of the writ petition" at a 8, In view of ihe above judgment of the Hon'ble Apex Court, the respondents are directed to grant the pensionary Senelits to the applicant. Since the OA was filed on 17.03.2022 which was beyond the invlation period, the claim of the applicant for pensionary benefits wil be admissible from 17.03.2019. The applicant shall be entitled for the arents of pension, family pension as admissibie under the relevant rules with interest at the rate of 6% per annum for the arrears of pension bad family sension from the date of 17 03.2049.
OL the QA is allowed in fhe above terms. The respondents afe directed to implement the order within a period of 90 days from the date of receipt ofa certified copy of {his order.
No order as fo costs.
Member (A) _ Kmg"